First Department reinstates retaliation claim arising from Cuomo sexual harassment investigation

The Appellate Division First Department has ruled that an attorney who was fired from his position with Gov. Cuomo's office may proceed with a retaliation claim arising from his testimony to the Attorney General's office that corroborated the sexual harassment allegations that led to Cuomo's resignation.

The case is Herskowitz v. State of New York, issued on December 28. I briefed and argued the appeal.

Plaintiff testified on April 1, 2021. The AG's report on Cuomo issued in August 2021. A few days later, plaintiff was fired after the Governor's office determined, after a half-elbowed investigation, that plaintiff had engaged in sexual harassment. Although the First Department ruling does not explicitly say so, the sexual harassment allegations against plaintiff were quite weak: he asked a female coworker (identified as EA in the case) for her phone number for work-related reasons, and when she said that Cuomo had not harassed her, plaintiff jokingly said that her testimony in the AG's investigation might have cleared the governor. The First Department does say the allegations against plaintiff were "questionable."

The lower court dismissed the retaliation claim, ruling that the complaint did not assert a causal connection between plaintiff's April 1, 2021 testimony and his termination in August 2021. The First Department sees it differently, ruling as follows:

1. Pleading standards in state court are more lenient than in federal court. "Plaintiffs in retaliation cases are held to a lenient notice pleading standard and are generally afforded deference at the pleading stage." Language like this is not found in federal rulings, which rely on the Iqbal standard, which requires "plausible" and non-conclusory allegations.

2. Timing is one way to make out a prima facie case of retaliation. Citing federal cases, the First Department says, "Courts have not drawn a bright line to define the outer limits beyond which a temporal relationship is too attenuated to establish a causal relationship between the exercise of a federal constitutional right and an allegedly retaliatory action. This has allowed [the Second Circuit] to exercise its judgment about the permissible inferences that can be drawn from temporal proximity in the context of particular cases.” The four-month period between plaintiff's testimony and his termination is enough to prove causation. I recall upon briefing this issue that cases in the state system were all over the place on how long is too long to infer causation. The First Department does not settle upon a fixed time period, but it says four months is enough.

3. We also consider whether the employer waited for the right time to retaliate. Federal cases have said this but I have not seen this language in a state appellate ruling. "When analyzing the timing and context of retaliatory actions, courts also consider whether the employer 'waited to exact [its] retaliation at an opportune time' in order to have an explanation for the action."

4. Also consider the size of the employer and whether that might slow down the retaliation apparatus. "'Questions regarding the time gap and causal connection of an alleged retaliatory termination may entail special consideration of the size and complexity of a defendant employer, where termination of employment may involve multiple levels of decisionmakers, as well as the nature of plaintiff’s claims.'”

5. The First Department also considers other factors suggesting that management cut corners to fire plaintiff. Shortly after plaintiff spoke with his coworker about the governor's sexual harassment, he was questioned by the Governor's Office of Employee Relations about his comments, which as noted above, hardly constituted sexual harassment. I framed this issue as a deviation from procedural regularity to prove retaliatory intent. The First Department did not use that phraseology, but it agrees that the sequence of events was suspicious.

During this interview, the GOER officer disregarded plaintiff’s attempts to contextualize the complained-of actions, his friendly working relationship with the EA, and his recollection of a previous, highly inappropriate sexual comment made by the EA.

Plaintiff received a notice of termination for violating the Executive Chamber’s sexual harassment policy on August 12, six days after the GOER interview and only nine days after the AG Report and interaction with the EA. Plaintiff was terminated on August 25; defendant provided plaintiff with a box containing his belongings, which contained a handwritten note stating that he “had it coming.” Finally, to date defendant has not responded to plaintiff’s November 2021 FOIL request for his personnel records or issued a determination regarding his August 23, 2021 complaint to GOER regarding its rushed investigation and disproportionately heavy punishment to the conduct alleged, effectively stonewalling plaintiff’s attempts to obtain defendant’s justification for his termination.

Blown deadline kills qualified immunity appeal

We have another police misconduct case that reaches the Court of Appeals because the defendants want qualified immunity. Normally, when the district court denies qualified immunity, the defendants can file an immediate appeal. This case is different. Defendants take up an appeal, but they cannot prosecute the appeal because of a procedural error.

The case is Maye v. City of New Haven, issued on December 26. Plaintiff alleges that the officers evicted him from the building that he leased for his gym business. The officers wanted to file a motion for summary judgment on qualified immunity grounds. Here's the problem: the trial court set a deadline to file such a motion, but the officers missed the deadline by six months. The trial court rejected the motion on timeliness grounds and the officers took up an appeal to the Second Circuit.

The Court of Appeals dismisses the appeal on jurisdictional grounds. The officers argued that the appeal was OK because the denial of qualified immunity allows you to file an immediate appeal. Technically, qualified immunity was denied. But this was not the traditional denial of qualified immunity. The denial was because the motion was untimely. The question for the Court of Appeals is whether it has authority to hear an appeal under these circumstances.

Much to the officers' dismay, I am sure, the Court of Appeals (Calabresi, Sullivan and Perez) says the appeal is untimely and therefore the Court has no jurisdiction to hear it. Remember, the federal system normally only allows you to take up an appeal when the entire case is over. Qualified immunity rulings are the exception to that rule, but this case does not fall within that exception because immunity was denied over a missed deadline. Here is how the Court of Appeals sees it: "To be sure, the City’s tardiness may have cost it its 'immunity from suit,' leaving it with 'a mere defense to liability.' But the City has only itself to blame for its predicament. Because qualified immunity, unlike subject matter jurisdiction, is an affirmative defense that can be waived, we decline to extend the collateral order doctrine to allow immediate appeal from an order denying as untimely a motion asserting that defense."

Black Syracuse officer cannot assert racial stereotyping claim

The plaintiff in this case is a Black Syracuse police officer who claims that white members of the Gang Violence Task Force purposefully scuttled his efforts to join the task force because they did not want a Black officer on this elite body. The Court of Appeals (Sullivan, Cabranes and Nathan) holds that plaintiff cannot show that the white officers had intentionally acted to prevent him from joining the task force and that plaintiff does not assert there was any racially-motivated stereotyping.

The case is Hanks v. City of Syracuse, a summary order issued on December 26. I argued the appeal and will try to keep this neutral. This is a Rule 12 motion, not summary judgment. Plaintiff alleged that, without his input, other task force members drafted a memo intended to prevent Hanks from joining the task force. The memo "detailed several incidents and social media posts where Hanks had purportedly affiliated with “gang members and convicted criminals,” and referred to several videos Hanks had posted on social media that depicted him in uniform while listening to 'a rap song' and using vulgar and explicit language. The memo also indicated that these videos had been forwarded to a deputy chief in the department.  Upon learning of the memo, Hanks  filed  a notice  of  claim  with  the  Equal  Employment  Opportunity Commission, asserting that the memo was a racially motivated attempt to undermine his candidacy."

Plaintiff drafted a rebuttal memo that placed these episodes in context and emphasized, among other things, that he did not consort with gang members and criminals and that all of this was a stereotyped attack on his character intended to prevent him from joining the task force. The Court of Appeals disagrees that plaintiff has asserted a plausible claim for discriminatory intent because "when courts find discriminatory intent based on stereotyped remarks, it is generally because those remarks make invidious generalizations about the protected class." The cases in support of this proposition are Christiansen v. Omnicom Grp., Inc., 852 F.3d 195, 200 (2d Cir. 2017) (finding plausible discriminatory intent where a supervisor explicitly stated that an openly gay plaintiff “must have AIDS” because he was “effeminate and gay”; Sassaman v. Gamache, 566 F.3d 307, 312 (2d Cir. 2009) (concluding that “a reasonable jury could construe [the statement ‘you probably did what the accuser said you did because you’re male’] as an invidious sex stereotype”). Is negative stereotyping the only way to assert a stereotyping theory? Is it not negative stereotyping to falsely claim that a Black police officer is running around with gang members and criminals? These are the matters that we debated at oral argument.

Nor does the Complaint assert that plaintiff was actually denied the position. The Court writes, "Hanks’s complaint never asserts whether, when, or why he was denied the GVTF assignment, much less that supervisors did so because of the memo.  Instead, Hanks makes various accusations that the GVTF officers and its supervisors “sought to derail his promotion,' and 'conspired to deprive [Hanks] of his rightful advancement within the Police Department.'" Here we have the consequences of the Iqbal pleading rule: plaintiffs have to explicitly assert their facts in the complaint, and the court will not draw too many inferences, through plaintiff was in fact denied membership to the task force at this time.

The Court finally holds there is no retaliation claim. Nine days after plaintiff asserting in a notice of claim that he was denied the task force assignment for racially-discriminatory reasons, he received a written reprimand from the Chief of Police’s office regarding his social media posts, which quoted from rap lyrics. The Court of Appeals says there is no retaliation claim because the rebuke was a reprimand that threatened plaintiff with discipline in the event he continued to violate the Department's speech policy in the future. We argued that reprimands may qualify as adverse actions under Circuit Court precedent, and that this drew from additional stereotypes since rap music is not the only music with violent lyrics. The Court disagreed and said this reprimand referred to the Department's policy against social media posts that contain explicit language.

Untimely claim means transgender inmate cannot sue corrections officer for sexual assault

In this case, a transgender prison inmate sues a corrections officer, alleging serial sexual assault. She brought the case nearly seven years after this abuse, which prompts the officer to file a motion to dismiss on statute of limitations grounds. Plaintiff argues that the statute of limitations should be equitably tolled due to the paralyzing effects of the abuse. The Court of Appeals rejects her claim.

The case is Clark v. Hanley, issued on December 20. In order to assess plaintiff's argument that her trauma prevented her from bringing a timely suit, the district court held an evidentiary hearing, following which the court found that plaintiff's testimony was not credible. "The district court concluded that neither of Clark’s stated reasons for failing timely to bring suit—her alleged fear of retaliation or the trauma from Hanley’s abuse, as aggravated by Clark’s gender dysphoria—caused her years-long delay in bringing this action."

On appeal, the Second Circuit (Livingston and Kahn) holds that the district court properly convened such an evidentiary hearing and that the bench hearing did not deprive plaintiff of her Seventh Amendment right to a jury trial. Plaintiffs can seek equitable tolling for untimely lawsuits, but the courts have made it difficult to win such an argument, noting these are "rare and exceptional circumstances" "where necessary to prevent unfairness to a plaintiff who is not at fault for her lateness in filing." The Court holds as follows: the district court was allowed to resolve this issue following an evidentiary hearing before the judge and not a jury. The Second Circuit observes that "evidentiary hearings exploring the merits of equitable tolling claims are routine in the district courts." The district court did nothing wrong in not converting the motion to dismiss into a motion for summary judgment, as that "would have served no practical purpose in the context of this case."

Judge Chin dissents. While he agrees the district court was able to conduct an evidentiary hearing into the equitable tolling issues, he further writes that the district court should have -- but did not -- allow plaintiff any discovery into this issue prior to the hearing. As such, "Perhaps because the district court did not hear directly from the healthcare providers who worked with Clark, did not consider affidavits or deposition testimony from the prisoners and corrections officials who knew her, and did not have before it any expert testimony, the district court minimized the harm Hanley inflicted on her and found that aspects of Clark's testimony were 'neither plausible nor credible.'"

Judge Chin further writes that "to the extent the judgment rests on factual findings about the severity of Hanley's conduct and its effect on Clark, those findings were not the district court's to make. The Seventh Amendment to the U.S. Constitution guarantees Clark the right to have matters that go to the heart of her legal claims be decided by a jury. The district court's findings deprived Clark of her right to present those issues to a jury."

The culture wars have arrived at the Second Circuit

In a rare en banc ruling, the Court of Appeals holds that a female athletes who graduated from a public high school years ago have standing to sue Connecticut school authorities for monetary damages under Title IX for gender discrimination because they lost out on certain athletic honors to transgender athletes. They can also recover injunctive relief in the form of a retroactive change in the record books.

The case is Soule v. Connecticut Association of Schools, issued on December 15. The case was previously resolved by a three-judge panel, which held the women cannot recover economic damages. But the full Second Circuit took up the case - a rare occurrence -- and said the woman may in fact recover economic damages. The en banc court did not determine whether the plaintiffs have a case on the merits; that issue can only be resolved at the district court through a possible trial, which I am sure will turn into a spectacle as experts will debate the legality of allowing transgender girls to compete in womens' sports. At this point, the case only addresses whether the harms they allegedly suffered have any monetary value. The en banc court also says the women have standing to sue for injunctive relief in the form of a retroactive alteration of private athletic records for events that took place years ago.

Here are the holdings:

1. The plaintiffs have standing to sue under Article III of the Constitution because the denial of equal athletic opportunities (in the form of allowing transgender athletes to compete against them) might constitute a concrete injury through the loss of recognized titles and placements in track and field competitions. This is because all discriminatory treatment, in whatever form it takes, creates a concrete injury under Supreme Court precedent. 

2. Monetary damages are available in a case like this. It may not be a lot of money, and perhaps it will only be nominal damages, but as noted above, all acts of discrimination entitle you to at least some money. 

3. Injunctive relief, the most interesting part of the opinion, at least for me. The Court says that while the athletic events cannot have any do-overs, the trial court can order the school authorities to alter the record books to show that plaintiffs and not their transgender competitors actually won their athletic competitions. This of course assumes the trial court actually rules in plaintiff's favor on the merits of the case and finds that Title IX was violated in allowing transgender girls to compete against the plaintiffs.

En banc rulings are rare and usually involve concurring and dissenting opinions. That makes en banc ruling the equivalent of the Supreme Court for the Second Circuit. If you are keeping score, here is the lineup for the majority ruling: Nathan (Biden appointee), Livingston (George W. Bush), Sullivan (Trump), Bianco (Trump), Park (Trump), Nardini (Trump) and Menashi (Trump). Lohier (Obama) only agrees that plaintiffs may recover nominal damages for any Title IX violation. Perez (Biden) writes that plaintiffs cannot recover any injunctive relief. Marriam (Biden) says that plaintiffs lack standing. Chin (Obama), along with Carney (Obama), and Kahn (Biden) says plaintiff cannot win any injunction or economic damages.

Trump waived presidential immunity defense in Jean Carroll's defamation case

Waiver is a scary word for lawyers. It means the lawyer failed to do something and that omission has consequences down the road. Clients may waive also, but usually the lawyer is blamed because the lawyer knows to assert certain points and most clients are not legal experts In this case, the Court finds that Donald Trump's lawyers waived his right to assert presidential immunity in the E. Jean Carroll defamation case.

The case is Carroll v. Trump, issued on December 13. As the world knows, Carroll sued Trump for defamation after he disparaged her following her public allegation that he had raped her. Trump was president when he said this. That case went to trial in federal court and Carroll prevailed on her defamation claim as well as her claim that Trump had sexually assaulted her. The jury awarded several millions in damages.

When Trump answered Carroll's suit, he did not assert a presidential immunity defense. His lawyers did not assert this immunity until the summary judgment motion was filed. Is that delay enough to waive the immunity defense? Yes, says the Court of Appeals (Cabranes, Chin and Khan). 

The issue of whether presidential immunity is waivable is a matter of first impression. What it boils down to is whether this immunity is a jurisdictional right. If so, then it is not waivable. Jurisdiction is not a waivable matter, and certain defenses are so fundamental to the legal system that they can be asserted at any time. Writing on a clean slate, the Court reviews Supreme Court cases on immunity and jurisdictional waiver in finding that presidential immunity is in fact waivable. Trump's lawyers should have raised immunity as an affirmative defense but they did not do so. Other forms of immunity, such as absolute and qualified immunity in civil rights cases are not waivable, and that logic applies to presidential immunity.

To be fair, prior cases from the Supreme Court have thrown around the word "jurisdiction" in a manner that suggest that this kind of immunity is not waivable. But in examining these cases carefully, the Court of Appeals says the Supreme Court never really intended to say that this immunity is a jurisdiction matter. The Second Circuit sums things up this way:

To  summarize:  notwithstanding  scattered  references  to “jurisdiction” in some presidential immunity cases, the Supreme Court has indicated that immunity defenses are not jurisdictional, and that presidential immunity is to be treated like other forms of immunity that Defendant does not dispute are waivable. Moreover, Nixon—the leading presidential immunity case—treats presidential immunity  as  nonjurisdictional.  Finally,  recognizing presidential immunity as waivable reinforces, not undermines, the separation of powers and the President’s decisionmaking authority by affording the President an opportunity to litigate if he so chooses. Accordingly, we hold that presidential immunity is waivable.

Another issue: Trump wants to amend his answer to assert this immunity. Too late, says the Court of Appeals. Courts will allows parties to amend their complaints/answers unless there is prejudice to their adversaries. So we have a lengthy discussion on "prejudice" in this context. The Court says that Carroll would be prejudiced by a late amendment to the answer because the immunity would require additional discovery that never happened in the absence of the immunity defense. What discovery you ask? For starters, Carroll's lawyers would have to explore whether Trump's public response to Carroll's rape allegations were pursuant to his presidential duties. As the Court of Appeals says:

Had Defendant raised presidential immunity before discovery closed, Plaintiff claims, she would have engaged in discovery on whether Defendant’s actions fell within his official duties. First, Plaintiff would have asked Defendant for more detail on the process through which he issued and prepared the June 2019 statements, including how the process compared to his pre- and post-presidential processes.65 Second, Plaintiff would have sought third-party discovery from White House personnel allegedly involved in preparing and issuing the statements.Third, Plaintiff would have sought expert testimony from former White House officials and requested internal White House documents from the National Archives regarding former presidents’ processes for issuing statements denying wrongdoing.

In other words, a lot of work would have been devoted to exploring the presidential immunity issue had Trump raised it in his answer. It is too late for that as the case has already gone to trial and another trial on these issues is on the way.

 

Excessive force claim will proceed to trial

The Court of Appeals holds that police officers who took the plaintiff into custody under the Mental Hygiene Law may be found liable for excessive force. This ruling reverses the district court's contrary finding on summary judgment.

The case is Mercedes v. City of New York, a summary order issued on December 12. The officers arrived at plaintiff’s address "in response to a radio dispatch reporting that there was an emotionally disturbed male at that address who had a psychiatric history, was off his medication, and could become violent. After arriving at Mercedes’s address, the officers stopped him as he attempted to leave the building
because, according to Mercedes, they recognized him from an earlier encounter." Plaintiff did not submit to the officers' authority, so the officers placed him in handcuffs. The excessive force claim derives from the following allegations:

Mercedes’s mother Lisette Wigintton witnessed her son’s takedown and described that the arresting officers “slammed [Mercedes] on the floor” and then the “big officer” (whom Mercedes identified as Officer Evans), stepped on his stomach. Wigintton then told Officer Evans that Mercedes has liver problems and a hernia, and in response, Officer Evans allegedly “picked up his foot and stomped his foot harder.” The parties dispute when exactly Mercedes stopped resisting and whether Officer Evans stomped on Mercedes at all.

The district court dismissed the excessive force claim, holding that the officers had qualified immunity, which allows the officers to avoid suit if they acted reasonably in light of prior case law. But the Court of Appeals (Cabranes, Lynch, Perez) says this is an issue for the jury because the record permits the inference that the officer used gratuitous and significant force in his second stomp of plaintiff, assuming plaintiff was no longer resisting. For this reason, the state law assault and battery claims are also revived and will proceed to trial, as well.

Court reinstates racial discrimination suit on "exceptional" circumstances

The Court of Appeals in this case parses out Federal Rule 60 in the context of a racial discrimination claim. Not the most exciting issue, but an important one for the plaintiffs and their lawyers. And an important one if you litigate in federal court and need to amend or alter a judgment after the case is dismissed. In this case, the plaintiffs tried to resurrect their disparate impact claim but the district court said this effort was untimely because it fell outside the one-year statute of limitations under Rule 60(b)(1). But the Court of Appeals says the one-year rule does not apply.  The case returns to the district court docket.

The case is Mandala v. NTT Data, Inc., issued on December 8. Plaintiffs allege that the defendant's hiring practices -- they would not hire people with felony convictions -- had a disparate impact on Black applicants. The district court originally dismissed the case on the basis that general statistics in the complaint did not necessarily show a "statistical disparity in the numbers of African-Americans arrested and convicted in proportion to their representative numbers in the pool of applicants for [Defendant's] positions." The Second Circuit affirmed that dismissal in a split decision that led to an en banc petition that the Court of Appeals denied in another split vote. So this is a hotly contested issue.

After the en banc hearing was denied, plaintiffs moved the district court to vacate the judgment dismissing the complaint so they could file an amended complaint. Too late, said the district court, because Rule 60(b)(1) only gives you one year to do this. Under that rule, you can alter the judgment based on a mistake, inadvertence or neglect. The Court of Appeals says that plaintiffs' belief that their complaint satisfied Rule 60(b)(1) was well-founded, even if "mistaken," though it was not their fault, since plaintiffs are not really required to present their full evidence, including granular statistics, in their complaints. What it all means is this is not really a Rule 60(b)(1) case because plaintiffs did not "fumble." Rather, they did not anticipate the Court of Appeals would reject the initial pleading on esoteric grounds.

That brings us to Rule 60(b)(6), which also allows you to vacate the judgment under a "catch-all" provision that does not carry a one-year statute of limitations. You can alter the judgment on "such terms as are just" so long as you make the motion "within a reasonable time." This case falls into that category, not Rule 60(b)(1). Since plaintiffs seek to file a first amended complaint, "it is an abuse of discretion to deny post-judgment relief without any justifying reason, such as undue delay, bad faith or dilatory motive[.]" Plaintiffs win under Rule 60(b)(6). The majority (Jacobs and Kearse [Judge Sullivan dissents]) write:

this is one of the exceptional cases necessitating relief from judgment: Plaintiffs have yet to be afforded a single opportunity to amend their pleading; the original dismissal of the Complaint was premised on grounds subject to reasonable, actual, and vigorous debate; Plaintiffs diligently prosecuted their case at all times; and Plaintiffs’ proposed amendments address the sole pleading deficiency identified by the district court.  On these facts, the court’s contrary holding was not a proper exercise of discretion.

Free Exercise plaintiffs no longer have to prove a substantial burden on their religious rights

The Court of Appeals has adjusted the plaintiff's burden of proof in religious discrimination, holding for the first time that the plaintiff does not have to show the government caused a substantial burden on the plaintiff's religious practices. Instead, any burden on religious exercise will violate the Free Exercise Cause.

The case is Kravitz v. Purcell, issued on November 27.The plaintiff is a Jewish inmate at a state correctional facility. Correction officers prevented him from observing the Jewish holiday of Shavuot on two consecutive evenings, when other Jewish inmates pray and eat together. The officers denied plaintiff this opportunity in some crude and offensive ways, telling him at one point, "fuck you, shut up." They said other similar things. The statement of facts depicts correction officers whose callousness was such that they never thought any of the inmates would sue them. But plaintiff did. The district court dismissed the case, holding that, even if plaintiff's account was true, there was no substantial burden on his religious exercise, in part because plaintiff was able to celebrate the holiday even if the CO's shortened the celebration without any good reason. 

The "substantial burden" test originated in Sherbert v Verner (1963), a free exercise of religion case. Subsequent cases interpreted Sherbert to require a substantial burden showing for the plaintiff to win. In Employment Division v. Smith (1990), the Supreme Court appeared to reject the substantial burden test in holding that governmental practices that apply to everyone are legal under the Free Exercise Clause even if they impact your religion. The reasoning in Smith, the Second Circuit (Menashi, Jacobs and Kearse) says, appears to reject the substantial burden test, yet courts have still applied that test for the last 33 years, perhaps because the Court in Smith did not come right and say that the substantial burden test has been retired and that the real test is whether the plaintiff sustained any burden at all, substantial or not. 

The problem with the substantial burden test, the Court of Appeals says, is that it requires judges to use their own judgment in determining whether the violation of someone's religious rights is worthy of a lawsuit. Judges are not in a position to exercise that judgment, and "It is not appropriate for judges to determine the centrality of religious beliefs, and indeed the Court has warned that courts must not presume to determine the place of a particular belief in a religion."

On this revised interpretation of the First Amendment, Kravitz survives summary judgment, as a jury may find that he sustained a burden on his religious rights when CO's interfered with his religious observance. Other Circuits have already issued rulings like this, including the Third Circuit, Fifth Circuit and Ninth Circuits. However, since the Fourth, Eighth, Tenth and D.C. Circuits still hold firm on the substantial burden test, this case is ripe for Supreme Court review. Prediction: the Supreme Court will find that the substantial burden test is no longer good law, and it will adopt the reasoning in this case.

How not to write a Rule 68 offer

In federal litigation, the defendant can try to settle the case through a Rule 68 offer of judgment. The process is what it sound like: the defendant offers a "judgment" for a sum of money. A shrewd Rule 68 offer will note that this amount of money includes the plaintiff's attorneys' fees expended until that date; that will put the case to rest for good without further litigation and costs. What happens if the Rule 68 is vague as to this point?

The case is Parks v. Stevens, a summary order issued on December 6. This is a case litigated by a major New York City civil rights firm, which alleges that the plaintiff's developmentally-disabled daughter died while in the case of of the State Office for People with Developmental Disabilities. The state served plaintiff with a Rule 68 offer, which reads:

Plaintiff shall, voluntarily and with prejudice, dismiss any and all claims for all damages arising from the facts alleged which were, are, or could be brought in this Court, against any and all Named Defendants, including compensatory and punitive damages, for which the State of New York or any of its Agencies would be responsible to pay, whether directly or via indemnification, in exchange for a payment of two million, two hundred and fifty thousand ($2,250,000.00) dollars. Plaintiff’s acceptance shall resolve all of these claims and shall preclude any further award beyond the amount stated in the offer prior to the offer’s being filed.

The Rule 68 offer does not clearly say anything about attorneys' fees. Under the cases, Rule 68 offers must clearly say they include fees. That case is Barbour v. City of White Plains, 700 F.3d 631 (2d Cir. 2012), a case that every municipal lawyer should read to avoid the costly mistake of not including fees in the Rule 68 offer. This prompted plaintiff's attorneys' to move for attorneys' fees, which can be sizable. 

The district court said the Rule 68 encompassed attorneys' fees because it says plaintiff's "acceptance 'shall preclude any further recovery or award beyond the amount stated in the offer.'” That might include attorneys' fees, but it might not, says the Court of Appeals (Sack, Lynch and Park). Since this language is ambiguous as to whether it includes attorneys' fees, the language is interpreted against the drafter, the State of New York. Plaintiff will get her fees in this case.

The importance of following deadlines

I used to appear before a federal judge who told lawyers that he did not issue discovery deadlines for his health. He expected people to comply with the deadlines. Other judges have told us never to request deadline extensions after the deadline has passed. This case highlights those rules. Missing a deadline can be deadly and expensive.

The case is Mindling v. Stiegler, a summary order issued on December 1. This is a sex abuse case; plaintiff alleges the defendant sexually abused her as a child. The complaint alleges that defendant married plaintiff's mother, and plaintiff alleged -- and the jury must have believed -- that defendant sexually abused her for years. This of course caused plaintiff to suffer significant emotional damages, including PTSD.

It looks like counsel for defendant missed the deadline for his expert disclosures. The deadline was December 16, 2019, but counsel requested the extension on February 28, 2020. The case went to trial in May 2022. A few months prior to that, defendant asked the court for reconsideration of the prior discovery extension ruling. The plaintiff won the trial, and the verdict exceeded $10 million, including punitive damages. 

The standard of appellate review from discovery orders is very deferential to the trial court. This allows trial judges to run their courtrooms as they see fit, and -- let's face it -- appellate judges do not want to get involved in the day-to-day affairs of the district court.

The size of the jury verdict is enough to convince any losing party that they can overcome that standard of review. But the appeal fails. The judgment stands because, according to the Court of Appeals (Kearse, Nathan and Calabresi), "Defendant failed to provide 'good cause for not filing a motion to extend the time' months after the December 16, 2019 deadline to disclose his expert witness had passed. Defendant fails to explain why he did not move for an extension of the time to disclose an expert witness at the status conference held on November 4, 2019."

The docket sheet shows that plaintiff is now trying to enforce the judgment. It cannot be known if defendant's expert report would have made the difference. But that deadline was not imposed for the hell of it. A $10 million judgment in a sexual abuse case is a hell-of-a-price to pay for a missed deadline.

COVID-19 vaccination objectors lose civil rights claim

In this COVID vaccination case, Department of Education employees sue the City of New York after they refused the vaccination and an arbitrator sided with DOE, resulting in the termination of plaintiffs' employment. The Court of Appeals affirms and the case is over.

The case is Broecker v. New York City Department of Education, a summary order issued on November 13. A multitude of plaintiffs claim the DOE violated due process in adopting procedures for enforcing the vaccine mandate that led to their dismissals. The parties agreed to binding arbitration after the labor unions and the City were unable to reach an agreement on the terms of the vaccine mandate. Hence the arbitrator's ruling. The Court of Appeals (Raggi, Walker and Sullivan) says:

The arbitration awards (1) established a process for requesting religious and medical exemptions and accommodations and appealing adverse determinations; (2) provided options for employees to voluntarily separate from service with certain compensation benefits or to elect an extended leave without pay (“LWOP”) until September 5, 2022, during which period they would maintain health benefits; and (3) authorized the DOE to unilaterally separate unvaccinated employees who, as of December 1, 2021, had neither obtained an approved exemption or accommodation, nor opted for separation or extended LWOP.

The problem, as the Court of Appeals sees it, is that the lawsuit does not clarify how this violates due process. While plaintiffs repeatedly assert that they were suspended and fired without due process, "the repetition of a legal conclusion does not state a claim." That's the rule in Ashcroft v. Iqbal, the landmark Supreme Court ruling from 2009 that now guides all motions to dismiss under Rule 12. You have to put some meat on those bones. 

Plaintiffs lose because they got pre-deprivation process through notice of the vaccine mandate, their ability to seek medical and religious exemptions and appeals, their placement on leave without pay, and their opportunities to respond to the City's claims against them. The arbitration process, meanwhile, provided the plaintiffs with expedited review of their exemptions and accommodations. As for post-deprivation process, the plaintiffs were able to file an Article 78 petition in state court. The Second Circuit has held in the past that Article 78 is a proper remedy for the deprivation of certain property interests, including government employment. With pre- and post-deprivation procedures like this in place, there is no due process claim.

How do plaintiffs get around this? They argue that the unions' decisions to submit to arbitration violated the Civil Service Law and that only school boards have the authority to unilaterally resolve union impasses. Not so, says the Court of Appeals, because (1) the Civil Service Law says nothing about whether union and school districts may agree to enter arbitration, and (2) when minimal due process rules are in place, compliance with state law is not an issue.

Here is how Rule 56.1 statements work on summary judgment motions

Let this case serve as a warning for plaintiff-side lawyers who have to respond to summary judgment motions. Under the rules, the defendant in seeking summary judgment has to provide a list of undisputed facts for the district court to ponder as it determines whether there are enough undisputed facts to take this case from the jury and decide the case from the bench, on the summary judgment papers. The plaintiff has to respond to that statement of facts. When happens when the plaintiff fails to properly do so?

The case is Malarczyk v. Lovgren, a summary order issued on November 21. The statement of undisputed facts is called a Rule 56.1 statement, named after the federal rule governing summary judgment motions. Defendant's Rule 56.1 statement has to be in numbered-paragraph form and cite to the record for each undisputed fact. Example: "Paragraph 10: Plaintiff received a negative performance review on June 15, 2022. See Exhibit A to Affirmation of Joe Blow." Plaintiff can admit or deny this statement, but if he denies it, he must cite to the record as well. Example: "Denied. On June 15, 2022, the performance review was not 'negative' but lukewarm at worst, as Plaintiff received three positive ratings out of eight. See Exhibit 3 to Affirmation of Vincent Barbarino." This rule is so beloved by judges that even the state court system has now adopted it on summary judgment motions as well.

The court's rules in all four federal districts in New York say that failure to controvert the defendant's Rule 56.1 statement means the plaintiff concedes that fact. This is an important rule, obviously, as failure to controvert a disputed fact can cause the trial court to dismiss the case upon finding that plaintiff really did receive a negative performance review on June 15, 2022, only a week prior to his termination, thereby undermining the discrimination claim. The district court in this case dropped a footnote in this case expressing puzzlement as to why plaintiffs continue to (sometimes) violate the Rule 56.1 requirement While the trial court has discretion whether to overlook this kind of mistake, if the court does not overlook it and the case is dismissed, the plaintiff is in trouble on appeal. That's this case. 

Since plaintiff did not controvert the defendant's Rule 56.1 statement, instead filing a document bearing that title without properly citing to the record, all the facts in the Defendant Trooper's Rule 56.1 statement are deemed true for purposes of this case. That ends plaintiff's malicious prosecution claim, which the Trooper challenged on the basis that probable cause existed to arrest plaintiff. 

I note that the facts as set forth in the district court ruling show this episode unfolded just a stone's throw from my office, just up the road from me. The Court of Appeals (Lohier, Nardini and Robinson) says plaintiff loses the case because another officer told the Defendant that plaintiff had alcohol in his motor vehicle, ran a red light, drank the alcohol while driving, failed to stay in his lane, and threw the beer can out the window. As the defendant saw plaintiff's bloodshot eyes and smelled alcohol on his breath, he had probable cause to arrest plaintiff, killing the malicious prosecution claim.

Religious challenge to COVID vaccine mandate fails

COVID-19 religious discrimination cases are now being decided on a regular basis by the Court of Appeals, as the cases that were filed in 2020 and 2021 are being resolved in the district court and reaching the Court of Appeals, which is slowly developing a body of case law on these issues. In this case, the plaintiff loses after claiming a religious exemption to a COVID vaccination mandate.

The case is D'Cunha v. Northwell Health Systems, a summary order issued on November 17. Plaintiff did not want the vaccine and claimed a religious exemption. Management fired her, claiming they were not longer accepting religious exemption requests. 

The religious discrimination claim is dismissed for good. The Court of Appeals (Cabranes, Chin and Kahn) says plaintiff cannot win the case, even under the lenient, pre-discovery Rule 12 standards, because she was working directly with patients.  An exemption would create an undue hardship for this medical defendant, which was required to follow the Department of Health's mandate that all hospital employees be vaccinated by September 27, 2021. 

Undue hardship is an affirmative defense, meaning the employer has to raise and prove that defense to win the case. But the employer can win the case even under Rule 12 if the undue hardship is clear from the plaintiff's allegations in the Complaint. Here, the Court of Appeals holds, the employer wins the undue hardship argument at this early stage because "Title VII [which prohibits religious discrimination] does not require covered entities [like hospitals] to provide the accommodation that Plaintiffs prefer -- in this case, a blanket religious exemption allowing them to continue working at their current positions unvaccinated." It would be an undue hardship for defendant to violate the State vaccination mandate, the Court of Appeals holds, as Title VII cannot require employers to violate binding regulations. 

Inmate-plaintiff cannot sue officer who threw juice at him

The inmate sued a jailer under the Eighth Amendment, which prohibits cruel and inhuman treatment. The district court allowed this case to proceed to trial, but the correction officer took his case to the Court of Appeals, which says the CO gets qualified immunity and the case is over. 

The case is Mustafa v. Pelletier, a summary order issued on November 14. Here's what happened: plaintiff says that defendant, while delivering meals, placed a cup of juice on a fold-down tray that allows food to be passed through the cell door. The defendant deliberately catapulted the juice into plaintiff's face. You may think this case is a waste of time, but ask yourself, would you like it if someone thrust juice into your case? That is not the issue, though. The question is whether this was excessive force in violation of the Eighth Amendment.

All public defendants can invoke qualified immunity to avoid suit. This immunity attaches if no prior case was sufficiently similar to this one that the defendant was on notice that he was violating the Constitution. My guess is there is probably no case quite like this one, so that helps the defendant. The problem for plaintiff is that courts have held for decades that not every push or shove by a CO will violate the Eighth Amendment, and the plaintiff has to show the actions were wanton, or malicious. Federal judges are nervous about second-guessing CO decisions inside the jails, which remain dangerous places and require split-second judgments. The question is not whether the plaintiff suffered harm but whether the CO applied force maliciously or sadistically in order to cause harm. 

The Court of Appeals (Leval, Parker and Nardini) holds the CO gets qualified immunity, thereby reversing the district court's contrary order. The Court uses the trial court's words against it in dismissing the case:

As the district court recognized when considering whether Mustafa had alleged a constitutional violation in the first place, “there is a mix of authority” about whether the alleged conduct was de minimis “as a matter of law.” That conclusion should have been dispositive of the qualified immunity question, because where there is nothing more than a “mix of authority” in the case law as to whether alleged conduct might or might not violate the Constitution, it cannot be said that such conduct transgresses clearly established law. We agree with the district court that there is no governing case law indicating that the conduct alleged in this case, if proved, would violate the Eighth Amendment. Accordingly, Officer Pelletier was entitled to qualified immunity.

In other words, when the district court is not sure if the case law really supports the plaintiff in a constitutional claim, then qualified immunity must attach. Now, some cases allow the inmate to sue when a CO throws certain things at him such as in Hogan v. Fischer, 738 F.3d 509 (2d Cir. 2013), where the CO threw feces, vinegar and machine oil at the inmate, burning his eyes and causing physical injuries. But that is a far cry from throwing a cup of juice at the inmate. In a classic understatement, the Court says, "the indignity of being splashed with juice cannot be placed on the same level as being sprayed with a combination of human excrement and noxious chemicals."

Excessive force claim will go to trial

The defendant police officers shot the plaintiff following a pursuit in the City of Albany. The plaintiff sued the officers for excessive force and false arrest. The district court denied the officers' motion for qualified immunity, so the case reaches the Court of Appeals, which splits the baby and issues a ruling for each side. This case once again shows how qualified immunity works in police misconduct cases.

The case is Williams v. City of Albany, a summary order issued on November 13. Officers can invoke qualified immunity if the law was not clearly established at the time of the incident. They get immunity if no prior case law with similar facts said the officers' conduct was likely unconstitutional. Under this generous standard, qualified immunity is granted quite frequently. This immunity is so favorable to law enforcement, and other government defendants, that if immunity is denied at the trial court level, the defendant can file an immediate appeal. Normally, you have to wait for the entire case to play out to take up an appeal on any issue in the case. The catch is that to pursue the appeal, the officer has to concede for purposes of the appeal that the plaintiff's version of events is true and that, based on those stipulated facts, the officer gets the benefit of the doubt and therefore immunity.

This excessive force claim does not lend itself to qualified immunity because the parties still disagree about basic facts, even on appeal, such as how far plaintiff was from the officers when they shot him, whether plaintiff was holding a weapon in his hands such that it would have been visible to the officers during the pursuit, and whether plaintiff ignored the officers' instructions to get on the ground and drop the weapon. The jury will have to resolve these disputed facts before the trial court can issue a definitive qualified immunity determination.

The false arrest claim, however, is dismissed on qualified immunity grounds. The Court of Appeals (Lohier, Nardini and Robinson) reverses the trial court in holding the officers have "arguable probable cause," which is the test in immunity cases in the false arrest context. The opinion is not clear on this but it appears plaintiff ran away when the officers tried to arrest him for brandishing a weapon in a commercial establishment. The officers had arguable probable cause because the parties agree on the following facts that allowed them to arrest plaintiff:

Here, it is undisputed that Appellants had knowledge of a 911 call in which a witness reported that a man wearing a “grey hoodie and dark faded jeans,” who had a gun, “was threatening people” outside of a store “and threw glass and water bottles at the front door” of the store. It is also undisputed that Williams matched the physical description of the suspect; that Williams was seen by the officers on a street corner near the store shortly after the 911 call; that Williams ran away when the officers approached him; that the officers later learned before arresting Williams that the store owner and another store employee each made a statement to police that the suspect flashed a gun and told the store owner that he would “put a burner in [him],” and that the store owner later identified Williams in a photo lineup as the suspect. 

These facts are enough to arrest plaintiff for criminal possession of a weapon in the fourth degree. The trial at the district court will therefore not have any claims for false arrest but will instead focus on the excessive force claim arising from the police officers' shooting plaintiff following the pursuit.

 

Circuit clarifies rules for religious discrimination cases

Inmates have rights, too. This one claims jail officials at Green Haven Correctional Facility prevented him from attending religious services in violation of the Free Exercise Clause of the First Amendment. The district court dismissed his case, holding that the services denial did not substantially burden his religious practices. The Court of Appeals reverses and  plaintiff can proceed with his case.

The case is Wiggins v. Griffin, issued on November 20. While plaintiff complained to jail employees that he had not been able to attend religious services ever since they relocated him to a different part of the jail, no one took action to fix the problem. While the district court thought plaintiff's inability to attend these bible study classes was de minimis in that he only occasionally missed the religious services, the Court of Appeals (Kearse and Menashi) disagrees, noting that it has held in the past that preventing a prisoner from engaging in congregational prayer constitutes a substantial burden on the prisoner's religious exercise. 

The Court notes that the Second Circuit has never determined whether the "substantial burden" test survived the Supreme Court's ruling in Employment Division v. Smith (1990), which said that governmental practices that incidentally burden religious practices do not violate the Free Exercise Clause if the practices are generally applicable to everyone, not just the religious practitioner. So we have a 33 year mystery. But the Court of Appeals does not answer that question in this case because the government concedes that the burden on plaintiff's rights was substantial. 

The Court also holds for the first time that plaintiffs in these cases must show the governmental defendants were deliberately indifferent to their religious rights. This state-of-mind test applies in other Circuits, and now it applies in the Second Circuit. Negligence will not win a case like this. Nor must the plaintiff show the defendants outright intended to violate their rights. Deliberate indifference is a middle-ground test, which plaintiff satisfies here since it appears jail officials ignored his complaints that he was not able to attend religious services.

Interesting concurrence by Judge Menashi, who says that plaintiffs in these cases should not be required to show they were substantially burdened in their religious practices, and that any burden violates the Free Exercise Clause. He reaches this opinion based on language in Supreme Court religion cases, including Smith, which seemed to have dispensed with that requirement. Yet, courts still apply that requirement. He advises that in a future case, the Second Circuit should rule that plaintiffs need only show a burden on their religious practices, not a substantial burden. "Three decades is too long for federal judges to be telling litigants which of their religious beliefs are 'unimportant.'"

FELA plaintiff gets her day in court against Amtrak

Today's case involves the Federal Employer's Liability Act, which allows federal employees to sue their employers who failed to provide them with a safe place to work. I do not believe New York has a counterpart, which means you have to seek workers' compensation for these injuries. FELA is one of the benefits of working for the federal government. The Court of Appeals says plaintiff has a case.

The case is Sierra v. National Railroad Passenger Corp., a summary order issued on November 17. National Railroad Passenger Corp is also known as Amtrak. Plaintiff suffered injuries while cleaning a bathroom on the train. 

The Court of Appeals (Lee, Perez and Merriam) opens its discussion with the following: "Any Amtrak passenger knows that passenger train bathrooms look quite different at the beginning of a trip compared to the end." I do not even want such an image in my head, but the suggestion is the Amtrak bathrooms are pretty nasty when the railroad trip reaches its conclusion. Plaintiff was responsible for cleaning the bathrooms after each journey. "As Sierra describes it, the only way to remove these stains and the smell is to '[s]crub the floor really good. Really wet. . . . Wet, wet, mop, mop, scrub really hard.' The goal? To 'leave the premises impeccable.'” This required her stand on a very wet floor, a potential hazard. While that approach is against Amtrak rules, her supervisors knew she was standing on the wet floors and never intervened. 

A relaxed standard guides these cases. As the Court of Appeals notes, "It 'has been accepted as settled law for several decades, that the standard to be applied by the jury in a FELA case 'is simply whether the proofs justify with reason the conclusion that  employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought.'” That is not your usual negligence standard in slip-and-fall cases in state court. 

While the trial court dismissed the case on summary judgment on the basis that the record does not show that Amtrak had actual or constructive notice of the slippery conditions of the train bathrooms or that the methods required to clean the bathrooms created unsafe and slippery conditions, the Court of Appeals remands this case for trial because plaintiff testified that her supervisors knew how she was cleaning the bathrooms and never intervened. The jury will have to sort this out at trial.

Excessive force case against Albany police will go to trial

This police misconduct case was cleared for trial by the district court, but the police officers took their arguments to the Court of Appeals, claiming they are entitled to qualified immunity. That is one of the few ways you can appeal a pre-judgment trial court ruling in the federal system: arguing that qualified immunity attaches and the defendant police officers are immune from suit. Here, the excessive force claim will go to trial, but the false arrest is dismissed on immunity grounds.

The case is Williams v. City of Albany, a summary order issued on November 13. If disputed factual issues make it impossible for the trial court to grant the officers qualified immunity, then the district court's ruling cannot be appealed. What will happen at trial is the jury will tell the trial court what happened factually and the trial court will then determine if those facts entitle the officers to immunity. Here, disputed fact issues about the excessive force will have to be sorted out by the jury. In this case, officer Olsen shot plaintiff Williams, who claims the gunshot was excessive. But the facts are disputed at this point. Here's why:

the parties dispute the following facts, among others: whether Williams was holding a weapon in his hand such that it would have been visible to the officers at any point during the pursuit, ignored Detective Olsen’s instructions to get on the ground and drop the weapon, and ran toward Detective Olsen at any point. On appeal, the parties also continue to dispute the distance between Detective Olsen and Williams when Detective Olsen shot Williams.

While that claim will go to trial, the false arrest claim will not. The officers are entitled to qualified immunity on that claim. Here is how the Court of Appeals (Lohier, Nardini and Robinson) summarizes the evidence:

Here, it is undisputed that Appellants had knowledge of a 911 call in which a witness reported that a man wearing a “grey hoodie and dark faded jeans,” who had a gun, “was threatening people” outside of a store “and threw glass and water bottles at the front door” of the store. It is also undisputed that Williams matched the physical description of the suspect; that Williams was seen by the officers on a street corner near the store shortly after the 911 call; that Williams ran away when the officers approached him; that the officers later learned before arresting Williams that the store owner and another store employee each made a statement to police that the suspect flashed a gun and told the store owner that he would “put a burner in [him]”; and that the store owner later identified Williams in a photo lineup as the suspect.

These undisputed facts gave the police arguable probable cause to arrest Williams. While the Fourth Amendment says you need probable cause to arrest, in the qualified immunity equation, arguable probable cause is enough to avoid a lawsuit. This gives the police some room for error and immunizes them from suit unless the probable cause violation is obvious. 

 

 

Inmate wins cigarette smoke health-risk appeal

This case was filed by an inmate in the New York corrections system. He claims that jail officials were deliberately indifferent to his medical needs in violation of the Eighth Amendment. He argues that cigarette smoke in the prison was harmful to his health. The district court dismissed the case on summary judgment. The Court of Appeals gives him a second chance.

The case is Braxton v. Bruen, a summary order issued on November 13. The Court of Appeals (Livingston, Parker and Nardini) holds it was premature for the district court to grant summary judgment on this claim without plaintiff an opportunity for additional discovery that might prove his claims. Plaintiff's theory of the case was that he complained about this health risk to the Central Office Review Committee (CORC) but that this committee ignored the letters. On the summary judgment motion, the individual defendants named in the lawsuit said they did not serve on the CORC but had designated others for that task. But plaintiff says he does not know who these designees are. The Court of Appeals says plaintiff deserves the right to find out their identities.

Pro se litigants are a serious disadvantage when it comes to discovery. That was the case here. The Court of Appeals gives plaintiff the opportunity to identify these officers who may have received his letters. The Court of Appeals said in Davis v. Kelly, 160 F.3d 917 (2d Cir. 1998), that special rules guide cases brought by pro se inmates who are trying to identify the right defendants in their civil rights cases. Davis is the controlling precedent here, and plaintiff gets that opportunity on remand. Discovery will be reopened for that purpose. The Court of Appeals assigns pro bono counsel for that purpose.

Student athlete has retaliation claim against Syracuse University

The Supreme Court decided almost 25 years ago that Title IX discrimination cases against universities for sex discrimination are going to be much harder for plaintiffs to win than Title VII discrimination cases against employers. To win the case, a Title IX plaintiff must show the university was deliberately indifferent to the student-on-student discrimination. That is a difficult burden, far higher than other discrimination cases. We see how it all plays out in this case against Syracuse University. Bottom line: the plaintiff loses her discrimination case under Rule 12, but her retaliation case -- which is not bound by the deliberate indifferent test -- will proceed to discovery.

The case is Doe v. Syracuse University, a summary order issued on November 8. I assisted in briefing the appeal, which was argued by James Aliaga, Esq. Doe was a student-athlete whose boyfriend, Scanlan -- a star athlete at the University -- abused her physically. This was a highly-publicized case in central New York. Even his teammates protested what the boyfriend did to Plaintiff and how the University responded to her complaints.  

Doe complained to university authorities about Scanlon. She claims the institution failed to properly respond to her complaints, but the district court found (and the Court of Appeals affirms) that however we might criticize the University's response, it was not deliberately indifferent to her rights as a female student-athlete. 

The abuse allegations fall into two categories. Pre-April 2021, and post-April 2021, when plaintiff's boyfriend assaulted her. The Court of Appeals (Park, Lynch and Subramanian [D.J.]) reasons that, when plaintiff reported the abuse prior to the assault, the Title IX Office promptly provided Plaintiff with information about its policies, resources (including safety escorts and counseling), and the complaint process; set up virtual meetings to discuss her situation; and sent follow-up emails to check in with Doe and to offer further support. And SU promptly entered a No Contact Order binding Scanlan, the remedy that Doe wanted. While the University did not conduct an independent investigation, that was not deliberate indifference, the Court says, because "the relevant federal regulations caution against school intervention when a complainant declines to pursue further action. The Court observes that plaintiff did not want further action. I would note that in the employment context, courts will hold the employer failed to protect the female employee in not investigating, even if she told management she did not want an investigation. The rules guiding universities are different, as you can see in this case. 

Plaintiff complained again, this time to campus police, after her boyfriend assaulted her in April 2021. Campus police waited one week before they contacted the City police. But that is not deliberate indifference under Title IX. "The approximately one-week delay between the April 2021 assault and the Syracuse Police Department and the District Attorney of Onondaga County being notified was not 'lengthy and unjustified.' The district court correctly recognized that much longer delays have not been found to be clearly unreasonable."

Plaintiff does convince the Court of Appeals that she has a retaliation claim. After she reported Scanlon's abuse, Deputy Athletics Director Keenan-Kirkpatrick and a women's lacrosse coach directed a hostile message toward her. These individuals messaged to plaintiff that she was "no longer welcome at SU Athletics by New Coach and [an] intimidating statement regarding ‘burning bridges’ or leaving in a ‘nasty way’ from Keenan-Kirkpatrick.” The Court of Appeals holds that "Doe plausibly alleges that these conversations were threats that “could well dissuade a reasonable [student] from making or supporting a charge of discrimination.” Moreover, the Court says, "it is plausible that these threats were made in retaliation for her sexual assault reporting or anticipated pursuit of legal action against SU." Plaintiff ultimately left the University. The retaliation claim will proceed to discovery.

The retaliation portion of this ruling draws from Title VII employment discrimination precedents, not Title IX educational discrimination precedents. So the burden of proof is more lenient for plaintiff on the retaliation claim than the underlying discrimination claim. 

Damages for pain and suffering are much lower in the State Division of Human Rights

Not every employment discrimination gets filed in court, either state or federal. Some are filed in the New York State Division of Human Rights, which has authority to investigate and settle claims, and if settlement fails, the DHR can hold an evidentiary hearing and award damages if the plaintiff wins the case. But litigants should know that damages are limited in the DHR, including damages for pain and suffering.

The case is Town of Hempstead v. New York State Division of Human Rights, a Second Department ruling issued on April 26. This is a disability/reasonable accommodation case. The plaintiff alleged, and the DHR judge agreed, that following her work-related injury, plaintiff suffered discrimination because her municipal employer refused to accept her medical documentation that she was fit to return to work full time and eliminated her position in retaliation for her litigation before the DHR. The hearing officer awarded plaintiff damages as follows: (1) back pay of approximately $27,000 for a 10-month period (August 2013 to June 2014), (2) $40,000 in mental anguish, and (3) a civil fine against the Town in the amount of $35,000. The civil fine is similar to punitive damages. The DHR Commissioner increased plaintiff's back pay to nearly $70,000 (covering November 2012 to June 2014) but dismissed the retaliation claim. The Commissioner held firm on the pain and suffering damages and the civil fine.

Off to the Appellate Division, which affirms the finding of liability but reduces the damages. Plaintiff does not get back pay dating to November 2012 because the Town was unable to accommodate her at that time because she was unable to perform an essential job function -- typing on a computer -- at that time. She does get back pay from August 2013, when she sought reinstatement and the Town denied that request, but the Workers' Compensation benefits she received at this time should have been offset against the backpay award to prevent a double recovery. The back pay is reduced from nearly $70,000 to approximately $17,700. That's a big reduction.

The pain and suffering award of $40,000 is too high, says the Appellate Division. In federal court, a jury may award, and the judge may subsequently accept as reasonable, a much higher damages award for this kind of discrimination, perhaps up to $100,000 for what we call "garden variety" pain and suffering not involving medical or psychiatric intervention. But the state system awards much less than federal courts in my experience, and the Appellate Division thinks plaintiff should only recover $10,000. There is no federal judge in the SDNY or EDNY who will reduce a pain and suffering award to $10,000. But the Appellate Division treats this as a simple issue. The Court says that plaintiff's diagnosis of major depressive disorder occurred in March 2013, prior to the discriminatory conduct of August 2013, and was not initially related to her medical condition which gave rise to the disability discrimination claim. Even without that timeline, $10,000 is low for a discrimination case in federal court. But here we are in state court, and things are different in cases litigated in the DHR.

What about the civil fine? It drops from $35,000 to $10,000 because the retaliation claim, upon which the civil fine was partly based, was dismissed in the Appellate Division.

Habeas corpus petition denied despite hearsay eyewitness testimony

This habeas corpus petition alleged that the petitioner's murder conviction in state court was unconstitutional because the trial court committed certain errors that deprived him of a fair trial. We see in this case how difficult is it win habeas petitions ever since Congress in the mid-1990s tightened the standards for challenging your state court convictions in federal court. The defendant loses the habeas petition.

The case is Wilson v. Capra, a summary order issued on November 1. Based in part on two eyewitnesses, and police testimony about out-of-court statements from two other eyewitnesses, the jury convicted Wilson of fatally shooting someone outside a residential building in 2006. The trial court determined that Wilson caused the two latter eyewitnesses to avoid testifying in court. The habeas petition challenges the sufficiency of the evidence to convict Wilson, the hearsay testimony, the lack of any missing witness instruction, and the trial court's instruction on witness credibility.

To win a habeas petition in federal court, it is not enough to show that unconstitutional things happened during the criminal trial. That was the rule prior to the mid-1990s, when Congress said the criminal defendant has to show the questionable trial court rulings violated clearly-established Supreme Court authority. That standard gives state courts, including the state appellate courts which can independently review the convictions, some leeway to interpret the Constitution so long as they do not run afoul of specific Supreme Court holdings.  Wilson does not meet that difficult standard, the Court of Appeals (Parker, Bianco and Rakoff [D.J.]) holds.

On the evidence sufficiency claim, the Second Circuit defers to the jury's credibility findings against Wilson even though the two eyewitnesses had credibility issues. While Wilson said "their trial testimony was inconsistent with their prior statements and other evidence in the case, and that one eyewitness . . . had received financial benefits and lodging from prosecutors for several months and was hoping they would help her with her parole application," the jury was still able to rely on their eyewitness accounts. Credibility issues are almost always for the jury.

On the police testimony drawing from eyewitness statements from witnesses who did not testify at trial, the first witness recanted his statement that he saw the shooting because two men told his father he was a "snitch" and that Wilson himself told the witness he should "do the right thing." The other eyewitness told the police that Wilson's cousin asked him about his name being on the witness list. The Second Circuit defers to the trial court's finding that Wilson had commissioned these people to scare the witnesses from testifying, and the trial court's analysis, while did not use the magic words in its analysis, was enough to show it had thoughtfully analyzed this issue in allowing the police to testify about these outside witnesses' account implicating Wilson.

Get the picture? This is a long ruling for a summary order because Wilson raised a series of issues, and since the federal district court issued a certificate of appealability, which allows you to appeal an adverse habeas ruling to the Second Circuit, Wilson's issues were not frivolous. But they were not strong enough to get around the strict habeas corpus rulings now in place. 

Title VII reverse sex-stereotyping claim fails

From time to time, male plaintiffs bring an action against their employer under Title VII claiming they were illegally stereotyped as sexual harassers. These cases are difficult to win and most such cases are dismissed. This case is one of them.

The case is Lorefice v. State of New York, a summary order issued on November 3. Plaintiff was fired from his 20-year job as a biologist with the Department of Environmental Conservation over his interaction with a female colleague. After the woman declined to go on a hike with plaintiff, he sent her numerous Facebook messages to which she did not reply. The messages "were expressions of affection towards DK and also 'proposed a life together.'" The way Facebook works is that if you are not Facebook friends with someone, your messages may get lost into the spam folder. That's probably what happened here. One day, DK discovered all the messages and she reported plaintiff to her supervisor, who suspended plaintiff. As the Court of Appeals tells the story, here is what happened next:

Lorefice then participated in a disciplinary arbitration where the DEC claimed he had demonstrated a pernicious pattern of pursuing women he met at the workplace. Several years earlier, Lorefice had pursued another co-worker at the DEC and was told to halt communication with her. The arbitrator found Lorefice guilty of the majority of the charges involving DK, including sexual harassment, and recommended he be terminated. The DEC adopted the arbitrator’s recommendation and terminated Lorefice accordingly.

The district court and Court of Appeals reject plaintiff's theory under Title VII that his termination was "a stereotypic response to his conduct" and that the agency wanted "to show fake solitary with the 'me too' movement" and, as such, the agency's response to his conduct was "gender stereotypic" in assuming that plaintiff was "aggressive and could not control himself" and that "a female is timid and unable to speak up for herself." The court say in this case that the complaint, even under Rule 12 standards, does not assert a plausible sex discrimination claim.

As the Second Circuit (Newman, Lee and Nathan) sees it, even accepting the allegations in the complaint as true, plaintiff has not asserted any facts showing gender discrimination. No statements or actions from management permit any inference gender stereotyping. Moreover, even if plaintiff did not engage in sexual harassment, there is no such inference of stereotyping. The Court writes, "Lorefice does not cite to, nor are we aware of, any case law in which an employee’s termination due to an erroneous accusation of sexual harassment by itself gives rise to an inference of gender stereotyping." What is more, the Court says, the complaint itself suggests that DEC had grounds to fire him because plaintiff conceded that "he sent messages to DK proposing a life together, made her feel uncomfortable, and had previously engaged in similar behavior towards another coworker. This conduct itself provided reasons for the DEC to terminate Lorefice, independent of however the DEC may have viewed him in relation to his gender."

Inmate may sue jail for contracting COVID-19

COVID-19 cases will be with us for years to come. This case involves an inmate who alleges he was placed in a jail block even though jail officials knew inmates in that block had COVID-19 and disregarded medical advice in placing him there. Does plaintiff have a case?

The case is Nazario v. Thibeault, a summary order issued on October 31. Plaintiff sues under the Eighth Amendment, which prohibits cruel and inhumane treatment of inmates. The following is a summary of plaintiff's factual allegations:

Nazario claims, among other things, that Thibeault knew there were inmates in E-Block exhibiting Covid-19 symptoms and disregarded medical advice by transferring him there. Therefore, we assume that the district court correctly concluded that a reasonable jury could find that Osborn failed to follow Department of Correction (“DOC”) Covid-19 policies, including policies regarding the quarantine of inmates with Covid-19 housed in E-Block; that Thibeault knew of Covid-19 positive and/or symptomatic inmates in E-Block and disregarded the risk associated with Nazario’s transfer there; and that Thibeault failed to provide Nazario with personal protective equipment (“PPE”) knowing that Nazario was at  heightened risk of contracting Covid-19 because he lacked the necessary PPE to perform his laundry job.

In short, plaintiff was placed at risk of contracting COVID-19 because defendant ignored medical advice and transferred him to a risky part of the jail. The decision is not clear whether plaintiff actually got COVID, but the district court ruling gives us the details:

While living in E-block, Plaintiff contracted COVID-19. As a result, he was transferred to F-Block on April 29, 2020. The next day, he was transferred to Northern, where his condition deteriorated, and he was put on a breathing machine.  On his first day at Northern, Plaintiff was transferred to UCONN Medical Center, where his condition continued to deteriorate. He remained at UCONN Medical Center for a week as he recovered from COVID-19 and was then transferred back to Northern, where he experienced “after-effects of COVID-19,” including damage to his heart and circulatory system. On May 13, 2020, Plaintiff had a heart attack at Northern, leading paramedics to transport him to the ICU at Hartford Hospital, where he underwent multiple stent procedures. At the hospital, Plaintiff's heart stopped twice, and hospital staff revived him both times. Due to his heart attack, Plaintiff had a pacemaker permanently implanted in his chest.

While living in E-block, Plaintiff contracted COVID-19. [Dkt. 27-2 (Add. Mat. Facts) ¶ 23; Dkt. 1 ¶¶ 32–34]. As a result, he was transferred to F-Block on April 29, 2020. [Dkt. 27-2 ¶ 29]. The next day, he was transferred to Northern, where his condition deteriorated, and he was put on a breathing machine. ([Dkt. 27-2 (Add. Mat. Facts) ¶¶ 23–24; Dkt. 1 ¶¶ 34–35].¹² On his first day at Northern, Plaintiff was transferred to UCONN Medical Center, where his condition continued to deteriorate. [Dkt. 27-2 (Add. Mat. Facts) ¶ 24; Dkt. 1 ¶¶ 36–37].¹³ He remained at UCONN Medical Center for a week as he recovered from COVID-19 and was then transferred back to Northern, where he experienced “after-effects of COVID-19,” including damage to his heart and circulatory system. [Dkt. 27-2 (Add. Mat. Facts) ¶ 24; Dkt. 1 ¶¶ 38–41.])¹⁴ On May 13, 2020, Plaintiff had a heart attack at Northern, leading paramedics to transport him to the ICU at Hartford Hospital, where he underwent multiple stent procedures. [Dkt. 27-2 (Add. Mat. Facts) ¶ 24; Dkt. 1 ¶¶ 42–44]. At the hospital, Plaintiff's heart stopped twice, and hospital staff revived him both times. [Id.]. Due to his heart attack, Plaintiff had a pacemaker permanently implanted in his chest.

Nazario v. Thibeault, No. 3:21-CV-216-VLB, 2022 WL 2358504, at *3 (D. Conn. June 30, 2022)

The district court denied the State's summary judgment motion, ruling that disputed facts preclude any qualified immunity defense as a matter of law. This immunity gives State officials the benefit of the doubt -- and relieves them of any litigation burdens -- if the defendant did not violate clearly-established law. Many cases are dismissed on qualified immunity grounds, and the defendant may ultimately enjoy that immunity once all the evidence is presented at trial, but the district court and Court of Appeals hold that if the jury credits plaintiff's version of the facts, it may find the defendant, a deputy warden, violated clearly-established law under the Eighth Amendment. So the lawsuit will proceed to trial unless the parties settle.

The Court of Appeals does not squarely address this, but what is the clearly-established law prohibiting jail officials from placing an inmate in a jail location that poses a COVID-19 risk? The law is clear that you cannot demonstrate deliberate indifference to serious medical needs. But the qualified immunity analysis usually requires a case on point from the Court of Appeals with facts that resemble this case. I don't think the Second Circuit has applied the Eighth Amendment in the context of jailhouse COVID-19 decisionmaking. The district court did address this issue, noting that "The Second Circuit has 'held that correctional officials have an affirmative obligation to protect inmates from infectious disease.'” The citation for this is Jolly v. Coughlin. 76 F.3d 468, 477 (2d Cir. 1996). Jolly is a pre-COVID case, but it is close enough to plaintiff's case that he can bring this lawsuit.

Black councilmember cannot sue fellow councilmen for racial discrimination

The plaintiff in this case is a Black councilmember in upstate New York who brought a racial discrimination case against two other councilmembers after the Town reneged in its commitment to create ICARE, a racial diversity and equity initiative that the plaintiff chaired, and a program to help minority residents become first-time homebuyers. The district court held plaintiff cannot make out an equal protection claim for a hostile work environment, and the Court of Appeals affirms.

The case is Freeman v. Town of Irondequoit, a summary order issued on October 25. Plaintiff's relationship with the Town Board appears to have gotten worse after the lawsuit was filed. The Court does not focus on that and instead examines the allegations in the lawsuit. The individual defendants are Perticone and Romeo. The Court (Jacobs, Wesley and Robinson) holds there can be no hostile work environment claim against them. "Most of Freeman’s allegations concern acts done by people other than Perticone and Romeo. And most of Perticone’s and Romeo’s alleged misconduct is protected by legislative immunity and cannot be considered.  The acts by Perticone and Romeo that are not protected by immunity do not plausibly establish a hostile work environment claim against either defendant."

First, much of the hostility that plaintiff endured from these defendants -- who either alone or separately became hostile toward the ICARE initiative, defended what plaintiff deemed a hostile police presence at Town Board meetings, filed a police report against and falsely accused her of threatening his life, and screamed at her -- are nonactionable because of legislative immunity. 

The remaining acts of hostility are not enough to support a hostile work environment claim, the Court says, because "neither Perticone’s shouting, interference with Freeman’s recording, and statements regarding Freeman’s agenda nor Romeo’s false police report and her comment that it is “a free country,” created sufficiently severe and pervasive hostility in Freeman’s work environment so as to alter her conditions of employment." Nor can plaintiff sue the Town under Section 1983 for racial discrimination. Her allegations in support of this claim are as follows:

she alleges the Town implicitly condoned the intimidating actions of off-duty police officers during Town Council meetings because the Council failed to take ameliorative action.  We understand this first claim as an allegation that the Town violated Freeman’s personal rights to be free from a hostile work environment based on racial animus.  Second, she alleges that after Perticone began serving as the Acting Town Supervisor, he took actions “designed to frustrate and impede” ICARE’s homeownership program and “undercut its contract with the Urban League.”

It is not enough to argue that the Town created a hostile work environment by insisting that hostile police officers are allowed to attend Town meetings. While plaintiff also argued that ICARE itself has a hostile work environment claim against the Town, not only did she disavow such a claim in the district court, but "she has not explained how ICARE, which Freeman alleges was formed as a government entity but is now an independent unincorporated association, has standing to assert claims based on wrongs allegedly inflicted against the prior incarnation of ICARE which was a Town Commission."

Former Yale student may sue accusor for defamation

A former student at Yale University sued a woman who had accused him of rape. The claim was that the woman had defamed and tortiously interfered with his educational contract. In particular, plaintiff claimed that the woman's rape allegation at the in-house university hearing was defamatory. The question then became complicated: was the woman immune from suit because she made the allegation during a hearing? 

The case is Khan v. Yale University, issued on October 25. Usually, statements made during evidentiary hearings and trials cannot predicate a defamation claim, as the legal system wants people to testify freely without fear of any lawsuit. But this was not the usual evidentiary hearing or trial. It was a University hearing that did not have all the attributes of a hearing, i.e., no one was testifying under oath, etc. Under that circumstance, could plaintiff sue Jane Doe? 

The Court of Appeals (Raggi, Kearse and Livingston) referred the case to the Connecticut Supreme Court to issue a definitive ruling under state law whether this was truly a quasi-judicial hearing. The Connecticut Supreme Court answered that question in the negative, and the Second Circuit uses that ruling to allow plaintiff to proceed with his case against Jane Doe.

The University hearing is not your typical quasi-judicial hearing, the courts have said in this case, because (1) there are no sufficient procedural safeguards to ensure the evidence is reliable and that the hearing is fundamentally fair, (2) no one testifies under oath, (3) there is no meaningful cross-examination, as the accused's lawyer cannot question the victim and can only submit questions for the hearing officers to then direct toward the victim, (4) the parties to the hearing do not have a meaningful opportunity to call witnesses, (5) the accused is denied full assistance of counsel, (6) and an adequate record of the hearings are not maintained that would allow for a meaningful appeal.

As the University hearings are far from the hearings we associate with the fact-finding process, the Second Circuit holds, the victim's rape allegation is actionable in a defamation claim brought by plaintiff. The case returns to the district court for further proceedings.