Divided court grants qualified immunity in canine police case

In a divided ruling, the Court of Appeals holds that police officers who used a baton, a police canine, and a taser to subdue a resisting inmate are entitled to qualified immunity on claims that they committed excessive force in violation of the Constitution. The dissenting judge says the courts or Congress should do away with qualified immunity altogether.

The case is McKinney v. City of Middletown, issued on September 26. Plaintiff was arrested for allegedly trying to rob a fast food restaurant and brought to the police station where they tried to transfer him from one cell to a padded cell because of his "concerning behavior." Plaintiff resisted the transfer. According to the majority, this is what happened next (bear in mind that Hunter is the canine):

McKinney picked up the foam mattress pad in his cell and pressed against the cell door. Officer Sebold entered and pushed McKinney to the back of the cell with his expandable baton. McKinney grabbed Officer Sebold’s baton and attempted to wrest it from Officer Sebold’s hands. McKinney then became “extremely combative” and “charged towards the [officers].” At that point, Officer  D’Aresta  deployed  Hunter,  directing  him  onto McKinney’s lower right leg. Upon being bitten by Hunter, McKinney dropped to the floor, falling partially on top of Officer D’Aresta. As McKinney tussled with the officers, Officer Sebold struck McKinney’s leg with his baton, urging McKinney to stop resisting. McKinney continued to fight and struggle with the officers despite the dog bite and baton strikes.

Officer Ward deployed his taser via drive stun to McKinney’s left shoulder, ordering that McKinney put out his hands so that he could be handcuffed. McKinney complied following the application of the taser and offered his left hand. The officers rolled McKinney onto his stomach, but he refused to expose his right arm. McKinney then ceased fighting the officers and yelled for the officers to get the canine off of him. Once McKinney was secured in handcuffs, Officer Aresta removed Hunter from McKinney’s leg. The officers arranged for McKinney to be taken to the hospital for treatment of his injuries.

While the Court of Appeals four years ago said during the first appeal in this case that a jury might find that the officers used excessive force, this time around, the Court (Raggi and Menashi) says that the officers are entitled to qualified immunity because, based on clearly-established law, reasonable officers would disagree about whether the force was excessive. This immunity is available when prior case law did not put the officers on notice they were violating the Constitution. The majority writes:

The undisputed facts of this case establish that McKinney threatened, attacked, and resisted the defendant officers as they tried to subdue him so that he could be transferred to a different cell. The undisputed facts further establish that the officers’ incremental and combined uses of a baton, a canine, and a taser were undertaken in response to McKinney’s resistance and that once McKinney"'finally gave up fighting" and was "handcuffed and secured," the officers withdrew their force.

The majority says there is no case from any court that clearly states that, under these circumstances, the officers violated clearly-established law. For one thing, the Court says, "McKinney has not shown that police officers violate clearly established law by allowing a canine bite to continue until a previously violent suspect can be secured." Nor do the cases clearly prohibit officers from using a puppy-wuppy for a purpose for which it was not trained. As well, while plaintiff says the case law prohibits using a canine without warning, the record shows that the officer deployed the doggie "in the midst of [plaintiff's] violent struggle with the police." And, while clearly-established law prohibits the police from initiating significant force against a suspect who is only passively resisting, "McKinney has not shown that it is a violation of clearly established law for the police to ensure that a violent suspect has been secured before withdrawing the significant force required to subdue the suspect. In light of the possibility that McKinney would resume his active resistance once force was withdrawn, we cannot say that it was 'objectively unreasonable for the officers to believe that their conduct was lawful' under the circumstances."

Judge Calabresi in dissent sees the evidence differently and says plaintiff can win at trial and that qualified immunity cannot attach this early in the case because the facts are disputed about what really happened. He further says that qualified immunity has no place in Section 1983 litigation and that scholars and judges have come to recognize over time that this judge-made doctrine (created by the Supreme Court in 1967) makes no sense and has no basis in the common law. While qualified immunity prevents plaintiffs from recovering damages against individual officers if they did not violate clear precedent, the dissent says that most officers are indemnified anyway, and the better solution is to have municipalities on the hook for all damages like other cases involving torts and statutory civil rights.

A side note: the late Judge Katzmann helped decide the first appeal in this case in the plaintiff's favor, and he participated in oral argument for this appeal before he passed away. Judge Calabresi notes that his views on this case were influenced by Katzmann's questioning at the second oral argument, and he repeatedly cites Judge Katzmann's opinions from other cases in fleshing out the dissenting opinion. It is clear that Judge Calabresi held Judge Katzmann in high regard. He writes in a footnote: "Of course, I cannot say how Judge Katzmann might have decided this appeal had he lived long enough to remain a member of the panel deciding it, though the decision of the earlier panel, of which he was a member, may offer some indication. So, I write just for myself. As to Judge Katzmann, I can do no more than express my sorrow that we’re left only (if one can say only of something so precious) with memories and his great contributions to the law."




 

Title IX sexual harassment case is dismissed against SUNY

This Title IX and First Amendment case was filed against SUNY Stony Brook after a female graduate student was removed from the student teaching program once she complained about a male supervisor whom, plaintiff asserts, had a sexual interest in her. The case is dismissed. 

The case is Sutton v. SUNY Stony Brook, a summary order issued on September 27. I argued the appeal on Sutton's behalf and will try to be unbiased. Plaintiff says that her supervisor, Mangano, frequently texted and called her on her cell phone, met with her in poorly-lit rooms, said he'd like to see her "in action" off campus, commented on her feminine "gait," complained she was brushing him off, entered her physical space, said she should make herself "available" to him, and and did a sexual gesture with a pen in her presence. She asserts that Mangano said that while she was poised to pass her licensing exam, he had control over her future in the program and "threatened [her] with a contract to force her to communicate with him outside of class." Plaintiff complained about Mangano in writing to another supervisor without providing all of these details, but noted that Mangano was supervising her improperly. Shortly afterward, plaintiff was kicked out of the program after she lodged her complaint and declined to sign a performance contract that she claims had no basis in SUNY procedure. She had been student teaching only about a month.

The Title IX claim fails, the Court of Appeals (Parker, Livingston and Lee) holds, in part because plaintiff's written complaints against Mangano did not sufficiently detail the nature of the sexual harassment and only objected to his overbearing management style. That means the retaliation that followed cannot be Title IX retaliation. As for the Title IX quid pro quo claim (which I thought was the strongest argument), the Court summarizes the allegations in the complaint, but not all of them, stating that her "allegations related to Mangano's alleged sexual advances were only conclusory allegations of implied sexual advances." That's not the way I argued it, but that's how the Court sees it. 

What about the First Amendment claim? That's gone also. The state did not dispute that plaintiff engaged in protected speech in complaining about Mangano, but the Court says we have a causation problem because she admits she did not comply with SUNY's measures to improve her performance in refusing to sign the teaching contract and a disinterested internal appeals committee ratified her expulsion. Plaintiff argued that the contract was an unauthorized remedial measure and the committee was not neutral as she was denied due process and never had a chance to really defend herself from the allegation that she was not a good student teacher.

Court cuts inmate a break over his failure to grieve prison beating

If an inmate wants to bring a lawsuit over the conditions of his confinement, even when he is the victim of excessive force by correction officers, he has to file an internal grievance with the jail and wait for the jail to resolve the grievance. Once he loses the grievance, he can file his lawsuit in federal court. That's the mandate of the Prisoners Litigation Reform Act, intended to reduce inmate litigation and allow the jails to resolve these disputes without judicial interference. So what happens when the inmate cannot file an internal grievance because he was sent to a mental health facility before could file the internal grievance? 

The case is Romano v. Ulrich, issued on September 15. The inmate says he was beaten up by the guards, causing some pretty serious physical injuries The district court said the inmate had time within the 21-day window to file his grievance because he was not sent to the mental health facility after 13 days without advance notice, giving him 13 days to file the grievance. 

The Court of Appeals (Livingston, Pooler and Sack) reverses and says the inmate did not waive his rights. The Court surveys the state of the law in the area of when an inmate waives his rights under the PLRA. It holds that Romano did not have an opportunity to file his grievance despite the 13-day window. As the Court of Appeals sees it, transferring him out of the prison created a "dead end" for him to file a grievance.  One he was in custody of the mental health facility, he could not file the grievance any longer, even if he was well within the 21-day window. 

Couldn't he have filed the grievance within that 13 days? The Second Circuit says that it is not clear that Romano even had 13 days, as he spent 5 days in the infirmary and eight days in an Office of Mental Heath observation cell, when he was recovering from serious physical injuries, as well as serious emotional difficulties from the beating. Moreover, the Court finds, he cannot be penalized for not filing the grievance at the earliest possible moment. Twenty-one days is 21 days, not 13 days. He still had time to file the grievance when prison officials sent him to the mental health facility.

Habeas petition is revived on appeal after district court dismissed case sua sponte

After this criminal defendant was convicted in state court on a gun possession charge, he filed a habeas corpus petition in federal court, claiming the gun was the product of an unlawful search. The district court dismissed the case sua sponte, finding that the defendant cannot possibly win the habeas petition. That was wrong, the Court of Appeals says, and the case returns tot the district court for a ruling on the merits.

The case is Ethridge v. Bell, issued on September 20. The police found the gun following a high-speed chase that began when they wanted to stop the driver for using a cell phone while driving. The district court threw out the habeas petition, determining that under Stone v. Powell, a 1976 Supreme Court case, the defendant had a full and fair opportunity to deal with these constitutional issues in state court. Defendant then filed a motion for reconsideration, citing Byrd v. United States, a 2018 Supreme Court case holding that "the mere fact that a driver in lawful possession or control of a rental car is not listed on the rental agreement will not defeat his or her otherwise reasonable expectation of privacy." The district court sua sponte dismissed that motion as well before the state could even respond to it, finding that the case was still unwindable under the Stone precedent.

The case reaches the Court of Appeals (Lynch, Bianco and Nardini), which finds that the Stone dismissal cannot happen without giving the petitioner notice and an opportunity to be heard. That is the general rule in other cases, and now that rule has been applied to habeas cases that may be vulnerable under Stone. Yes, the district court can dismiss the case on its own if it thinks the case is completely meritless. But the party still needs notice of this potential dismissal so it can be heard. One problem with a sua sponte dismissal like this is that the petitioner's arguments that he did not have a full and fair opportunity to be heard on the constitutional issue in state court may not be apparent from the cold record. Due process says you have to be able to present your arguments fully in federal court.

The state says the motion for reconsideration was the petitioner's opportunity to be heard on this issue, and that would get around the Second Circuit's holding in this case. No, the Court of Appeals says, because such a motion is not an opportunity for a petitioner to relitigate an issue decided or present arguments that could have been made before judgment was entered. Those motions can only prevail in narrow circumstances, such as an intervening change in the law or the availability of new evidence, or the need to prevent a manifest injustice. That is not quite the same as have real opportunity to be heard before the federal judge dismisses the case without notice and an opportunity to be heard. 

Title VII retaliation case fails in the Court of Appeals

This case highlights an unpleasant truth about employment discrimination cases. Sometimes the plaintiff's history of poor job performance undermines the case on the merits, even if there might be an argument that the plaintiff suffered retaliation for her protected activity in the workplace.

The case is Gonzalez v. NYU Langone Hospitals, a summary order issued on September 22. Plaintiff says she was fired in February 2017 because she helped a coworker with her lawsuit by providing translation services starting in October 2016. That four-month gap might permit an inference of retaliation. Here is the law on this issue:

An adverse employment action is “ ‘more disruptive than a mere inconvenience or an alteration of job responsibilities' and can include ‘termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices ... unique to a particular situation.’ ” Leibowitz v. Cornell Univ., 584 F.3d 487, 499 (2d Cir.2009) (quoting Galabya v. N.Y. City Bd. of Educ., 202 F.3d 636, 640 (2d Cir.2000)).

Chukwueze v. NYCERS, 891 F. Supp. 2d 443, 454 (S.D.N.Y. 2012)

Although “[t]he temporal proximity of events may give rise to an inference of retaliation for the purposes of establishing a prima facie case of retaliation under Title VII,” El Sayed v. Hilton Hotels Corp., 627 F.3d 931, 933 (2d Cir. 2010), “[w]here timing is the only basis for a claim of retaliation, and gradual adverse job actions began well before the plaintiff had ever engaged in any protected activity, an inference of retaliation does not arise,” Slattery v. Swiss Reinsurance Am. Corp., 248 F.3d 87, 95 (2d Cir. 2001).

This rule of law opens up the plaintiff's prior employment history for purposes of determining whether a jury can find that she was retaliated against for her protected activity. In this case, plaintiff loses because "Gonzalez’s extensive history of performance issues and ongoing discipline dating back to 2010—long before her protected activity in 2016—prevent her from establishing an indirect causal connection." Defendant says plaintiff was really fired because she was a no-call no-show, and she received a final warning in October 2016 for another no-call no-show. The Court (Pooler, Parker and Sack) writes, "Gonzalez no call no showed and was disciplined a week before she began assisting Troche with her lawsuit, and she no call no showed again a week before Troche filed her lawsuit and two weeks before NYULH was served with the complaint. Given Gonzalez’s history of performance issues and discipline, temporal proximity, without more, is insufficient to raise an inference of discrimination."

We have another problem: plaintiff cannot show that decisionmakers knew that she had helped a coworker with the lawsuit. Retaliation does not exist if the decisionmaker does not know that you had asserted your rights in the At best, plaintiff speculated that her supervisor, Ortiz, knew about this, but all plaintiff has on this point is her sworn statement that another employee, Perez, told Ortiz about plaintiff's assistance on that lawsuit, and that Ortiz had Perez on "speed dial." That will not cut it without additional evidence about Ortiz's knowledge.

 

Did the banking customer sign away her rights under an arbitration agreement?

This case holds that the trial court did not have enough information to determine whether the plaintiff in this potential class action suit against a credit union signed away her rights in an arbitration agreement that would also waive any class action. The issue is whether the crafty consent document was sufficiently visible to plaintiff when she opened her account with Hudson Valley Credit Union.

The case is Zachman v. Hudson Valley Credit Union, issued on September 14. Plaintiff says the credit union wrongly assessed and collected overdraft fees and insufficient funds fees on checking accounts that were not actually overdrawn. She filed this lawsuit, but HVCU filed a motion to compel arbitration, which would take the case away from the jury and provide the parties limited discovery and other rights. The credit union said that plaintiff was on "inquiry notice" about the arbitration agreement when she opened the account. As the Court of Appeals puts it, HVCU says "she agreed to an Internet Banking Agreement that incorporated by reference the revised Account Agreement containing the arbitration and class action waiver provisions, and that HVCU published the modified Account Agreement on the HVCU website which Zachman used for online banking."

That "inquiry notice" arrangement may seem unfair, as it's not the same as a customer signing an arbitration agreement with a pen and paper. But that's arbitration these days. You can consent by signing onto a banking arrangement online. While the credit union's senior compliance officer said the arbitration agreement can be accessed on the bank's website by either running a search on the webpage or clicking on the Resources tab on the website, plaintiff said she never got any such agreement in the mail and the agreement was obscured on the website and therefore not readily visible such that she was on notice that any disputes with the bank would go to arbitration.

While the district court sided with plaintiff on this issue, the Court of Appeals remands for more factfinding. The trial court has to decide whether an Internet-based contract like this put plaintiff on "inquiry notice" of the arbitration agreement. You can actually "agree" to such a provision by clicking "I agree" or similar language while processing your application for the banking services online. We all do this; we click here and there until we get the services we want, and God knows what we just consented to. But it's legal under the case law. The problem here is that the "agreement" may or may not have been readily visible to plaintiff. The district court will have to look at screenshots of the bank's website to make that determination.

Court requires Yeshiva University to recognize LGBT student group, for now

A new religious freedom case is coming around the bend. This one will ask whether a private university can, on religious grounds, prohibit an LGBT student organization from organizing on campus. The Supreme Court for now has said it's too early for this case to reach the Court, which means the university has to proceed through the state appellate courts in New York. But yesterday's ruling denying the stay is a temporary measure. This case will likely return to the Court someday and provide the Justices with its first opportunity to interpret the New York City Human Rights Law, amended in 2005 to provide greater civil rights protections than federal law.

The case is Yeshiva University v. YU Pride Alliance, issued on September 14. The case was initially resolved in the New York State trial court, which ruled against the university, holding that the New York City Human Rights Law prohibits this kind of sexual orientation discrimination. Yeshiva unsuccessfully sought emergency relief from the New York appellate courts before filing in the Supreme Court. The 5-4 Court majority says Yeshiva has to follow through on its state appeals through an expedited process. Yeshiva will do that, I am sure, and if the New York appellate courts rule in favor of the student group, the case will return to the Supreme Court, which is in the process of revitalizing the Free Exercise Clause to expand the religious rights of institutions and individuals.

State Supreme Court (the trial-level court in New York) ruled against Yeshiva in June 2022, holding that while the university is an educational institution with a rich Jewish heritage and a mission to combine"the spirit of the Torah" with strong secular studies, while Yeshiva believes the LGBT student group's mission conflicts with that of the university, Yeshiva is a place of "public accommodation" and not an exempt religious corporation under the City Human Rights Law, one of the most expansive civil rights laws in the country. 

The Supreme Court's three liberals voted with Chief Justice Roberts and Justice Kavanaugh to deny the stay. Justice Alito writes the dissent from yesterday's ruling, joined by Justices Gorsuch, Barrett and Thomas. Alito opens his dissent as follows:

Does the First Amendment permit a State to force a Jewish school to instruct its students in accordance with an interpretation of Torah that the school, after careful study, has concluded is incorrect? The answer to that question is surely “no.” The First Amendment guarantees the right to the free exercise of religion, and if that provision means anything, it prohibits a State from enforcing its own preferred interpretation of Holy Scripture. Yet that is exactly what New York has done in this case, and it is disappointing that a majority of this Court refuses to provide relief.

Ultimately, Alito writes, "A State’s imposition of its own mandatory interpretation of scripture is a shocking development that calls out for review. The Free Exercise Clause protects the ability of religious schools to educate in accordance with their faith." In forcing Yeshiva to recognize this student group, the university "would force Yeshiva to make a 'statement' in support of an in interpretation with
which the University disagrees."

Covid-19 shutdown lawsuit against every school district in the country is dismissed

Another Covid-19 shutdown case has reached the Second Circuit. This one alleges that the remote-learning thing that kids went through in 2020-2021 violated the students' right to a free and appropriate public education. The case raises a novel theory, but novel theories don't really fly in the Court of Appeals. The case is dismissed.

The case is KM v. Every School District in the United States, a summary order issued on August 31. That caption is no joke. The real defendants are dozens of school districts and state governments around the country. Plaintiffs brought this putative class action on behalf of all students and parents against New York officials "as well as all 13,821 public school districts in the United States and the state departments of education in all fifty States," Washington DC and Puerto Rico. (The real caption is KM v. Adams). 

The putative class would consist of all public school students with a disability. The Court of Appeals (Chin, Sullivan and Menashi) writes, "Alleging principally that the shift from in-person to remote instruction constituted a per se deprivation of the 'free appropriate public education' guaranteed to disabled students under the [Individuals with Disabilities in Education Act], the Students and Parents brought claims – as relevant to this appeal – under the IDEA and RICO." RICO is the federal conspiracy law that the government used to take down the Mafia. The idea is that the Individualized Education Programs (IEP) for disabled students cannot all be complied with through remote learning, as some services can only be provided in-person.

The problem for plaintiffs is procedural: to bring a claim under the IDEA and related laws, you have to exhaust administrative remedies, which means prior to the lawsuit, you have to seek your remedies through state educational agencies. No such exhaustion is needed if such a route is futile or the agency has no authority to grant the relief you are looking for. The courts rarely find futility under the IDEA, and it does not do so here, holding that plaintiffs cannot show the State Education Department would have taken forever to resolve this claim. Nor have plaintiffs preserved the argument that the agency had no power to grant them the relief they want, as plaintiffs did not advance that argument in the district court. What it all means is the district court lacked subject matter jurisdiction to hear the case in the first instance. 

Circuit reverses ALJ on social security benefits

The Court of Appeals has reversed the findings of the Social Security Administration and found that a woman is entitled to Supplemental Security Income because she is in fact disabled and cannot work a full range of jobs.

The case is Rucker v. Kijakazi, issued on September 6. People who apply for SSI benefits have to proceed to a hearing, where an administrative law judge hears medical evidence from both sides before determining whether the applicant can recover these benefits because of their inability to work as a result of their disability. Courts will defer to the ALJ's findings, a process consistent with the general rule that courts give these experts the benefit of their experience; the applicants for these benefits prevail on appeal only when the ALJ blows it.

As the Second Circuit (Leval and Parker) sees it, the ALJ got it wrong in finding that Rucker can perform the full range of work at all exertional levels and has the basic capacity to read spell or perform mathematical functions. The ALJ did say Rucker cannot work with others and should avoid work that involves joint effort. In fact, the Court of Appeals says, the medical evidence shows that plaintiff is moderately limited in her ability to accept instructions, respond appropriately to criticism from supervisors, get along with coworkers and peers, and suffers from borderline personality disorder and schizoaffective disorder. Rucker gets her benefits and the ALJ's findings on this point are overturned.

The Court does uphold the ALJ's findings that Rucker's physical impairments do not render her physically disabled. The test is whether she had a severe impairment that could be expected to result in death or that could last for a continuous period of 12 months. While Rucker is obese, there is no evidence that that condition imposes any limitations on her functional capacity. 

Judge Menashi dissents from the first holding, stating that the "substantial evidence" standard applicable in administrative law cases like this supports the ALJ's findings. He writes that while the ALJ limited the amount of time Rucker should spend with coworkers, the ALJ also said Rucker can work alone and can perform simple tasks and follow simple instructions.

Jury verdict in inmate's favor is reversed on appeal

A federal jury in Albany awarded this inmate-plaintiff $20,000 in damages for pain and suffering resulting from bad jail conditions that included cell overcrowding and threats of violence/lack of safe living conditions. That verdict is now gone, the victim of both the Prison Litigation Reform Act and qualified immunity.

The case is Walker v. Schult, issued on August 16. We have a series of holdings to explain why the jury's findings are not enough to support the verdict. This case is complex, which explains why it took the Second Circuit (Kearse, Lynch and Chin) over a year to resolve the appeal following oral argument.

1. While the Eighth Amendment prohibits cruel and unusual punishment, overcrowded cells by themselves are not enough to violate the Constitution unless the overcrowding is accompanied by some treatment that deprives the inmates of the minimal civilized measure of life's necessities. That rule derives from a Supreme Court case, Rhodes v. Chapman (1981). The idea is that the Constitution does not mandate comfortable prisons. 

2. Further complicating things for plaintiff is the Prison Litigation Reform Act of 1996, when Congress decided to scale back inmate lawsuits by imposing certain procedural and substantive conditions for victory. One such limitation is that inmates cannot recover damages for pain and suffering without some showing of physical injury resulting from those conditions. The jury in this case was not instructed about that legal principle, as the trial court apparently thought the federal defendants had waived that defense; in fact, the Second Circuit says, plaintiff and his lawyers should've seen this defense coming in light of the procedural history of this case, and the "limitation on recovery" defense is not the kind of affirmative defense that a party can waive. This means the jury should have been instructed on the principle that the inmate plaintiff cannot win without a showing of physical injury. And since there was no such showing, the verdict is vacated and the inmate loses.

3. What is more, the federal defendants are entitled to qualified immunity, which preludes any liability when the plaintiff proceeds on a legal claim that is not clearly-established under prior Second Circuit and Supreme Court case law. You may have come across commentary over the last few years on this kind of immunity, which makes it difficult for civil rights plaintiffs to win their cases. There was hope that the Supreme Court or even Congress might do something about qualified immunity, but for now this immunity is here to stay, a mainstay of federal civil rights law since the 1960s. On the factual findings reached by the jury, particularly that all plaintiff was able to prove was overcrowding and threats of violence, the federal defendants are immune from suit. The trial judge should have recognized that once the verdict came in with the jury's factual findings, but it failed to do so. Since there is no case that says the inmate can win an Eighth Amendment case solely on the basis of overcrowding, qualified immunity attaches, and plaintiff loses. 

Circuit affirms large attorneys' fees award in FLSA case

In this ruling, the Court of Appeals says the plaintiffs' attorneys were able to secure a huge attorneys' fees award for their work on a wage-and-hour claim even though some of their claims failed in the district court. The Court of Appeals also finds that the district court was able to reduce their attorneys' fees award by 40 percent, still resulting in a large fee award for the plaintiffs' lawyers. This case provides a good summary of how attorneys' fees work when the plaintiff achieves a partial victory in the district court.

The case is Holick v. Cellular Sales of New York, issued on September 7. Plaintiffs were owners of companies that sold cellular service plans and devices to the general public through contracts with Cellular, an authorized Verizon Wireless dealer. The arrangement provided plaintiffs with a commission for selling cell service plans, but if the customers cancelled their cell service plan within 6 months, Cellular deducted the sale from its checks to plaintiffs, who claim in turn that the defendants misclassified them as independent contractors when they were actually employees who should not have been subjected to those deductions. While the district court denied plaintiffs' motion for class certification, it said plaintiffs were Cellular employees, granting them about $11,000 for unpaid minimum wages and overtime. This is a partial victory for plaintiffs, as the class certification motion was far more lucrative (they sought $4 million in damages and $700,000 in damages for the name plaintiffs) than the claims upon which they prevailed.

The district court held that the successful and unsuccessful claims were intertwined such that their attorneys' could recover fees expended on all claims, even those that failed. We all know that this can happen if the claims bear a close relationship with each other such that discovery on the bad claims would have been intertwined with the good claims. The district court has discretion to make that determination, and the Court of Appeals will not second guess it. The general rule is that it's not an abuse of discretion if the district court had a variety of options to resolve the motion and was not required to issue one ruling in particular. That rule, deriving from Zervos v. Verizon N.Y., Inc., 252 F.3d 163 (2d Cir. 2001), helps plaintiffs, as the district court said, and the Court of Appeals (Pooler, Wesley and Carney) agrees, stating that "Plaintiffs' claims were all based upon the terms of the contracts between Plaintiffs and Defendants, the circumstances under which the commissions were earned, and the formula by which Plaintiffs were paid. These claims would largely require similar discovery and proof and would be difficult to sever in billing records."

What about the 40 percent reduction? Defendants wanted a greater reduction, but the Court of Appeals says that percentage also falls within the range of permissible decisions by the district court. The Second Circuit does not like to second-guess attorneys' fees rulings like this, as the trial court knows the case better than anyone and these are essentially findings of fact, which are better suited for the trial court than the appellate judges on cold, boring paper record. The Court notes that while the fees in this case amounted to $576,000 and the plaintiffs won a fraction of that amount in damages, FLSA cases often do not yield large damages awards and the law wants good lawyers to take on these cases to ensure that "everyday workers" are adequately paid for their work.

Court holds that speech on bus safety issues does not address a matter of public concern

Over a strong dissent, the Court of Appeals holds that a school bus driver who argued with his employer about the frequency with which bus defects should reported did not speak on a matter of public concern. This means the plaintiff did not engage in protected speech under the First Amendment, and he cannot redress what he calls his retaliatory termination.

The case is Shara v. Maine-Endwell Central School District, issued on August 18. Plaintiff told a transportation mechanic for the district that it was not enough that bus defects were being reported on a single occasion. Plaintiff wanted these defects to be reported on a daily basis until the defect is corrected. The district's Director of Auxiliary Services disagreed with plaintiff about the reporting protocol. Plaintiff was terminated shortly thereafter, and this lawsuit claims he was fired because of his speech. (My write-up about a related holding in this case is at this link).

Public employees cannot be fired if they speak on matters of public concern, defined as any matter of interest to the community. This prevents employees from filing retaliation lawsuits because they complained about matters that were strictly personal to them ("I was unfairly denied a promotion") or matters that the public would not care about ("the air conditioning around here is not working"). While plaintiff spoke up about school bus safety issues, that is not a matter of public concern, the Court of Appeals (Sullivan and Park) says, because plaintiff was not really a whistleblower. Rather, "the allegations in his Complaint were more pedestrian and involved little more than an intramural dispute about the best way to report maintenance issues involving the School District's buses. Nowhere in his Complaint did Shara allege that the School District's reporting practice permitted unsafe buses to be out on the road or that [the district was] attempting to sweep needed bus repairs under the rug."

Judge Pooler dissents, stating that the majority's interpretation of the Complaint is far too narrow. Noting that the Court has previously held that "the safety of public employees is, indeed, a matter of public concern," as she sees it, "Shara’s comments were clearly on a matter of public concern. Shara was concerned with the frequency of reporting safety issues regarding the School District’s buses used to transport schoolchildren." Moreover, "Common sense dictates that Shara’s speech concerned the safety of the workplace, the safety of the Maine-Endwell community’s schoolchildren, and the safety of other motorists whose lives might be at risk of colliding with a school bus with faulty brakes or other mechanical issues, such as the two buses that had already failed inspection. Surely speech on such a topic is the paradigmatic example of speech on a matter of public concern."