Court denies new trial in racial harassment case

This racial harassment went to trial a few years ago. Plaintiff alleged that a coworker had called her a series of racial names in the classroom where they were training to become Transit Authority employees. Things came to a head on February 21, 2016, a few months after the harassment started, when plaintiff's antagonist threatened her and hurled more abusive attacks against plaintiff, though this time there was nothing explicitly racial about this second round of attacks. The trial court told the jury to ignore the second round, and the plaintiff lost at trial. She appealed, claiming the second round was relevant and she could have prevailed at trial had the jury been able to consider it.

The case is Watkins v. New York City Transit Authority, a summary order issued on May 25. I represented plaintiff on appeal. The Court of Appeals sustains the judgment against plaintiff. We argued that while the second round of attacks was not explicitly racial, since it involved the same person who had racially insulted plaintiff a few months earlier, the jury could deem the second round to be racially-motivated, as well. Case law supports that argument. See e.g. Pucino v. Verizon Comms., 618 F.3d 112 (2d Cir. 2010). The Court of Appeals (Chin, Leval and Wesley) does not address that issue, instead ruling against plaintiff on different grounds: that the harassment cannot be imputed to the Transit Authority. 

While plaintiff argued that the harassment took place in a classroom with the instructors present, thereby putting them on notice of the hostile work environment, the Court writes:

Her only evidence offered in support of the Transit Authority's knowledge prior to February 21 was the presence of instructors in the classroom near her when she heard Jenkins's insults.  That was insufficient to support the inference that the instructors were aware, or should have been aware, that a severe or pervasive pattern of race-based harassment was occurring.
 

The harassment took place in a classroom in which there were about 11 trainees and several instructors.  Watkins gave no information about what the general noise conditions were at the moments when Jenkins's taunts were spoken, such as whether they occurred during classroom instruction when the room was otherwise quiet or during breaks when numerous conversations might have been going on at the same time among the approximately 15 trainees and instructors. Nor did she furnish information as to whether the instructors were engaged in other conversations at those moments. The mere fact that instructors were within earshot of what Watkins heard Jenkins say is insufficient by itself to support the inference that they actually heard or paid attention to Jenkins's words, much less that they understood those insinuations as constituting one student's race-baiting of another. None of the seven witnesses who had been present in the classroom, who could have corroborated Jenkins's racial harassment, including two classmates called by Watkins, testified to having heard Jenkins's race-based slurs. It is undisputed, furthermore, that Watkins did not inform supervisors of Jenkins's race baiting prior to the February 21 altercation.

Was the Court of Appeals over-analyzing the evidence here? Since the jury was not given a particularized special verdict form that asked if management knew about the harassment, plaintiff argued there was not way of knowing that the jury had rejected her claim that the instructors had heard the racial name-calling. So, while many witnesses said they did not hear the insults, the argument goes, the jury could have credited plaintiff's testimony that the insults took place in the instructors' presence and that they therefore heard all of it. Plus, if the insults are taking place in the classroom, it is a fair inference that the instructors heard it. The Court of Appeals disagrees: "Accordingly, even if the February 21 evidence was relevant to the question whether Jenkins subjected Watkins to a pattern of race-based hostility, its exclusion was harmless."

Plaintiff alleges employment discrimination under Littlejohn test

The plaintiff wins this appeal in a decision that can only be characterized as short and sweet. The Court of Appeals says the plaintiff has sufficiently alleged employment discrimination.

The case is Sapio v. Selux Corporation, a summary order issued on April 22. Pleading standards for these claims have been relaxed in the Second Circuit, ever since the Court issued Littlejohn v. City of New York, 795 F.3d 297 (2d Cir. 2014). Every plaintiff's lawyer who deals with a motion to dismiss under Rule 12 must review Littlejohn. Every defendant's lawyer seeking to dismiss the case under Rule 12 must find a way around Littlejohn. Every district court that wants to dismiss a discrimination lawsuit must learn to live with Littlejohn.

The district court said the complaint failed because plaintiff only alleged that he was fired because is Asian and defendant wanted to replace her with a white employee. As the district court saw it, that was not enough to assert a plausible discrimination claim. But what the Court said in Littlejohn was that an employment discrimination plaintiff "will ordinarily satisfy her 'minimal' burden to allege facts supporting an inference of discrimination by alleging her replacement by someone outside her protected class." Plaintiff did that here, and the case heads back to the Northern District of New York.

Inmate's late PLRA grievance no bar to lawsuit

Under the Prisoners Litigation Reform Act, inmates cannot file suit unless they first bring an internal grievance over their prison conditions. That requirement was adopted to reduce the number of inmate lawsuits on the theory that an internal grievance might resolve the inmate's issues. But the requirement also has led to additional litigation over whether the inmate properly filed (or failed to file) a grievance in the first instance. This is one of those cases. 

The case is Rucker v. Griffen, issued on May 6. Plaintiff was in the county jail. He claims he was denied proper medical treatment after he was ignored for days (and otherwise given lousy medical care) despite complaining about extreme pain, dizziness, nausea, dehydration and weakness. He would up in the hospital, where he was in and out of consciousness and eventually had surgery after medical professionals determined he had diabetic ketoacidosis. 

About two weeks after he initially began complaining about his ill health at the jail, plaintiff filed a grievance and, later on, this lawsuit. The district court dismissed the case because plaintiff did not file the grievance within the five-day window, as per the jail's rules and procedures. Instead, he filed the grievance almost a year after his hospitalization.

The Court of Appeals (Leval, Cabranes and Menashi) reverses. In Ross v. Blake, 136 S.Ct. 1850 (2016), the Supreme Court said the failure to exhaust administrative remedies cannot count against the inmate if (1) officers did not provide any relieve to aggrieved inmates, (2) the process was too opaque that it was incapable of use, or (3) prison administrators thwarted inmates from taking advantage of the grievance process through misrepresentation, machination, etc. Plaintiff wins the appeal, and the case is reinstated, because during the five days when he was supposed to file the grievance, his severe medical condition prevented him from doing so, and jail officials said they would not process his late grievance because it was filed outside the deadline. As the Court of Appeals sees it, the grievance process was not available to plaintiff, and his failure to timely file it may be excused, and he can proceed with this lawsuit. The fact that plaintiff filed the grievance almost a year later doesn't matter, as the jail said it would not process the grievance once plaintiff missed the five-day deadline.

Imperfect complaint pleads an employment discrimination claim

This employment discrimination case was dismissed on technical grounds: the plaintiff did not expressly plead the claim in his complaint. Under an obscure pleading rule, you do not have to actually plead the claim so long as the statement of facts supports such a claim. Plaintiff's claim is thus reinstated.

The case is Quinones v. City of Binghamton, issued on May 12. In 2014, the Supreme Court reiterated that "the federal rules effectively abolish the restrictive theory of the pleadings doctrine" and "do not countenance dismissal of a complaint for imperfect statement of the legal theory supporting the claim asserted." "To stave off threshold dismissal for want of an adequate statement of their claim, plaintiffs are required to do no more than state simply, concisely, and direct events that, they allege, entitle them to damages." That case was Johnson v. City of Shelby, 574 U.S. 10 (2014). Who says the Supreme Court never rules for plaintiffs these days?

Plaintiff's discrimination claim was dismissed because he did not enumerate such a claim, alleging only that his rights were violated under the First Amendment. But the introductory paragraph to the complaint said that defendant violated 42 U.S.C. 1981, the federal racial discrimination statute, and the allegations in the complaint did assert that plaintiff was subjected to racial harassment: that he was repeatedly called Ricky Ricardo and a coworker mimicked him when he spoke Spanish. Another patrol officer directed ethnic slurs against an Hispanic colleague in the presence of other officers. This happened almost every day.

Defendants were on notice of plaintiff's discrimination claim because of these factual allegations, and in fact defendants addressed the discrimination claim on the merits, so they were not exactly blind-sided on this issue. The Court of Appeals (Jacobs, Park and Pooler) remands the case to the district court to decide if these allegations state a plausible claim under the Iqbal pleading standard. 

No free speech claim for City of Binghamton police lieutenant

It's been a while since the Court of Appeals published a free speech case involving a public employee. These cases began to dry up in 2006, when the Supreme Court issued the Garcetti ruling, which  made it harder to win these cases by requiring the plaintiffs to show their speech was not pursuant to their official job duties. Four years later, the Second Circuit further tightened the legal standard, in Weintraub v. Board of Education, 593 F3d 196 (2d Cir. 2010). This case does not pose a Garcetti issue but the threshold question of whether the plaintiff spoke on a matter of public concern. 

The case is Quinones v. City of Binghamton, issued on May 12. Plaintiff is a lieutenant with the Binghamton police department. Not all speech is protected under the First Amendment when you work for the government. Complaining about the air conditioning or personal dissatisfaction over a promotion denial is not speech on a matter of public concern, as the general public would have no interest in that issue. Speaking out against corruption or abusive police practices does address a matter of public concern. If it was not your job to speak up about these matters (the Garcetti hurdle), then management cannot retaliate against you.

Plaintiff loses the case on a Rule 12(b)(6) motion. One speech act asserted by plaintiff was a meeting with  the City's personnel director in which plaintiff discussed his concerns that his career was "done." During the meeting, plaintiff also said that one police official speculated that another officer was racist. None of this is speech on a matter of public concern. Personal complaints about your job situation are not protected under the First Amendment, as the employee's motive is to protect his own careers, not debate matters of public concern. The Second Circuit said that in Ezekwo v. N.Y.C. Health & Hosps. Corp., 940 F.2d 775 (2d Cir. 1991), still the go-to case for municipal lawyers on this issue. Nor is it protected speech to say that someone thought someone else was racist. 

Plaintiff also points to an October 2019 affidavit in support of another colleague's discrimination lawsuit. That could be protected speech, but not for plaintiff, because he does not describe any acts of retaliation that took place after he filed the affidavit. So there is no causal connection between the speech and any adverse action.

Federal officials can ignore a state court order

This is an unusual case. Plaintiff alleges that while in custody in federal jail in Otisville, N.Y., he was suing Pennsylvania state officials for excessive force in the course of his arrest that landed him in Otisville. A state court judge in Pennsylvania ordered that Otisville officials transport him to a hearing in Pennsylvania so he could pursue his claim. The Otisville people did not comply with the transport order and plaintiff had to participate in the hearing by phone, not in person. Plaintiff sues the Otisville people for the constitutional (due process) violation of denying him the right to appear in person for his hearing; he claims the failure to comply with the state directive cause his excessive force case to be dismissed.

The case is Dixon v. Von Blanckensee, issued on April 12. Plaintiff loses the case on qualified immunity grounds because he does not plead a federal violation. The Supremacy Clause of the Constitution voids a mandatory state court order upon a federal official. States have no power to control the operations of federal officials, including the Bureau of Prisons. 

Plaintiff tries to get around the Supremacy Clause rule by arguing he was denied access to the courts. But that claim fails. You have a right to meaningful access to the courts, emphasis on meaningful. To win a case like this, plaintiff has to show the deprivation "hindered his efforts to pursue a legal claim. The Second Circuit (Lynch, Bianco and Halpern [D.J.]) notes that plaintiff has abandoned any claim that defendant prevented him from participating in the state court hearing. Rather, he was able particulate in the hearing remotely, and his rights were not prejudiced as a result of the remote proceeding. And any claim that defendant caused his case to be dismissed is too conclusory to survive a motion to dismiss.  

NYS bar examiners cannot be sued for violating federal disability discrimination laws

Plaintiff sues the people who run the New York State bar examination, claiming they failed to accommodate her disabilities (depression, anxiety and complications from a head injury) by disallowing her extra time on the test, stop-clock breaks and separate testing facilities. Her inability to pass the bar examination cost her a legal position, though she eventually passed the exam. But her claim runs into a major roadblock: in order to sue under the federal disability discrimination laws, plaintiff has to show the bar examination apparatus receives federal funding. 

The case is TW v. New York State Board of Law Examiners, issued on April 28. The district court allowed the case to proceed, reasoning that while the Board itself had not received any federal funding, it was a "program or activity" of a "department, agency, or instrumentality," that is, the Unified Court System that had received federal funding. The Court of Appeals (Livingston, Bianco and Failla [D.J.]) disagrees, and the case is dismissed.

The problem with the district court's reasoning is that its analysis was too broad. The question is not whether the New York court system receives federal funding. Instead, we ask whether this particular entity receives federal money. During the relevant time period, certain entities in the Unified Court System did get federal money, including drug treatment courts, domestic violence courts, family courts, and veterans treatment courts. This case involves complicated issues of when a state entity waives its immunity from suit under the Eleventh Amendment. 

While the Board, at best, is an indirect recipient of federal money, that does not allow people to sue a state entity for federal civil rights violations. The more complicated issue is whether the Board is an operation of a department, agency or other instrumentality that receives federal money. While plaintiff argues that the Unified Court System is the relevant entity for purposes of this analysis that is too broad an inquiry. The proper question is whether the board that administers the bar examination receives federal money. While the Board is part of the Unified Court System, it is not an operation of the trial courts, which means it is not a "program or activity" of the courts listed above that do receive federal money. As the Board falls outside that equation, it cannot be sued in federal court for disability discrimination.  

Important case for pleading willfulness under the Fair Labor Standards Act

If you handle wage and hour claims under the Fair Labor Standards Act, then you know this, but for everyone else, the statute of limitations in FLSA claims is two years for unpaid wages and lost overtime pay. But that two-year deadline is extended to three years if the FLSA violation is willful. My guess is that most FLSA plaintiffs believe the failure to pay wages is almost always willful, and that the three-year SOL applies. That may be true, but the question in this case is how do you plead willfulness? The Court of Appeals, in a split decision, rules against the plaintiff, holding he did not plausibly plead willfulness.

The case is Whiteside v. Hover-Davis, Inc., issued on April 27. Plaintiff was a Quality Engineer for a company that manufactured automation assembly equipment; that was a salaried position. He eventually took on the duties of a Repair Technician. The employee who had previously held the Repair Technician position was classified as non-exempt, which meant he was getting overtime pay. But when plaintiff took on that position, he was still classified as exempt from the FLSA's overtime requirements and still treated as a salaried employee; no overtime for plaintiff. Plaintiff alleges the failure to pay him overtime wages was willful and that the three-year SOL applied. He needs that three-year SOL to maintain the lawsuit, since he filed the case after the two-year SOL had expired. In order to keep the case moving, plaintiff has to convince the Court of Appeals that he has properly plead willfulness.

The Court of Appeals notes that some Circuits allow the plaintiff to allege willfulness by merely alleging it in the complaint. Other Circuits want you to provide more detail. The Second Circuit (Livingston and Englemayer [D.J.]) says the plaintiff must provide detail, consistent with the plausibility pleading requirements under Iqbal and Twombly, which changed the rules on federal pleading over ten years ago. Conclusory allegations will not cut it under Twickbal. The Court notes that when Congress enacted the FLSA, it intended to draw a "significant distinction between ordinary violations and willful violations" of the statute. It is not enough to show that "an employer knew that the FLSA was in the picture" to prove willfulness. Instead, the plaintiff must show "the employer knew or showed reckless disregard for the matter of whether its conduct was prohibited by statute." Cases further hold that plaintiffs must plead the elements of certain exceptions to the statute of limitations. 

Bottom line: "the mere allegation of willfulness is insufficient to allow an FLSA plaintiff to obtain the benefit of the three-year exception at the pleadings stage. Rather, the plaintiff must allege facts that permit a plausible inference that the defendant willfully violated the FLSA for that exception to apply."

Under this new pleading rule, plaintiff loses because the Court will not infer willfulness "from the mere fact that he was asked for a period of time to perform job responsibilities typically performed by non-exempt employees even though he was classified as exempt." The Court goes on to reason:

Whiteside does not allege that Defendants adjusted his salary to reflect that of a non-exempt employee. Nor, as the district court noted, does he allege that he ever complained about the situation to his managers. Similarly, Whiteside fails to allege any details about who asked him to change roles or whether that manager, or any other manager, said anything to him suggesting an awareness of impropriety—details that would have plainly been within his knowledge and that he could have included in any of his four complaints. Cf. Parada v. Banco Indus. De Venezuela, C.A., 753 F.3d 62, 71 (2d Cir. 2014) (finding that summary judgment was proper as to the question of willfulness under the FLSA because the plaintiff "failed to adduce any evidence regarding how the misclassification occurred"). Indeed, Whiteside fails to allege that his managers acted in any manner suggesting an awareness that their actions violated or could violate the FLSA.

Instead, the complaint only suggests that defendant had negligently failed to reclassify plaintiff as a non-exempt employee who would have been entitled to overtime pay. 

Judge Chin dissents, stating that plaintiff plausibly alleges willfulness because the complaint states that 

Defendants classified Repair Organization Technicians as non-exempt employees eligible for overtime pay. Whiteside was scheduled to work 45 hours per week and often worked beyond his scheduled hours. And yet, he did not receive overtime pay. He alleges that defendants' failure to pay him overtime was willful because "[d]efendants, with reckless disregard as to whether their conduct was prohibited under statute, failed to pay the statutorily required overtime rate for the hours" he worked in excess of 40 hours per week.

Justice Thomas wants the Supreme Court to revisit the Feres doctrine

In 2020, the Second Circuit held a student could not sue West Point over her rape, which she alleged resulted from West Point's deficient policies which did not protect her from sexual assault. The case was dismissed because the Feres doctrine says you cannot sue the military for civil violations. The plaintiff filed a petition for certiorari with the Supreme Court, which has declined to review the case. The news here is that Justice Thomas wants to narrow the Feres doctrine to allow this case to proceed. But the Supreme Court will not do so, and Thomas is the only Justice who suggests the Court revisit Feres. 

The case is Doe v. United States, certiorari denied on May 3. Thomas thinks Feres goes too far. Thomas notes that "70 years ago, this Court made the policy judgment that members of the military should not be able to sue for injuries incident to military service." That was Feres v. United States, 340 U.S. 135 (1950). Plaintiff could have brought this case under the Federal Tort Claims Act if she were a civilian contractor at West Point. But since she was a cadet, she rules into the Feres doctrine, which prohibits claims like this.

While the Federal Tort Claims act does not allow you to sue for claims "arising out of ... combat activities ... during time of war," it has been interpreted quite broadly, Thomas notes, to even cover non-war-related claims. So, Thomas explains, if two Pentagon employees, one a civilian and the other a service member, are hit by a bus in the Pentagon parking lot, the civilian can sue but the service member cannot. There are cases that so hold.

Thomas wants the Court to take up this case to clarify the scope of the Feres immunity. How exactly is a student's rape "an injury incident to military service?" The Feres doctrine has been expanded so much over the years that even a rape case like this is barred. While Thomas suggests the Court does not want to "fiddle" with a 70-year-old precedent, it should do so, he argues, just as it has done with other unworkable doctrines over the years. 

Pro se inmate wins excessive force appeal against correction officer

The Court of Appeals has reinstated an excessive force claim brought by a pro se inmate who claims that a correction officer broke his finger while trying to restrain him at the jail. 

The case is Bradshaw v. City of New York, a summary order issued on March 29. Excessive force claims usually involve divergent testimony from plaintiff and defendant about what happened leading up to the use of force, as well as the amount of force used. That's why these cases are sometimes not suitable for summary judgment and a jury must decide who is telling the truth, even if it has to weigh credibility between an inmate and a law enforcement officer. 

Plaintiff sues two officers here. The first officer, Loesch, cannot be liable, the Court of Appeals (Katzmann, Lynch and Nardini) says, because there is no dispute that plaintiff refused to interlace his fingers behind his head when Loesch ordered him to do so, "and the split-second decision to bring Bradshaw to the ground and subdue him to eliminate the security risk that the officers believed he posed was not excessive." 

What about plaintiff's clam that the Loesch punched him in the face when plaintiff was on the ground? As the Court notes, plaintiff's sworn testimony "sharply conflicts with that of the officer defendants." That evidentiary dispute often places such a claim before the jury. Not this one. While a single witness's testimony can be enough to force a jury trial on liability, see e.g. Holtz v. Rockefeller, 258 F.3d 62, 78 (2d Cir. 2001), that argument will not work if video evidence conclusively proves what happened. The case for that is Scott v. Harris, 550 U.S. 372, 380 (2007). The video evidence dooms plaintiff's claim, as it proves that Loesch did not punch him. Medical records also do not show bruising on the part of plaintiff's face where he claims the officer punched him.

But plaintiff wins the appeal against defendant Tebbens. Plaintiff says Tebbins broke his finger. The medical evidence actually proves there was no broken finger, but plaintiff did  testify that this officer threatened to break his finger and then twisted and bent it painfully. That gratuitous use of force can give rise to an excessive force claim. While there is video of this incident. the footage does not conclusively prove what happened one way or the other. This means the jury must decide what happens. Bradshaw will get his excessive force trial against Tebbins.

The jury found excessive force, but no punitive damages

In this case, the plaintiff went to trial against various police officers, claiming false arrest and excessive force. The trial lasted 11 days. The jury returned a verdict in favor of all the police officers except for one, Liberatore. But the jury also awarded plaintiff zero dollars for pain and suffering. And while the jury determined that Liberatore was liable for punitive damages, the jury awarded plaintiff zero damages in punitive damages. Plaintiff does get one dollar in nominal damages. The verdict was therefore an appeal waiting to happen. But the Court of Appeals affirms and plaintiff gets zero.

The case is Warr v. Liberatore, a summary order issued on March 29. Plaintiff's best argument is that the jury issued an inconsistent verdict in finding that defendant was liable to him for punitive damages, but that defendant does not have to pay any punitive damages. I have never seen such a verdict. Why would the jury find plaintiff has prevailed on a punitive damages claim but then award him nothing in punitives? So we got a good issue on appeal.

Appeals challenging inconsistent verdicts require the Court of Appeals to try to reconcile the verdicts. If any such reconciliation exists, then the appeal will fail. The Second Circuit (Bianco, Parker and Lynch) says the jury instructions said the defendant could be liable for punitives if he maliciously or wantonly used excessive force against plaintiff. The instructions also said that punitive damages are discretionary with the jury, which means the jury does not have to issue them. These are standard jury instructions in police misconduct cases. 

The Court does not see this as a complicated issue. It rules against plaintiff, reasoning as follows:

the jury could have found that Liberatore acted wantonly or maliciously in using excessive force but, under the particular circumstances of this case, that the finding of liability against Liberatore itself was sufficient punishment and deterrence. Moreover, viewing the verdict sheet as a whole, we find nothing in the general verdict or answers to special interrogatories that is inconsistent with the award amount or that would belie the jury’s clear written indication that it meant to award plaintiffs zero dollars in punitive damages."