Court of Appeals reinstates excessive force verdict in Taser case

The plaintiff in this case went to trial on his excessive force case against the police, who tased him twice in the course of trying to arrest him. Plaintiff won the trial, and the jury awarded him $30,000 in punitive damages. But the trial judge struck the verdict, ruling the officer had qualified immunity in the belief that the plaintiff was still resisting after the first tasing, necessitating the second blitz with the Taser gun. The Court of Appeals reinstates the verdict and finds the officer did not have qualified immunity because the jury found that plaintiff was not resisting arrest after the first tasing.

The case is Jones v. Treubig, issued on June 26. Qualified immunity means the police cannot be sued if they are not violating clearly-established case law at the time of the incident. The Court of Appeals finds that it was clearly-established in the Second Circuit in 2015 (when this episode took place) that officers cannot tase or pepper spray someone who is complying with police demands, poses no immediate threat to the police, or is not resisting arrest. The Court of Appeals has ruled this way in pepper spray cases, and it finds the logic in those cases applies to Tasers. So this is the first time the Second Circuit squarely holds that a Taser cannot be used except in special circumstances.

The problem is that the district court, post trial, determined that the plaintiff had conceded at trial that he was resisting arrest after the first tasing. That was actually not the case. The trial court got it wrong. The jury found that plaintiff was not resisting at this time. If plaintiff did make such a concession, then the police would have qualified immunity because the case law has never held that a police cannot cannot use a Taser when someone resists arrest. While plaintiff "was pushing himself off the ground at the time of the first tasing," the Court of Appeals (Bianco, Cabranes and Reiss [D.J.]) says, prior to the second tasing, "he was already subdued face down, arms spread," and on the ground. In that circumstance, there was no need to blitz the plaintiff.

When the jury returned its verdict, it answered a few questions that the trial court posed to it about the state of the officer's knowledge at the time of the incident. The jury said that while plaintiff was not resisting arrest, the officer believed he was. Is that enough for qualified immunity to attach? No, says the Court of Appeals, because qualified immunity only protects reasonable factual mistakes on the part of the police officer, not any mistake in fact. The jury was not asked if the officer's belief about plaintiff's resistance was reasonable when the officer activated the Taser.

The officer tries to win the appeal by arguing that the Taser blasts took place in rapid succession and he deserves the benefit of the doubt when he must act quickly. But the Court of Appeals says the jury was able to find the officer actually had time to think about tasing the plaintiff before he did so a second time. And the officer kind of admitted at trial that after the first use of the Taser (which lasts five seconds), he "reassessed the situation" and then tased the plaintiff again. Since it is clearly established law that the reasonableness of the amount of force is determined "at the moment" the force is used. "Thus, any reasonable officer would have understood in April 2015 that, if he or she has an opportunity to re-assess a situation after firing a taser, any additional force (such as re-cycling the taser) must be justified under the Fourth Amendment based upon the totality of the circumstances that existed at the time of the re-assessment."

Finally, the officer argued that he had to tase the plaintiff again because he needed to handcuff him. But the Court of Appeals rejects that argument, holding that "there was more than sufficient evidence for a rational jury to conclude that he was no longer resisting arrest after the first tasing or posing an ongoing threat to the safety of the officers or others. Thus, any belief by [defendant] that the second tasing was necessary to effectuate handcuffing Jones was unreasonable," particularly since Jones was face down on the ground with his arms spread after the first tasing.

Federal court strkes down New York State religious shutdown order

A federal judge in Albany has ruled that the New York State's prohibition against certain religious gatherings during the Covid-19 pandemic violate the Free Exercise clause of the First Amendment, which protects religious freedom.

The case is Rev. Stoos v. Cuomo, issued by Judge Sharpe of the Northern District of New York. Under the most recent public gathering orders issued by the Governor, houses of worship must operate at 25 percent indoor capacity during Phases 2 and 3. No secular, non-religious entity, must adhere to a 25 percent restriction (except for those entities that remain closed). Offices and certain retail stores were permitted to open at 50 percent capacity during Phase 2, and restaurants in Phase 3 locations can open at 50 percent capacity indoors. As Judge Sharpe sees it, the 25 percent indoor capacity limitation for houses of worship is under-inclusive. Starting on June 26, in-person graduation ceremonies can have no more than 150 people. In layperson's terms, the 25 percent restriction is narrower than that afforded to non-religious entities.This means the state must advance a compelling reason for the distinction.

The Court holds the state cannot justify the distinction. The public gatherings at issue here, including the religious and non-religious gatherings, are not significantly different from each other to justify the disparate percentages. Judge Sharpe also deems it relevant that New York City Mayor de Blasio has actively encouraged the mass protests over the death of George Floyd and systemic racism in general in recent weeks, and he has "openly discouraged religious gatherings and threatened religious worshipers with arrest if they did not adhere to the guidelines. The Governor has also sent a "clear message that mass protests are deserving of preferential treatment."

The Free Exercise Clause claim is therefore likely to succeed. This ruling is a preliminary injunction, in which the court enjoins the government from enforcing its restrictions until the case is finally resolved. "Appropriate injunctive relief here is a restraint on defendants from enforcement of any indoor gathering limitations against plaintiffs greater than imposed for Phase 2 industries and restraint from enforcement of any limitation for outdoor gatherings against plaintiffs."

Inmate may proceed with claim alleging the denial of his right to exercise

The Court of Appeals has reinstated an Eighth Amendment lawsuit filed by an inmate who alleges that the jail denied him exercise opportunities because they decided against clearing the outside recreational areas of snow and ice during the winter months.

The case is McCray v. Lee, issued on June 18. Plaintiff filed this case pro se. He says the jail's policy of not clearing the snow and ice meant he could not undertake any outside exercise for four months, and that jail officials were deliberately indifferent to his right to exercise. There is such a right, by the way. While the very capable district court judge dismissed this case for failure to state a claim under Rule 12(b)(6), the Court of Appeals (Kearse, Bianco and Katzmann) says the plaintiff is entitled to discovery on this issue because the complaint does not suggest the jail had any legitimate penological reasons to refuse to clear the yards of ice and snow "for an entire third of a year."

The state, of course, raises the qualified immunity defense. Under that form of immunity, the defendants cannot be sued if the plaintiff fails to allege they violated clearly-established case law set down by the Second Circuit or the Supreme Court. The district court agreed with that argument holding that no case had previously held that inmates had the right to exercise in a prison yard "without naturally accumulating ice or snow during winter months." That may be true, but that frames the qualified immunity inquiry too narrowly. The Second Circuit holds that "the right need not be described with specific references to the weather or characteristics of the seasons of the year in order for a reasonable prison official to understand that climatic features may necessitate responsible measures to ensure that the right to a meaningful opportunity for physical exercise not be denied." The proper question, according to the Court of Appeals, is whether prisoners have "some opportunity for exercise." The Court cites cases dating to 1985 for that proposition. So plaintiff's right was in fact clearly established.

The Circuit has not published an Eighth Amendment right to exercise case in years. This case provides a template for inmates who want to pursue these claims. In the process of handling a case like this myself, I can say these cases are common in Connecticut in particular, though they do not involve snow and ice. It may surprise you that the right to exercise is protected under the Constitution. While the Constitution says nothing about prison exercise, it is considered one of life's necessities, and it cannot be denied with a good reason. For now, without the benefit of discovery, plaintiff alleges that jail officials knew about the denial of his exercise but were deliberately indifferent to that denial. While you might think the right to exercise can be corrected by allowing the plaintiff to exercise in his cell, the decision does not make reference to that at all. Perhaps the Court of Appeals believes that outdoor exercise is critical under the Eighth Amendment.

For you civil procedure wizards out there, this case has an interesting pit stop about the relevant documents to draw from in determining whether the plaintiff has a plausible claim under Rule 12. Plaintiff amended his complaint, the document which the Second Circuit reviewed on this appeal. But the state argued that the initial complaint in this case had admissions that worked against plaintiff's position. The Court of Appeals says those prior admissions may be useful in attacking plaintiff's credibility later in the case, but they cannot be relevant in determining if the amended complaint states a claim. The Circuit cites two cases, Dangler v. Off-Track Betting, 193 F.3d 130 (2d Cir. 1999), and Chambers v. Time Warner, 282 F.3d 147 (2d Cir. 2002).

Jury deliberations were infected with inadmissible evidence

What can go wrong at trial? Quite a bit, actually. This case is a good example of what happens when people are not paying attention. The jury was able to review evidence during deliberations that was not even admitted at trial. In the end the plaintiff loses and gets nothing.

The case is Zhang v. Zhang, a summary order issued on June 3. This case was brought under the Fair Labor Standards Act and the New York Labor Law, alleging overtime pay violations. This case went to trial, and the jury found that Defendant Zhang was plaintiff's employer; that was a disputed issue at trial. Plaintiff was awarded more than $200,000 in damages. All was good for the plaintiff. Until the bottom fell through.

Here is what happened. After the jury was excused, the district court found a binder of sworn deposition testimony in the jury room. That testimony was never admitted at trial. Some of the testimony was highlighted and had handwritten notes pertaining to the losing defendant's status as an employer. Somehow this material made it into the deliberation room. The district court determined that the depositions transcripts got that far because plaintiff's counsel had given them to the courtroom deputy for the jury's review. How that happened, I do not know. But it happened, and the trial court decided that this inappropriate evidence influenced the jury's verdict on employer liability. A new trial was ordered.

At the second trial, the plaintiff lost on the same issue on which he prevailed at the first trial, employer liability.

The Court of Appeals rejects plaintiff's claim that the district court has improperly ordered a new trial, finding the trial court did not abuse its discretion in doing so. The deposition evidence was directly relevant to the defendant's status as an employer, and of course the conduct of plaintiff's conduct in giving the courtroom deputy this evidence for the jury deliberations was "egregious." At oral argument in the Second Circuit, plaintiff's counsel said it was all a mistake, and to his credit, he opened his argument with a mea culpa. But that does not mean the Court of Appeals has to give him and his client a second chance. The case is over.

Court of Appeals revives Section 1983 wrongful death claim

This might be the Second Circuit's police misconduct case of the year. The Court of Appeals reinstates a wrongful death lawsuit where a mentally-ill elderly man died in police custody after they broke into his home on an accidental medical alert.

The case is Chamberlain v. City of White Plains, issued on May 29, more than two years after the Court of Appeals heard oral argument. The decedent accidentally hit the medical alert button, which sent approximately one dozen police officers and medical emergency workers to his apartment. The Complaint alleges, however, that when he police arrived at the home, they learned from the dispatcher that Chamberlain had accident hit the life-alert button. Chamberlain also told the police that it was all accident, and that there was nothing wrong with him. But the police persisted on banging on the door and eventually forced their way inside the house without Chamberlain's consent. This made Chamberlain even more agitated, once he saw the guns and weaponry, suffering flashbacks from his military service. Really, at this point, things were getting pretty ugly, and the Court of Appeals (Hall and Sack) notes that the audio recording of this episode "add a dimension to these proceedings that we doubt even a verbatim transcript alone would provide." It must have been quite a scene. After the hour-long standoff, once the police entered the apartment, they deployed their weapons, Tased him and fired beanbag shots before firing their handgun. One of the bullets killed Chamberlain.

While the district court dismissed the unlawful entry claim, that claim is revived on appeal. The police had no warrant, and they entered the abode without the victim's consent. While the police can enter without a warrant in extraordinary circumstances (such as when someone's life is at stake), the complaint does not establish they satisfied that high burden, as it took more than an hour to enter the apartment before they tore the door off the hinges and fatally shot him. The Court says a reasonable, experienced officer would not have believed there was probable cause that Chamberlain needed urgent medical attention, especially since they knew the life-alert had been activated accidentally. And, when they entered the apartment, they did so not with a gurney or paramedics but with a Taser and other weapons. The district court drew an improper inference in finding the plaintiffs have no claim, in part, because Chamberlain was not mentally capable of providing adequate assurances of his own medical needs. 

Nor do the police get qualified immunity on the face of the complaint. It was clearly established at the time that you cannot enter a private dwelling without exigent circumstances, and cases had already held that an uncorroborated 911 call reporting that a mentally ill person is in distress is not enough to believe there is a medical emergency. This claim therefore proceeds to discovery.

Some of the claims did proceed to discovery, but the district court dismissed them on summary judgment, including an excessive force claim against Officer Martin, who deployed beanbag shots at Chamberlain. Now that the Court of Appeals has ruled that the search may have been illegal, the district court must again whether Martin's use of force complied with the Fourth Amendment in light of the totality of the circumstances, which includes the warrantless entry ruling. Same holds true on the supervisory liability claims that were dismissed on summary judgment.

Supreme Court holds that LGBTQ discrimination violates federal law

The Supreme Court has ruled that discrimination against gays, lesbians, and transgender people is a form of gender discrimination prohibited under Title VII of the Civil Rights Act of 1964. The 6-3 ruling is notable in its bi-partisan majority, with two Republican-appointed Justices voting with the Court's four liberals.

The case is Bostock v. Clayton County, issued on June 15. This was three cases in one. The other two were Zarda v. Altitude Express out of the Second Circuit and R.G. v. Harris Funeral Home, from the Sixth Circuit. I was on the Zarda legal team along with Gregory Antollino, Esq., who initially filed the case, the ACLU, which joined the case at the Supreme Court, and law professors and veteran Supreme Court advocates Pamela Karlen, Esq. and David Cole, Esq., who argued for the plaintiffs at the Supreme Court in October 2020.

The case really presented a statutory construction dilemma. While Congress in enacting the 1964 law was probably not thinking of LGBTQ issues, plaintiffs advanced a logical basis why this form of discrimination is actually gender discrimination. If we apply the statute as it reads, and set aside legislative intent, then the plaintiffs win. If we consider what Congress had in mind 56 years ago, then plaintiffs probably lose. Writing for the majority, Justice Gorsuch interprets the statute in a purely "textualist" way, taking the language where he finds it and holding that, whatever Congress had intended way back yonder, discrimination on the basis of sexual orientation and transgender status is still gender discrimination.

How did the majority get there? Justice Gorsuch turns it into a simple inquiry, concluding, "An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids." Put another way, let's say John is dating Frank, and Linda is dating Tom. John and Linda both come into work late one day. Management is unhappy with their unprofessionalism, but only John is fired. And, by the way, management makes a homophobic comment to John on the day that John is fired. If John were Josephine, he would not have been fired. What made the difference in John's termination was his gender. A female who dated Frank would not have been fired. As the majority puts it, "If an employer intentionally relies in part on an individual employee's sex when deciding to discharge the employee -- put differently, if changing the employee's sex would have yielded a different choice by the employer -- a statutory violation has occurred." Viewing it from this angle, Justice Gorsuch says, "it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex." Gender is so closely aligned with sexual orientation that adverse decisions based on sexual preference or transgender status cannot be separated from the employee's gender.

The majority then addresses the employer's arguments. While the employers note that employees who were fired because of their sexual orientation normally do not tell people in casual conversation that they were fired because of their gender, that does not matter, Justice Gorsuch says. What matters is how that adverse decision holds up against the statutory language that prohibits gender discrimination.

The employers and (Justices in dissent) also note that prior attempts to change the statute to prohib this form of discrimination have failed. While Congress over the years has considered but rejected amendments to Title VII to explicitly prohibit discrimination based on sexual orientation, we cannot read too much into that, the majority says, because legislative amendments may fail for any number of reasons, and the whole exercise in divining why such amendments fail is too speculative, even "dangerous." What matters is what the statute says, and the Court is willing to accept that some statutory amendments failed even if they were not technically necessary because a plain reading of the statute already addressed the issue, which is happened in this case. While legislative intent may be relevant when the terms of a statute are ambiguous, that is not the case when the terms of the statute are clear. Since the six-Justice majority finds the terms of the statute are clear, it does not matter what Congress had in mind in 1964 when it made gender discrimination illegal. Consider sexual harassment. That phrase did not even exist in 1964. But in 1986, the Supreme Court said that such harassment is a form of gender discrimination regardless of what anyone thought when the statute was enacted.

Justices Alito, Thomas and Kavanaugh dissent. Justice Alito files a lengthy dissent, accusing the majority of arrogantly concluding that courts had gotten this issue wrong for 50 years before enlightened minds determined that this form of discrimination is actually gender discrimination. He also does not buy the argument that discrimination on the basis of sexual orientation necessarily takes into account the employee's gender. Justice Kavanaugh applauds the outcome of the majority's ruling, noting that gays and lesbians have persevered over the years against steep odds. But he also says the majority's ruling violated the separation of powers and that only Congress can change the meaning of "gender discrimination" under the statute.

This ruling is a landmark not only for LGBTQ rights but in the interpretation of statutes. The "textualist" interpretation method has commanded a clear majority on the Supreme Court. The Court also provides extensive language about proving discrimination under the "but for" theory, noting among other things that unlawful discrimination must have been the true cause of the termination, even if we have multiple "but for" causes for the adverse decision.

I saw the oral argument in this case, sitting with the legal team that represented Donald Zarda, Gerald Bostock and Aimee Stephens. I wrote about the argument at this link. It was an intense two hours. There is much speculation in watching oral argument. Which judges are asking the questions, what are the questions hinting at, who's with us and who's against us? The Justices try to play their cards close to their vest, which is why guessing the outcome of a case based on oral argument is tricky and sometimes a waste of mental resources. There was an overriding concern: five of the nine Justices are conservatives appointed by Republican presidents. But we also thought the arguments went well and our positions were logical. Justice Alito did tell the plaintiffs' side that he did not agree with them, and Justice Thomas did not ask any questions, as per his style. But when we all filed out of the Supreme Court building that day, there was a sense of optimism. Justice Gorsuch seemed to understand the plaintiff's position, and Chief Justice John Roberts did not smack around the plaintiffs' lawyers. We gathered on the concourse outside the building thinking we might actually win and that, at a minimum, we were still in the ball game. One issue that sticks out for me is that President Obama's choice to replace conservative icon Antonin Scalia was filibustered by the Republican Senate in 2016, allowing the current president to replace Scalia with another conservative, Neil Gorsuch. In the ends, at least for this case, that did not matter. It was Gorsuch who ultimately wrote the majority opinion.

Religious headwear case prevails in the Second Circuit

This Jewish inmate wore at Tsalot-Kob, a religious headwear, because his yarmulke did not fit over his dreadlocks. But a prison directive said that only Rastafarians could wear Tsalot-Kobs. This meant that plaintiff could not wear his. Plaintiff sued the prison under the Religious Land Use and Institutionalized Persons Act, as well as the First Amendment's Free Exercise Clause. The district court said the defendants were entitled to qualified immunity, and the case was dismissed. The Court of Appeals rules in favor of the plaintiff.

The case is Barnes v. Fedele, a summary order issued on May 29. This case reached the Second Circuit a few years ago. Back then, it reinstated the case after the district court had dismissed it, and the appellate court directed the district court to deal with the qualified immunity inquiry. This immunity allows the defendants to avoid suit if they did not violate clearly established case law in violating the plaintiff's rights.

Back in the district court, several prison officials signed affidavits explaining why they enforced the policy as they did, basically saying that they believed religious head coverings could be used to hide contraband, drugs or weapons. Allowing Rastafarians only to wear the head coverings meant that jail officials had fewer searches to conduct. No one submitted any sworn statements about the legitimate penological interests that would justify this directive. The trial court dismissed the case.

The Court of Appeals (Sack, Wesley and Chin) notes that qualified immunity protects state defendants from litigation if the law was not clearly established at the time of the violation. But the law guiding this case was clearly established in that courts have already held that prisons may abridge freedoms if the directives are reasonably related to legitimate penological objectives. Also, courts have held that visual body cavity inspections can be conducted in jail even without probable cause to ensure that no one is smuggling contraband.

The officers who applied the policy get qualified immunity because that immunity protects people who enforce even illegal policies. But the man responsible for the policy, Nuttall, does not get qualified immunity. He is liable because the cases have long held that "prison officials may only abridge a prisoner's free exercise rights if doing so is reasonably related to some legitimate penological interests." That derives from Ford v. McGinnis, 352 F.3d 582 (2d Cir. 2003). While this defendant says that issue statement is too broad for qualified immunity purposes, and that it therefore ignores Supreme Court authority requiring narrow issue statements for immunity purposes, the Second Circuit does not see it that way. The problem for Nuttall is that he did not submit an affidavit explaining his rationale for the policy. Why Nuttall did not submit an affidavit, I know not. For that reason, he cannot get summary judgment on qualified immunity grounds.

Circuit awards harassment plaintiff $400,000 in compensatory and punitive damages

The Court of Appeals holds that, while the plaintiff suffered a hostile work environment, the jury's damages award, in excess of $2 million, was excessive. Instead, he is entitled to $250,000. But the Court also holds that the punitive damages award, $150,000, was proper in light of the outrageous harassment the plaintiff suffered.

The case is Sooroojballie v. Port Authority of New York and New Jersey, a summary order issued on June 4. I wrote about the liability portion of the Second Circuit's decision at this link. Now it's time for the damages portion. I briefed the appeal, which was argued by Marjorie Mesidor, Esq., who tried the case.

While we leave it to juries to calculate damages for pain and suffering, the Court of Appeals "is required to police closely the size of awards rendered in the trial courts," and the legal standard is whether the award "shocks the conscience." The Court ultimately will look to similar cases to see if the jury's amount was too high. The Court of Appeals applies a three-part formula in making these adjustments:

In assessing whether a jury award for compensatory damages is excessive, courts in the Second Circuit have routinely identified three categories of damages for emotional distress: (1) garden variety; (2) significant; and (3) egregious: 

In garden-variety claims, the evidence of emotional harm is limited to the plaintiff’s testimony, which describes his or her injuries in vague or conclusory terms, and fails to relate the severity or consequences of the injury. These claims typically lack extraordinary circumstances and are not supported by medical testimony. Significant emotional distress claims are based on more substantial harm or offensive conduct and may be supported by medical testimony, evidence of treatment by a healthcare professional, and testimony from other witnesses. Egregious emotional distress claims yield the highest awards and are warranted only where the employer’s conduct was outrageous and shocking or affected the physical health of the plaintiff.

Plaintiff's damages in this case were "significant" because the racial harassment caused him to suffer anxiety, insomnia, depression for which he was prescribed medication, strained family relations and excessive drinking. He attended 14 counseling sessions with a social worker and continued that therapy after he left Port Authority. "Significant" emotional distress cases are usually valued at $50,000 to $200,000, though some cases provide for more than that. This ruling cites some recent cases in this area. "Given the evidence in this case and our survey of comparable cases, we conclude that $250,000 is the upper limit of the reasonable range for the significant emotional distress that was described in Sooroojballie’s testimony. Accordingly, we grant a new trial as to Sooroojballie’s emotional distress damages unless he accepts a remittitur of the award to $250,000."

The jury also awarded plaintiff's supervisor, Frattali, $150,000 in punitive damages. That amount does not shock the conscience, the Court of Appeals (Sack, Hall and Bianco) holds, because the harassment was reprehensible, along with a false accusation that Frattali made against plaintiff, accusing him of sabotaging mechanical equipment at the airport, a potentially career-ending charge. This amount also falls below the $250,000 civil penalty cap set by the City Council for violations of the New York City Human Rights Law (which does not apply to Port Authority). As other cases in the Second Circuit have also awarded more than $150,000 in punitive damages, plaintiff's award is not excessive.

Jury verdict in racial harassment case is upheld on appeal

The Court of Appeals has ruled that a jury properly found that a Port Authority employee suffered racial harassment. But the Court has reduced the $2.16 million pain and suffering award to $250,000.

The case is Sooroojballie v. Port Authority of New York & New Jersey, a summary order issued on June 4. I briefed the appeal. Marjorie Mesidor, Esq., tried the case and argued the appeal.

Defendants argue that the district court improperly allowed plaintiff to introduce evidence of counseling memos and other time-barred adverse job decisions in proving that he endured a hostile work environment. In addition to several racist comments that plaintiff's supervisor directed toward him, this supervisor issued a series of negative write-ups and otherwise denied him certain employment opportunities within the Port Authority. These evidentiary submissions included incidents that took place more than 300 days before plaintiff filed an EEOC charge. But while these incidents may have been time-barred for purposes of prevailing on this incidents as adverse actions, the Court of Appeals finds they were still part of the continuing violations in support of the hostile work environment. The case in support of that proposition is Davis-Garett v. Urban Outfitters, Inc., 921 F.3d 30 (2d Cir. 2019), which issued during the briefing of this appeal, reminding us once again that you should keep up with the latest developments in the Court of Appeals and elsewhere, as today's court rulings can help you tomorrow.

The holding on this issue is that "time-barred evidence constitutes non-discrete acts that are sufficiently related to the acts that occurred within the limitations period, and that acts involved the same individual, and were part of the same pattern of harassing conduct towards Sooroojballie." While defendants argued that these incidents could not be introduced at trial on the racial harassment claim because they also comprised the retaliation claim that the district court dismissed on the summary judgment motion, the Court of Appeals (Bianco, Sack and Hall) disagrees, holding that "'one type of hostility can exacerbate' the effect of another,'" such that "while Sooroojballie alleged the the counseling memoranda were produced to retaliate against his filing of the EEOC complaint, it was permissible for the jury to consider whether the counseling memoranda were also issued based on Frattali's racial and national origin animus and contributed to Sooroojballie's hostile work environment." This is a useful ruling for plaintiffs.

Overall, the evidence sufficed to support the verdict, the Court of Appeals holds, because Frattali made four explicitly racist comments (i.e., "what is it with you type of people" and "You fucking Indian asshole"), and these comments could be considered in conjunction with racially-neutral adverse acts in determining whether plaintiff endured a hostile work environment. The go-to case on that point is Alfano v. Costello, 294 F.3d 365 (2d Cir. 2002).

As I mentioned, the Court of Appeals also ruled on the propriety of the damages award for pain and suffering punitive damages. You can read about that in tomorrow's installment. 

AutoZone altercation does not give plaintiff a retaliation claim

This employment discrimination case reminds us that management has much leeway in disciplining employees, and that even if the plaintiff makes out a prima facie case, the employer can get around that by showing it still had good reason to demote the plaintiff.

The case is Carter v. AutoZone, LLC, a summary order issued on May 29. The Court of Appeals (Wesley, Livingston and Sack) does not provide much detail in the facts of the case, but it assumes that plaintiff has made out a prima facie of discrimination, i.e., that she engaged in protected activity in complaining of discrimination, and that she sustained an adverse action under circumstances creating an inference of retaliation. The battle centers on whether plaintiff can show that management's reason for the demotion are false and that the real reason was discrimination or retaliation. She cannot do so.

Proving pretext generally requires the plaintiff to show the employer's reasons for the demotion or termination were made in bad faith. There are many ways to prove bad faith, including an outright lie, or something suspicious or fishy about the employment decision, like shifting explanations or some excuse that makes no sense at all. Bear in mind, though, that employers often get the benefit of the doubt in this area, as courts do not want to serve as super-personnel boards second-guessing managerial decisions.

In this case, defendant can show it had good reason to demote plaintiff, even if she did complain about discrimination shortly before the demotion. Plaintiff got into some kind of altercation with a coworker. We don't know the details of that altercation, so use your imagination, and picture an altercation at an AutoZone. Maybe someone threw a tire iron, or an air-pressure gauge, at someone else. Maybe a fight broke out because no one wanted to clean up some oil spill near the entrance of the store. Management's investigation into that altercation revealed that plaintiff responded unprofessionally to the co-worker's verbal invective in the presence of a customer, and that plaintiff had previously failed to report conduct by her subordinate employees that violated corporate policies, including commentary on a shopper's physical appearance. This is why plaintiff was demoted, not her protected activity in complaining about discrimination. While plaintiff says her admittedly disrespectful and unprofessional responses to her co-worker during the altercation "were reasonable responses to his inflammatory statements," the Court of Appeals will not buy an argument like this. Plaintiffs need to have good work records to survive motions for summary judgment, and the judges usually do not tolerate bad acts by the plaintiff, or efforts to excuse them as a means to win the case.

There will be a Democratic primary on June 23

The Second Circuit has ruled that a federal court properly ordered that the New York primary election scheduled for June 23, 2020 must take place. This decision rejects the Cuomo administration's argument that it had to cancel the election because of the Covid-19 pandemic.

The case is Yang v. Kosinski, issued on June 1. The governor canceled the primary election on April 27, 2020, making New York the only state to cancel its 2020 Democratic presidential primary. The justification for cancelling the election was the state wanted to minimize social contacts to limit the spread of the virus and to focus its limited resources on the management of other contested primary elections. As it happened, the other Democratic candidates had suspended their campaigns quite some time ago, including Andrew Yang and Sen. Bernie Sanders. But they challenged the primary cancellation under the First Amendment. They won in the Southern District of New York, and the Court of Appeals affirms.

When you seek a preliminary injunction, you have to convince the court that you deserve to win the case right now, prior to discovery or a formal trial. You have to show, largely on the paperwork, that you will most likely win the case and will suffer irreparable harm without an immediate injunction. This relief is hard to come by. But plaintiffs win the injunction because, first, the loss of constitutional rights is usually irreparable (and besides, a drawn-out lawsuit would be mooted by the time the case is finally decided, as the primary date will have come and gone). Second, the Court of Appeals finds, we have a serious First Amendment problem when a primary election is cancelled because the candidates, even if they are destined to lose, have the right to "engage in association for the advancement of beliefs and ideas" and "to cast their votes effectively." The candidates also have the right to compete for delegates, which can only happen if they compete in a primary election, as accumulating delegates gives the candidate influence over the party platform at the Democratic National Convention. In addition, Yang and Sanders supporters have the right to vote for the candidates of their choice, and their delegates have the constitutional right to attend the convention.

The Cuomo administration cannot offer compelling reasons to cancel the primary. Yes, we are in the midst of a public health pandemic, but voters can vote by absentee ballot, and while the state claims it need to conserve its resources to conduct other primaries, the state has not backed up this claim with real evidence. This asserted justification "warrants little discussion," the Second Circuit (Cabranes, Kearse and Jacobs) writes.

Since there is a political overtone to this case, Judge Cabranes drops an interesting footnote to emphasize how party conventions can actually make a difference, even if the party nominee has already been in effect chosen by then. He writes:

The Democratic Party is familiar with how unsuccessful presidential candidates have influenced the party’s governance and shaped the party’s rules in a way that has transformed the internal structure and politics of the Democratic Party moving forward. For example, after an unsuccessful run to obtain the Democratic nomination for President in the midst of the tumultuous 1968 Democratic National Convention, Senator George McGovern led an effort to reform the Party’s internal structure and nominating procedures. The effort concluded in the adoption of “guidelines to eliminate state party practices that limited the access of rank-and-file Democrats to the candidate selection procedures, as well as those that tended to dilute the influence of each Democrat who took advantage of expanded opportunities to participate”—which are commonly known as the “McGovern Rules,” and which were formally “incorporated into the Call to the 1972 Convention, which set forth the formal requirements of the delegate selection and nominating processes for the Convention.”

Ultimatum meeting in sexual harassment case not enough for constructive discharge claim under New York City HRL

The Court of Appeals has ruled that a woman who was told by supervisors that she had to work in the same unit as the man who had sexually harassed her for more than six years cannot make out a constructive discharge claim under the New York City Human Rights Law.

The case is Tulino v. City of New York, a summary order issued on June 3. I represented the plaintiff on appeal. The oral argument is at this link. Plaintiff sued the City for sexual harassment, retaliation, and constructive discharge. The discharge claim was dismissed mid-trial under Rule 50(a), as the trial court determined that no reasonable jury could find in her favor on that claim. The jury ruled in plaintiff's favor on the harassment and retaliation claims, awarding her more than $1 million in damages. See 2019 WL 3810975 (S.D.N.Y. Aug. 1, 2019). The constructive discharge claim was appealed on the basis that no reasonable woman can be expected to remain on the job if she has to continue working for the harasser.

After the agency investigated plaintiff's internal sexual harassment complaint and determined that the complaint could not be corroborated, two senior agency officials told plaintiff that her charge had "offended the agency" and that she had "no place here" if she did not return to the harasser's division (she and the harasser were temporarily separated during the investigation, which plaintiff alleges was faulty). Plaintiff quit rather than work with the harasser, as the multi-year harassment had caused her significant pain and suffering. The Court of Appeals (Wesley, Livingston and Menashi) affirms the trial court's JMOL ruling, holding that these comments were made in the context of other job offers within the agency, the lack of any active disciplinary investigations against plaintiff, her civil service protections, and her transfer to a different supervisor. Plaintiff argued on appeal, however, that she had not ruled out working elsewhere in the agency and, contrary to the City's position at trial, she did not demand that she remain in her unit. This factual dispute, she argued, was for the jury. The Second Circuit disagreed.

Plaintiff did ask the Second Circuit to certify this case to the New York Court of Appeals to clarify the standards guiding constructive discharge claims under the New York City Human Rights Law, which requires a more liberal statutory construction. In 2015, the First Department said the courts have not yet settled upon such a standard, and the Second Department made the same observation in May 2020, one week before oral argument in this case. Simmons-Grant v. Quinn Emanuel Urquhart & Sullivan, LLP, 981 N.Y.S.2d 89, 92 n.1 (1st Dep’t 2014); Golston-Green v. City of New York, -- N.Y.S.3d --, No. 2016–02462, 2020 WL 2462411, at *9 (2d. Dep’t May 13, 2020). But in 2019, the First Department restated the tight Title VII constructive standard in a City HRL case without referencing the liberal statutory construction. Crookendale v. New York City Health & Hospitals Corporation, 107 N.Y.S.3d 282 (1st Dep’t 2019). In a footnote, the Second Circuit notes this lack of clarity on this issue, but it determined that plaintiff cannot meet any constructive discharge standard, no matter how it is formulated.

Woman cannot sue West Point over sexual assault

The Court of Appeals has ruled that an anonymous plaintiff cannot sue West Point for sexual assault. This is the second time the plaintiff has brought her case to the Second Circuit. She lost the first time under her Bivens claim, and she loses again under the Federal Tort Claims Act.

The case is Doe v. United States, a summary order issued on May 29. Plaintiff alleges that a male cadet sexually assaulted her and that the was West Point's fault in the way the institution handles (or fails to properly handle) such incidents.

There are certain things we cannot do in American society. Suing the military is one of them. There are exceptions to the Feres doctrine, but the Feres rule, set down by the Supreme Court in 1950, makes it almost impossible to do so. In her Bivens claim (which is the federal counterpart to Section 1983 constitutional claims against state and municipal defendants), the Court of Appeals applied the doctrine of intra-military immunity in holding plaintiff could not recover any damages. This time around, she seeks relief under the FTCA. Same result.

Feres holds that "the Government is not liable under the [FTCA] for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service." Under Feres, cases cannot proceed if "commanding officers would have to stand prepared to convince a civilian court of the wisdom of a wide range of military and disciplinary decisions[.]" What dooms the FTCA claim is what doomed her Bivens claim: the Court of Appeals says her allegations "center on the implementation and supervision of allegedly inadequate and harmful training and education programs relating to sexual assault and harassment," as well as West Point's alleged failure to provide properly for the report and investigation of sexual assault claims, and for the support of cadets who are assaulted. It looks like anything relating to West Point's failure to provide for a safe environment for female cadets cannot be litigated under the FTCA.

Plaintiff tries to get around this by arguing that her suit relates to her role as a West Point student and not as a soldier. Good argument, but it will not work. The Second Circuit rejected that argument on her Bivens claim a few years ago. In the end, even as a student, she "was a member of the military, subject to military command at all times, who was at West Point for the purpose of military instruction."Also, "her education was inextricably intertwined with her military pursuits."

Pro se plaintiff wins Title VII retaliation appeal against JP Morgan

This pro se plaintiff wins in the Court of Appeals, which finds that the district court improperly dismissed his retaliation claim. But he cannot convince the Second Circuit that his hostile work environment has merit.

The case is Rivera v. JP Morgan Chase, a summary order issued on May 29. Let's start with the hostile work environment case. Plaintiff says in his complaint that he was subject to a "pattern and practice of overt ethnic discrimination" involving "verbal bullying and ethnic slurs." That's a good start; Title VII prohibits a severe or pervasive work environment on the basis of ethnicity/ But plaintiff did not provide any details about the harassment. Who did this to him? What did they say? There is not much case law in the Second Circuit on this precise issue: how much detail must the plaintiff provide in the complaint on a workplace harassment claim? This case does not clarify that answer, but we do know that plaintiff's allegations are not enough.

While the hostile work environment claim fails, the retaliation claim does not. Plaintiff says he complained to human resources in July 2010 that his supervisors were discriminating against him because of his national origin. A month later, management stripped him of his duties, diverted new clients to other bankers, suspended him, and terminated his employment. While the district court says plaintiff did not plausibly plead a causal connection between his complaints and the adverse actions. But that was wrong, the Second Circuit (Sack, Wesley and Chin) says. This is not a complex issue, actually. The retaliatory acts took place only a month after plaintiff complained. There is no bright-line rule on what constitutes a victorious timeline for retaliation claims, but one month is surely enough under the cases, like Abrams v. Dept. of Public Safety, 764 F.3d 244 (2d Cir. 2014), and Gorman-Bakos v. Cornell-Cooperative Extension, 252 F.3d 545 (2d Cir. 2001), which extend it out to five and four months, respectively.