Court of Appeals strikes down Cuomo's restrictions on religious gatherings

Covid-19 caselaw is developing at a brisk pace. The Constitution says nothing about pandemics, and it does not speak to emergencies in general, at least not in the context of civil rights such as equal protection or religious freedom. That's the theme of the latest ruling from the Second Circuit, which strikes down Gov. Cuomo's executive order that restricted the size of church and other religious congregations.

The case is Agudath Israel of America v. Cuomo, issued on December 28, only 10 days following oral argument. In October 2020, Cuomo issued an order that identified three zones, determined by the rate of Covid-19 infections. At issue in this case are the red and orange zones. In the red zones, non-essential gatherings are prohibited, restaurants can remain open for take-out only, and schools may continue with in-person instruction. Houses of worship have a 25% capacity limit or 10 people, whichever is fewer. In orange zones, non-essential gatherings can have up to 10 people, and gyms and tattoo parlors are closed. Restaurants can provide outdoor service, other businesses may operate without additional restrictions, and schools may remain open. But houses of worship have a 33% capacity limit or 25 people, whichever is fewer.

The Supreme Court has already entertained this issue on a couple of occasions, including in this case, holding the government to strict limits on how it can restrict religious gatherings. Following that lead, the Second Circuit (Livingston, Menashi and Park) hold the Governor to "strict scrutiny," which is a legal phrase that means the government cannot get away with certain restrictions without a compelling reason, and the challenged rule or order must be narrowly-tailored to satisfy that compelling interest. The Governor's order in this case fails strict scrutiny because it singles out houses of worship for restrictive in-person gatherings that do not apply to other establishments, including so-called essential services like liquor stores. While a facially-neutral limit on public gatherings might be constitutional, even if they have the effect of restricting religious observances, that's not on the table in this case. And, while some businesses (such as news media and certain retail stores) are deemed "essential," non-essential activities, such as religious worship, have greater restrictions.

The unequal treatment of religious and non-religious services creates a presumption that the distinction violates the Free Exercise Clause of the First Amendment, which protects the right to worship.  But the Court of Appeals also says the restrictions are not sufficiently narrowly-tailored to get around the strict rules against these restrictions. The court says the restrictions stem from broad generalizations about church-going behavior, such as the assumption that people enter and leave the building together and remain in the building for long periods of time. But even if these generalizations are true, the Governor's order does not require masks or distancing, which might also reduce infections. The Court of Appeals notes that we cannot assume that churchgoers will ignore these alternative protective measures. For one of the two cases that are the subject of this appeal, the narrow-tailoring issue is sent back to the trial court to take that up in the first instance. But it looks like the Second Circuit has foreshadowed how that issue should turn out: against the Governor's order.

The Second Circuit wraps up with a discussion about the role of the courts in a public health emergency.  I wonder if the court anticipates other judges borrowing this language in their own pandemic cases. The Second Circuit quotes from a recent Supreme Court ruling stating that the Constitution cannot be "cut . . .  loose during a pandemic." While the court recognizes that regulating public health during a pandemic is a compelling government interest that would justify a strict governmental response, it also says the response must be carefully tailored in order to prevent any unnecessary infringement on constitutional rights. 

Arbitrator properly handled dispute involving the hiring of temporary, non-union workers

The whole point of arbitration is to keep labor-management disputes out of court. This means that when a party challenges an adverse arbitration ruling in court, they face an uphill battle. In this case, after losing the arbitration, management took the issue to court, which rules that the arbitrator did not violate the rules and that the arbitration ruling will stand.

The case is A&A Maintenance v. Ramnarian, issued on December 16. A&A provides janitorial and maintenance services to commercial real estate and educational institutions. Its workforce is unionized and the parties must therefore comply with a collective bargaining agreement that addresses when A&A may employ "substitute employees" to fill in for people who are out on disability or worker's compensation or extended leaves. When the union noticed an unusual number of new, non-union employees at a college one day, it tried to resolve that issue without arbitration, but the dispute eventually went to an arbitrator, who ruled in the union's favor, finding that A&A had hired and rehired these people to perform bargaining unit work, and it did so to save money and to effectively keep them on as probationary employees with fewer rights in the workplace.

We have two issues here. First the employer says the arbitrator improperly allowed the union to frame the arbitration issue differently throughout the process. The first issue statement was in the original grievance, claiming the employer violated the CBA in hiring these "substitute employees." The union later framed the issue for the arbitrator as whether the employer violated the CBA by using "temporary employees," "a term undefined in the CBA and broader in scope than substitute employees," to perform bargaining unit work. The difference between the two issue statements was that the first one mentioned substitute employees, and the second mentioned temporary employees. Management said the first issue statement was proper, not the second, because "substitute employees" carries a narrower definition than "temporary employees."

The arbitrator said the union could frame the issue the second time around this way, and the Court of Appeals (Sullivan, Katzmann and Calabresi) agrees, finding the arbitrator did not resolve an issue that was not properly before him. The Court says that management's argument elevates form over substance, as the substance of the union's initial grievance was its contention that non-union workers were improperly performing bargaining unit work, a dispute which covers A&A's use of temporary employees. The union's grievance was based on facts that were known to management when the union filed the grievance, even though the grievance did not explicitly use the terms "temporary employees" and "probationary employees."

Relatedly, the Court says, the arbitrator did not rewrite the CBA in ruling that A&A violated the contract by hiring temporary employees even though the CBA does not mention "temporary employees. This technical argument is also rejected, as the dispute arose when A&A tried to hire non-union temporary workers "by means of a strained interpretation of the probationary period [under the CBA]." Since the issue resolved by the arbitrator concerned the interpretation, application, or claimed violation" of the contract, the arbitrator was able to resolve this issue and did not exceed his authority in doing so.

No retaliation claim for teacher who filed an EEOC charge

Proving causation in retaliation claims under Title VII and the First Amendment remans a tricky proposition without direct evidence ("we are firing you because you complained about XYZ") and the plaintiff has to rely on circumstantial evidence ("management loved me until I spoke out and then they issued a paper trial to fire me"). This case highlights that difficulty.

The case is Agosto v. New York City Dept. of Education, issued on December 4. I have written about the First Amendment part of the case at this link. But plaintiff (a teacher) also had a Title VII claim. He says that 3.5 months after filing the EEOC charge in March 2017, a "letter to file" was placed in his personnel folder in June 2017. Is that time-gap enough to prove retaliatory intent? The Court of Appeals (Menashi, Lohier and Cabranes) says it is not enough.

The Second Circuit notes that "this court has not imposed a strict time limitation when a retaliation claim relies exclusively on temporal proximity." Some cases extend it to eight months. Others limit it to three months. Really, the cases in this area are all over the place. Of course, plaintiff's lawyers will highlight the eight-month rule. Management lawyers will cite the two-month rule that turns up in cases from time to time. But in this case, the plaintiff "acknowledges that the gap of more than several months is typically too like by itself to survive summary judgment." 

That concession hurts plaintiff in this case, but what also hurts him is evidence that the letter to file was triggered by an independent actor, the Parent Chairperson of the School Leadership Team, who complained that plaintiff had made a threat after a meeting. This indicates that the letter to file "was not a contrived excuse to penalize Agosto for prior protected activity." We call that the independent causation principle, which allows courts to exercise their judgment in determining what a jury can legally accept in finding causation. At some point, the court will decide that an independent event in the chain of events will absolutely kill the retaliation case. This is one of those cases. 

Court clarifies retaliation standards for Federal Railroad Safety Act cases

A relatively obscure federal statute protects railroad workers from retaliation for certain protected activity. The statute is the Federal Railroad Safety Act. In this case, the Court of Appeals clarifies how the Act applies in practice, issuing this ruling a full year after oral argument.

The case is Tompkins v. Metro-North Commuter Railroad, issued on December 17. The Act says the railroad cannot retaliate against employees "for refusing to work when confronted by a hazardous safety or security condition related to the performance of the employee's duties." Plaintiff was disciplined because he refused to walk to a wheel shop at his work location, claiming it was too icy and dangerous, as evidenced by other workers slipping on their way to the wheel shop. 

To win a case like this, the plaintiff has to show the hazardous condition presented an "imminent danger of death or serious injury" and "the urgency of the situation did not allow sufficient time to eliminate the danger without such refusal." The Second Circuit (Walker, Sullivan and Nathan [D.J.]) says for the first time in this Circuit that the plaintiff must objectively prove such a danger, and that his subjective belief of a dangerous condition is not enough. Other Circuits have applied this formulation, and now it applies in the Second Circuit. Under the rule, plaintiff loses. The Court says he submits no evidence to support his generalized statement that the walkways at the rail yard were unsafe, other than that other employees had slipped when they walked. In addition, "it is not necessarily true that an employee slipping on a walkway indicates that the trip as a whole presented a hazardous condition." Other employees did not refuse to make that walk to the wheel shop, and while they ultimately drove to the wheel shop, that could mean it they were tired or cold. The foremen also believed the walk was safe. While plaintiff could have argued that the foremen reached this conclusion as a means to convince the workers to get to the wheel shop and continue working, plaintiff did not make such an argument. 

Plaintiff also claims that management retaliated against him for reporting the unsafe walkway condition. This issue also allows the Court of Appeals to clarify the standards for these cases, holding for the first time that plaintiffs must provide some evidence of retaliatory intent. As other Circuits have held, the statute expressly requires the plaintiff to show that management "discriminated" against him for engaging in protected activity. That implies a requirement that the plaintiff show retaliatory intent. While the plaintiff need not show that retaliatory intent was the sole factor behind the discipline, or that management acted only with retaliatory motive, "the plaintiff must . . . show more than a temporal connection between the protected conduct and the adverse employment action" to win the case. This standard is in line with that reached in other Circuits, from which the Second Circuit devises the following guidelines: 

we will consider the following factors: (1) whether and to what extent the disciplinary measures were related to the protected activity, (2) the temporal relationship between the protected activity and the disciplinary measures, including whether any intervening incidents occurred that could independently justify the discipline, (3) whether the disciplined employee was represented by counsel or a similar representative in the disciplinary proceedings, and whether the disciplinary measures were upheld on appeal, (4) whether, if applicable, the disciplinary measures were upheld following Department of Labor proceedings, and (5) whether the persons accused of hostility towards the employee’s protected activity participated in the disciplinary decision.

Under the retaliation test, plaintiff loses. Factors 3 and 5 favor Metro-North. Factor 4 is inapplicable because DOL did not get involved, and factors 1 and 2 favor plaintiff, but only slightly. "Rather, the record supports that Tompkins was disciplined for failing to meet a legitimate expectation by an employer that when orders are given employees will comply." 

Plaintiff further claims retaliation because he was disciplined for conduct unbecoming an employee after speaking to his foreman in the lunchroom about the discipline and discrepancies between the foreman's account and that provided by other witnesses (a conversation that made the foreman feel threatened). Plaintiff says this discipline was also motivated by his safety complaint. While factor 3 favors plaintiff because an arbitrator overturned the discipline from that incident, factors 1 and 2 strongly favor management; the lunchroom incident with the foreman was an intervening event that killed off the causation between the protected activity relating to safety and the discipline. The fact that the discipline was overturned does not support plaintiff's argument.

You can sue government defendants for religious discrimination under the Religious Freedom Restoration Act

The Supreme Court has held that plaintiffs in religious discrimination cases against the government can name individual governmental supervisors in their lawsuit. This is the rare unanimous Supreme Court ruling in favor of civil rights plaintiffs. 

The case is Tanzin v. Tanvir, issued on December 10. Plaintiffs claim the federal government violated the Religious Freedom Restoration Act by placing them on the no-fly list solely because they are practicing Muslims who would not act as informants against against their religious communities. The Second Circuit interpreted RFRA to allow plaintiffs to sue individual defendants, and the Supreme Court agrees.

RFRA was enacted by Congress in the 1990s after the Supreme Court, in Employment Division v. Smith (1990), made it more difficult for plaintiffs to sue the government under the Free Exercise Clause. The Smith court said that neutral governmental policies or rules that incidentally disadvantage people on the basis of their religious practices do not violate the Establishment Clause. This controversial ruling deviated from prior Supreme Court cases, so Congress (back in the days when Congress still worked together) made passing RFRA a priority. The questions is how do we interpret RFRA and does it allows plaintiffs to sue individuals or only the government.

Statutory analysis is not the most exciting topic in the legal world, but it's actually pretty important, because if the court views the statute in a particular way, that is how the statute will be applied in the future unless Congress deals with the misinterpretation. Here, the Court finds that since the statute says plaintiffs can sue "the government," defined as "a branch, department, agency, instrumentality, and official (or other person acting under color of law) of the United States." That language seems clear, that you can sue an individual in his personal capacity. The federal government had its own interpretation, though, which the Court rejected: that you can only sue governmental officials in their official capacities. The feds said this interpretation makes sense because the statute references "official[s]" as among the appropriate defendants. Writing for the Court, Justice Thomas says this argument may be "plausible," but it does not work here in part because the statute also says you can sue an official "or other person." This language "clarifies that 'a government' includes both individuals who are officials acting under color or law and other, additional individuals who are nonofficial acting under color of law." In Section 1983 litigation, suing people acting under color of law means suing them in their individual capacities. Congress presumably had that principle in mind when it enacted RFRA.

The final question in this case is what can plaintiffs under RFRA sue for? The statute says you can recover "appropriate relief." What does that even mean? The Court says that phrase encompasses damages claims. The Court notes that such relief has always been available under Section 1983, and it seems that Congress wanted plaintiffs under RFRA to recover the relief that had been available to them under the Smith ruling that RFRA was intended to correct.

No Cat's Paw for plaintiff claiming retaliation for filing safety objections at the railroad

Every now and then the Court of Appeals decides a retaliation case brought under the Federal Railroad Safety Act (FRSA). This is a little-known statute that provides relief for employees who suffered retaliation for speaking out against safety violations on the railroad. These cases are normally resolved under the same legal principles that guide cases under Title VII and the other well-known anti-retaliation laws. And like those cases, lawsuits brought under the FRSA often lose under the complex evidentiary model covering all retaliation claims.

The case is Petronio v. National Railroad Passenger Corp., a summary order issued on December 2. Plaintiff says he was fired after sending emails to Amtrak management requesting trainings and reporting safety concerns. But this claim fails, the Second Circuit says, because there is no evidence that the Amtrak officers who charged and terminated plaintiff even knew about his protected activity. To get around this, plaintiff relies on the Cat's Paw theory of liability, which holds that even if the decision makers did not know about the protected activity, the organization is liable if a lower-level supervisor who did know about the retaliatory activity played a meaningful role in the plaintiff's termination. (If you are wondering what this has to do with the cat's paw, it has something to do with Edgar Allen Poe and a story he wrote about a monkey who fooled the cat with a chestnut near the fireplace).

The Cat's Paw is a nice evidentiary tool for plaintiffs who need to connect their protected activity with their termination, but it will not work in every case, like this one. Plaintiff says that Collins, who knew about his safety reports, played a meaningful role in his termination because he suspended plaintiff and testified at his disciplinary hearing. But someone else, Obey, was responsible for filing the charges, and it was Obey who advised Collins on how to proceed against plaintiff. While Collins testified at the hearing, others testified against plaintiff also, and decision makers relied on that testimony as well in finding that plaintiff had violated company policies. 

Plaintiff tried to show that Collins was biased against him because Collins said that he thought it was odd that a new employee like plaintiff would complain about safety violations outside the chain of command. But this testimony does not show bias against plaintiff; it only shows that Collins thought plaintiff's conduct was unusual. A fine distinction, but a distinction nonetheless.

Pretext not enough to avoid summary judgment in discrimination case

Here is another case demonstrating that even if the plaintiff can show the employer lied about the reason for his termination, the court can still dismiss the case on a summary judgment motion if that lie is not enough to prove discriminatory intent.

The case is Palencar v. New York Power Authority, a summary order issued on December 8. Prior to 1997, the Second Circuit usually held that if the employee makes out a prima facie case of discrimination and can prove the employer's articulated reason for his termination (or demotion, etc.) was knowingly false, the case will go to the jury on the discrimination claim. That changed in 1997, when the Circuit issued Fisher v. Vassar College, an en banc ruling that said pretext is not always enough to prove discrimination, and that plaintiff may still have to proffer other evidence of discriminatory intent. We call that the "pretext plus" theory. Although the Supreme Court in Reeves v. Sanderson Plumbing (2000) suggested that pretext alone is usually enough and that pretext plus is the exception, the Second Circuit continued to adhere to a pretext-plus evidentiary model, though every few years it reverses the grant of summary judgment on pretext alone. That's rare, though.

The Court of Appeals in this case assumes plaintiff has made out a prima facie case. It focuses on whether plaintiff can prove he was fired for discriminatory reasons. In doing so, the Court (Sullivan, Park and Nardini) reminds us that this requires a totality-of-the-circumstances approach, drawing from cases that were decided in the last 1990s and early 2000s. 

From that angle, the Court says, plaintiff has no case because the record shows that plaintiff's subordinates "lodged repeated complaints against him over the course of several years, that he was consistently combative and defiant toward his supervisors, and that he was unwilling to incorporate constructive feedback in response to his reviews over that time." What it all means is that even if plaintiff can show "some evidence of pretext," that evidence cannot override the evidence of plaintiff's performance deficiencies. The Court finds that plaintiff cannot prevail on his sexual orientation discrimination claim.

Sexual harassment and assault at Suffolk County jail may violate Section 1983

This case is disturbing on several levels. It involves inmates at the Suffolk County jail who claim one of the correction officers got away with sexually harassing and assaulting them for years because jail management knew about it but looked the other way. The primary question raised on appeal involves whether the plaintiffs can prove municipal liability under Section 1983. The Court of Appeals says they can.

The case is Lucente v. County of Suffolk, issued on November 17. The offending officer's name is Joseph Foti. The Court of Appeals (Kearse, Carney and Bianco) lays out the allegations. After Internal Affairs investigated, it found that Foti had violated departmental guidelines in the course of sexually assaulting the inmates. But prior to Foti's ultimate retirement (which he claimed had nothing to do with the Internal Affairs report), none of his supervisors ever spoke to him about this. Yet, the district court dismissed this Section 1983 case against the County, holding that Foti was merely a rogue officer whose actions cannot give rise to the "policy and practice" that plaintiffs need to prove municipal liability under Monell v. Dept. of Social Services, the seminal Supreme Court ruling on this issue from 1978. The district court also excluded allegations of Foti's misconduct from the 1990s as time-barred, and ruled that no county policymaker had knowledge of Foti's actions. The district court also ruled that plaintiffs cannot sue the county, focusing on whether management knew about the assaults rather than the allegations of sexual harassment. The Court of Appeals reverses, rejecting the district court's analysis in its entirety.

First, there was nothing isolated about Foti's misconduct, the Court says, because "the record is replete with evidence of inappropriate touching and/or other sexual harassment of female inmates on a regular basis by Foti" over the course of 18 months. And it was not limited to the six plaintiffs in this case. The evidence suggests this harassment was "open and notorious" as others at the jail saw Foti as an "accident waiting to happen." Foti also created opportunities for himself to get the female inmates alone so he could engage in the inappropriate behavior. This was not isolated behavior but severe, persistent, and pervasive, "executed in a manner that would have been difficult to conceal from supervisory personnel at the Riverhead facility, including policymakers."

Plaintiffs' case is strengthened by evidence that the Sheriff knew about Foti's sexual misconduct from the 1990s outside the jail. Off-duty conduct may be relevant in proving a Monell claim, as per Vann v. City of New York, 72 F.3d 1040 (2d Cir. 1995). Internal affairs reports from the 1990s involving jail-related sexual misconduct also support plaintiffs' claims. While some supervisors were aware of sexual harassment but not sexual assault, their knowledge of the harassment can hold the County liable for the overall sexual misconduct because even sexual harassment violates the Equal Protection Clause. These officials knew about Foti's unconstitutional misconduct, and that is enough under Monell. 

Finally, we have a statute of limitations issue. The district court rejected evidence that fell outside the three-year limitations period, but the Court of Appeals finds the older harassment constitutes the kind of continuing violation that is unique to sexual harassment claims, as the harassment as a whole was part of the overall policy and practice. We associate this principle with employment discrimination claims, but the Court of Appeals notes that it applies in other contexts as well, including land-use claims under Section 1983.

School principal is not a policymaker under Monell

A unique aspect of Section 1983 litigation is that it is almost impossible to sue a municipality for a civil rights violation. A long time ago, the Supreme Court said that towns, villages and cities cannot be sued under this statute unless the plaintiff can show the civil rights violation was caused by a municipal policy or practice. Policy and practice can be proven in a variety of ways, but that is a difficult task, so most plaintiffs simply sue the individuals who violated their rights. But the question always remains, who is a policymaker?

The case is Agosto v. New York City Dept. of Education, issued on December 4. Plaintiff is a schoolteacher who claims that management violated his rights under the First Amendment because it retaliated against him after spoke out on matters of public concern. As it happens, the Second Circuit (Menashi, Lohier and Cabranes) says that plaintiff actually did not engage in First Amendment speech because his grievance were either personal to him or did not otherwise involve matters that would concern the community. 

Many Section 1983 plaintiffs who sue school districts will argue that the principal who retaliated against them was a municipal "policymaker" because the principal had final authority over the plaintiff's employment. That argument applies the general rule that a final policymaker is the only one who can make policy for the district. The seminal Supreme Court for that principle is Monell v. Dept. of Social Services, 436 U.S. 658 (1978). As the Second Circuit puts it,

Agosto  has  apparently  settled  on  the  theory  that  Ureña’s disciplinary letters and negative evaluations were unreviewable by higher-level  officials  within the Department  of  Education, making Ureña  the  de  facto  final  municipal  policymaker  on those  specific matters involving Agosto. Even assuming that Ureña’s actions were unreviewable, Agosto’s claim  still fails because the Supreme Court has rejected the “concept of ‘de facto final policymaking authority.’”

That argument will not work, the Court says, because it it another way of imposing respondeat superior liability onto the district for the principal's actions, and Monell prohibits that theory of liability. Instead, plaintiff says that "even if Ureña were not the final municipal policymaker for teacher discipline and evaluations, he was the  final  policymaker  at  least  for  his  own  “discriminatory and harassing behavior towards Mr. Agosto.” In support of this proposition, plaintiff cites a few dozen district court rulings that "for  the  proposition  that  'a  public school  principal acts as a final  policymaker  to  the  extent  that  the ultimate  harm  that befell  the  plaintiff  was  under  the  principal’s control.'" The Court of Appeals says these cases were all wrongly decided.

by erroneously equating a principal’s final decisions with  a  municipality’s  final  policies,  those  cases  make  the  same mistake as Agosto. We do not believe that approach is consistent with Monell and accordingly decline to adopt it. Such an approach would risk imposing Monell liability for almost every action a principal takes.

The real policymaker, then is the Department of Education, not the principal. The Second Circuit had previously held as such in an unpublished summary order, Hurdle v. Board  of Education of City of New York, 113 Fed. Appx. 423 (2d Cir. 2004). Agosto's case now confirms this is the law of the Circuit. To that end, this case is an important one for civil rights plaintiffs and their lawyers who seek to prove municipal liability under Section 1983. 

You may ask, who cares about Monell liability when you can sue the individual decisionmakers? Because if the decisionmakers are entitled to qualified immunity, the municipal liability is the only way to win the case, since municipalities cannot invoke qualified immunity. Also, if you think the government employer for some reason will not cover the individual defendant's damages, then you want to sue the municipality.
 

No sexual harassment case involving lewd talk and lollipop licks

This hostile work environment case fails because the plaintiff cannot show his working conditions were severe or pervasive under Title VII to make out a true sexual harassment claim. While this is a male-on-male harassment case, that is permissible under Title VII if the plaintiff can show the workplace abuse was based on sex and was so offensive that it altered the conditions of the workplace. Plaintiff cannot prove that, and the case is dismissed.

The case is Agosto v. New York City Dept. of Educ., issued on December 4. Plaintiff was a public school teacher. He claims the school principal, Urena, would stare, sneer, cat-call and clap at plaintiff, sang lyrics from the musical Annie while staring at him and said "Hi, Mr. Agosto" in a feminine voice. This is not enough to create a hostile work environment under Title VII. This behavior would qualify as the kind of workplace annoyance that courts have in mind when they remind us that Title VII is not a "general civility code," as the Supreme Court put it more than 20 years ago.

Plaintiff cites a few other incidents to bolster his claim. For various reasons, these incidents are not enough to force defendants to trial. First, plaintiff says, Urena stood closely behind him while plaintiff was bending over. Urena did not touch plaintiff, who says this was a "simulated act of anal penetration." While the Court of Appeals (Menashi, Lohier and Cabranes) says this is a serious charge, it is contradicted by plaintiff's summary judgment affidavit, which said the sexual harassment began in January 2017; the "anal penetration" incident purportedly happened in March 2016. If your summary judgment affidavit contradicts your claim, then the affidavit will be disregarded. The Court of Appeals has been saying this for years, and it says it again. Nor was this incident cited in the complaint, and the summary judgment record does not contain deposition testimony that references this episode under oath.

The second incident that the Court of Appeals disregards was the lollipop incident. Plaintiff says the principal licked a lollipop in a manner that simulated oral sex, and that he had directed this gesture toward plaintiff. While the Court agrees this incident was "offensive and inappropriate," it does not by itself support a hostile work environment claim. The Court does recognize that a single episode can create a hostile work environment, but those cases usually involve serious episodes, like rape or physical assault. One case found a hostile work environment when the plaintiff was "covered . . . .with shaving cream" while being subjected to "racially offensive comments." Cases in this area include Ferris v. Delta Air Lines, Inc., 277 F.3d 128 (2d Cir. 2001), and Patterson v. City of Oneida, 375 F.3d 206 (2d Cir. 2004). But in Quinn v. Green Tree Credit Corp., 159 F.3d 759 (2d Cir. 1998), there was not hostile work environment where the plaintiff's coworker made a crude comment about her physical appearance  and "deliberately touched her breasts with some papers he was holding in his hand." Plaintiff's case is closer to Quinn than to Ferris or Patterson. The principal did not touch plaintiff, and the lollipop incident did not interfere with plaintiff's ability to maintain discipline over his students or modify the terms of his employment.

Teacher's union-related grievances not protected under the First Amendment

It's been a few years since we got a comprehensive ruling from the Second Circuit on what constitutes protected speech for government employees who claim retaliation for speaking out. This case involves various categories of speech from New York City school teacher who challenged his school principal. The Court of Appeals says that none of the plaintiff's speech is First Amendment speech and that the principal was therefore allowed to take action against him. This is a tough loss for the plaintiff.

The case is Agosto v. New York City Dept. of Education, issued on December 4. Under Supreme Court case law, public employees do have speech rights, but they are only protected from retaliation if they speak on matters of public concern. Private grievances do not count. Only speech that would interest the public. That means a good deal of speech among government workers, including teachers, is not protected. 

One grievance said the principal had altered the way that teachers would be evaluated without showing the proposed changes to the union chapter as a whole in violation of the union contract. This is not free speech on a matter of public concern, the Court of Appeals (Lohier, Menashi and Cabranes) says, because the form of this speech -- internal union ad PERB grievances -- "suggests the absence of a matter of public concern" under Borough v. Duryea, Pa. v. Guarnieri, 564 U.S. 379 (2011). Plaintiff does not explain how his grievance would be of any interest to the New York City community. Another union grievance challenged the principal's refusal to give plaintiff copies of the school budgets for 2011-14, as plaintiff wanted to "know where that money went, what happened with those budgets" because a prior principal had given too much budgetary influence to an assistant principal without enough input from the union. Rather than reflect plaintiff's desire to protect the public welfare, this grievance "appears to have been prompted by his personal grievance against the school's leadership for denying input of the chapter in financial decisions relating to the school." It is therefore not free speech.

Yet another grievance accused the principal "of attempting to enlist another teacher to attend a union meeting and report back because [the principal] hoped to have Agosto replaced as the union’s chapter leader." Not only does the fact that this comprised a internal grievance suggest it is not First Amendment speech, but "Agosto’s concern appears to have been the protection of his own union leadership position rather than to address a matter of general public interest."

The final speech act involved plaintiff's grievance with PERB accusing the principal of retaliating against him for representing other teachers during union activity. But, the Court says, "Filing a grievance raising his own alleged injuries is a paradigmatic example of an action that 'principally focuses on an issue that is personal in nature and generally related to the speaker’s own situation or that is calculated to redress personal grievances' and that we have therefore held 'does not qualify for First Amendment protection” from retaliation.'" Moreover, "this court has rejected the notion that 'all activities undertaken through a union necessarily become matters of public concern merely by virtue of their collateral connection to the union,' and Agosto does not explain how his advocacy regarding other employees’ internal employment disputes would transform those disputes into matters of public concern."

For good measure, the Court says that even if plaintiff's speech were protected under the First Amendment, he would lose on qualified immunity, as the law is not clearly-established that at the time the events unfolded in this case, "our caselaw was unclear about whether filing employment grievances was an act undertaken as a private citizen, though that issue was subsequently clarified" in Lynch v. Ackley, 811 F.3d 569, 582 n.13 (2d Cir. 2016).

Charles Oakley wins appeal against Madison Square Garden

This is one of those celebrity cases that only arise in the Second Circuit, home of New York City, where famous people live and work and play and bring lawsuits against other famous people.

The case is Oakley v. Dolan, issued on November 16. Plaintiff used to play basketball for the Knicks from 1988 to 1998. Dolan is chairman of the company that owns Madison Square Garden, home of the Knicks. Plaintiff is suing Dolan for assault and battery. So what the hell happened here?

According to the complaint, in 2017, plaintiff showed up at MSG to watch a Knicks game, when within minutes of his arrival, Dolan told security to "forcibly remove" plaintiff from the building. The decision suggests that plaintiff was sitting near Dolan. I guess Barkley and Dolan do not like each other. Plaintiff says that security shoved him to the ground and instigated a physical altercation without any provocation. After security grabbed plaintiff some more, he pushed their hands away in self-defense. Security again threw plaintiff to the ground. They then escorted plaintiff out of MSG. 

The district court dismissed the assault and battery claims, finding the complaint did not allege a plausible cause of action. The trial court said, "the mere allegation that the guards subsequently grabbed him and pushed him to the ground is not enough to demonstrate unreasonable force." Also, the district court said, plaintiff did not allege the guards intended to hurt him, and he does not allege excessive force."

The Court of Appeals reinstates the claim. It looks like the trial court may have over-analyzed the complaint. Under the rules guiding motions to dismiss, there is a case here, the Second Circuit (Newman, Calabresi and Carney) says, because "when a plaintiff alleges that he was 'thrown to the ground' by actions that 'greatly exceeded the amount of force that was necessary' and 'clearly exceeded the bounds of reasonable behavior,' and that he 'has suffered and continues to suffer harm,' the reasonable inference to be drawn is that he has been subjected to an unreasonable amount of force."

Plaintiff also brings a disability discrimination and defamation claim, alleging that after this incident happened, Dolan said on the radio that plaintiff has a problem with anger, is physically and mentally abusive, may have an alcohol problem, and had arrived at the game impaired and treated MSG staff abusively. Even if these statements are false, there is no case because plaintiff is a public figure and therefore has to allege the statements were made with malice, i.e. that the speakers had recklessly disregarded they were false. Nor is there a defamation per se claim, which allows plaintiffs to win without showing actual damages as defamation per se inherently damages the victim's reputation. Defamation per se is only proven in a few ways: falsehoods that allege serious criminal conduct, falsehoods that allege a loathsome disease (usually a sexual disease of some kind), or falsehoods that impute unchastity to a woman. The statements at issue in this case involve none of these exceptions. 

The disability claim is also dismissed. Plaintiff says that defendants discriminated against him based on his perceived disability, alcoholism, plaintiff does not adequately plead that he was kicked out of MSG as a result of his perceived alcoholism, as opposed to his alleged inebriation at that time and the resulting disruption." At most, plaintiff is alleging that Dolan speculated after the fact that plaintiff had a problem with alcohol. But since the complaint alleges that Dolan said this because staff were concerned that plaintiff appeared impaired, plaintiff has not alleged that Defendants discriminated against him because they believed he was a alcoholic.

Subpoena fracas case yields one dollar in nominal damages

This case began when a sheriff's deputy showed up at someone's property to serve process. People hate it when process servers show up. This one was a subpoena for debt collection. A fracas broke out and other police showed up. The property owners brought a lawsuit for excessive force and trespass. The case went to trial and there was a mistrial. In the end, the plaintiffs end up with a dollar.

The case is Wierzbic v. Howard, a summary order issued on December 1. After trial, the jury deadlocked and a mistrial was declared. That did not prevent the trial judge from entertaining defendants' motions for judgment as a matter of law under Rule 50.

The false arrest and excessive force claims were dismissed under Rule 50. One plaintiff loses the false arrest claim because the officer had "arguable probable cause" in that he had a reasonable basis to believe the plaintiff was violating the law when he waived a pair of pliers at head level and shouted profanities at the officer and told him to get off the property. When the officer told this plaintiff to put down the pliers, the plaintiff refused to do so. That is enough to arrest someone; the officer rationally believed the plaintiff intended to place him in fear of physical injury, which violates the New York menacing law. The Court of Appeals (Parker, Chin and Stanceu [D.J.]) affirms this holding. 

The district court also granted JMOL on the excessive force claims. While the plaintiff said the officer punched him in the head, that happened after plaintiff was placed under arrest and would not drop the pliers. Plaintiff was also trying to flee. So some force was justified in effectuating the arrest. While the officer punched plaintiff in the back and in the back of the head, this was a de minimus use of force, not enough for a Section 1983 claim. The same analysis applies to the use of pepper spray to subdue plaintiff. While plaintiff claimed the officer smashed his face into the ground, such a claim would normally be sent to the jury, but not this one. The claimed injuries were not consistent with that claim because it took place on a stone driveway, but the photographs only depicted small scratches and some discoloration. There is no evidence that plaintiff went to the hospital or received treatment for his injuries.

The trespass claim is a different story. The officer would not leave the property as directed, so that constitutes a trespass. But what are the damages? Plaintiffs say the damages are the lost tomato plants they could not water that day because the officer had shown up at the property and would not leave, resulting in their arrest. But the trial judge noted that it was plaintiffs' affirmative actions that day which prevented them from watering the plants, in resisting the officer's authority. That will get you nominal damages. The Court of Appeals agrees.

Student's excessive force claim against the school is revived on appeal

It never would have occurred to me back in high school that I could actually sue the high school over anything. I did not know that students have rights and that the federal courts will sustain those rights if the kids have a case. In this case, the student sued the school over the use of excessive force by one of the security guards. 

The case is Concepcion v. New York City Dept. of Education, a summary order issued on November 30. Plaintiff brought two claims: false arrest and excessive force. It all started when plaintiff showed up to a school assembly a minute late; the teacher says plaintiff cursed at her when she asked if he was supposed to be there, but plaintiff testified that he only said, "I do belong here." When the security officer began escorting plaintiff to the dean's office, plaintiff refused and said he wanted to call his mother. The officer and plaintiff went to a stairwell to talk this over. Eventually, other security officers had to push plaintiff along because he was blocking foot traffic. On the way to the dean's office, according to plaintiff, the officers grabbed his arms. The officers say plaintiff tried to take a swing at them. When the officers grasped plaintiff's arms, everyone fell to the floor. Plaintiff says one security officer next pushed him through a doorway and threw him to the floor. Someone else put a knee to plaintiff's head to hold him down until someone handcuffed him. 

The false arrest claim (premised on the seizure) is rejected on appeal. The Second Circuit (Lohier, Park and Rakoff [D.J.]) finds there was probable cause to detain plaintiff for obstructing governmental administration, as there is no dispute that plaintiff physically restricted the security officers on the way to the dean's office. 

But the excessive force claim, dismissed on the summary judgment motion, is revived on appeal. While the district court held that plaintiff had resisted the officers' authority, that does not mean that any force was necessary. Excessive force claims require the court to consider the nature of the charge against the plaintiff and whether the necessary force turned into excessive force. The leading case on this issue is Sullivan v. Gagnier, 225 F.3d 161 (2d Cir. 2000), holding that "the fact that person whom the police attempts to arrest resists . . . no doubt justifies the office using some degree of force, but it does not give the officer license to use force without limit." The obstructing governmental administration charge was relatively minor such that any force to restrain plaintiff had to be judicious. We also consider whether the plaintiff posed a safety threat to the officers. While the officers claimed that plaintiff made a threatening gesture, plaintiff denies that and the record does not conclusively prove he did so. These issues are for the jury.