Disparate impact claim under Title VII fails in divided ruling

We don't see a lot of disparate impact cases these days. The Supreme Court recognized the disparate impact theory in racial and other discrimination cases under Title VII back in 1971, holding that facially-neutral employment practices can violate Title VII if they produce a disparate impact against blacks, women, etc., and the employer cannot articulate a good reason for the disparate impact. In this case, the Court of Appeals decides for the first time how disparate impact cases should be pled at the outset of the case.

The case is Mandala v. NTT Data, Inc., issued on September 21. Plaintiffs are black men whose offers of employment were revoked because the employer learned they had criminal records. Plaintiffs argue this violates Title VII because national statistics shows that African Americans have higher arrest and incarceration rates than whites. The district court dismissed the complaint (prior to discovery) and the Court of Appeals agrees the plaintiffs have not sufficiently pled their case.

Along the way, the Court of Appeals (Sullivan and Nardini) sets for the legal standard guiding disparate impact cases under the Iqbal pleading standard that the Supreme Court devised in 2009, which requires that plaintiffs assert a "plausible" claim for relief, putting to rest the "notice pleading" that had been in effect since 1957. While the Second Circuit has held that pleading requirements for disparate treatment cases under Iqbal only require the plaintiff to set forth "enough facts to provide at least minimal support for the proposition that the employer was motivated by discriminatory intent" (Vega v. Hempstead School Dist., 801 F.3d 72, 86-87 (2d Cir. 2015))," that is not the standard for disparate impact claims. The requirement for disparate impact claims is the plaintiff "must at least set forth enough factual allegations to plausible support each of the basic elements of a disparate impact claim." The Circuit cites Adams v. City of Indianapolis, 742 F.3d 720 (7th Cir. 2014), for this proposition, which is now Second Circuit law.

What this means for this case is that plaintiffs have not properly pled a disparate impact case. While national statistics may show that African Americans have a disproportionate incarceration rate, "the statistical analysis must, at the very least, focus on the disparity between appropriate comparator groups." In other words, "the statistical analysis must reveal disparities between populations that are relevant to the claim the plaintiff seeks to prove." The complaint fails because "Plaintiffs provide no allegations to demonstrate that national arrest or incarceration statistics are in any way representative of the pool of potential applicants qualified for a position at NTT. All Plaintiffs offer is the conclusory and unsupported assertion that these figures are so stark that they must hold true for this (or any) segment of the population. But that is not a plausible -- or, for that matter, logical -- inference."

Judge Chin dissents. I try not to get political here, but this case shows the ideological divide that is now taking shape at the Second Circuit. The majority judges in this case are Trump appointees. Judge Chin was appointed by Obama. In addition to objecting to the heightened pleading standard that the majority adopted for disparate impact claims, he writes:

As the statistics show, there are significant racial disparities in arrest, conviction, and incarceration rates in this country.  As scholars and the EEOC have recognized, criminal history screens can have a substantial adverse disparate impact based on race,  and, as discussed above, a number of courts have denied motions to dismiss disparate impact claims using general  population statistics to challenge such policies, concluding that plaintiffs had plausibly stated a disparate impact claim under Title VII.  Some states, including New York, recognize the harm that blanket criminal history screens can cause, forbidding companies from denying employment solely because a job applicant has a criminal record, and instead requiring employers to engage in an individualized consideration.  If the facts alleged in the complaint are true, then Mandala and Barnett are vivid examples of the adverse impact an absolute convictions bar can have on individuals generally -- and African Americans in particular -- seeking employment.

No medical expenses for excessive force plaintiff

The plaintiff won his police misconduct trial, no easy feat. Did you know that most trials result in a defendant's verdict? Not this one. The jury found that the officer used excessive force against plaintiff, awarding him $38,000 for pain and suffering and $30,000 in punitive damages. Plaintiff appeals because the jury did not award him any money for his medical bills. 

The case is Humphrey v. Waterbury Police Department, a summary order issued on September 22. Plaintiff says that he spent $121,158 in medical bills. Why didn't the jury reimburse him for this? Clients may not fully appreciate this, but trial courts, and appellate courts, do not like to second-guess jury verdicts. That is what happens here.

Plaintiff did suffer injuries as a result of the excessive force. Plaintiff sued officer Crea. While plaintiff says that Crea taunted him and tried to bring him to the ground. But he also testified that other officers struck him. He did not identify Crea as the officer who had struck him in the eye that resulted in hospitalization and extensive medical bills. On the basis of this testimony, we have to presume the jury thought that another officer was actually responsible for these injuries, not Crea. As the trial judge wrote in rejecting plaintiff's post-trial efforts to recover the medical expenses, "the jury's findings are consistent with a possibility that the jury based its damages verdict solely on Crea's taunting of Humphrey and tackling him to the ground rather than Crea's infliction of a particular blows that caused medical expenses."

The Court of Appeals (Cabranes, Parker, and Park) agrees with the district court ruling. The Second Circuit notes that "a finding of excessive force  . . . does not automatically entitle a claimant to compensatory damages as a matter of law." That's true. To win damages, you have to prove them. In reviewing the jury's verdict and damages award, the courts will see if there is any way the jury theoretically could have honestly reached that result. Note that I said theoretically. The jury is usually not asked to specify its reasoning. It normally determines if there was liability and how much money the plaintiff will recover (if he wins). The point is that any evidence in the record (even if the jury did not actually consider it) may be cited in defending the verdict. And that is why it's so hard to challenge or change jury verdicts.

No qualified immunity in doctor's false arrest case against the police

A doctor sues the police for false arrest after they charged him with sexual abuse. The charges were then dropped. The doctor says the police ruined his life through these allegations, and the district court dismissed the case on qualified immunity grounds. The Court of Appeals reinstates the case and says that, as plead, the complaint overcomes any qualified immunity objections. Plaintiff wins the appeal.

The case is Pourkavoos v. Town of Avon, a summary order issued on September 3. It started when people began accusing the doctor of sexual abuse in the course of medical examinations. In the course of their investigations, the police discovered that others had made similar allegations against the doctor. Plaintiff was charged with sexual assault involving penetration for sexual gratification. While a neutral magistrate issued an arrest warrant, which normally provides probable cause for the arrest, the court will find no probable cause if the warrant was obtained through deception by the police officer. That is the allegation here.

On a Rule 12(b)(6) motion, we accept the allegations in the complaint as true, no matter what the defendants claim. This must cause serious consternation on the part of defendants who believe in their heart there is no case but they have to proceed with the lawsuit because the complaint, if true, makes out a claim. So, while the defendant police officer insists he did nothing wrong, as the Court of Appeals notes, his defense stands in stark contrast to what plaintiff alleges in the complaint. For now, the complaint controls the case. That may change following discovery, but this is why pre-discovery motions to dismiss are frequently denied.

Plaintiff makes out a claim, the Court of Appeals (Carney, Leval and Stanceu [D.J.]) says, because he alleges that the "sexual gratification" allegations against him were falsely presented and that the doctor's physical contact with female patients related to their medical complaints, i.e., pushing on a woman's buttocks when she complained about back pain, or performing a rectal exam when the patient complained about constipation. Since clearly-established law prohibits police officers from falsely seeking search warrants that may result in a bad arrest, the defendant cannot obtain qualified immunity at this stage of the case. 

A grand slam for inmate who claims a variety of constitutional violations in jail

The jails have to provide inmates good medical treatment. I know there are many taxpayers who do not want to pay for this, but the law holds that when the government has you in custody, it has to tend to your medical needs. This is why some inmates sue over the denial of medical treatment. These cases often do not fare well in federal court, but the inmates sometimes win their appeals. Like this one.

The case is McFadden v. Noeth, a summary order issued on September 11. A law student was able to successfully argue this appeal, by the way, pursuant to the Second Circuit's pro bono program. Plaintiff is incarcerated at Attica, where an uprising in 1971 led to some prison reforms that remain with us. But the right to proper medical treatment pre-dates Attica, though the Supreme Court clarified the rules in Farmer v. Brennan, 511 U.S. 825 (1994), which requires the inmates to prove the jail was deliberately indifferent to their serious medical needs. This means the inmates have to show the defendants had a bad mental state in denying them medical treatment.

Plaintiff asserts a plausible case in claiming that the jail did not properly treat his Hepatitis C, detailing how his liver would deteriorate even further without proper treatment. The Second Circuit (Raggi, Parker and Cabranes) notes that plaintiff's case was bolstered by the fact that the jail began treatment after plaintiff filed his complaint. This "suggests that the condition was objectively serious enough to merit treatment in the first instance."

Plaintiff also pleads that the defendants were deliberately indifferent to these serious medical needs. He asserts that defendants knew about this health risk as early as 2002, received approval for the treatment in 2004, but did not provide it. For now, this pleads a deliberate indifference claim. Whether plaintiff can actually prove his case through discovery is another matter, the Court says, but for now, he can survive the motion to dismiss under Rule 12(b)(6).

The Court also reinstates plaintiff's claim alleging the jail denied him a proper hearing aid under the Americans with Disabilities Act and the Eighth Amendment. Prisons are public entities under the ADA, and he pleads that plausible accommodations, like working hearing aids and a "shake-awake" alarm, would have mitigated his impairment. As for the Eighth Amendment deliberate indifference claim, Plaintiff alleges that, without the accommodations, he might miss the morning counts, which could result in punishment. Defendants disregarded his requests for these accommodations, and did not undertake any independent assessment of his health condition in this regard because they rejected his request.

Finally, giving plaintiff a trifecta, the Court of Appeals reinstates plaintiff's "conditions of confinement" claim under the Eighth Amendment. Plaintiff alleges that he was denied food, showers, eye glasses, hearing aids and medication, and that he was housed with other inmates who kicked, yelled, threw feces and urine, and left waste in showers and blood on the walls. These inmates were the world's worst roommates. Plaintiff was also also denied hot water and subjected to cold weather. Since plaintiff alleges that jail officials knew about all of these disgusting and unsanitary conditions but did nothing, he's got a "conditions of confinement" claim.

And we've got a fourth successful claim on appeal, which gives plaintiff the grand slam. He alleges the jail interfered with his legal mail on at least 20 occasions. If true, that violates the Constitution under settled case law. Since plaintiff also claims that the mail interference resulted in the dismissal of two of his lawsuits, this claim will proceed to discovery along with the other claims that the Court of Appeals reinstates.

Court says police search was illegal, prompting impassioned concurrence about police misconduct

A traffic stop that revealed the defendant had a gun and drugs results in a split Second Circuit ruling that declares the search illegal while the concurring judge bemoans the state of Fourth Amendment jurisprudence, stating there is not enough case law to protect the victims of police misconduct.

The case is United States v. Weaver, issued on September 15. This case arose in Syracuse, where the police saw Weaver in a high-crime area stare at a passing police car, adjust his waistband and, once he entered a vehicle as a passenger, squirming in his seat as if he were trying to hide something. The car was pulled over on a traffic violation (failure to properly signal). So things started to go downhill after the police pulled over the car and focused on the passenger, Weaver, who pressed his pelvic area toward the vehicle in a non-subtle effort to prevent the police from completing the search. When the police completed the search, they found a gun and drugs.

Writing for the majority, Judge Pooler says this search violated the Fourth Amendment because, while the police had reasonable suspicion to believe that Weaver was hiding something, the police had no reason to know he was hiding a firearm. That is the majority's interpretation of Terry v. Ohio, 392 U.S. 1 (1968), the landmark Supreme Court ruling that authorizes warrantless pat-frisk searches if the police have reasonable suspicion that criminal activity is afoot. Judge Pooler focuses on the cases holding that the reasonable suspicion in the automobile context should focus on officer safety. Hence, the weapons emphasis.

In dissent, Chief Judge Livingston challenges the majority's "startling and untenable conclusion," stating that Terry "does not limit protective frisks to circumstances in which the officer knows that a suspect is armed and dangerous, but permits frisks based on the reasonable belief that a suspect may pose such a threat, even when the suspect's conduct is ambiguous and susceptible of an innocent explanation." On this record, Judge Livingston says, the officer had such reasonable suspicion.

The main event here is Judge Calabresi's concurrence, finding that Judge Pooler's analysis is correct and that Judge Livingston would take Fourth Amendment jurisprudence a step too far, although he acknowledges that the dissent "does not stretch the law all that much" in light of pre-existing case law. The problem, Judge Calabresi says, is that this appears to be a close case because many unlawful police stops are never litigated and therefore do not produce the case law that would confirm that this search was illegal. Not only have courts upheld questionable searches in order to prevent felons from walking free (an understandable tactic, Judge Calabresi recognizes), but the cases that would provide the right precedents in cases like this are often not even worth litigating because, in the civil context (whose cases may inform criminal cases as well) the victims of police misconduct do not sue because their potential lawyers will only take the case on contingency. The potential lawyer's judgment is influenced by qualified immunity jurisprudence under Section 1983 that allows appellate courts to excuse the officers' behavior because they did not violate clearly-established case law which, by the way, never develops into a robust Fourth Amendment jurisprudence because the courts in those cases often do not delineate what the law should be in future cases, even though they have the option to do so. So we have a scenario where much of the police misconduct case law favors the police and litigants have a difficult time proving that the officers violated the Fourth Amendment. Judge Calabresi concludes:

I write this concurrence in sadness and in hope. It is not for me or for other judges to find a way out of our current dilemma, hence my sadness. Yet recent events have  focused  attention  on  the  qualified  immunity doctrine. And  some have even suggested alternatives to the exclusionary rule. Finding an answer will not be easy. It will require careful and coordinated thought by the political branches, by the academy, and by judges as well. But we must do better.  The noxious effects of our current approach are all too obvious, and  are  manifested  both  broadly,  in  the  current  protests,  and  narrowly,  in  the instant case.

Court upholds Rule 11 sanction in Quackwatch defamation case

This is a defamation case arising from a website called Quackwatch, which talks about medical doctors, as you might have guessed. The plaintiffs are doctors who sued over the website's commentary on a disciplinary proceeding that the State of Illinois had instituted against them. The district court sanctioned the plaintiff's lawyer $10,000 over these claims under Rule 11, which prohibits frivolous cases. So this is really a sanctions case and not a defamation case.

The case is Goldman v. Barrett, a summary order issued on September 10. Plaintiffs were promoting an anti-aging business in China but said that Quackwatch sabotaged those efforts with false allegations against them. When defendants moved for sanctions, plaintiff's lawyer said he got their information through a politically-connected colleague in China, Stephanie Kuo, who said the likely reason why the "China Project" was rejected was these defamatory allegations. Does this information allow plaintiffs to avoid sanctions? The Court of Appeals (Livingston, Walker and Jacobs) says it does not.

Rule 11 has been in the Federal Rules of Civil Procedure for decades, but it had no real bite until sometime in the 1980s, which courts began sanctioning lawyers more frequently after the rule was revised. Before Rule 11 motions became more prominent, the rule sat in obscurity. I remember the movie, A Civil Action, in which the lawyer for a chemical company moved for Rule 11 sanctions against the class action lawyer who claimed the chemicals had caused a leukemia cluster in Woburn, Massachusetts. When everyone appeared in court on the motion, the judge asked class action counsel if he knew what Rule 11 was prior to this motion. Counsel said he had to look up the rule. The judge said that he was not that familiar with the rule either. Things have changed. These days, all federal practitioners know about Rule 11, which also has a "safe harbor" provision that requires the opposing lawyer to warn his adversary that if he does not withdraw the offending claim within 21 days, he will move for sanctions. 

While a lawyer can rely on a client's information in pursuing a lawsuit, he can only do so when it is reasonable to do so. Otherwise, the lawyer is just wasting everyone's time. The Court of Appeals finds that anything that Kuo said to the plaintiffs' lawyer was mere speculation about why the China Project failed. The district court found, and the Court of Appeals agrees, that this case only rested on speculation.

Plaintiffs said that discovery may have proven these allegations. While Rule 11 does have a provision allowing for discovery to prove the claim is not frivolous, "an attorney may not rely on discovery to manufacture a claim that lacks factual support in the first instance." You still have to undertake an appropriate investigation into the facts before you file the lawsuit. 

As for the $10,000 fine, the Court of Appeals says that was not an abuse of the district court's discretion. That's a lot of money, but the trial court has discretion to levy such a fine, so long as it deters repetition or the similar conduct in the future. In any event, the trial court actually reduced the amount of the sanction in light of the attorney's financial situation. 

Inmate's religious freedom case fails on appeal

Prisoners have some rights, but they do not have all the rights that everyone else has. Federal judges will defer to the judgment of prison officials when it comes to restricting certain inmate freedoms. That does not mean the inmate always wins, but it stacks the deck against them. What also stacks the deck is qualified immunity, which ends the case in the defendant's favor if he did not violate clearly established case law. That is what happened here.

The case is Gonzalez v. Morris, a summary order issued on September 10. Plaintiff sued under the First Amendment's free exercise clause, claiming that officials violated his religious freedoms by prohibiting him from wearing more than one strand of beads around his neck while confined in the special housing unit (also known as solitary confinement) even though the Santeria religion requires him to wear additional strands. He also says the jail violated the Equal Protection Clause because, while Native American inmates could burn herbs for religious reasons, plaintiff was not allowed to do the same. The jail got summary judgment on the free exercise claim, and a jury ruled for the jail on the equal protection claim.

Starting with the necklace/beads claim under the free exercise clause, the Court of Appeals (Lohier, Katzmann and Walker) says plaintiff must lose because there is no Second Circuit case holding that an inmate has a First Amendment right to wear more than one strand of religious beads in the special housing unit, or to use matches or a lighter to burn offerings. While the cases do hold that inmates have the right to practice their religion unless their religious practices interfere with the safe and efficient management of the facility, qualified immunity requires a case that falls within the plaintiff's fact pattern. If such a case exists, the defendant is on constructive notice that he is violating the law. Otherwise, the defendant gets the benefit of the doubt. This immunity paradigm applies not only to jail cases but to any constitutional case involving municipal or governmental defendants.

What about plaintiff's challenge to the jury verdict? That also fails. The Second Circuit notes that there is a split within the Second Circuit itself over whether you can even appeal an order denying your motion for a new trial on sufficiency of the evidence grounds. Compare Rasanen v. Doe, 723 F.3d 325 (2d Cir. 2013) with ING Global v. Oasis Supply Corp., 757 F.3d 92 (2d Cir. 2014). But the Court does not resolve that conflict in this case because it finds that plaintiff lost the trial on the basis of credibility issues, which are almost never reviewable on appeal in any event.

Qualified immunity knocks out prisoners' rights case

This prisoners' rights case alleges that jail officials did not allow him to practice his religion. Plaintiff loses the case on qualified immunity grounds, as the existing case law does not establish that jail officials had violated his rights.

The case is Booker v. Graham, issued on August 31. Booker is a member of the Nation of Islam, requiring that he practice certain rituals during Ramadan. He says jail officials did not provide him the proper food or other opportunities to practice his religion, including ritualistic bathing and group prayer meetings. At first, prison officials did allow NOI inmates to practice their religion. But then the jail imposed a lockdown following an uptick in violence in the facility. As a result, the jail limited the religious rituals for plaintiff and other inmates, i.e., providing them with food that did not comply with their religious rituals or hot water for the bathing. When Ramadan ended, the jail sent plaintiff to solitary confinement, claiming he had negatively impacted the facility's operations. Defendants said plaintiff had urged inmates to use violence against the officers. Plaintiff says, however, that prison officials told him that he went to solitary confinement because of all the grievances he had filed against the jail relating to the restrictions on his religious activity.

The Court of Appeals (Park, Leval and Lohier) deals with the free exercise of religion claim by granting the defendants qualified immunity, which protects governmental defendants from lawsuits when the case law is not clear that the plaintiff's rights were violated. Fuzzy case law means the officers were not on constructive notice that they were breaking the law, even if careful attention to the facts suggests they were in fact violating the law. Unfortunately for plaintiff, the case law does not clearly provide for the continuation of religious practices during a prison lockdown. While inmates have a clear right to practice their religion while in jail, "we have never held that a prison has an obligation to provide religiously compliant meals during a facility-wide, safety-motivated lockdown. Nor have we held that a prison must accommodate group prayers or religious bathing rituals under such circumstances."

The same holds true for inmates who sue because they cannot practice certain religious rituals while in solitary confinement. And, the Second Circuit holds, "New York law actually prohibits it." Since there is no binding precedent that supports plaintiff's claims, he cannot pursue this case.

Deported plaintiff can proceed with civil rights case

This plaintiff sued various correctional officials for civil rights violations arising from his incarceration. He claims that the jailers were deliberately indifferent to his serious medical needs in violation of the Eighth Amendment. The problem is that, after plaintiff was released from prison, he was deported to the Dominican Republic. The question becomes: how do we litigate this case if plaintiff is permanently out of the country? The district court dismissed the case over the logistical difficulties arising from all of this. The Court of Appeals reinstates the case.

The case is Rodriguez v. Gusman, decided on August 31. The trial court said the case could be reopened "for good cause shown," such as if plaintiff is able to return to the country. But plaintiff doesn't want to wait that long. The Second Circuit (Newman, Pooler and Hall) states that "administrative closure" of a lawsuit, as one of the "most drastic alternatives" available to a district court, "should be used sparingly and only as a last resort."

There is not much case law to guide situations like this, so the Second Circuit uses this case to lay down some rules, noting that there is a strong public interest in vindicating civil rights allegedly violated by public officials. This requires "a strict standard . . . to ensure that these plaintiffs are not deeply prejudiced." The Circuit borrows from a Fourth Circuit case, Muhammad v. Warden, 849 F.2d 107 (4th Cir. 1988),  

while “an incarcerated litigant’s right is necessarily qualified, . . . [that] does not mean that it can be arbitrarily denied by dismissal or indefinite stays; the law requires a reasoned consideration of the alternatives,” such as: making provisions for the prisoner to attend in person, either at his own expense, or at government expense, and in any case in government custody; trying the case without the prisoner’s presence in the courtroom, either on depositions or affidavits or with aid of video; and even trying the case without a jury in the place of incarceration. 

The Second Circuit notes that plaintiff does not have to appear in court for trial, as the parties can use his video depositions or video-conference instead. While some district court cases have held that "dismissal is appropriate" when a litigant is unavailable for trial, this is a case-specific question, and the Court of Appeals finds that plaintiff's lawyers are skilled enough to present his claims even without his presence at trial. And, while it may be difficult to gather medical evidence while plaintiff is out of the country, such as medical examinations, defendants can send a physician to the Dominican Republic or hire a local doctor to examine plaintiff. As for depositions, they can be accomplished through video-conferences. The case is restored to the docket.