There's the cocktail party version of a case, and then there's the courtroom version of the case. The cocktail party version makes the case out to be a slam dunk. The courtroom version sees the case dismissed on summary judgment.
So in this case, imagine that someone tells you he was denied a promotion and that one of the decisionmakers once said that he wanted to get rid of the "Black guy" in the division "because he was making too much money." The "Black guy" the supervisor was referring to was plaintiff. At the cocktail party, the reaction would be one of outrage. But the case did not survive summary judgment, even under the New York City Human Rights Law, which favors plaintiffs.
The case is Pierre v. City of New York, a summary order issued on February 10. Plaintiff applied for two promotions. He was denied those positions; he claims the adverse decisions were motivated by racial and age discrimination. One decisionmaker made the comment about getting rid of the "Black guy" because he was making too much money. Even though Pierre was the "Black guy," that comment loses its evidentiary value because the decisionmaker said it one year earlier. That makes it a "stray remark" under employment discrimination jurisprudence.
The judges at oral argument in this case focused on the "too much money" angle. It's not discriminatory to fire someone for that reason. Plaintiff's counsel focused on the "Black guy" angle, and his client's extensive experience for the positions. But that comment took place a year earlier, and courts do not like to second-guess discretionary managerial decisions about whom to promote when all the candidates are qualified for the position. What also hurts plaintiff's case is that management proved the successful candidates had much more experience than plaintiff, and that they were more enthusiastic about the positions than plaintiff was. And, the Court of Appeals (Chin, Calabresi and Raggi) says, plaintiff admitted during his job interview that "he did not view the position of division chief as the 'passion of his life,' instead viewing it as a launching pad for further promotion. This analysis takes care of plaintiff's federal claims.
While the Court of Appeals notes that the City Human Rights Law carries a more favorable burden of proof for plaintiffs, this case fails under the City law as well, and the Court notes that even claims under the City law may be dismissed on summary judgment. Even under the liberal standards guiding the City law, the Court says his claim under that statute fails also.
The public is not as familiar with qualified immunity as it should be. This immunity means that public officials, including police officers; town, village, county and state employees; and really anyone else working in government, can avoid litigation if they did not violate clearly established case-law. That immunity attaches even if the court says that, in hindsight, the defendant did in fact violate the plaintiff's rights. This gives public employees a layer of protection against lawsuits unless their civil rights violation was clear and obvious. Otherwise, case dismissed. That's what happened in this case.
The case is Gerard v. City of New York, a summary order issued on February 10. Plaintiff was in pretrial detention when the defendant told him, pursuant to court order, to shave his beard in preparation for a police lineup. Plaintiff had to do this because he had grown the beard since his arrest and it changed his physical appearance. A shouting match followed, with some profanity for good measure. Plaintiff says the officer "took out his gun and threatened to shoot Gerard if he did not cooperate." The district court said there is no clearly-established case law holding that even a disproportionate and unreasonable show of force like this that does not involve physical contact violates the Constitution. The Court of Appeals (Walker, Wesley and Nardini) agrees and the case is over.
The Court of Appeals assumes that Detective Bia "brandished his gun and threatened to shoot Gerard when he volubly refused to comply with the court order." While "The Fourteenth Amendment’s 'Due Process Clause protects a pretrial detainee from the use of excessive force that amounts to punishment,'" and "It is clearly established that the use of deadly force against an unarmed, non-dangerous person is unconstitutional," cases also hold that verbal harassment from the police without "any appreciable injury" is not excessive force under the Constitution. Unfortunately for plaintiff, "neither the Supreme Court, nor this Court, has clearly established that a verbal threat combined with a display of a firearm, without any physical contact, constitutes excessive force, much less when it is directed at an uncooperative detainee who is loudly and profanely resisting a court order."
Plaintiff does cite Mills v. Fenger, 216 Fed. Appx. 7 (2d Cir. 2006), which states that "Circuit law could very well support a claim that a gunpoint death threat issued to a restrained and unresisting arrestee represents excessive force." That's good language for plaintiff, but the Second Circuit says it's not enough to save plaintiff's claim, as that language in Mills is non-binding dicta and the case itself is an unpublished summary order, which doesn't count for qualified immunity purposes. The Court of Appeals held in Jackler v. Byrne, 658 F.3d 225 (2d Cir. 2011), that summary orders cannot be cited in support of a qualified immunity argument.
Up until a few years ago, it was difficult if not impossible to review the disciplinary records of police officers. N.Y. Civil Rights Law section 50-a provided officers that protection. The State Legislature repealed that provision a few years ago in the wake of increased awareness of police misconduct. That legislative amendment has yielded new litigation about the scope and consequences of the Rule 50-a repeal.
The case is Uniformed Fire Officers Association v. DeBlasio, a summary order issued on February 17. The police and firefighters union opposed this legislative repeal. This litigation would scale back the scope of the new law, and, to that end, numerous amicus parties filed briefs in this case, including law enforcement entities and civil rights groups. The police argue that revealing disciplinary records, even in cases where the police were exonerated or where the complaints were deemed unfounded or unsubstantiated, would cause them irreparable harm. They sought a preliminary injunction, which the district court denied. The Court of Appeals (Leval, Lohier and Kearse) agrees with the district court. The records may be released to the public.
The police first argued that the collective bargaining agreement contains a provision that, upon an officer's request, the NYPD "will remove from the Personnel Folder investigative reports which, upon completion of the investigation are classified 'exonerated' and/or 'unfounded.'" While the contract contains that language, the City can still disclose this information to the public under the Freedom of Information Law because removing records from a personnel file does not require eliminating them from the city's records. On the basis of this reasoning, the police are not entitled to enjoin the city's decision to release the records to the public.
The police next argue that releasing unfounded or unsubstantiated complaints will cause them irreparable, or irreversible, harm even if the records will reveal the outcome of the investigation. The police argue that publicizing these records will hurt their future employment prospects. But, the Court of Appeals says, while other states have already released records like this, "the Unions have pointed to no evidence from any jurisdiction that the availability of such records resulted in harm to employment opportunities." In addition, and this may come a shock to non-lawyers, but loss of economic opportunities is not considered "irreparable harm" under preliminary injunction case law. Even financial distress is not considered irreparable harm under the precedents because, in theory, you can recoup the money later and get back on track financially. Irreparable harm usually involves the loss of constitutional freedoms or permanent damage to a historical artifact.
I am sure the Unions argued in this case that releasing records would cause irreparable harm because it would deprive them of a property right under the Due Process Clause. But the Court of Appeals goes on to hold that the police have no such property right in diminished future employment opportunities. The Court held that in Sadallah v. City of Utica, 383 F.3d 34 (2d Cir. 2004). Continuing with its constitutional analysis, while the Union claims that releasing these records would violate the Equal Protection Clause (because other public workers will not have their disciplinary records publicized), the Court rejects that argument also, holding that "because the public has a stronger legitimate interest in the disciplinary records of law enforcement officers than in those of other public employees, the District Court correctly determined that there was a rational, nondiscriminatory basis for treating the two sets of records differently."
Another case lost to qualified immunity. The police entered plaintiff's residential property without a warrant because they had a backyard filled with things the plaintiffs had recovered from foreclosed property and were keeping for sale. The district court allowed the case to proceed even though the police argued that qualified immunity must attach because they acted reasonably at the time and they thought the plaintiffs were operating an unsafe junkyard. The Court of Appeals (Livingston, Lynch and Cabranes) reverses, immunity attaches, and the case is over.
The case is Williams v. Galligan, a summary order issued on February 3. I know from experience that people are usually enraged when the police step foot on their property without a warrant. But as the Grateful Dead once said, "If you got a warrant, I guess your gonna come in." That lyric may be true, but what about warrantless property entries? Can't the police take the time to get a warrant in the first instance, especially when they are dealing with a possible junkyard when there is no one on the property who is in imminent danger (for which there is no time for a warrant)?
The district court ruling tells us what the property looked like: "Their alleged personal property included “broken and sharp pieces of metal and wood, a rusted x-ray machine, broken household appliances and tools, various pieces of other appliances and tools, broken pieces of furniture, old car tires, pesticides, flammable oils, a dilapidated camping trailer, and miscellaneous other efuse” that occupied curbside space and space in the front, back, and side yards."
Qualified immunity protects police officers when the civil rights violation was not clearly-established at the time. We know what's clearly-established from the pre-existing case law. Plaintiff has to find a binding case from his jurisdiction that is close to his own case so that the police were on constructive notice that they were violating the Constitution. That is not as easy as it sounds. Courts want a close match in this regard, and the courts have been tightening up that standard over the years. Any plaintiffs' civil rights lawyer will tell you this.
The police can also get immunity if they are enforcing a law that's already on the books. That's this case. Plaintiff loses this case on appeal because the town's anti-blight law allowed the police to take immediate action if conditions created an immediate danger to the health, safety and welfare of the town. The Court does not opine on the law's constitutionality but it notes the law resembles the well-established exigent exception to the Fourth Amendment that the Supreme Court has already recognized. In addition, the Court said, the warrantless entry was not clearly unlawful since a reasonable police officer could have seen the backyard as a junkyard, as they "kept a variety of unusual objects" there.
The Freedom of Information Law is more complex than you think. Not all government documents are freely available to the public. This is particularly the case under the federal FOIL law. This case asks whether the Board of Immigration Appeals must make available the many non-precedential, unpublished opinions it issues with respect to the cases that come before it. The Second Circuit says these records are covered by FOIL and they must be produced.
The case is New York Legal Assistance Group v. Board of Immigration Appeals, issued on February 5. The BIA is like the court of appeals for immigration cases. It issues written opinions in resolving individual disputes, but many of those rulings are impossible to find because they are considered non-precedential and the Board does not make them available on its website. But immigration lawyers want to see these rulings for the same reason that federal practitioners want to see the non-precedential rulings issued by the Circuit courts. While they technically are not precedential, they do give insight into how the courts resolves these issues, and practitioners want to know about decisional patterns that are underneath the radar. Having access to these rulings makes you a better lawyer.
But this is not an easy case. The federal FOIL law has a million exceptions and wiggle room for the government to resist producing records like this. Under the law, the agency must "make available for public inspection in an electronic format final opinions ... and orders, made in the adjudication of cases." Federal courts have authority under the law to prevent the agency "from withholding agency records and to order the production of any agency records improperly withheld from the complainant." Despite this clear language, other federal circuits have ruled in favor of federal agencies with respect to its written rulings. Since the Second Circuit rules in favor of broad access to these materials, we have a circuit split that may have to be resolved by the Supreme Court. Even this case is a split verdict: the Second Circuit rules in plaintiff's favor by a 2-1 vote (Lynch and Jacobs in the majority, Park in dissent).
The critical factor for the majority in this case is that the FOIL's remedial provision requires the agency to make the documents available on the Internet. So we have a dispute about the scope of the relief available to plaintiff. While plaintiff says the documents must be posted in an "electronic reading room," the agency says they only have to be made available to the party requesting the documents. The Second Circuit sides with the plaintiff on this issue. In dissent, Judge Park writes that the remedy of posting the opinions on the BIA website is unprecedented and that the normal remedy is to simply make the documents available to the plaintiff.
Every civil rights lawyer knows about the fee-shifting statutes. Under these laws, 42 U.S.C. 1988 in particular, the prevailing plaintiff recovers his legal fees from the losing defendant. Those fees usually go to the plaintiffs lawyer, the reward that follows years of litigation without any payment on a case that posed a risk that the plaintiff might lose and the lawyer gets nothing. This case shows us how it works, and why it is difficult to challenge the district court's reasoning on an attorney's' fees motion.
The case is Ortiz v. City of New York, a summary order issued on February 1. Ortiz prevailed at trial on his excessive force claim against the police, winning $118,000 in damages. His lawyers then moved for attorneys' fees in the amount of $944,987.25, premised on more than 1,000 hours of legal work at hourly rates of $675 and $575. The trial court slashed and burned that fee application, awarding the attorneys $221,502.98 in fees, based on a uniform hourly rate of $300. Plaintiff appeals, but that effort runs into the settled principle that the trial courts have broad discretion in awarding fees because they and not the Court of Appeals saw the case from the ground floor and presumably knows if the case was efficiently handled. Plus, the appellate judges really don't want to get their hands dirty on a fee motion, with its time logs, hourly rates, and fighting among the lawyers on both sides about money, which is never a pleasant fight in any context. The Supreme Court also says fee awards should reflect "rough justice," meaning "auditing perfection" is not the goal so long as the trial court generally gets it right.
Those discretionary legal standards doom this appeal. The Second Circuit (Cabranes, Lynch, and Marrero [D.J.]) notes that one factor that district courts may consider in awarding fees is whether the case was straightforward or complex. The Second Circuit says the district court "appropriately considered the complexity of a matter because a reasonable paying client would consider the complexity of his or her case when deciding whether an attorney's proposed hourly is fair, reasonable, and commensurate with the proposed action." The appellate court will not second-guess the trial court's judgment on this issue, even if poses a hypothetical question about what a reasonable client might pay his lawyer, a model endorsed by the Court of Appeals over a decade ago in Arbor Hill v. County of Albany, 522 F.3d 182 (2d Cir. 2008). Whether that hypothetical is accurate in the real-world is another story.
What about the district court's ruling that slashed down the hours sought on the fee motion? The district court figured the total hours amounted to 38 weeks of full-time work on what the court also deemed a relatively straightforward case. These hours were excessive, the court said, and the Court of Appeals will not second-guess that judgment, either. Let's face it, that's a lot of hours.
Plaintiff does get a small victory on this appeal. It turns out that, under the district court's calculation, $221,000 is not the correct number. The right number is $291,000. Somewhere on the trial court phase of this motion, the numbers got confused or something. So plaintiff's attorneys get an additional $70,000 in fees thanks to this appeal. That may be relatively small consolation in light of the overall fees they requested, but, hey, $70,000 is $70,000.
The state of Vermont has a program that pays tuition for high school students to take courses at private colleges. The Second Circuit has ruled that the Vermont violated the Free Exercise Clause of the First Amendment in refusing to pay tuition for students to take courses at religious colleges.
The case is A.H. v. French, issued on January 15. Under Vermont law, a school district violates the state constitution by reimbursing tuition for sectarian, or religious, schools. That requirement violates the Free Exercise [of religion] Clause, the Court of Appeals (Walker and Menashi) says.
Prior Supreme Court cases have restricted how states may deny financial benefits to religious institutions when comparable secular activities may be subsidized. In Trinity Lutheran Church v Comer (2017), the Court said Missouri violated the Free Exercise Clause when it denied subsidies to religious institutions for playground resurfacing while providing that funding to nonreligious institutions. In Espinoza v. Montana Dept. of Revenue (2020), the Court said the state could not prohibit the use of scholarship funds to support sectarian schools. You can really see the trend in Supreme Court jurisprudence in this area. Forty years ago, these programs would likely have been upheld under the Free Exercise and Establishment Clauses. But the courts have changed and the Supreme Court has grown more conservative in recent times, making it more difficult for the government to restrict public moneys to religious institutions.
These recent Supreme Court cases guide the Second Circuit's reasoning in this case. The Circuit holds that while students get tuition subsidies for secular private schools, that money is denied to students who want to attend schools based on those schools' religious status. That school is thus penalized because of its religious affiliation, and the plaintiffs have the unconstitutional choice between sending their child to a religious school and foregoing the benefits or sending the student instead to a non-religious school. The Court says the state has not identified a compelling reason for this restriction. That means the plaintiffs gets a preliminary injunction that prevents the state from denying tuition benefits for that reason.
An interesting side-note to this case. The Supreme Court said many moons ago that appellate courts must independently review the evidence in free speech cases to ensure the First Amendment is not compromised by trial courts who normally have discretion to view the facts as they see fit. The Second Circuit extends that unique rule to cases that implicate the religion clauses of the First Amendment, as well. Other Circuits have done this, and the Second Circuit does it as well.
Covid-19 is starting to produce its own body of case law, much like Vietnam and the civil rights movement led to new doctrines in First Amendment cases more than 50 years ago. The Covid cases ask the courts when the government may clamp down on civil liberties in the interests of stopping the spread of this virus. It looks like the Supreme Court is less deferential to governmental thinking than I might have expected. The Court is now routinely striking down public assembly restrictions to the extent they restrict churchgoing and other religious activities. Like this case.
The case is South Bay United Pentecostal Church v. Newsom, issued on February 5. California is now bearing the brunt of this virus. The governor restricted churchgoing in much of the state. But other establishments may still entertain patrons and customers, like grocery stores and movie studios. California said churches are different because they attract many people from different households who sing and worship in close proximity for extended periods.
The Supreme Court strikes down the California rules by a 6-3 vote. The Court does say the state may impose a 25% capacity at houses of worship. The Court also allows the ban on singing and chanting in church. But overall, this is a victory for the churches.
Justice Gorsuch writes the most extensive opinion in this case, which reaches the Court as an emergency motion, so there is not actual Court opinion, the normal course of action in Supreme Court cases. He agrees that stopping the spread is a compelling reason to restrict civil liberties, but that the restrictions are not narrowly-tailored, or carefully drawn, as required under the First Amendment. He says the factors cited by California are not always present in every church situation, and that there are other ways to protect the public without shutting down the churches entirely, like social distancing requirements, mask-mandates, plexiglass barriers, cleaning, etc. While the state says church brings people together for extended periods of time, the same may hold true for open establishments like shopping malls, salons, or bus terminals, Gorsuch says. What it all means is that since religious establishments are held to stricter standards than other establishments, California has violated the Free Exercise (of religion) Clause of the First Amendment. Gorsuch concludes that while "drafting narrowly tailored regulations can be difficult, . . . if Hollywood may host a studio audience or film a singing competition while not a single soul may enter California churches, synagogues, and mosques, something has gone seriously awry."
In dissent, Justice Kagan, writing for Justices Breyer and Sotomayor, says the majority is ignoring the scientific judgment of those who advised California to adopt these restrictions. She said the restrictions are neutral and not biased against religion because the religious congregation rules are the same as those guiding other large groups of people who gather for extended periods of time, like concerts, plays, movies, restaurants and bars. Since those are secular gatherings, religious activities are not being singled out.
If you are keeping score, the justices in the majority are Republican appointees, including the three justices appointed by Trump. The dissenters are Democratic appointees.
The State of Connecticut has in place certain laws that allow the state to charge inmates for the cost of incarceration and even the use of its public defenders. This case asks whether the state could recoup those costs from a Connecticut inmate's successful lawsuit against a correction officer for excessive force. The Court of Appeals rules in favor of the inmate.
The case is Williams v. Marinelli, issued on February 4. Williams won his lawsuit against Marinelli, winning $250,000 for physical injuries sustained when prison guards knowingly placed him in a cell with a gang member who beat him senseless. Williams was also awarded $50,000 in punitive damages. After Williams won the trial, the state sent approximately $142,000 of that amount to the state coffers to pay for his incarceration, sending that same amount into Williams' personal account. The state also took $48,000 from the judgment to reimburse the state for Williams' use of the public defender in his criminal case. In response, Williams filed a motion to undo these maneuvers, claiming that these clawbacks were inconsistent with Section 1983, the federal civil rights law that was intended to deter civil rights violations. The state court agreed with Williams, noting that the state law guiding these maneuvers conflicted with the purposes of Section 1983 and that the state's decision to indemnify the defendant meant that state employees had a diminished incentive to respect civil rights.
The Second Circuit (Leval, Carney and Stanceu [D.J.]) affirms, ruling in Williams' favor. The state laws at issue in this case are preempted by Section 1983 under the "conflict preemption" principle that a local law conflicts with Section 1983 when it "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." The Court of Appeals agrees that the state cannot take this money from the plaintiff's civil rights recovery because that would conflicts with the values promoted by Section 1983. The Court reasons:
Upon consideration of all the facts of this unusual case, we conclude that Connecticut's actions conflict irreconcilably with § 1983’s purpose of deterring constitutional violations. The deterrent effect of Williams's§ 1983
award is eviscerated if both the constitutional tortfeasor and his
employer, the State, are relieved of the bulk of the financial
consequences of the violation. We conclude that the State's actions here
conflict sufficiently sharply with § 1983’s
goals, particularly the goal of deterring state officers from abusing
prisoners in their charge in violation of their constitutional rights,
to justify the district court's conclusion that the State's attempt to
discharge Marinelli's judgment obligations while recouping more than half the judgment through its cost-recovery statutes is preempted by § 1983, and the judgment against Marinelli remains outstanding.
The Court is careful to note this is a fact-specific holding that does not otherwise prevent the normal operation of these clawback statutes. The Court rules in plaintiff's favor because (1) the jury found that defendant acted maliciously and recklessly and awarded punitive damages against him; (2) plaintiff suffered serious injuries; (3) the state agreed to indemnify the defendant for these damages, which means that allowing the state to recoup its incarceration costs against defendant would "substantially undermine the deterrent effect that the risk of personal liability otherwise would have on a state official"; (4) such recoupment would deprive plaintiff of at least 60% of his judgment; (5) plaintiff has a lengthy sentence, which means the cost of his incarceration is high, thus "inform[ing] corrections officers from the day of his imprisonment that the
risk of suit against them is diminished by the likelihood that any
recovery achieved by the prisoner can be very substantially reduced by
the State's cost recovery; and (6) the recoupment for incarceration and public defender debts "apply broadly to a significant portion of the inmate population (or, in
the case of the cost of incarceration statutes, apparently all of that
population), making it easier for officials to know ex ante that prisoners’ civil recoveries will likely be reduced by operation of the Connecticut cost-recovery statutes."
This is the second ruling from the Court of Appeals in 10 days that favors an inmate at Northern Correctional Facility in Connecticut. On January 27, the Court of Appeals reinstated a jury verdict in favor of an inmate who was awarded $750,000 in damages for the denial of exercise under the Eighth Amendment, a case that I argued. Read all about that case at this link.
Upon consideration of all the facts of this unusual case, we conclude
that Connecticut's actions conflict irreconcilably with § 1983’s purpose
of deterring constitutional violations. The deterrent effect of Williams's
§ 1983 award is eviscerated if both the constitutional tortfeasor and
his employer, the State, are relieved of the bulk of the financial
consequences of the violation. We conclude that the State's actions here
conflict sufficiently sharply with § 1983’s goals, particularly the
goal of deterring state officers from abusing prisoners in their charge
in violation of their constitutional rights, to justify the district
court's conclusion that the State's attempt to discharge Marinelli's
judgment obligations while recouping more than half the judgment
through its cost-recovery statutes is preempted by § 1983, and the
judgment against Marinelli remains outstanding.
Williams v. Marinelli, No. 18-1263, 2021 WL 377791, at *9 (2d Cir. Feb. 4, 2021)
Upon consideration of all the facts of this unusual case, we conclude
that Connecticut's actions conflict irreconcilably with § 1983’s purpose
of deterring constitutional violations. The deterrent effect of Williams's
§ 1983 award is eviscerated if both the constitutional tortfeasor and
his employer, the State, are relieved of the bulk of the financial
consequences of the violation. We conclude that the State's actions here
conflict sufficiently sharply with § 1983’s goals, particularly the
goal of deterring state officers from abusing prisoners in their charge
in violation of their constitutional rights, to justify the district
court's conclusion that the State's attempt to discharge Marinelli's
judgment obligations while recouping more than half the judgment
through its cost-recovery statutes is preempted by § 1983, and the
judgment against Marinelli remains outstanding.
Williams v. Marinelli, No. 18-1263, 2021 WL 377791, at *9 (2d Cir. Feb. 4, 2021)
Appeals Panel, Reversing Major Damages Reductions, Says Ex-Montefiore Employee Entitled to $2.5M
"Under these uniquely
abhorrent circumstances, the [damages] awards were reduced to levels
that were disproportionately low," the Appellate Division, First
Department wrote in a decision that reverses a series of
damages-reductions ordered by a Bronx Supreme Court judge.
By
Jason Grant|
New York Law Journal February 03, 2021 at 02:48 PM
Montefiore Medical Center/courtesy photo
In an expansive decision reversing a Bronx Supreme Court judge, a
state appeals court has reinstated a jury-trial finding that a former
Montefiore Medical Center employee was battered on the job with a
telephone handset. The panel also has tossed aside the judge’s major
reduction of the jury’s $6 million total damages verdict to $523,805,
deciding instead that she can take home $2.5 million, if she chooses,
and the panel ruled that the employee is due a new trial on her gender
discrimination claims and prayer for punitive damages.
The Appellate Division, First Department ruled that plaintiff Blanca
Madrigal, who’d alleged she was subjected at Montefiore to years of
vulgar ethnic slurs, demeaning assignments, sexual harassment and the
battery with handset, can accept $2.5 million in damages for the jury’s
awards to her for battery, hostile work environment emotional distress,
and mental anguish caused by retaliatory termination of her employment.
And she’d receive the trial court judge’s reduced verdict amount of
$123,805 for lost wages.
Or Madrigal can have a new damages trial on those various claims, wrote the First Department panel in its decision.
Madrigal has 30 days to decide which route she takes: the $2.5
million or the new trial on the claims, according to the panel. Efforts
to reach her lawyer, Stephen Bergstein of Bergstein & Ullrich, to
see if an early decision had been made by him and Madrigal regarding the
choice, were not successful.
Richard Reice, a Michelman & Robinson partner in Manhattan, who
represented Montefiore and other defendants in the appeal, also couldn’t
be immediately reached.
According to the directly stated, yet still lengthy, First Department
ruling, Madrigal will get a new trial on tossed-out gender
discrimination claims and regarding punitive damages, regardless of her
decision pertaining to her clams for battery, hostile work environment
and retaliatory termination.
After the trial, which ended in December 2019, Bronx Supreme Court
Justice Howard Sherman had granted the motion of Montefiore, a major
hospital center based in the Bronx, and its co-defendants to set aside
the jury’s verdict to the extent it found that an individual defendant
had committed the common-law battery against Madrigal, according to the panel’s decision issued Tuesday.
But the unanimous First Department panel, citing Rodriguez v. New York City Tr. Auth., among
other cases, wrote in the opinion, “The evidence at trial supports the
[jury’s] verdict for plaintiff [Madrigal] on her claim for common-law
battery based on an incident in which the jury found that [a]
defendant … struck plaintiff with a telephone handset, and that verdict
is not against the weight of the evidence.”
The panel, composed of Justices Sallie Manzanet-Daniels, Barbara
Kapnick, Angela Mazzarelli and Peter Moulton, also noted that “evidence
[in the case] supports the [jury's] verdict that defendants created a
hostile work environment in violation of the [New York] State and City
HRL [Human Rights Laws] by subjecting [Madrigal] to a years-long
onslaught of vulgar ethnic slurs, accompanied by demeaning work
assignments not given to others.”
(It was unclear from the opinion what job role Madrigal worked in
while at Montefiore, and most defendant names, other than Montefiore’s,
were not stated in the opinion. Efforts to locate and obtain underlying
lawsuit records were unsuccessful.)
The panel also noted that “trial evidence amply supports” the jury’s
verdict on Madrigal’s retaliation claim. It wrote that she “engaged in
protected activity by repeatedly complaining to her employer that
supervisors were discriminating against her, and, indeed, by commencing
the instant action,” and that the “defendants admit, they terminated her
because of her repeated complaints.”
In explaining some its numerous reversals—or modifications, in the
justices’ language—of Sherman’s reductions of far higher jury damages
awards, the panel wrote that Sherman had “erred” in severely cutting the
jury’s awards for compensatory damages for pain and suffering tied to
Madrigal’s hostile work environment and retaliation claims.
“The jury heard evidence of a years long campaign of physical and
emotional abuse against [Madrigal] by her colleagues and supervisors
that was willfully ignored by her employer,” wrote the justices. “This
environment caused [Madrigal] to suffer panic attacks and anxiety, with
physical symptoms including sleeplessness, shortness of breath, and
chest pain, necessitating several visits to the emergency room over the
course of several years. [Madrigal's] doctor prescribed her sleep and
anti-anxiety medicine, the latter of which she still takes. The
termination caused her to sink into depression, from which she still had
not recovered by the time of the trial years afterward.”
“Under these uniquely abhorrent circumstances,” the panel continued,
“the awards were reduced to levels that were disproportionately low.”
The jury had awarded $1.5 million in damages for hostile work
environment distress and $2.1 million for her employment-termination
anguish, noted the justices. After the verdict, Sherman reduced those
awards to $250,000 and $150,000, respectively, though, in regard to all
of the damage reductions he made, Sherman gave Madrigal the option of
having a new damages trial if she didn’t stipulate to reduced amounts he
put forward.
Instead, she and her counsel at Bergstein & Ullrich in New Paltz, appealed Sherman’s post-verdict rulings.
In regard to Madrigal’s claim of gender discrimination and sexual
harassment, which Sherman had dismissed using a directed verdict,
meaning he’d decided there was no legally sufficient evidentiary basis
for the jury to support the claim, the panel disagreed with the directed
verdict ordered a new trial for the claim.
Madrigral’s testimony that “defendant Frantz Terlonge lewdly
suggested that she sit on his lap, and that a few days later, while
[she] was reaching into the breakroom refrigerator, he approached her
from behind, wedged himself against her, and rubbed his penis against
her backside, amply supported her claim of sexual harassment and gender
discrimination,” the justices wrote.
“In addition,” wrote the justices, “the evidence spoke to the
presence of a sustained campaign of malicious discrimination, as well as
a painful and humiliating battery, which collectively amounted to a
‘conscious disregard of the rights of others or conduct so reckless as
to amount to such disregard,’” quoting Chauca v. Abraham.
Accordingly, the justices said, Madrigal “should have had an opportunity to present her claim for punitive damages to the jury.”
The Appellate Division, First, Department has upheld a racial discrimination verdict, determining that the plaintiff is entitled to a total of $2.5 million for pain and suffering resulting from the hostile work environment, retaliatory termination for complaining about the harassment, and a civil battery that took place at work.
The case is Madrigal v. Montefiore Hospital, issued on February 2. I handled the appeal. Ian Wallace, Esq.,
of New York City, tried the case solo.
Plaintiff worked at
Montefiore in the blood bank, where she claims two supervisors subjected
her to horrible racial epithets over the course of several years. One
supervisor attacked her with a land-line telephone, and she was also
sexually harassed. Plaintiff was ultimately fired after complaining
about the discrimination and filing a lawsuit over the harassment.
While the case was
filed in 2010, the case went to trial in 2017. The defendant fought this case tooth-and-nail. A Bronx jury awarded plaintiff
$1.5 million for pain and suffering on the hostile work environment,
$2.1 million for pain and suffering for the retaliatory termination,
$1.585 million on the battery, and $824,000 in lost wages. During trial,
the trial court dismissed the sexual harassment claim on directed
verdict and denied plaintiff a punitive damages charge.
On post-trial
motions, the trial judge upheld the racial harassment and retaliation verdicts but
reduced the damages to $250,000 on the harassment and $150,000 on retaliation.
The trial judge vacated the battery verdict in its entirety for lack of
sufficient evidence. The judge also reduced the lost wages from $824,000 to
$123,000. Both sides appealed from all rulings.
On appeal, the First Department:
(1) upheld the HWE liability verdict, awarding plaintiff $750,000 in pain and suffering;
(2) upheld the retaliation liability verdict, awarding plaintiff $1 million in pain and suffering;
(3) reinstated the battery verdict, awarding plaintiff $750,000 in pain and suffering resulting from being attacked by a supervisor (who had previously taunted her with racial insults) with a telephone, sending her to the emergency room;
(4) reinstated the sexual harassment claim and remanded it for trial, reasoning that a co-worker who sat on her lap and rubbed his penis against her discriminated on the basis of gender; and
(5) reinstated the punitive damages claim on the City HRL and battery claims, remanding that damages claim for trial.
The $123,000 for lost wages stands.
Plaintiff's pain and
suffering was extensive, including hospital treatment and medication,
along with corroboration from her family. There was also corroboration
on the hostile work environment. On damages, the Appellate Division said
plaintiff endured "uniquely abhorrent circumstances." Still, this
reasoning is useful for other cases, including mediation and settlement
demands. Defendant tried to argue through its expert that Plaintiff was
delusional and narcissistic.
Trial judges often reduce large jury awards post-trial. That's what happened here. Few discrimination verdicts produce seven-figure awards, and the trial judge took a narrow view of the permissible damages awards authorized under the civil rights laws. The First Department did not reinstate the original jury award, but it did leave plaintiff with $2.5 million, one of the larger damages awards I've seen in this area.
Inmates have rights, too. Not the rights that we have, but courts over the years have set forth certain rights for them, including the right to exercise. This case tells us all about it.
The case is Edwards v. Quiros, issued on January 27. I argued this appeal. Christopher Licari, Esq., tried the case pro bono. I first wrote about this case at this link, discussing the Court of Appeals' finding that the defendant prison warden was personally liable for the exercise violation because circumstantial evidence allowed the jury to find that he knew for six months that plaintiff was denied proper exercise when he was placed in the exercise yard in full body restraints and was therefore unable to even walk around.
The defendant did not just argue that he was personally unaware of the Eighth Amendment violation. He also argued that there was no Eighth Amendment violation. The Court of Appeals disagrees with the warden and finds the trial court improperly took the verdict away from plaintiff, who was awarded $750,000 in damages.
The Eighth Amendment prohibits cruel and unusual punishment. The courts have held that this amendment requires prison officials to allow inmates to exercise. The analysis asks whether the rights violation was serious enough to deprive the inmate of the "minimal civilized measure of life's necessitates." We then then ask if the defendant subjectively acted with deliberate indifference to the plaintiff's rights. The Supreme Court created this two-part test because the Eighth Amendment provides no guidance in solving individual cases.
The subjective part of the equation is discussed in this blog post. The warden knew that plaintiff was not getting enough exercise. But what about the objective test? There was no dispute that plaintiff was not able to move around much while in the outside exercise pen. The warden argues there is no case because plaintiff was able to exercise in his cell, and the jail had safety justifications for preventing plaintiff from exercising in more secure outside exercise pens where he could work out without body restraints. But the jury was able to reject that, the Court of Appeals (Walker, Katzmann and Wesley) says.
First, the availability of in-cell exercise is not enough because the under the totality of the circumstances, the cell was too small for real exercise, and the jury was therefore able to find that plaintiff was denied meaningful exercise opportunities. Standing around and breathing fresh air is not exercise under the Eighth Amendment. As for the safety justifications, defendant argued that prison security and plaintiff's disciplinary history made it impossible to transport him to other exercise areas. But the jury was able to reject those justifications because the record shows that, in practice, prison guards did not even use all of their safety measures in taking plaintiff out of his cell. The jury was also able to find that jail officials did not seriously consider ways to make the less secure exercise pens, where plaintiff exercised, more secure.
Montefiore Medical Center/courtesy photo