Public colleges have the right to reject professor if they disagree with their academic specialty

The Court of Appeals has issued a major ruling on the First Amendment and a public university's decision not to promote a professor because of his political/economic opinions. Balancing the competing speech interests of the parties, the Court finds that SUNY Albany cannot be sued for denying an economics professor a position because his economic theories were not in line with the University's philosophy. 

The case is Heim v. Daniel, issued on August 30. Heim wanted a tenure-track academic position in the University's economics department. He is a Keynesian economics expert (basically a New Dealer), but the department had a different view of economics that did not comport with Heim's philosophy. The decisionmakers essentially admitted this is why Heim was not offered the position. He sued under the First Amendment because his political/economic views were held against him. Under normal circumstances, plaintiff would have a great case. But this case involves competing interests: the plaintiff's First Amendment interests in promoting his views, and the public college's interests in charting its own intellectual course in educating its students. 

The first issue for the Court of Appeals (Lynch, Lee and Perez) is whether this is a Garcetti case. The Supreme Court issued Garcetti v. Ceballos in 2006, narrowing the means by which public employees could sue for free speech violations and holding that speech pursuant to job duties is not protected and is thus not citizen speech. Of course, a college professor's classroom speech is pursuant to his job duties, which is why the Garcetti court expressly set aside determining whether such speech falls into the Garcetti exception. The Second Circuit holds that a public college professors' speech does not fit within the Garcetti framework because that would overlook the Supreme Court's longstanding commitment to academic freedom, which grants professors the freedom to teach concepts and ideas as they see fit. A professor's speech is "anything but speech by an ordinary government employee," the Court says. 

So Heim's case resolves that issue for all public college professors in the Second Circuit. But that does not win him the case. He still has to show that his classroom speech touched upon a matter of public concern, another requirement for winning a free speech case against a public employer. The district court said plaintiff's speech did not address a matter of public concern, because the arcane subject area that Heim specialized in is not really something the public would care about. But that reasoning is incorrect, the Court of Appeals said, because plaintiff's scholarship is of value to the public. The public may not care about Heim's work, but his work "addresses matters that concern the public. That inquiry measures neither popularity nor technical complexity." Economic theory ultimately is a matter of public concern.

Ultimately, the Court has to balance Heim's interests with those of the University. SUNY Albany has a constitutional interest in furthering its own mission, the Court says. That means it has the right to decide what its economic department will look like, and whether its professors will largely promote one economic theory over another such that Heim's theory would not fall within that equation. Framing the issue that way, it is clear why Heim will lose the appeal. The University wins the appeal for the following reasons:

Because the Department’s desire both for collaborative synergies and for publication clout go hand-in-hand with its methodological preferences, they invite decision-makers to evaluate candidates through exactly the sort of “content-based judgment[s]” that are normally “anathema to the First Amendment.” But academia is not normal; it is “unique.” In this exceptional setting, . . . such justifications are “permissible academic reasons” for declining to hire or promote a candidate. In the “special niche” that academia occupies, such judgments are “both necessary and appropriate.”

Court of Appeals upholds $17 million wage and hour verdict against City of New York

This wage and hour case went to trial, and the 2,500 EMT plaintiffs were awarded over $17 million in damages against New York City, which was not paying them overtime for work performed before and after they took their shifts. The Court of Appeals affirms the judgment and holds for the first time that employers must pay overtime if the employer knows about the overtime work, even if the employee failed to report the work and even if the employer was not aware that the employees were actually receiving overtime pay.

The case is Perry v. City of New York, issued on August 25. Plaintiffs were EMT workers who had to perform various tasks before and after the start of their shifts, such as retrieving and inspecting personal protective equipment, doing the same with their technician's bag, inspecting the EMT vehicle, etc. There were thousands of unpaid hours in this case.

The City wanted the courts to find that, in order to recover overtime pay for this work, the plaintiffs would have to show that (1) the City knew about this work and (2) the City knew the workers would not be paid for it. "In effect, the City argues that it does not have to compensate for required overtime work unless employees report the work and request pay." The Court of Appeals (Jacobs, Lee and Perez) says this is an "appealing proposition," but it also says this is not the law.

The Fair Labor Standards Act says the statute is violated when an employer "does not pay overtime wages for work it 'suffers or permits,' that is, work it requires, knows about, or should have known about." The Court adds that "[w]hether the employer also knows that the employee will not be paid is irrelevant to FLSA liability." While an employer may require employees to report overtime work, and an employee's failure to do so may allow the employer "to disclaim the knowledge that triggers FLSA obligations," "an employer that nonetheless requires, knows about, or should know about work must compensate the worker, regardless of whether pay is requested and regardless of whether the employer knows the worker will not be paid."

Here is why the Court reaches this holding. First, a worker is entitled to overtime pay for certain hours he is “employ[ed],” which the statute defines to mean performing work his employer “suffer[s] or permit[s]” (i.e., requires, knows about, or should know about). To hold that [the statute] is violated only when the employer also knows that the employee will not be paid would add an extra-statutory precondition for liability." Second, "[e]mployees cannot waive the protections of the FLSA." Third, "the City’s rule would collapse the 'significant distinction between ordinary violations and willful violations' of the FLSA." "An employer violates the FLSA willfully when it knows that it is not paying an employee for compensable work; but if an employer is not liable unless it knows that its employees are not being paid (as the City contends), then every violation of § 207 would automatically be willful, notwithstanding Congress’s 'obvious' intent to distinguish between these two kinds of violations."

The Court further finds there was a factual basis for plaintiffs to win this case, noting that verdict challengers face a "heavy burden" to win these appeals. The next question is whether the trial court properly found the violations are willful. A willfulness finding means the statute of limitations is three years, not two years, which brings in more overtime violations and thus makes this case much more lucrative for the plaintiffs. 

There is enough evidence of willfulness as the record shows that the City knew (through the Corporation Counsel's office) that "supervisors have a duty to ensure that employees whom they know to be working overtime receive compensation, even if the employee did not submit an
overtime request." As the record also shows the City knew that some required extra-shift work was not being compensated, and the City did little to fix the problem, as it never got around to adopting a draft order from 2008 "forbidding EMS employees from performing extra-shift work 'unless the work has been approved by a [supervisor] and such time has been accurately recorded on their timesheets.'” Nor did the City ensure that FDNY leadership understood their obligation to provide overtime compensation. For example, "The FDNY’s assistant commissioner for budget and finance did not recall ever being told 'that [the City] must pay for work that it knows or should know is being performed even if there is no overtime request put in for that work.” 

Finally, the City challenges the damages award. That challenge fails, as the Court of Appeals finds that the plaintiffs had no way to prove the exact number of minutes they worked without compensation. While damages cannot be grounded in speculation, the jury may rely on a reasonable approximation under the FLSA. And the record suggests the damages calculation was accurate, as plaintiffs proved for example that it was common for EMT's and paramedics to receive a pre-shift briefing after clocking into work. In sum, the Court says:

“[H]aving received the benefits of” plaintiffs’ required extra-shift work, the City “cannot object to the payment for the work on the most accurate basis possible under the circumstances.”The jury could reasonably conclude that plaintiffs’ damages calculation, given its various limitations, was indeed the “most accurate basis possible under the circumstances” (and certainly that it “showed the amount and extent of that work as a matter of just and reasonable inference”).

 

Vermont Law School may cover up controversial artwork under Visual Artists Rights Act

The Court of Appeals holds that a law school in Vermont cannot be sued by a visual artist whose controversial mural was covered up to avoid public viewing. This case involves the interpretation of a little-known federal statute intended to protect public artistic endeavors.

The case is Kerson v. Vermont Law School, issued on August 18. Plaintiff is a well-known artist who was commissioned by the school in 1993 to paint a mural commemorating Vermont's role in the Underground Railroad, "depicting scenes from the United States' sordid history with slavery and Vermont's participation in the abolitionist movement." The mural looks like this. Here is another link. If you scroll down at this link, you'll see what the wall looks like now.

The problem is that since around 2001, people began to complain that the panels, measuring eight by 24 feet in size, "depict[ed] enslaved African people 'in a cartoonish, almost animalistic style,' with 'large lips, startled eyes, big hips and muscles eerily similar to ‘Sambos’ or other racist . . . caricatures.' Beyond these stereotypical representations, some also took issue with the Murals’ depiction of 'white colonizers as green, which disassociates the white bodies from the actual atrocities that occurred.'” The law school did not remove the murals but instead covered them up with acoustic panels. So the murals are still there but nobody can see them.

Kerson sued under the Visual Artists Rights Act of 1990, which prohibits property owners from intentional distortion, mutilation or other modifications of their visual work that would prejudice the artists' honor or reputation. This law only protects works of "recognized statute" from destruction. Does Kerson have a case? After all, short of removing the mural from the wall completely, nothing would affect the artwork like covering it up with large acoustic panels.

The Court of Appeals (Livingston, Cabaranes and Kovner [D.J.]) carefully analyzes the statute and finds that the law school did not violate the law. I suppose what the law school did violates the spirit of the law, but statutory construction does not always care about the spirit of the law. There is no distortion, mutilation, or modification here. Plaintiff said the law school did modify the murals by making them impossible for anyone to view them. At oral argument, Kerson's lawyer said the act of covering up the mural modifies the mural. But "modification" means "an incremental change to the object at issue," not concealment. As for "destruction," there is no damage to the murals here, and the mural itself is not ruined. The result is that I guess the mural will remain covered up for the rest of eternity and the law school cannot be held liable under the VARA so long as nobody paints over it or removes the wall depicting the mural.
  

MLB umpire loses racial discrimination case

This discrimination case is interesting because it shows us how decisions are made in Major League Baseball. The plaintiff is an MLB umpire who claims he was denied the crew chief position because of his race. The Court of Appeals finds that plaintiff cannot prove his case. Along the way, we see how crew chief assignments are made. 

The case is Hernandez v. The Office of the Commissioner of Baseball, a summary order issued on August 15. Each MLB game has a crew of umpires, with the crew chief, who "is the leader of the [umpiring] crew, the final decision-maker for all on-field issues, and the person who ensures the crew’s compliance with MLB’s rules and policies." The Court adds that "[i]n making the decision to promote an umpire to crew chief, MLB 'takes into account a number of factors—some of which are somewhat subjective—and prioritizes an umpire’s leadership and situation management.'”

While Hernandez claims he was denied the crew chief assignments because of his race, MLB counters that the real reason was his on-field performance as an umpire. Baseball fans will find this fascinating. MLB monitors the performance of its umpires in making promotional decisions. MLB said that plaintiff made an "erroneous call . . . in the ninth inning of a game on May 8, 2013, between the Oakland Athletics and the Cleveland Indians," and that plaintiff  not only missed the call but "failed to acknowledge his mistake." MLB also said that, during one game involving the Cincinnati Reds, while serving as interim crew chief, he asked Reds pitcher Homer Bailey "to autograph eleven baseballs for Hernandez and other members of the umpiring crew after a game in which Bailey pitched a no-hitter." Joe Torre, the former Yankees manager who now supervises the umpires for MLB, added that Hernandez has an “overly confrontational style,” which he called “counterproductive.”

Plaintiff asserts a disparate impact claim, which allows the plaintiff to win if a facially-neutral employment practice has a disparate impact on racial minorities and the employer cannot prove that disparate impact is justified by business necessity. The Court of Appeals (Menashi and Carney) finds that "although there was a bottom-line imbalance between white and minority crew chiefs, Hernandez has failed to establish a statistically significant disparity between the promotion rates of white and minority umpires."

Plaintiff also asserts a disparate treatment claim, which requires proof of discriminatory intent. These claims turn on circumstantial evidence, which is often hard to come by in these cases. Plaintiff argues he has enough evidence for a jury on this issue because the parties dispute what factors MLB considers in promoting umpires, how much weight MLB gave each of those factors,” and “the relationship between [Field Evaluation Forms] and umpire evaluations.” But despite these differences, there is still no showing of intentional discrimination, and as the trial court noted granting summary judgment, “MLB’s slightly different explanations [of the criteria it uses to make promotion decisions] are not genuinely inconsistent, but are a reflection of the subjective and multi-faceted nature of this determination. This evidence is insufficient to establish a genuine dispute of fact on pretext."

Circuit provides guidance on when secret arbitration rulings must remain secret

One of the major objections to mandatory arbitration is that these cases are decided in private. Arbitration firms like JAMS and AAA are not public tribunals; they are private, and arbitration rulings, including those in important cases, are shielded from the public. This case highlights how it all works.

The case is Stafford v. International Business Machines, issued on August 14. Stafford won her arbitration hearing against IBM, as the arbitrator found that she was the victim of age discrimination. Pursuant to the Federal Arbitration Act, Stafford then moved to confirm the arbitration ruling in federal court. In the confirmation motion, she included a copy of the arbitration ruling under seal, all the while asking the trial court to unseal the ruling as part of the confirmation process. The trial court granted plaintiff's motion. The Court of Appeals reverses.

Why the reversal? Because IBM mooted the confirmation motion by paying out Stafford's damages. The Court of Appeals (Park, Nardini and Nathan) reasons:

Stafford’s petition to confirm her purely monetary award became moot when IBM paid the award in full because there remained no “concrete” interest in enforcement of the award to maintain a case or controversy under Article III [of the U.S. Constitution]. Second, any presumption of public access to judicial documents is outweighed by the importance of confidentiality under the FAA and the impropriety of Stafford’s effort to evade the confidentiality provision in her arbitration agreement.

The arbitration agreement that Stafford signed when she began working for IBM contained a confidentiality provision stating that the arbitration decision would remain secret even if she won the hearing. 

Once IBM decided to pay out Stafford's damages, the federal court confirmation proceeding was mooted because there was no longer any reason for the SDNY to confirm the arbitration ruling. As for Stafford's request the federal court unseal the arbitration ruling, the Court of Appeals holds the SDNY improperly granted that motion. The Second Circuit holds that the district court "failed to weigh the FAA’s strong policy in favor of confidentiality and Stafford’s improper effort to evade the confidentiality provision of the Agreement against the presumption of public access to judicial documents." The Court holds that, while Stafford attached the arbitration ruling to her confirmation proceeding, the presumption of access to judicial documents is weak because the petition to confirm the award was moot. Moreover, the Court considers why Stafford wanted to publicize the arbitration ruling and finds that that reason does not override the presumption of confidentiality that attaches to arbitration rulings:

Stafford continued to seek confirmation and unsealing of her arbitration award even after it had been fully satisfied. Her stated purpose—as argued to the district court and to us—was to enable her counsel to use the award in the litigation of ADEA claims of other former IBM employees. Such efforts to evade the confidentiality provision to which Stafford agreed in her arbitration agreement are a strong countervailing consideration against unsealing.

ADA retaliation claim is reinstated on appeal: Tafolla Part III.

The Court of Appeals has found that the Suffolk County District Attorneys' Office may have retaliated against a plaintiff for seeking a reasonable accommodation request under the Americans with Disabilities Act. This is part III of my discussion of the Tafolla ruling, issued on August 18.

The case is Tafolla v. Heilig. The first two parts of my discussion are at these links. Plaintiff determined that management was not going to honor her accommodation requests, in part because her supervisors had expressed hostility toward those requests and said she could not work without any physical restrictions and would have to take medical leave. Plaintiff's retaliation claim stems from being forced to take medical leave. 

What convinces the Court of Appeals (Bianco, Perez, and Sullivan in dissent) to reinstate plaintiff's retaliation claim (which the district court dismissed on summary judgment) is that (1) management was hostile toward the accommodation request, (2) management incorrectly told her the county did not offer light duty and she would have to take medical leave if she could not perform any physical labor, and (3) and this process unfolded in a compressed time period sufficient to make out a prima facie case of retaliation. One case holds that a four-month gap is enough to support a retaliation case; plaintiff falls within that time frame.

Defendant argued that plaintiff fails the causation element of any retaliation claim because she was actually fired one year after she took medical leave under Civil Service Law section 75, which allows the employer to terminate if the employee is out of work for one year. The Court of Appeals sees it differently. A forced medical leave may constitute an adverse action under the retaliation cases, and cases also hold that one year is not too long to create an issue of retaliatory intent if the employer was unable to terminate the employee any sooner for logistical or other reasons. The "first available opportunity" argument supports plaintiff's claim, which will head to trial in the Eastern District of New York. 

Jury may find DA's office did not accommodate plaintiff's disability: Tafolla Part II.

The Court of Appeals has reinstated a disability discrimination claim, holding that a jury may find that the Suffolk County District Attorney's Office failed to reasonably accommodate the plaintiff's disability, a back injury.

The case is Tafolla v. Heilig, issued on August 18. I briefed and argued this appeal. This is a nuanced decision, which I will summarize in three blog posts. The first post is at this link, dealing with whether plaintiff was required to perform an essential job function under the ADA. 

Plaintiff was an administrative assistant in the DA's office who hurt her back and requested, through her doctor, an accommodation that stated she cannot lift anything more than five pounds or do any bending or pushing for two months. This meant she could not perform any archiving, which involves packing up old case files and placing them in storage. That doctor's note issued on December 10, 2013. The record shows that plaintiff's supervisor, Carroll, was hostile toward this accommodation request and even mocked it. He also appeared to misunderstand the accommodation request, believing that it only prevented plaintiff from lifting anything over five pounds, while overlooking the restriction against bending and twisting. A month later, on January 8, 2014, plaintiff's doctor issued another note, this one stating that plaintiff was unable to lift, bend, twist, or push any object over five pounds and could only perform secretarial work without any physical duties. A week after the second doctor's note, an assistant district attorney left a file on plaintiff's desk for her to archive. By this point, plaintiff knew she was probably not going to return to work because the office was not going to honor her accommodation requests. On January 16, another supervisor, Heilig, issued plaintiff a memo stating that she would not have to deal with any file that weighed more than five pounds but that the office had no light duty assignments and if she was unable to perform her job duties for any reason, including medical limitations, she would have to take medical leave until her doctor said she could return to work without any restrictions. 

Apart from finding that archiving files was not an essential job function and that plaintiff therefore was not required under the ADA to perform that work if an accommodation could otherwise be worked out, the Court of Appeals (Bianco, Perez, and Sullivan in dissent) reverses summary judgment for the following reasons:

1. Defendants did not fully grant plaintiff's accommodation request, dated December 10, 2013, because supervisor Carroll did not view the five-pound restriction as distinct from the bending restriction. The jury could find that the five-pound restriction was separate and apart from the bending/twisting restriction. As Carroll did not fully honor that accommodation, the jury may rule in plaintiff's favor on this issue. As for the second accommodation request, from January 8, 2014, the jury may find that the doctor said plaintiff cannot archive any files regardless of weight, as it said plaintiff could not perform "any physical duties," or no archiving as that might involve bending or twisting regardless of the weight of the file. But Heiling only interpreted the January 8 note to prohibit plaintiff from handling files that weighed more than five pounds, and he told plaintiff that employees must work "with no restrictions." As defendants still required plaintiff to perform some archiving that involved bending or twisting, even if the files were less than five pounds, the jury may find that the DA's office denied her accommodation in violation of the ADA.

2. While the district court held that plaintiff had abandoned the interactive process because she had a duty to seek clarification if she did not understand the terms of the accommodation articulated by her doctor, that ruling was in error, the Court of Appeals says. I have not seen many cases on when the plaintiff is deemed to have abandoned the interactive process, mandated by the ADA to ensure that employees work in good faith with their employers to find a reasonable accommodation. The regulations state that once the interactive process has been initiated by the employee (which plaintiff did in this case in providing two doctors' notes), even if the employee must identify the precise limitations resulting from the disability and potential reasonable accommodations, the employer has a duty to "use a problem solving approach" as part of the interactive process. In this case, when Carroll in January 2014 told plaintiff to proceed with archiving after he received the first accommodation request a month earlier, the jury could find that he had terminated the interactive process at this point, and that this was further reinforced when an ADA left a file on plaintiff's desk for archiving. Moreover, it appears the employer rejected the second accommodation request in January 2014 in telling plaintiff there was no light duty and, as mentioned, an ADA gave plaintiff files to archive that month. What also helps plaintiff's case is that defendant did not ask plaintiff or her doctor for any clarification on the accommodation requests. Cases from around the circuits support this holding. 

3. While plaintiff silently determined that she was going to take medical leave in January 2014 after it became clear to her that defendant was not going to honor her accommodation request, that does not mean (as the district court held) that she had terminated the interactive process. She did not share this intent with defendant at the time, and the record shows that she continued to convey to defendant that she would return to work, and "any contention that her failure to return to work after January 15 constituted an abandonment of the interactive process must take into account what had transpired prior to Tafolla reaching any such decision." Various statements from county employees to the effect that plaintiff would have to take medical leave if Carroll was not going to allow her to work in that office had the effect of ending the interactive process, reinforced by the Heilig memo in mid-January 2014 stating that plaintiff could only work for the DA's office without restrictions.

Court of Appeals reinstates ADA reasonable accommodation claim: Tafolla Part I

The Court of Appeals has reinstated an Americans with Disabilities Act claim, holding that the jury may find that plaintiff's former employer, the Suffolk County District Attorney's Office, denied her a reasonable accommodation after she injured her back in a car accident. 

The case is Tafolla v. Heilig, issued on August 18. I briefed and argued the appeal and will summarize this decision in three parts. This segment focuses on a threshold issue: whether plaintiff's requested accommodation allowed her to avoid performing an essential job function. 

Under the ADA and New York law, the accommodation can never be reasonable if the plaintiff is unable to perform an essential job function. Here, plaintiff, an administrative assistant, was unable to perform the "archiving" function, which involved packing up old case files in the DA's office. Her doctor told management that plaintiff was unable to lift anything over five pounds or do any bending or pushing. 

The Court of Appeals (Bianco, Perez, and Sullivan [dissenting]) finds that the jury may determine that archiving was not an essential job function. Under Second Circuit case law, determining whether a job duty is essential is a fact-specific inquiry, though the courts will defer to management's assessment that a particular duty is essential. But we also consider other factors, including written job descriptions, the amount of time spent performing the function, and the work experience of prior and current employees in the position. This is a totality of the circumstances analysis. 

In discovery, plaintiff's supervisor admitted at deposition that he did not know if archiving was essential and the duty was "rather minimal." An ADA testified that archiving was "the last thing for the administrative assistants to get done because we have a lot of other pressing work to get done." There were no deadlines to complete the archiving task, and any archiving backlogs were not cause for concern. Plaintiff's job description does not list archiving as a job duty. A supervisor testified that administrative assistants would split up various office tasks among themselves; that presumably included archiving. So the work had to get done but it was not a priority in the office, and others could handle the archiving if plaintiff was unable to do so under her proposed accommodation.

Judging from the case citations in this ruling, there are not many cases that address the essential functions issue. But the Second Circuit does rely on Miller v. Dept. of Transportation, 643 F.3d 190 (7th Cir. 2011), which held that summary judgment was not warranted on the essential function where "it was a regular occurrence for individuals on a particular team to share and swap tasks according to their individual capacities, abilities, and limitations."

 

This portion of the case was not the most challenging part of plaintiff's appeal. Follow-up blog posts will talk about the reasonable accommodation and whether plaintiff was responsible for the breakdown in the interactive process. 

Police directed gun at plaintiff for 7-10 seconds. Is there a case?

This case arises from a traffic stop on the Brooklyn-Queens Expressway. The police officer was patrolling the BQE on foot and ordered plaintiff to pull over after witnessing an illegal lane change. The officer drew his gun and pointed it at plaintiff for 7 to 10 seconds before letting plaintiff go with a warning. Plaintiff sues the officer, who asserts a qualified immunity defense. The Court of Appeals grants immunity.

The case is Cerisier v. City of New York, a summary order issued on July 19. Qualified immunity allows police officers to avoid suit if their actions did not violate clearly-established law, as defined by Second Circuit and Supreme Court authority. This allows officers to perform their work without fear of any lawsuits unless they are on notice that similar facts have been held to violate the Constitution in a prior case.

This Section 1983 claim asserts that the officer violated the Constitution when he pointed his gun at plaintiff, who claims there was no good reason to do this. He argues that qualified immunity cannot attach because cases hold that the use of "significant force . . . without justification," such as pointing a loaded gun at a non-threatening and non-resisting individual, violates the Fourth Amendment. 

The Court of Appeals holds that plaintiff is defining the "clearly-established right" inquiry too broadly. The Supreme Court wants the question framed more narrowly, the Court of Appeals notes, as the question must reference the specific context of the case. That is how qualified immunity works, and why so many cases get the kabosh on this basis.

Looking at the case from a narrower angle, the real question is whether cases hold that the Fourth Amendment prohibits drawing a gun for a few seconds in the context of a traffic stop when the officer is on foot and the driver is behind the wheel. No cases hold as such. What makes this case different from other drawn-gun cases is that the traffic stop is more fraught with danger than other police stops.While some cases hold the police liable when the conduct involved physical force by the police officer or the officer brandished the gun for an extended period of time (such as two minutes), that is not this case, and the defendant officer was not on notice that he was violating the Fourth Amendment.

$1 million selective enforcement verdict is thrown out post-trial

This case reminds us that the case is not over when the jury returns a verdict. Clients don't know this, and jurors definitely don't know this, but the parties may continue litigating long after the jury goes home. That may be OK for the winning party so long as the winning party remains the winning party when the post-trial work ends. But that is not always the case. It was not the case here.

The case is Airday v. City of New York, issued on July 18. Plaintiff sued for selective enforcement after he was fired as a New York City marshal. Plaintiff won the selective enforcement claim at trial. The jury awarded him $1,385,160 in damages on that claim. The case did not end, however. The City filed a motion to vacate (or throw out) the verdict in its entirety, claiming there was never really a case to start with. The trial court granted that motion, and the Court of Appeals affirms. The million-dollar verdict is gone.

What happened? Plaintiff convinced the jury that he was singled out when the City fired him and that other employees who had engaged in similar alleged misconduct were not fired. But to show you were "similarly situated" with other favored employees, the comparison must be a tight one. Courts want to ensure you were really singled out. So you have to prove everyone was similarly situated "in all material respects." What it means for plaintiff is that while the other comparators were all City marshals who committed some infraction, their misconduct was not of comparable seriousness to that of plaintiff, who was arrested for violation of a court order and possession of an unlicensed firearm. 

The comparators were not really comparable.I am quoting from the district court ruling:

The first comparator, Howard Schain, paid a fine because his subcontractor, without his knowledge, towed vehicles improperly, including allegedly towing a vehicle with a child inside. Unlike Plaintiff, he was never arrested, he was not accused of having violated a court order, and he did not possess any unlicensed handguns, the possession of which had never been disclosed to DOI. Mr. Schain simply did not engage in misconduct that was similar to Mr. Airday's.

 

The second comparator, Charles Marschisotto, was arrested once for harassment and stalking, and an order of protection was entered against him. Mr. Marschisotto surrendered his gun, and there was no evidence that he continued to possess a gun in violation of the Order of Protection or that he was ever in possession of an unlicensed gun, the ownership of which had not been disclosed to DOI, and he did not fail to cooperate in DOI's investigation. In contrast, Plaintiff failed to surrender all of his guns following a domestic violence arrest and entry of an Order of Protection, was in possession of an unlicensed and undisclosed gun, was charged with violating the Order of Protection, and failed to cooperate in DOI's investigation. The key details that Mr. Marschisotto surrendered all of his firearms in compliance with the Order of Protection and did not refuse to cooperate in DOI's investigation prevent him from being similarly situated to Mr. Airday.

 

The third comparator, Jeffrey Rose, seized a car while it was stopped in traffic, violated record-keeping rules, and seized a vehicle that was not tow-eligible. It would stretch the meaning of “comparable” beyond any plausible definition to consider this conduct similar to the unlawful possession of a gun, to violating an Order of Protection, and to refusing to cooperate in a DOI investigation.

 

Finally, the fourth comparator, Joel Shapiro, who allegedly used physical force during the course of an eviction, voluntarily resigned from his position as a City Marshal. As a result, there is simply no way to evaluate whether Mr. Shapiro would have been subjected to different treatment than Mr. Airday.

Do you see the level of detail this inquiry entails? The courts want a tight fit when comparing your misconduct to other employees who were not similarly disciplined. The oddity here is that the jury obviously thought these people were legitimate comparators and awarded plaintiff more than million dollars in damages for his troubles. I am sure the jury believed it did a good job in resolving this case. It probably has no idea that the verdict was thrown out completely.

 

The first comparator, Howard Schain, paid a fine because his subcontractor, without his knowledge, towed vehicles improperly, including allegedly towing a vehicle with a child inside. Unlike Plaintiff, he was never arrested, he was not accused of having violated a court order, and he did not possess any unlicensed handguns, the possession of which had never been disclosed to DOI. Defs. Mem. at 9; Trial Tr. at 186–88. Mr. Schain simply did not engage in misconduct that was similar to Mr. Airday's.¹³ Ruiz, 609 F.3d at 493–94.

The second comparator, Charles Marschisotto, was arrested once for harassment and stalking, and an order of protection was entered against him. Mr. Marschisotto surrendered his gun, and there was no evidence that he continued to possess a gun in violation of the Order of Protection or that he was ever in possession of an unlicensed gun, the ownership of which had not been disclosed to DOI, and he did not fail to cooperate in DOI's investigation.¹⁴ Defs. Mem. at 9–10; Trial Tr. at 130–32. In contrast, Plaintiff failed to surrender all of his guns following a domestic violence arrest and entry of an Order of Protection, was in possession of an unlicensed and undisclosed gun, was charged with violating the Order of Protection, and failed to cooperate in DOI's investigation. Trial Tr. at 216–18. The key details that Mr. Marschisotto surrendered all of his firearms in compliance with the Order of Protection and did not refuse to cooperate in DOI's investigation prevent him from being similarly situated to Mr. Airday. Ruiz, 609 F.3d at 493–95 (noting that similarly situated employees must have “engaged in comparable conduct”) (internal quotation marks and citation omitted).

*6 The third comparator, Jeffrey Rose, seized a car while it was stopped in traffic, violated record-keeping rules, and seized a vehicle that was not tow-eligible. Defs. Mem. at 10; Trial Tr. at 192–98. It would stretch the meaning of “comparable” beyond any plausible definition to consider this conduct similar to the unlawful possession of a gun, to violating an Order of Protection, and to refusing to cooperate in a DOI investigation.

Finally, the fourth comparator, Joel Shapiro, who allegedly used physical force during the course of an eviction, voluntarily resigned from his position as a City Marshal. Defs. Mem. at 10–11; Trial Tr. at 198–200, 213. As a result, there is simply no way to evaluate whether Mr. Shapiro would have been subjected to different treatment than Mr. Airday

Est. of Airday v. City of New York, No. 14-CV-8065 (VEC), 2022 WL 1265940, at *5–6 (S.D.N.Y. Apr. 28, 2022), aff'd, No. 22-1081-CV, 2023 WL 4571967 (2d Cir. July 18, 2023)

The first comparator, Howard Schain, paid a fine because his subcontractor, without his knowledge, towed vehicles improperly, including allegedly towing a vehicle with a child inside. Unlike Plaintiff, he was never arrested, he was not accused of having violated a court order, and he did not possess any unlicensed handguns, the possession of which had never been disclosed to DOI. Defs. Mem. at 9; Trial Tr. at 186–88. Mr. Schain simply did not engage in misconduct that was similar to Mr. Airday's.¹³ Ruiz, 609 F.3d at 493–94.

The second comparator, Charles Marschisotto, was arrested once for harassment and stalking, and an order of protection was entered against him. Mr. Marschisotto surrendered his gun, and there was no evidence that he continued to possess a gun in violation of the Order of Protection or that he was ever in possession of an unlicensed gun, the ownership of which had not been disclosed to DOI, and he did not fail to cooperate in DOI's investigation.¹⁴ Defs. Mem. at 9–10; Trial Tr. at 130–32. In contrast, Plaintiff failed to surrender all of his guns following a domestic violence arrest and entry of an Order of Protection, was in possession of an unlicensed and undisclosed gun, was charged with violating the Order of Protection, and failed to cooperate in DOI's investigation. Trial Tr. at 216–18. The key details that Mr. Marschisotto surrendered all of his firearms in compliance with the Order of Protection and did not refuse to cooperate in DOI's investigation prevent him from being similarly situated to Mr. Airday. Ruiz, 609 F.3d at 493–95 (noting that similarly situated employees must have “engaged in comparable conduct”) (internal quotation marks and citation omitted).

*6 The third comparator, Jeffrey Rose, seized a car while it was stopped in traffic, violated record-keeping rules, and seized a vehicle that was not tow-eligible. Defs. Mem. at 10; Trial Tr. at 192–98. It would stretch the meaning of “comparable” beyond any plausible definition to consider this conduct similar to the unlawful possession of a gun, to violating an Order of Protection, and to refusing to cooperate in a DOI investigation.

Finally, the fourth comparator, Joel Shapiro, who allegedly used physical force during the course of an eviction, voluntarily resigned from his position as a City Marshal. Defs. Mem. at 10–11; Trial Tr. at 198–200, 213. As a result, there is simply no way to evaluate whether Mr. Shapiro would have been subjected to different treatment than Mr. Airday

Est. of Airday v. City of New York, No. 14-CV-8065 (VEC), 2022 WL 1265940, at *5–6 (S.D.N.Y. Apr. 28, 2022), aff'd, No. 22-1081-CV, 2023 WL 4571967 (2d Cir. July 18, 2023)

Anti-abortion protester not bound by abortion clinic protest injunction

This case concerns when a federal injunction applies to anyone who was not part of the lawsuit that produced the injunction in the first place. The injunction involved the rights of abortion protesters. The Court of Appeals finds that a man can protest outside an abortion facility even though an injunction prohibited other protesters from doing so.

The case is Havens v. James, issued on August 4. In 2005, Judge Arcara of the Western District of New York issued an injunction that prohibited certain defendants from protesting within 15 feet of the entrance to any abortion clinic in the Western District. Nor can they aid and abet other protesters who want to protest within 15 feet of the clinics. This is known as the "Arcara injunction."

Enter Jim Havens, an anti-abortion activist who wants to protest outside a Planned Parenthood facility in Rochester, within the Western District. The district court enjoined Havens from holding these protests, on the basis that the Arcara injunction said he cannot do so. The Court of Appeals (Menashi and Nardini) reverses.

How can the Court of Appeals reverse in light of the Arcara injunction? Because that injunction did not involve Havens. It involved other people. The Court of Appeals uses this case "to clarify the circumstances in which an injunction may be applied to someone who is not a party to the injunction." The Court notes that "We have long recognized that “no court can make a decree which will bind any one but a party” because a court’s “jurisdiction is limited to those over whom it gets personal service, and who therefore can have their day in court.” Judge Learned Hand said that in 1930. As such, "The principle that 'everyone should have his own day in court' is 'fundamental' and 'part of our deep-rooted historic tradition.'” The Supreme Court said that in 1996.

In this case, the Arcara injunction cannot be enforced against Havens. Nor can the Second Circuit majority find any evidence that anyone had aided-or-abetted Havens in his anti-abortion activism. The district court ruling is therefore vacated. For now, until someone obtains an injunction against Havens, he can protest outside the Planned Parenthood facility. 

In dissent, Judge Lohier argues that there is in fact evidence of aiding-and-abetting: 

As the District Court noted, Havens admits in his complaint to conducting training sessions at Focus Pregnancy Help Center, which is run by its founder, Mary Jost, another anti-abortion protestor who is a named party to the injunction. Jost and Focus were not shy about their association with Havens and his followers. For example, Havens’s complaint specifically mentions the “Focus Pregnancy Help Center’s website promoting a Jim Havens and Sidewalk Advocates for Life protest outside Planned Parenthood on University Avenue."

No pretext in discrimination case despite minor irregularities in promotion process

The plaintiff alleges that she was denied two promotions because of her race, age and sex when two other internal candidates were promoted instead. The Court of Appeals finds that plaintiff cannot show these adverse actions were undertaken for pretextual reasons even though plaintiff identified slight inconsistencies in the way the promotion process unfolded.

The case is Carr v. New York City Transit Authority, issued on August 7. The record shows that the selectees were qualified for these managerial positions that were denied to plaintiff, who was also qualified for the promotions. The question is whether management's articulated reasons for the promotion denials were a pretext for discrimination. 

The Court of Appeals (Parker, Pooler and Nathan) notes, "As proof of pretext, Carr points to perceived inconsistencies in the hiring criteria and changes to the hiring process, such as that the original job descriptions did not specify a technical background was required and the panel of interviewers changed between the first and second openings she applied for." Cases hold that procedural irregularities in the hiring process can support a finding of pretext. The reasoning is that if management cut corners or bent the rules to favor one candidate over another (or to justify someone's termination), then they were looking for a predetermined outcome no matter how qualified or skilled the plaintiff was. The leading case on this issue is Stern v. Trustees of Columbia Univ., 131 F.3d 305 (2d Cir. 1997).

Plaintiff loses the case on summary judgment because the deviations that she identified were not significant enough to support a finding of pretext. The Court holds, "While 'entirely ignor[ing]' explicit hiring criteria or an 'unprecedented' departure from an employer’s established hiring practice can show pretext, Carr's allegations regarding minor variations in the hiring process and the emphasis on the other candidates’ technical backgrounds are not the sorts of 'departures from procedural regularity' that could allow a jury to infer pretext." The takeaway is that while deviations can lead to victory, they must be significant deviations, not minor ones.

Circuit lays out standard for retaliatory hostile work environment

The Court of Appeals holds that employees who claim they suffered a retaliatory hostile work environment must show that, "either singularly or in the aggregate, [the alleged retaliation] were 'materially adverse'" and that the hostile environment "might have dissuaded a reasonable worker from making or supporting a charge of discrimination." This holding applies the familiar Burlington Northern retaliation standard, but it is the first time the Court does so when the plaintiff claims that her EEOC charge was followed by a hostile work environment. In the process, the standard set forth in this case is good for plaintiffs, as it rejects the argument that retaliatory hostile work environment cases require plaintiffs to show the harassment was severe or pervasive. But plaintiff still loses the appeal because she cannot satisfy the new test.

The case is Carr v. New York City Transit Authority, issued on August 7. Burlington Northern applies the "dissuaded a reasonable worker" test, which is more favorable to plaintiffs than the disparate treatment adverse action test, which requires the plaintiff show that the adverse action affected the terms and conditions of employment. Here, plaintiff claims that, following her EEOC charge, 

her relationships with her supervisors and her performance evaluations deteriorated, which she attributes to retaliation.  Among other  things,  Carr asserts that [her supervisor] Chan  was disrespectful and hostile to her in emails; that Chan assigned her increased job responsibilities including responsibility for Elevator and Escalator Communications, compiling a new Employee Training Manual, and completing various other reports; that Chan threatened to cancel her vacation time if she did not complete her projects; and that analysts who worked under her were removed.

The Transit Authority argued that the retaliatory hostile work environment applies the same test as a traditional hostile work environment, i.e., a showing that the hostile conduct was severe or pervasive. The Court of Appeals (Parker, Pooler and Nathan) holds that the NYCTA is not advocating the right test but that plaintiff still loses because there was no adverse action. The Court expressly rejects the severe or pervasive test in retaliatory hostile work environment cases, noting that the Court has actually articulated that test in one prior case and district courts in the Second Circuit have also done so. But that does not help Plaintiff. The Court holds:

the alleged retaliatory actions were the result of generally applicable workplace policies and Carr has not adduced evidence that these policies were applied to her and not others. We  have held that absent allegations of more direct hostile conduct, a reasonable employee would not be dissuaded from taking protected action simply because they are subject to the same policies as other employees. Tepperwien v. Entergy Nuclear Operations, Inc., 663 F.3d 556, 568, 570-71 (2d Cir. 2011). We conclude that these complaints, even when taken in the aggregate, would not dissuade a reasonable employee from lodging a complaint and therefore, they were not materially adverse.

Nor can plaintiff show pretext (even had she made out a prima facie case) because her less-than-stellar performance reviews were not shown to be false. Under Second Circuit law, reiterated in this case, it is not enough to show these reviews closely followed her protected activity.

No religious discrimination when state eliminates religious exception to vaccine requirements

This case arises from the modern-day vaccine wars. Some states have repealed their religious exemptions to the mandatory vaccine requirements. Religious objectors are now suing over this, claiming that by repealing the religious objections, the states are practicing religious discrimination by turning their backs on religious principles. The Second Circuit rejects that argument and holds that Connecticut was able to repeal the religious objection consistent with the freedom-of-religion clause of the First Amendment. 

The case is We the Patriots, Inc. v. Connecticut Office of Early Child Development, issued on August 4. A few years ago, some parents were opting out of the measles vaccine, which prompted some states to eliminate the loophole these parents had been invoking: the religious objection. The problem was, the Court of Appeals (Chin, Leval and Bianco) notes, is that declines in the proportion of immunized schoolchildren were making it more likely that measles might spread in the schoolhouse. 

The Free Exercise Clause is the religious freedom provision under the Constitution. In 1990, the Supreme Court said that state laws that have an adverse impact on certain religious practices do not violate that Clause if the laws apply to everyone and are not targeted toward a particular religious practice. That ruling, Employment Division v. Smith, made it much harder to bring Free Exercise challenges, even if some law really burdened a religious practice. So long as that law was generally applicable to everyone, there was no religious freedom lawsuit. You may not believe this, but the Smith ruling, which makes it harder to win religious freedom cases, was written by Justice Scalia, one of the most conservative Supreme Court Justices we ever had. The liberals dissented in Smith.

In this case, the Connecticut law applies to everyone and there is no evidence of religious hostility in revoking the measles vaccination requirement. While Connecticut does make an exception for people who are not able to take the vaccine for medical reasons (i.e., if they are allergic) that exception does not place religious objectors on unequal footing under the Free Exercise Clause because, under the complex balancing test that guides religious freedom cases (developed in part through the COVID cases in the last few years), the medical exception promotes the government interest in promoting student health and safety. As the Court of Appeals puts it:

The Act promotes the health and safety of vaccinated students by decreasing, to the greatest extent medically possible, the number of unvaccinated students (and, thus, the risk of acquiring vaccine-preventable diseases) in school. The Act also promotes the health and safety of unvaccinated students. Not only does the absence of a religious exemption decrease the risk that unvaccinated students will acquire a vaccine-preventable disease by lowering the number of unvaccinated peers they will encounter at school, but the medical exemption also allows the small proportion of students who cannot be vaccinated for medical reasons to avoid the harms that taking a particular vaccine would inflict on them. It is for these reasons that the acting commissioner of the Department of Public Health testified that "[h]igh vaccination rates protect not only vaccinated children, but also those who cannot be or have not been vaccinated." In contrast, exempting religious objectors from vaccination would only detract from the State's interest in promoting public health by increasing the risk of transmission of vaccine-preventable diseases among vaccinated and unvaccinated students alike.

Judge Bianco dissents in part on this issue. Free Exercise Clause jurisprudence is still developing in the wake of the vaccine wars. My sense is this issue will reach the Supreme Court soon.
 

Court expansively interprets attorneys' fees provision in student disability law

A lesser-known civil rights law is the Individuals with Disabilities in Education Act, which has been on the books for decades but is mostly known to attorneys who challenge the educational placements of their special-needs children in public schools. If the parents and the school disagree about that placement, they undergo a process (which may include an evidentiary hearing), and if the parents win, they can recover attorneys' fees. This case is about the attorneys' fees.

The case is J.S. v. New York State Dept. of Corrections and Community Supervision, issued on August 3. Plaintiff has a learning disability. He was an inmate in New York who, as a 20-year-old, won his administrative proceeding against DOCCS, which had denied him an appropriate education. He then sought approximately $72,000 in attorneys' fees and costs in federal court, which denied his motion because J.S. was not a "parent" under the IDEA and thus not eligible to recover fees. J.S. appeals to the Second Circuit (Carney, Cabranes and Robinson), which reverses, and in this case of first impression, awards J.S. his attorneys' fees.

Under the statute, "a prevailing party who is a parent of a child with a disability" may sue in federal court to recover attorneys' fees. The statutory definition of "parent of a child with a disability" does not expressly include a child with a disability. On the other hand, the Court finds that "parent" under the IDEA does not have the same meaning as a dictionary definition. So we have a case of statutory interpretation. The Court finds that the statute does allow children, over the age of 18 who act on their own behalf and assume responsibilities for their own welfare, including their educational rights, may qualify for fees under the IDEA.

The Court writes, that, while J.S. was still a "child with a disability" under the IDEA, he was no longer a "minor" under state law and was responsible for his own welfare. "To vindicate his rights under the IDEA, J.S. was legally entitled to retain and direct his own attorneys if he did not appear pro se. He could bring the administrative proceeding and this lawsuit in his own name." 

Conclusion: 

the operative phrase in the IDEA—“an individual who is legally responsible for the child’s welfare”—must be read to include any such individual, including an individual who is a “child with a disability” and who is responsible under state law for their own welfare. Were it not so, individuals with disabilities who are between the ages of 18 and 21, inclusive, and not the subject of an incapacity determination, could be entitled to educational services under the IDEA but, paradoxically, hobbled in any effort to vindicate their rights. Such a result, we believe, is neither required by the IDEA’s text, intended by Congress, nor consistent with its purposes.

Woman who claims she was raped by ICE officer may invoke equitable tolling for untimely lawsuit

This is an unpleasant case, but the facts are that the plaintiff, Jane Doe, alleges that she was repeatedly raped and sexually abused by an Immigration and Customs (ICE) officer working for the Department of Homeland Security, and that the defendant used threats of violence and deportation to maintain his control over her. Plaintiff bought a lawsuit outside the two-year statute of limitations, and the district court dismissed the case as untimely. The Court of Appeals reinstates the case under the rules allowing traumatized plaintiffs to file an untimely claim.

The case is Doe v. United States, issued on August 1. Plaintiffs can invoke "equitable tolling" to get around an untimely claim. If the district court denies such tolling, the standard of review is "abuse of discretion," a difficult test for plaintiffs to overcome. Equitable tolling is all about equity, the Court of Appeals notes, making these issues even more unpredictable. What is "abuse of discretion"? What is "equity"? 

The Court summarizes the legal standard: "Before a court may exercise discretion to grant equitable tolling, a litigant must demonstrate as a factual matter the existence of two elements: first, 'that some extraordinary circumstance stood in [her] way' and second 'that [she] has been pursuing [her] rights diligently.'” But in this case, the district court treated the motion to dismiss like a traditional summary judgment motion and held there were no undisputed facts that would favor plaintiff's position on equitable tolling. The district court did not invoke its discretionary authority, a requirement in equitable tolling cases.

This approach was error, the Court of Appeals (Calabresi, Lee and Nathan) holds, because "a reasonable district court acting in a fact-finding capacity could determine that the prerequisites to equitable tolling—extraordinary circumstances and reasonable diligence—are present on this record." As for "extraordinary circumstances," the Court holds, they may exist here because 

Sexual abuse perpetrated by an ICE agent against an undocumented immigrant may give the assailant’s threats a similarly immobilizing effect as those of a prison official against someone in their custody. With these dynamics in mind, the district court could reasonably find on this record that years of violent sexual abuse and threats to Doe’s life gave Doe a “specific and credible basis to fear retaliation”  from  Rodriguez  and  thereby  constituted  an  extraordinary circumstance.

While the sexual abuse stopped after a period of time, plaintiff's failure to file suit any sooner is not a barrier to equitable tolling because she claims that defendant told her, after he had last allegedly raped her, that he would kill her if she told anyone about the sexual assaults. The district court implicitly rejected the inference of ongoing fear because plaintiff finally spoke out when her father was facing deportation and she told immigration authorities that she feared that her father would face persecution in Honduras because others in her community knew about her "involvement" with defendant and thought she might be an informant, which would ultimately place her father at risk. The Court of Appeals holds that even though plaintiff spoke up at this time, she was still scared for her life that defendant would still retaliate against her if she took legal action against him. "As she tells it, Doe was stuck choosing between the devil and the deep blue sea—one course risking her life, the other risking her father’s."

The case is remanded to the district court for the judge to decide the case properly: "the district court should act in a fact-finding capacity and determine whether Doe has demonstrated extraordinary circumstances and reasonable diligence.  If the court determines that she has established these prerequisites for equitable tolling, then it should engage in the discretionary determination of whether to grant her request for equitable tolling."