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.