Summary judgment for the defendants despite a (slight) issue of fact

A litigator learns early on her career how summary judgment works. That's because most civil cases are met with such a motion at the close of discovery. Any disputed issue of fact will deny the motion and the case goes to the jury to resolve those factual issues. But not every case. This is one of them.

The case is Bryant v. Iheanacho, a summary order issued on on September 23. Plaintiff, who is housed in some kind of state facility (the court decision does not clarify this) is suing for deliberate indifference to his medical needs. He says that two doctors never personally evaluated him. Under normal circumstances, plaintiff's testimony to that effect might send this case to the jury. But the Court of Appeals (Livingston, Chin and Nardini) notes that, in the summary judgment world, it has recognized "a narrow exception in the rare circumstance where the plaintiff relies almost exclusively on his own testimony, much of which is contradictory and incomplete" such that the case must be dismissed even though portions of that testimony highlight a disputed fact issue. That case was Jeffries v. City of New York, 426 F.3d 549 (2d Cir. 2005).

Summary judgment in this case is affirmed on authority of Jeffries. "Viewing the parties’ submissions in the light most favorable to the Plaintiff-Appellant, Bryant has failed to demonstrate that there is a genuine issue of material fact as to whether Iheanacho and Khan personally evaluated  him. As evidence that  the defendants never evaluated him, Bryant offers only his own inconsistent and largely uncorroborated statements." While an uncorroborated affidavit may in certain circumstances be enough to deny summary judgment (see Danzer v. Norden Systems, Inc., 151 F.3d 50 (2d Cir. 1998)), this is not that case. The Court of Appeals explains this falls with in the "extraordinary" exception in Jeffries:

Although Bryant at certain points denied being evaluated by Iheanacho and Khan, he admitted “that Dr. Iheanacho, when evaluating the plaintiff, concluded that [Bryant] had thoughts that were not based in reality.” In addition, Bryant’s expert witness testified at his deposition that, based on his review of themedical records and deposition testimony, he believed Bryant was seen by both Iheanacho and Khan. Further, Bryant’s alternative chronology purports to involve multiple  other  individuals,  none  of  whom  present  any  testimony  or  affidavits to corroborate Bryant’s  story. The Defendants-Appellees’  affidavits, by contrast, are  supported  by  detailed hospital records that record Iheanacho and Khan’s impressions of Bryant at the time of his two evaluations, including the assessment that Bryant appeared disheveled and perplexed at the time of  his  initial  evaluation,  that  his  speech  was  illogical,  and  that  he  was  in  need  of  immediate hospitalization.

You can see the Court of Appeals weighing the evidence here. But the Court takes the view that no reasonable jury can rule in plaintiff's favor, despite the slight factual dispute. The Bryant principle that I outlined above was not in place when I began practicing law in 1993, but I am seeing the Court of Appeals apply it maybe once or twice per year against the plaintiff. 

Court broadly interprets railworker retaliation statute

In an issue of first impression for any federal appellate court, the Second Circuit broadly interprets the Federal Railroad Safety Act, a law that protects rail workers from retaliation if they speak up about safety hazards.

The case is Ziparo v. CSX Transportation, Inc., issued on September 24. Plaintiff was responsible for using a tablet computer connected to the On-Board Work Order system (OBWO), which allowed them to record tasks as they were completed. These tasks included the placement of railroad cars. This was a work tool that was not mandated by law but allowed workers to more easily perform their duties. It also allowed management to monitor employee performance, such that supervisors got bonuses if their subordinates performed their duties more efficiently. With any eye on those bonuses, plaintiff's supervisors -- Lacy and Van Blarcom -- pressured him to fudge the numbers to inflate the performance metrics. This work environment caused plaintiff to suffer significant stress which, he claimed, made it more difficult to perform his duties and raised the risk of a train accident. After plaintiff complained about these pressure tactics, he was fired. 

Under the Federal Railroad Safety Act, “[a] railroad carrier . . . shall not discharge, demote, suspend, reprimand, or in any other way discriminate against an employee for . . . reporting, in good faith, a hazardous safety or security condition.” 49 U.S.C. § 20109(b)(1)(A). This case poses two questions: what is a "good faith" complaint, and what is a "hazardous safety or security condition"? The district court said the good faith element requires the plaintiff show he had a reasonable belief of a safety concern. That was an incorrect interpretation of the statute, the Court of Appeals (Lynch, Sack and Park) says.

"Good faith" means does not have an objective component, the Court says. It means the employee believed in good faith that she was reporting a safety hazard. A sincere belief (even if an objectively wrong belief). Had Congress wanted the statute to have an objective component, it would have required the plaintiff to "reasonably" believe he was reporting a safety hazard. 

So plaintiff clears the first hurdle in this appeal. What about the requirement that he allege a hazardous safety or security condition? The district court said that requires the plaintiff to report a physical condition that is within control of the rail carrier, like a bad engine or faulty tracks. That is not how the Court of Appeals sees it. The Court finds that "hazardous safety or security condition" includes plaintiff's complaint that his supervisors' demands that he alter the numbers in his computer left him unable to focus on his work and that communication between him and his coworker over these demands had deteriorated such that it created an unsafe work environment and, as a result, "something was going to happen." Summary judgment is thus reversed and the case is remanded for trial.

NDNY upholds $240,000 damages award in prison beating case

The inmate in this case alleges that a correction officer beat the hell out of him in the prison, causing serious physical injuries. The jury agreed with the inmate awarding him $190,000 in damage for pain and suffering. The federal court upheld the jury's findings on liability and damages.

The case is Tranchina v. McGrath, 2021 WL 1599189 (N.D.N.Y. April 23, 2021). This case went to trial in the Northern District of New York. That venue is not considered a receptive place for plaintiffs' verdicts, but plaintiffs do win from time to time. What makes this case unusual is the plaintiff was an inmate. People normally do not believe prisoners who claim they were beaten up by correction officers. Not this case. The inmate won.

Plaintiff says Officer McGrath gave him a pat frisk when plaintiff was on his way to his regularly-scheduled classes in the prison. McGrath accused him of having a weapon, which plaintiff denied. Plaintiff says that McGrath actually planted a weapon on him. The pat frisk caused plaintiff to hit the floor and, while he was on the ground, McGrath  hit him repeatedly on the side of the head and ribs until he almost lost consciousness. Plaintiff says a second officer, Barnaby, kicked him in the face and groin. McGrath ultimately reported plaintiff for carrying a shank, but an internal investigation vindicated plaintiff. No shank! The jury found against McGrath, exonerated Barnaby, and awarded plaintiff $190,000 in damages.

Post trial, the state moves for judgment as a matter of law and, in the alternative, to reduce the damages award. But Judge D'Agostino says the jury had an evidentiary basis to find for plaintiff. Of course, the jury was not required to find in his favor, but once the jury enters its verdict, we assume that it credited all evidence favorable to plaintiff and rejected any evidence favorable to McGrath. That's why most post-verdict motions fail.

The medical records show that plaintiff sustained serious injuries to the right side of his head. While McGrath argues that the jury only speculated that he caused these injuries in light of plaintiff's testimony that other officers also beat him up that day, Judge D'Agostino agrees with plaintiff that this verdict was not grounded in speculation, as the jury was able to distinguish between the injuries caused by McGrath and those caused by other officers. That's what juries are for. While McGrath says that some of plaintiff's testimony supports McGrath's argument that McGrath was not responsible for the injuries, "the jury is free to believe as little or as much of a witness' testimony as they deem appropriate," even if that witness is the plaintiff. The Court cites Zellner v. Summerlin, 494 U.S. 344 (2d Cir. 2007), for that proposition.

What about damages? Judge D'Agostino surveys damages awards in other cases and finds the $190,000 in this case falls within the reasonable range. If you want a good summary of such cases, take a look at this ruling. Cases like this range from $25,000 to $200,000 depending on the nature of the injuries.

The jury also awarded $50,000 in punitives. That amount is also upheld, as the evidence actually shows McGrath beat up the plaintiff because he had been flirting with McGrath's girlfriend at the prison. The evidence also suggests that McGrath planted a weapon on plaintiff in order to  get him in trouble. Of course, there is no legitimate justification for such actions. Hence, the punitive damages.

Seven-figure verdict in sexual harassment case

This case involves horrible sexual harassment. The plaintiff worked for law firm and alleges she was raped by a lawyer. I will spare you the details. The law firm obstructed discovery, violated court orders, tried to purchase the plaintiff's testimony, and the court ultimately awarded plaintiff a default judgment. The defendant lawyer fled the country. The district court awarded the plaintiff $350,000 for emotional distress and $700,000 in punitive damages, plus $24,000 in lost wages.

The case is Villalta v. JS Barkats, PLLC, 2021 WL 2458699 (S.D.N.Y. April 16, 2021), report and recommendation adopted, 2021 WL 2458023 (S.D.N.Y. June 16, 2021). Case values are hard to predict, because juries are not told what to award if they find liability. This was an inquest hearing, however, before the magistrate judge.

After finding that plaintiff proved her sexual harassment and constructive discharge case through evidence of the pervasive sexual harassment in the workplace and the individual defendant's forcible sexual acts on the plaintiff, the court turned to damages. While Title VII imposes a $300,000 cap on pain and suffering, there is no such cap on New York City Human Rights Law claims. Hence, the high damages award.

Employment discrimination lawyers know there are three categories of damages in the Second Circuit: "garden variety," significant, and egregious. Garden variety damages, usually without psychological treatment, range from $30,000 to $125,000. Significant damages range from $50,000 to $200,000. Egregious damages "generally involve either outrageous or shocking discriminatory conduct or a significant impact on the physical health of the plaintiff." These damages can far exceed $200,000 "with awards over $1 million reserved for the most egregious cases." In support of the $350,000 award, the magistrate writes:

Here, the Court has no difficulty in concluding that an award of “egregious” emotional harm damages is appropriate. To recap: Barkats twice sexually assaulted Villalta in the workplace, coercing her into performing oral sex and engaging in sexual intercourse – once as a condition for her to obtain her job, and a second time on her first day of work to demonstrate what would continue to be expected of Villalta if she wanted to keep her job. Barkats choked Villalta and told her that she belonged to him. These physical assaults were followed by ongoing harassment carried out through text messages and social media posts, including Barkats’ threat to disseminate revenge porn depicting Villalta and his multiple attempts to purchase Villalta's testimony. (Villalta Decl. ¶ 15 and Ex. B.)

 

Villalta's emotional trauma was severe and long, persisting to the present, even after more than six years since the physical assaults. Villalta treated with a therapist, albeit sporadically and for a brief period less than half a year, who confirmed that she suffered from paranoia, anxiety, depression, and alcoholic episodes when attempting to cope with Barkats’ assault and abuse. (Urban Decl. Ex. A at 1, 2, 4.) She had trouble maintaining employment, particularly due to her fear of working for a male superior. Villalta resorted to self-harm, thrice cutting herself, and experienced suicidal ideations after feeling as though all hope was lost. (Villalta Decl. ¶¶ 7, 11-12, 19.) She ate to relieve stress, gained over thirty pounds, and then underwent surgery to remove that weight in attempting to mentally recover and repair her self-worth. (Villalta Decl. ¶¶ 10, 18-19.) In short, Villalta has suffered extensive and ongoing mental and physical harm.

As for punitive damages, the judge awards plaintiff  $700,000. The judge writes:

Barkats’ assault and harassment of Villalta is reprehensible in its own right. Villalta came to Barkats as a financially vulnerable young woman, willing to accept a $30,000 annual salary despite being subjected to sexual assault during her job interview, only to face another sexual assault on her first day of work. (Villalta Decl. ¶ 4.) Barkats’ conduct was violent, willful, malicious, and intentional.¹³ He caused Villalta both physical and lasting psychological harm. Any “reasonable employer” would have known that he was violating Villalta's legal rights; all the more so given that Barkats is an attorney and JSB a law firm.

It also was hardly isolated. As previously explained, Barkats committed similar acts of quid quo pro sexual discrimination and harassment just one year prior to his assaults on Villalta. (Shivecharan Aff. ¶¶ 3-12.) Barkats’ sexual coercion of Villalta and Shivecharan are among the more heinous examples of the hostile work environment Barkats and JSB foisted on all of their female employees, belittling them, criticizing their looks and dress, instilling fear in them, and reducing them to tears. (Spinelli Aff. ¶¶ 8-16.)

 

Meanwhile, Barkats remains undeterred despite this lawsuit. Rather than owning up to his transgressions, he fled the country as a fugitive, all the while delaying Villalta's case and engaging in dilatory litigation tactics. More pointedly, he has continued to harass Villalta with texts, threatening to retaliate against her for her ongoing efforts to obtain a measure of justice. Barkats has even gone so far as to attempt to suborn perjury, offering Villalta monetary “reward” for testimony that she was wrong.

$1.50 million verdict for pain and suffering reduced to $50,000

The jury enters its verdict and everyone goes home. Except for the lawyers, the parties, and the judge. The jury goes home, unaware that the case will continue as the losing side petitions the court to ether vacate the verdict entirely or reduce the damages award. This case is a good example.

The case is White v. New York State Office of Children and Family Services, 2021 WL 282561 (N.D.N.Y. Jan. 28, 2021), a racial discrimination case brought under Title VII, in which the jury awarded plaintiff $1.5 million in pain and suffering, $183,000 in back pay and another $30,000 in lost pension income. What stands out is the pain and suffering award, for two reasons: first, Northern District juries usually do not award large damages awards like this, and second, lets face it - that's a lot of money for pain and suffering. Very few single-plaintiff seven-figure verdicts have survived in the Second Circuit.

The State asked the trial court to vacate the verdict entirely. Judge Scullin will not do so, noting that while the court "may weigh the evidence and the credibility of witnesses and need not view the evidence in the light most favorable to the verdict winner," "this is not a permission slip to ignore the jury's role in resolving factual disputes and assessing witness credibility." Moreover, "a court may only grant a motion for a new trial if the jury has reached a seriously erroneous result or [its] verdict is a miscarriage of justice." The court does not get into the facts here, but the judge finds there was enough evidence of racial discrimination to support the verdict.

Post trial, the State also asked Judge Scullin to reduce the damages. Initially, the pain and suffering award is immediately reduced to $300,000, the cap under Title VII. But that does not end the analysis. The State argues that even $300,000 is too much for the plaintiff, based on his actual evidence of pain and suffering. 

The trial court thus reviews verdicts over the last 10 years to gain a sense of the going  rate for so-called "garden-variety" pain and suffering cases, where the plaintiff has not received extensive psychological treatment or suffered permanent emotional injuries. If you are looking for recent cases on the pain and suffering value of discrimination cases, this case provides a good summary. Judge Scullin concludes:

After reviewing the factual situations in all of the above-mentioned cases and comparing them to the facts in this case, the Court, applying the "least intrusive standard," concludes that $50,000 is the maximum amount that would compensate Plaintiff for his emotional injuries without being excessive. Therefore, the Court conditionally denies Defendant's motion for a new trial on the issue of compensatory damages on Plaintiff's accepting a remittitur of the compensatory damages award to $50,000.

Divided Court rejects inmate's medical treatment claim

You don't see too many claims alleging that prison officials were deliberately indifferent to the medical needs of inmates. These cases are hard to win. To bring a constitutional claim, the inmate needs to show the officials were deliberately indifferent, and not merely negligent, in their treatment. As I have learned from handling these cases, it is difficult to survive a motion to dismiss under Rule 12 because the inmates do not have medical information or expertise to prove it was deliberate indifference and not negligence. This is one of these cases, and plaintiff loses.

The case is Darby v. Greenman, issued on September 16. The plaintiff was an inmate at Rikers Island. He began to experience inflammation and pain in his right cheek area, and dental clinicians fond a 3x3 centimeter bulge in his gums. Two dentists saw plaintiff. The first, Greenman, recommended a tooth extraction, which plaintiff said was unnecessary. The pain persisted, and plaintiff continued to request dental treatment. He says no one responded to his requests. Another dentist, Hamilton, later treated plaintiff and performed a dental cleaning, even as plaintiff continued to complain about the significant pain in his mouth. Those complaints were ignored. 

This case was dismissed under Rule 12, which is pre-discovery, on the basis that plaintiff did not plead that the dentists were deliberately indifferent. The Supreme Court devised that standard for inmate medical treatment claims and, in doing so, said that mere negligence does not violate the constitution. But the difference between deliberate indifference and negligence is a fine one, and it is tough to allege the latter when the inmate may not have the medical records or the expertise to properly allege deliberate indifference and not just negligence. Hence the few cases in the Second Circuit where the inmate prevails.

Plaintiff loses against Greenman. The Court of Appeals (Cabranes and Park) says:

Darby  does  not  claim  that  Greenman  denied  him  treatment  but instead disagrees with Greenman’s assessment of the severity of his condition and recommendation for treatment. This constitutes, at most, a difference of opinion about the proper course of treatment; it does not demonstrate deliberate indifference to a substantial risk of harm to Darby’s health. Even assuming that Greenman’s proposed treatment was inadequate, “mere medical  malpractice  is  not  tantamount  to  deliberate  indifference”  absent  a showing of “conscious disregard of a substantial risk of serious harm.”Thus,  Darby  has  not  alleged  that  Greenman  acted  with  deliberate indifference under the Fourteenth Amendment.

We have a similar analysis as to Hamilton, who gave plaintiff a dental cleaning over his objections about the pain in  his gums. The Court sees this as an allegation that Hamilton were merely negligent.

Judge Carney dissents, noting that inmates in the U.S. often receive lousy dental treatment, citing studies and other lawsuits to that effect. She thinks plaintiff has sufficient plead a deliberate indifference claim. She sums up this way:

For over four months while incarcerated at Rikers Island, Darby experienced severe gum pain from an almost golf-ball sized abscess in his mouth. He had trouble sleeping, eating, and talking, and lost twenty pounds as a result. As we have commented before, “Any person who has spent a night tossing and turning in suffering from an abscessed tooth knows that dental pain can be excru[c]iatingly severe.” Although he saw two prison dentists and filed over 15 sick call requests that described his symptoms in detail, Darby received no real care for a condition that was eminently treatable by gum surgery. Instead, one dentist offered a tooth extraction; the other, a dental cleaning.

I am concerned that the Majority’s decision affirming the district court’s dismissal of Darby’s complaint may work to immunize the relevant prison officials from liability in Darby’s and in other cases. In my view, the course of events specifically alleged by Darby could—if borne out by evidence—reasonably support a determination that the officials and dentists were deliberately indifferent to his serious medical needs.

 

 

 

Trial court is where the action is

When a party loses at trial, the first instinct is to consider an appeal. Surely the Court of Appeals will see that I got an unfair trial right? Maybe not. The appellate courts don't like to second-guess juries, even if the plaintiff had a good case. Trial judges also have discretion to make certain rulings at trial.

The case is Aponte v. Kanbur, a summary order issued on August 30. This is a police misconduct case, an issue that creates strong emotions on all sides. The plaintiff knows that many jurors sympathize with the police and may even have a relative in law enforcement. But we also know that attitudes have changed over time and that the public is more aware of police misconduct than ever before. 

Against that backdrop, this case went to trial. Plaintiff says the officer, upon arriving at this residence for a domestic violence issue, used "a martial arts lock choke hold" against him, slammed him against the wall and strangled him -- all without any provocation. The jury entered a verdict for the police officer.

It is not enough to claim on appeal that you had better and more logical witnesses than the other side. Jurors decide credibility, not the Court of Appeals. The best way to challenge an adverse verdict is to claim the trial court made evidentiary errors and issued a bad jury instruction. That's what Aponte does here. But the Court of Appeals (Parker, Lynch and Bianco) upholds the verdict.

One issue is whether the trial court should have allowed plaintiff to tell the jury that the officer was arrested for domestic violence in a separate incident against his wife. The charges from that arrest were dismissed, and an internal affairs investigation examined the incident. No, the Court of Appeals says, this is propensity evidence, and we can't tell the jury that the defendant has a tendency to use chokeholds in domestic incident when he is verbally challenged. This propensity evidence may make sense to the layperson, but the federal rules of evidence are clear that, for the most part, propensity evidence is inadmissible. 

Plaintiff also wanted to prove to the jury that the NYPD disapproves of chokeholds. The trial court denied that effort. Even if the trial court's ruling was an abuse of discretion, that is not grounds for a new trial, the Court of Appeals says, because it was harmless error. That's because the officer himself testified that the NYPD prohibits chokeholds, and he denied applying one to the plaintiff.The jury was entitled to believe the officer's testimony that he did not apply any chokehold, and it also heard evidence that chokeholds are improper under departmental policy. Harmless error.

What about the jury charge? Plaintiff wanted the judge to instruct the jury that officers need a warrant make an arrest inside someone's home. The trial judge rejected that charge. That was not error, the Court of Appeals said. While officers need a warrant to make an arrest, plaintiff did not bring a false arrest case, and in excessive force cases, the rules are different. The question in excessive force cases is whether the officer's use of force was objectively reasonable under the circumstances, not whether the officer had a legal basis to enter the house and arrest plaintiff.

Malicious prosecution case will go to trial

I have seen false arrest and malicious prosecution cases come and go in the Court of Appeals, which often dismisses such claims upon the finding that the police had probable cause to arrest the plaintiff, a solid defense to these cases. In this case, however, the Court of Appeals reinstates a malicious prosecution claim because the jury may find there was no probable cause to arrest the plaintiff.

The case is Kee v. City of New York, issued on August 30. Kee was arrested on drug charges after the detective claimed to see him smoking marijuana in a motor vehicle. Kee says he was never in the car and was not using drugs in or near the car. The detective's "observation" formed the basis for Kee's arrest, as he provided the "information" the prosecutor needed to proceed with the charges against Kee, which were ultimately dismissed on speedy-trial grounds. 

When the charges are dismissed, that opens the door for a federal lawsuit. A federal judge in White Plains used to say that all the time. But that is not always the case. If the police have "arguable" probable cause, there is no false arrest or malicious prosecution case. To win the case, the plaintiff essentially has to show he was set up or that the police were lying or that his conduct did not come close to a criminal violation.

The district court dismissed the malicious prosecution claim, ruling there were no disputed facts on probable cause. The Court of Appeals (Bianco, Lohier and Abrams [D.J.]) disagrees, and we've got ourselves a trial here. 

Plaintiff makes the case that the detective lacked probable cause in a common-sense and simple way: he argues he was never in the car that day, he was not using drugs that day, and his cell phone that the detective claimed to find in the car was actually taken from his person. In other words, plaintiff says, he did not commit any crime and was not even at the scene of the crime. "If the testimony of Kee and Tavares [the owner of the car] is credited, . . . there is insufficient evidence in the record from which a rational jury could find that probable cause to prosecute Kee for the drug offenses was lacking."

Court rules in union's favor on NLRB challenge

The Court of Appeals has sided with a labor union in its challenge to management's unilateral personnel decisions that imposed a mandatory six-day workweek for unionized technicians. This is one of those rare moments when the Second Circuit reverses a decision of the National Labor Relations Board.

The case is International Brotherhood of Electrical Workers v. National Labor Relations Board, issued on August 12. The employees worked for ADT in Syracuse, the company that manufactures security systems for home and the office. After ADA issued the six-day workweek order, the union objected, claiming the collective bargaining agreement disallowed that directive. The CBA does state that management has a general right to determine the amount of work required of its technicians. But it also states that the workweek shall be 40 hours during any one workweek, or 8 eight hours for each workday, noting further that the normal work schedule is 8.5 hours comprising of five consecutive days, Monday through Saturday, between 8:00 am and midnight. It also provides for a four-day workweek comprised of 10.5 hour workdays between 8:00 am and midnight, Monday through Friday. Under the CBA, some employees may have to work early in the morning to meet customer needs, starting at 7:00 a.m. 

When a private equity group purchased ADT in September 2016, it imposed a mandatory six-day workweek for service and installation technicians to meet customer demand. This new rule took effect without any bargaining with the union, which brought its case to the National Labor Relations Board, which in turn upheld the directive and said no bargaining was necessary.

The Court of Appeals (Walker, Chin and Leval) reverses and rules for the union. Under the National Labor Relations Act, management must negotiate work rules with the union unless the CBA permits those changes. In years past, the NLRB used the "clear and unmistakable waiver" standard in determining whether the CBA permitted unilateral changes in work rules. The union's challenge would fail if the new rules were unequivocally and specifically authorized by the CBA, such that the union would have "waived" its challenge. Under new NLRB rules, we have a new test: the "contract coverage" test that says "where the employer acts pursuant to a claim of right under the parties' agreement, the resolution of the refusal to bargain charge rests on an interpretation of the contract," not on a "waiver" analysis. Under this standard, the CBA does not have to specifically mention or address the management decision. Instead, we apply traditional contract interpretation principles. 

Under the new standard, the union wins the appeal, and the NLRB got it wrong in this case. The Court reasons:

we  adopt  the  “contract  coverage”  test  as  the governing  standard  for  determining  whether  a  CBA  permits  an employer’s unilateral change to an established policy.  Applying that test here, we find that (1) the CBAs did not grant ADT the right to unilaterally impose a mandatory six-day workweek on technicians in the Service Department at all, and (2) the CBAs did not grant ADT the right  to  unilaterally  impose  a  mandatory six-day  workweek  on technicians  in  the  Installation  Department  without  complying  with the two-step procedure.  Accordingly, we conclude that ADT violated Sections 8(a)(5) and (1) of the Act by failing to bargain with the Union before implementing the change.

Speedy trial dismissals no barrier to malicious prosecution claims

If you are the victim of a bad arrest, there are a few claims that might be available to you. One claim is false arrest. Another is malicious prosecution. These claims sound alike, but they carry different elements for the plaintiff to establish. This case involves malicious prosecution, in which the Court of Appeals clarifies the law in favor of plaintiffs. We also have a false arrest claim, which fails.

The case is Kee v. City of New York, issued on August 30. Plaintiff was arrested after the police claimed to see drugs in his car. Plaintiff said he was never even in the car and was not using drugs that day. So he claims the police fabricated the evidence against him. The charges against plaintiff were later dismissed on speedy trial grounds; the prosecution did not bring the claim quickly enough under the statutory deadlines.

Plaintiff sues the police for false arrest and malicious prosecution. Probable cause to arrest is a defense to any false arrest claim. As the Supreme Court has defined the claim, if the police have probable cause to arrest and detain the plaintiff on any charge, even if they did not charge him with that particular offense, then there is no false arrest claim. While plaintiff was charged with drug offenses, the Court of Appeals holds, even if there was no probable cause on those charges, a reasonable police officer would still arrest him for loitering and gambling offenses, both of which arise from plaintiff rolling dice on the streets. So the false arrest claim is gone.

What about malicious prosecution? That claim may proceed if the police persisted in prosecuting the claim without any reasonable basis. Plaintiff says there was no probable cause to prosecute on drug offenses. The Second Circuit (Bianco, Lohier and Abrams [D.J.]) says the police are not entitled to summary judgment on this claim because the parties dispute whether plaintiff was in the drug car.

The real story in this case is the favorable termination element. To win a malicious prosecution claim, the plaintiff has to show the criminal charges terminated in his favor; that proves the charges truly lacked merit. There has been confusion in this Circuit over whether a speedy-trial dismissal constitutes  a favorable termination, that is, whether it really means there was no viable criminal case at all. The real question is whether the criminal court dismissal indicates the criminal defendant was innocent. in 1997, the Second Circuit held in Murphy v. Lynn that we may assume that a speedy-trial dismissal suggests the prosecutors did not think there was a reasonable ground for prosecution. But you know how things work with case law. Over time, lower courts will interpret prior cases differently, and subsequent appellate rulings may cast doubt on a prior ruling, as well. Bottom line: the Second Circuit in Lanning v. City of Glens Falls, 908 F.3d 19 (2d Cir. 2018), a recent malicious prosecution case, did not repudiate the language in Murphy, which remains good law and binding precedent. That's a win for this plaintiff.

Covid/Second Amendment case fizzles out on appeal

This case lies at the intersection of two current-events stories: Covid and guns. That's right, Covid and guns. 

The case is Connecticut Citizens Defense League v. Lamont, issued on July 28. When Covid-19 began infecting the country in early 2020, the Connecticut governor empowered police agencies to refuse collecting fingerprints of applicants seeking authorization for firearms. Without fingerprinting, you can't get a firearm. Hence, this lawsuit under the Second Amendment. This has all the makings of a great lawsuit, as the district court ordered the state to resume fingerprinting services. But, it turns out, the district court had no jurisdiction to even resolve the case because the case became moot in the district court and the plaintiff-organization lacked standing to bring the case. So it all fizzles out without a definitive ruling from the Court of Appeals. 

The reason for the fingerprinting suspension was to prevent the spread of Covid, and to allow the police to focus on dealing with the public health crisis. But before the district court issued the injunction against the suspension, the police-chief defendants resumed fingerprinting at their departments, and the governor then decided to repeal the suspension entirely. 

What it all means is the case was moot before the district court ruled on the injunction motion. It's hard to get around this, as the courts will not presume the government will resume unlawful rules that it had rescinded. 

What also kills off the appeal is the Court of Appeals' finding that the plaintiff-organization lacks standing to bring the case. Yet, we have organizational standing to sue on behalf of its members, but it has to show that it diverted its activities in challenging the rules. While the organization says it lobbied against the suspension rules and communicated with its members on the issue, it has to show current activities, however. The organization cannot show any current activities. As such, no standing.