New defamation trial for Sarah Palin against the New York Times

After identifying  a series of trial errors, the Court of Appeals has ordered that former Vice Presidential candidate Sarah Palin is entitled to a new trial on her defamation claim against the New York Times, which ran an editorial in 2017 that linked Palin to a mass shooting that took place in 2011.

The case is Palin v. New York Times, issued on August 29. After a gunman shot four people, including a Congressman, at a congressional baseball game practice in 2017, the Times published an editorial that said there was a "clear" and "direct" "link" between a Palin campaign advertisement in March 2010 and a separate shooting that took place in 2011, seriously injuring Congresswoman Gabby Giffords.That advertisement highlighted contested congressional districts, including Giffords', with graphics that looked like shotgun cross-hairs. Since there is no evidence that the Giffords shooter, Jared Loughner, pulled the trigger based on the cross-hair advertisements, Palin sued the New York Times and the editorial writer, James Bennet. 

The case went to trial before Judge Rakoff in in 2020, and the jury entered a verdict in favor of the New York Times. There will be a retrial based on the following trial errors:

1. The trial court granted the NYT and Bennet judgment as a matter of law in finding Palin cannot prove malice. Although Palin, as a public figure, must show the editorial constituted malicious defamation, the jury may find that Bennet's testimony that he did not think the cross-hairs map caused Loughner to shoot anyone in 2011. In holding otherwise, the district court held that Bennet's testimony in Palin's favor was inconsistent with his overall contrary testimony, but that call is for the jury, not the trial court.

2. While internal NYT discussions about Bennet's editorial, as he was drafting it, hyperlinked to ABC News articles that said Loughner was not motivated to fire his gun based on the cross-hairs map, in granting the NYT relief under Rule 50, the trial court credited Bennet's testimony that he did not read the ABC News articles. That was wrong, the Court of Appeals says, because circumstantial evidence permits a contrary inference, in part because the fact-checking process would compel the editorial writer to click through the link to read the article.

3. The trial judge also granted the NYT judgment as a matter of law in discounting the importance of prior NYT articles that said the Loughner shooting had nothing to do with the cross-hair map. The Second Circuit holds the prior articles could be read to cast doubt on any link between Loighner and the cross-hairs map.

There are other trial court errors that informed the Rule 50 order granting the NYT judgment as a matter of law relating to how the court viewed the evidence. You get the picture, though. The Second Circuit (Walker, Raggi and Sullivan) reminds us that jurors, and not the trial court, interpret the evidence and that granting Rule 50 relief during trial poses the risk of an appellate reversal if the Court of Appeals thinks the trial court took the case out of the jury's hands, risking a second trial. This case has some good language for litigators who are fighting off Rule 50 motions in federal court, about the need to respect the jury's view of the evidence and to draw all inferences in favor of the plaintiff when Rule 50 motions are on the table. The Court of Appeals also identified problems with the jury charges that compelled a new trial, as well.

The Court of Appeals wraps up with the most interesting issue on appeal, at least from my perspective. As the jury was deliberating, the trial court heard oral argument from counsel on the NYT's motion for judgment as a matter of law. The court granted the Rule 50 motion but decided to allow the jury to issue a verdict anyway. The court did not tell the jury that the court had already dismissed the case, but the media was present when the Rule 50 order was issued in open court, and their news articles on this went online and, through "push notifications," in which news turns up on your cell phone automatically, the jury learned during deliberations that the judge had already dismissed the case. The jury nonetheless entered a verdict for the NYT and told the court that the push notifications had no bearing on their verdict.

The Court of Appeals holds that the verdict may not be reliable since the court publicly announced its view of the case (dismissing the case entirely) as the jury was deliberating. This was not deliberate on the trial court's part, but it still casts doubt on the verdict, as the jury is not supposed to know what the trial judge thinks about the case. 

Most trial judges reserve judgment on the Rule 50 motion until after the jury renders its verdict, on the theory that if the jury rejects the plaintiff's case, then it does not matter if the defendant is entitled to judgment as a matter of law. Other judges are more decisive and will grant Rule 50 relief then and there if they really believe the defendant is entitled to that relief. The problem here was the trial court's decisiveness combined with the modern technology that found its way into the jury room and allowed the jury to know that the case was already dismissed as the jury was deliberating on whether the plaintiff had a case

District court mistakenly treated summary judgment motion as a Rule 12 motion to dismiss

The district court threw out this case under an unusual procedural twist. The plaintiffs alleged that the City of Troy was not maintaining its sidewalks in a manner that allowed disabled residents to maneuver the City in their wheelchairs. The parties litigated the case for several years and each side moved for summary judgment. The district court said plaintiffs could not proceed with the case because they lacked standing to sue. But the court did so under Rule 12, which guides motions to dismiss the complaint, not Rule 56, the summary judgment provision. 

The case is Lugo v. City of Troy, issued on August 27. No court has yet to determine if the City of Troy in fact violated federal disability law in failing to maintain the sidewalks for disabled residents. Instead, the parties got tangled in a standing argument: the City said plaintiffs were not in a position to bring this lawsuit their allegations were too conclusory to litigate the case. The district court agreed, and dismissed the case.

What makes the case unusual is that the district court rejected the case under Rule 12. As noted above, Rule 12 guides motions to dismiss, and Rule 12 motions are usually filed right after the plaintiff files the complaint, requiring the trial court to review the allegations to determine if the plaintiff has a case. Rule 56 motions are filed after the parties complete discovery and they have a full record, and the trial court has to decide if the plaintiff has enough evidence to win at trial. Sometimes, a trial court will convert a Rule 12 motion into a summary judgment if it looks like the court is able to consider materials outside the complaint in determining if the plaintiff has a case. But what happened here was the opposite: the trial court, despite having a summary judgment motion on the table, determined if the complaint stated a cause of action. That was wrong, the Court of Appeals says.

As two of our sister circuits have observed, the Federal Rules of Civil Procedure “offer no support” for the sort of reverse Rule 12(d) conversion that the district court undertook here. There are good reasons for this. When a district court resolves a summary-judgment motion as a pleadings motion, it “disregard[s] the more robust procedural device the parties have invoked to frame the issue” and thus “unjustifiably ignores the fuller evidentiary record assembled by the parties.” Id. And in practice, a reverse Rule 12(d) conversion “will rarely (if ever) help to ‘secure the just, speedy, and inexpensive determination’ of the action.”

The case returns to the district court to resolve the summary judgment motion and to forget about the motion to dismiss under Rule 12.

 

$75,000 in attorneys' fees for $1 in damages may be too much

This is the kind of case that drives plaintiffs nuts. The plaintiff in this case won his trial, and the trial court awarded $75,000 in attorneys' fees, determining that plaintiff was the prevailing party in a civil rights case. The case returns to the district court to reconsider the fee award. Defendants will almost certainly argue that plaintiff should get nothing in attorneys' fees.

The case is Knights v. City University of New York, a summary order issued on August 23. The jury said plaintiff was entitled to a name-clearing hearing following CUNY's allegedly defamatory comments about his professionalism. This "stigma-plus" claim under the due process is an obscure claim under Section 1983. Cases like this may not yield much in the way of damages, but the civil rights laws allow the prevailing party to recover their attorneys' fees; that provision attracts good lawyers to litigate these cases even if the damages are not large.

But there is an exception to the attorneys' fees statute, as determined by the Supreme Court in Farrar v. Hobby (1992), which said that nominal damages may not entitle the plaintiff to a fully attorneys' fees award, and might only yield no attorneys' fees at all. This is what I meant when I said this case can drive plaintiffs nuts. The Court of Appeals vacates the attorneys' fees award and directs the trial court to start over. The Court of Appeals (Bianco, Perez, and Merriam) says:

Although the District Court provided a detailed recitation of the history of the litigation, it ultimately offered no concrete basis for its determination that a fee award – particularly a substantial fee award – was warranted in this case in which Knights did not succeed on the vast majority of his claims, prevailing only on a single claim for nominal damages of $1 after demanding $45 million in his Complaint and over $4 million at the jury trial.

. . . 

We therefore remand for the District Court to reconsider its award of fees in light of the relevant standards and considerations and, if it again finds that an award of fees is appropriate, to articulate its basis for such a finding.

I have seen plaintiffs recover no fees at all after winning $1 in damages. I have also seen them recover a fraction of their attorneys' fees because they did not recover anything close to the amount of damages requested in their initial lawsuit. This is one reason why plaintiffs should not sue for a million dollars; the complaint does not have to articulate a requested damages award, and such a large number can come back to haunt the plaintiff's attorney when it comes time to move for attorneys' fees. I can assure the City of New York will argue that plaintiff in this case should recover no attorneys' fees at all, which will make the renewed district court fee motion an unpleasant experience for counsel.

 

 

Inmate wins retaliation appeal

This case involved a New York state inmate who claimed that correction officers beat the hell out of him in retaliation for filing a series of internal grievances about being manhandled and pat-frisked unnecessarily. One grievance contained language that threatened the officers if the mistreatment occurred again. Some officers then approached plaintiff in his cell to interview him about the grievances and undertook a pat frisk. According to plaintiff, this turned into an altercation in which plaintiff was punched without justification, they banged his head into a metal desk, and shoved an object into his rectum, stating, "this is what happens when you send letters up front threatening officers." The case went to trial and the jury found in plaintiff's favor on the retaliation claim but not the excessive force claim. The Court of Appeals sustains the verdict.

The case is Hundley v. Frunzi, a summary order issued on August 21. The case went to trial in the Western District of New York. The jury awarded plaintiff $20,000 for pain and suffering and $80,000 in punitive damages. The state argues the retaliation verdict is bad because it conflicts with the excessive force verdict. As the Court of Appeals puts it:

On appeal, Defendants challenge only the district court’s denial of their motion for a new trial on the retaliation claim. They argue that they are entitled to a new trial because the jury’s split verdicts on the excessive force and retaliation claims are “ineluctably inconsistent.” Specifically, Defendants assert that a jury finding that they did not use excessive force during the incident is equivalent to a finding that they acted in good faith in their use of force, and, therefore, that their actions during the incident could not have been retaliatory in nature.

The Second Circuit (Bianco, Perez and Nathan) says the verdicts were not inconsistent. There are two ways the jury could have threaded this needle. 

"First, the jury instructions did not limit the alleged 'adverse action' underlying Hundley’s retaliation claim to the alleged assault by Defendants that resulted in his broken rib, but rather included any conduct by Defendants during the December 20 incident with Hundley that met the applicable legal standard." This means that even if the use of force was not really excessive, the jury could have found that other aspects of the incident were retaliatory, such as the pat-frisk (which took place just prior to the use of force) that did not result in any injuries.

Second, the jury was able to find that the use of force was not malicious (which is why the jury did not enter a plaintiff's verdict on the excessive force claim) but was still retaliatory. "The jury could have found that defendants did use some degree of unnecessary force against Hundley during the cell visit to retaliate against him for filing a grievance, but did not intend to 'inflict injury' and did not commit 'a wrongful act with extreme or excessive cruelty,' and that Hundley’s rib was broken when the retaliatory plan unintentionally got out of control and Hundley fell to the ground. If the jury made those factual findings, it could have rationally concluded under the instructions that Defendants were liable for retaliation, but not excessive force."

This is as nuanced a holding as you can get. It tells us that the Court of Appeals strives to respect jury verdicts and will examine the evidence in a manner that attempts (reasonably) to reconcile competing verdicts.

New York City's racial justice protest curfew did not violate the Constitution

The Court of Appeals holds that the City of New York was legally able to impose a week-long nighttime curfew that curtailed the racial justice protests that followed the murder of George Floyd in 2020. This case highlights the complexities of constitutional law, as the plaintiffs framed their case under the constitutional right to travel, not the First Amendment.

The case is Jeffries v. City of New York, issued on August 16. The curfew lasted from June 1 through June 7, 2020. Floyd was murdered on May 25, 2020. It is not clear to me why the plaintiffs (on behalf of a proposed class) abandoned their First Amendment claim; it might be because the curfew affected everyone in the City, not just the protesters. What makes this case unique is not only the right to travel angle (few cases actually clarify the scope of this right) but that the district court dismissed the case under Rule 12(b)(6), prior to any discovery. Cases with complex balancing tests normally are not dismissed on the face of the complaint and have to await a full record following discovery, when the parties then move for summary judgment.

You probably did not know the Constitution protects the right to travel. But it does. The ruling provides a lengthy review of the right to travel, which appears nowhere in the Constitution, though such a right is implied and is therefore judge-made. This right covers both interstate (state to state) and intrastate (neighborhood to neighborhood or city to city) travel. The Second Circuit recognizes the right to intrastate travel, but it has not "sharply defined" the parameters of such a right, though it recognizes that a municipal curfew implicates the right to intrastate travel. The Second Circuit (Raggi, Lohier and Carney) sidesteps whether this case requires strict scrutiny or heightened scrutiny (the standards of review in many constitutional cases) but instead holds that even under strict scrutiny, the plaintiffs lose, and the case is over.

Plaintiffs lose because, first, the City had a compelling governmental interest in preventing crime and maintaining civil order. The Court takes judicial notice that the racial justice protests in 2020 were marred by violence and arson in New York City; though not everyone engaged in lawless behavior, it was widespread enough for the government to impose the night-time curfew. Once the government shows its restrictions were necessitated by a compelling interest, to win, it must then show the restrictions were narrowly tailored to meet that compelling interest. 

This balancing test is quite difficult for the government to satisfy, but it can do so here because (1) the City imposed the curfew only after contemplating alternative courses of action (such as traditional policing) following a "tumultuous and confrontational moment in the City's history"; (2) the scope of the curfew was narrow (night-time to early in the morning, when most law-abiding people are likely to be at home); and (3) there were exceptions for people who have to be out at night (police officers, firefighters, etc.).

2d Circuit gives the Fair Housing Act a ringing endorsement

The Court of Appeals has sustained a jury verdict in favor of a Fair Housing Act plaintiff, holding that the jury had an evidentiary basis to find that a town in Connecticut violated the Act in rejecting a group home for discriminatory reasons. In sustaining the verdict, the Court rejects the Town's efforts to scale back the scope of the FHA, enacted in 1968 to prohibits discriminatory housing and rental practices.

The case is Gilead Community Services v. Town of Cromwell, issued on August 12. The Town appears to have done all it could to reject the group home, which would have served people with mental disabilities. A community outcry greeted the proposal, and public officials made the approval process more difficult for the plaintiffs. To put it mildly, this case does not give us confidence about the people who run the Town of Cromwell. The jury certainly felt that way, awarding the plaintiffs $181,000 in compensatory damages and $5 million in punitive damages.

The Court of Appeals (Parker, Lynch and Nathan) resolves a number of issues:

1. While the Supreme Court has imposed a more defendant-friendly "but-for" causation test for other civil rights statutes, including Sections 1981 and 1983, the more plaintiff-friendly "motivating factor" test still governs the Fair Housing Act. The Court reasons:

by its plain text, Section 804(c) is violated even absent any discriminatory transactions or conduct. To be liable, a defendant must simply “make, print, or publish, or cause to be made, printed, or published any notice, statement, or advertisement, with respect to the sale or rental of a dwelling that indicates any preference, limitation, or discrimination based on . . . handicap,” whether or not the defendant proceeds to carry out that discriminatory preference. Id. § 3604(c). The question under Section 804(c), as this Circuit has long held, is not what caused or motivated any conduct by a defendant but whether a defendant’s statement “suggests to an ordinary reader that a particular [protected status or identity] is preferred or dispreferred[.]”

Second Circuit cases have long applied the motivating factor test to FHA cases, and the Court of Appeals stands firm on that causation test. Defendants though they could exploit recent Supreme Court cases that applied the but-for causation test, but the Court of Appeals says those cases involved different statutes that employ different liability language. So long as retaliatory motive plays a part in the discriminatory action, the FHA plaintiff wins the case.

 2. The Town may be held vicariously liable under the FHA. While Section 1983 cases require the plaintiffs to prove the municipality had a custom or practice of discrimination in order to hold the municipality liable, that is not the case under the FHA. "It is clear and undisputed that the FHA generally allows for vicarious liability, and we reject Cromwell’s invitation to create a judicial carve-out from that liability for local governments when Congress itself has declined to do so." Section 1983 cases force the plaintiffs to meet a high standard for municipal liability. But the FHA is not Section 1983.

3. The Town argues that punitive damages are not available against municipalities under the FHA. While the FHA does provide for such damages, it does not expressly state that you can recover them against municipalities. The Town argues, therefore, that the principle under Section 1983 against slapping municipalities with punitive damages should apply under the FHA. The Court of Appeals once again rejects the Town's creative arguments to scale back the FHA.

4. The jury exceeded its authority in awarding $5 million in punitive damages against the Town. First, there was evidence of reprehensible conduct by Town officials, and this set of facts favors plaintiff:

there was ample evidence of highly reprehensible conduct by the town of Cromwell. The town engaged in a deliberate and sustained campaign of discrimination and retaliation, reflecting “repeated actions” rather than “an isolated incident” and resulting from “intentional malice” rather than “mere accident.” The town also “evinced an indifference to or reckless disregard of the health or safety of others,” when its police officers leaked sensitive medical information about a Gilead resident to the public and failed to investigate an episode of vandalism of Gilead’s group home. And the ultimate targets of the town’s conduct, the residents with disabilities who relied on Gilead’s housing, “had financial vulnerability.” Finally, it bears remembering that Cromwell officials not only violated the FHA but also publicly celebrated when their discriminatory efforts succeeded in keeping Gilead’s residents out of town. This is a case where “further sanctions” beyond compensatory damages are warranted “to achieve punishment [and] deterrence.”

But to sustain a high punitive damages award, they must also be proportional to the compensatory damages. The Supreme Court requires such proportionality. Here, we have a 27.6 to 1 ratio. The Supreme Court "has cautioned that 'few awards exceeding a single-digit ratio between punitive and compensatory damages, to a significant degree, will satisfy due process.'” This ratio is too high, and the Court of Appeals reduces the punitives to $2 million, still a healthy deterrent against illegal and discriminatory behavior. The Court says:

The high degree of reprehensibility of Cromwell’s conduct supports a significant award of punitive damages. And the fact that Cromwell’s discrimination inflicted non-economic harms that may not be easily quantifiable likewise suggests that even a relatively high ratio of punitive to compensatory damages can survive constitutional scrutiny in this case. But the 27.6 to 1 ratio here is simply too high, as confirmed by the much lower civil penalties available for comparable conduct. 

We conclude that the jury’s award of punitive damages is unconstitutionally excessive and that the maximum sustainable amount of punitive damages is $2 million.

 

Class action plaintiffs can proceed with overtime case under FLSA

The Second Circuit once again tells us how to distinguish between employees and independent contractors for purposes of determining whether a plaintiff can bring an overtime case under the Fair Labor Standards Act. 

The case is Perez v. Escobar Construction, a summary order issued on July 31. Plaintiff wanted to bring this case as a class action, so if the plaintiff has a case, then many others would also have a case, and that can be financially painful for the employer. The case was dismissed after the district court determined the defendants were not the plaintiffs' employers. The Court of Appeals reinstates the case. 

The Court of Appeals (Bianco, Perez and Merriam) opens its discussion this way: 

The FLSA defines “employer” as “any person acting directly or indirectly in the interest of an employer in relation to an employee.” 29 U.S.C. § 203(d); see also N.Y. Lab. Law §§ 190(3), 651(6) (NYLL definitions of employer). Recognizing the “expansiveness” of this definition, Falk v. Brennan, 414 U.S. 190, 195 (1973), the Supreme Court has long instructed that employment status under the FLSA should be based on “economic reality rather than technical concepts.”

To assist in resolving these cases, the courts have devised a multi-part test in determining who is an employer. "Pursuant to the legal standard articulated in Carter v. Dutchess Community College, 735 F.2d 8 (2d Cir. 1984), we consider four factors: 'whether the alleged employer (1) had the power to hire and fire the employees, (2) supervised and controlled employee work schedules or conditions of employment, (3) determined the rate and method of payment, and (4) maintained employment records.'” No single factor is dispositive, which means the courts know an employer when they see one.

Plaintiffs can proceed to discovery. Defendant Escobar had power to hire and fire the plaintiffs and determine their rate of pay, among other things. The Court states:

Plaintiffs make specific factual allegations to support the Carter factors, including, inter alia, that Escobar: (1) “hired Plaintiffs”; (2) “would bring new workers to construction sites and would fire workers when there was a shortage of work at the project”; (3) “hired Vicente Pad[i]lla as assistant supervisor” and “had project supervisors manage the work schedules of each employee”; (4) “was present on a day-to-day basis at the University Project in Ithaca, New York” and “was a direct contact with Plaintiffs at [that] worksite”; (5) “had his workers work in extreme weather conditions without insulated clothes, boots, and overall[s]”; (6) “promised Plaintiff . . . Perez Perez a starting hourly wage rate of $18” and later “promised to raise . . . Perez Perez’s hourly wage rate to $25”; and (7) “promised Plaintiff . . . Sanchez Arias an hourly wage rate of $17 after a few months of employment.”

These factual allegations are enough to survive a Rule 12 motion to dismiss. It certainly helps plaintiffs' arguments that Escobar had power to hire and fire, hired at least one of the supervisors, and he controlled the allocation of workers and the conditions of employment. While plaintiffs do not make out the other Carter factors, such as that Escobar maintained time records, that does not mean they cannot prove he was an employer under the labor laws. 

The other defendants also lose the appeal and will have to defend themselves in the district court a similar analysis. And the Court of Appeals holds that other corporate defendants may be sued as well under the labor law principle that recognizes a worker may have joint-employers in bringing these cases.

Second Circuit broadly interprets the Ending Forced Arbitration Act in sexual harassment cases

In 2022, thanks to the #MeToo movement, Congress amended the Federal Arbitration Act to ensure that sexual harassment cases cannot be arbitrated. This was a huge change in the FAA, which courts have broadly interpreted to permit arbitration for just about any dispute, and close calls on this issue usually favor the enforcement of arbitration agreements. But the Ending Forced Arbitration Act embeds this new exception into the statute. Courts are still interpreting the EFAA, including the Second Circuit, which holds in this case that the statute voids any arbitration agreement even if some of the sexual harassment transpired prior to March 2022, when the EFAA was signed into law.

The case is Olivieri v. Stifel Nicolaus & Co., issued on August 12. In this case, the sexual harassment straddles the enactment date; some harassment took place prior to March 2022, and the retaliatory harassment took place afterwards. The post-March 2022 harassment was in retaliation for plaintiff's prior protected activity, a sex discrimination and hostile work environment lawsuit she filed against her employer. The lawsuit predated the EFAA's enactment date.

The employer wanted the court to enforce the arbitration agreement that plaintiff had signed, presumably when she began working for the company, arguing that her claim had accrued prior to the enactment date and noting further that the statute cannot be applied retroactively.

The statute, which the Second Circuit (Raggi, Robinson and Rakoff [D.J.]) notes is the first major revision to the FAA, enacted in the 1920s, states as follows:

Notwithstanding any other provision of this title, at the election of the person alleging conduct constituting a sexual harassment dispute or sexual assault dispute, or the named representative of a class or in a collective action alleging such conduct, no predispute arbitration agreement or predispute joint-action waiver shall be valid or enforceable with respect to a case which is filed under Federal, Tribal, or State law and relates to the sexual assault dispute or the sexual harassment dispute.

The statute adds that it applies “with respect to any dispute or claim that arises or accrues on or after the date of enactment of this Act”—i.e., March 3, 2022. This is the language that the Second Circuit grapples with in this case. 

When did plaintiff's claim accrue? The Court writes, "we often refer to a claim accruing and the limitations period starting as two sides of the same coin." That principle is relevant here, as sexual harassment cases often invoke the continuing violations doctrine, which says that a claim involving repeated episodes is timely if one of the episodes took place within the limitations period. 

Most continuing violation arguments fail, as discrete personnel decisions are enough to put the plaintiff on notice that it's time to file an EEOC charge. But in sexual harassment cases, the Supreme Court has held, such harassment creates a continuing violation if related acts of harassment, even if dating back two years, continue into the 300-day statute of limitations under Title VII. When that happens, all the harassment is actionable, including that which predated the 300-day period. The Court writes:

A common type of claim subject to the continuing violation doctrine, and the one relevant to this case, is a hostile work environment claim. Those claims are subject to the continuing violation doctrine because, unlike discrete acts, “[t]heir very nature involves repeated conduct.” A hostile work environment generally doesn’t occur on any one day; it emerges “over a series of days or perhaps years.”

As it happens, plaintiff filed her lawsuit prior to the March 2022 enactment date. But the retaliatory harassment continued following the enactment date. "If Congress had tied the effective date of the EFAA to when a claim first accrues, we might reach a different conclusion. But it didn’t, and we 'do not lightly assume that Congress has omitted from its adopted text requirements that it nonetheless intends to apply.'” Plaintiff's case will be litigated in court, not in the arbitration tribunal, because some of the harassment took place after the EFAA took effect in March 2022. That brings all the harassment into her claim, and it allows her to litigate that harassment under the new law.

This is a huge win for sexual harassment plaintiffs and their lawyers. Plaintiffs do not like arbitration because the proceedings are shielded from public scrutiny, the employer usually pays the private arbitrator for their time, discovery is limited, damages are lower, there are no juries, and I believe the plaintiffs prevail less frequently than in court. 

Three decades ago, the Supreme Court said discrimination suits may be arbitrated, a ruling that attracted a strong dissent from the liberal justices. It took a statute to break through a portion of that ruling, and the ruling in this case is the first time the Second Circuit has ruled that sexual harassment cases in general must be litigated in open court, notwithstanding the arbitration agreement.

Various police misconduct claims will proceed to trial despite qualified immunity defenses

I am sure that law enforcement defendants know that the qualified immunity principle allows them to avoid litigation if the court finds the acted reasonably in falsely arresting someone or subjecting them to excessive force. But if the trial court denies a qualified immunity motion at the outset of the case and the police wish to take up an immediate appeal (normally disallowed in federal practice), the record has to be 100% clear that the officers acted reasonably, even if we accept the plaintiff's version of events at true. Otherwise, the appeal is dismissed and the case returns to the district court.

The case is Kistner v. City of Buffalo, issued on May 24. Plaintiff was charged with criminal mischief. The charges were resolved in plaintiff's favor, and this lawsuit followed. The officers want the case to go away, but the district court denied that motion. The Court of Appeals finds there are too many factual disputes that would allow the appellate judges to award them qualified immunity.

The case started when  police vehicle collided with plaintiff, James Kistner. 

The parties clearly dispute what caused the contact between James and McDermott’s vehicle—an issue material to whether the officers had arguable probable cause to arrest and prosecute James for criminal mischief. 

Defendants-Appellants contend that they had arguable probable cause to arrest and charge James with criminal mischief for intentionally damaging the side mirror of the vehicle based on the testimony of the officers, who claim that James threw himself onto the vehicle. On the other hand, James testified that McDermott hit him with her vehicle and contends that he was arrested and charged with criminal mischief to cover up the accident. 

In discussing these competing accounts of the collision, the district court noted that “exactly what facts were available to the officers is in dispute” because although “[a] jury may find that the officers reasonably believed [that James threw himself into the car]; on the other hand, a jury may well find that the [surveillance] video [of the incident] casts doubt on the truth of what the officers say they perceived when [James] Kistner and McDermott’s vehicle collided.”

The Court of Appeals (Raggi, Chin and Perez) holds that disputes like this cannot be resolved on the papers. James' case will proceed. The same analysis applies to James' claim that he was falsely arrested for disorderly conduct. While the officers claim that James used abusive language in public, he denied doing so. That dispute means no qualified immunity for the officers. The jury will have to decide what really happened. Numerous other claims brought by this father-son plaintiff case are also not suitable for qualified immunity at this time, the Court of Appeals holds.

What will happen at trial is the parties will testify and the jury will be given written questions by the judge on specific factual issues. Once the jury answers those questions post-trial, the court will apply a qualified immunity analysis. So, the facts are for the jury, the law is for the judge. That's the process in federal court. If the jury rules for plaintiffs and the trial court gets the qualified immunity analysis wrong in affirming the verdict, the case will most likely return to the Court of Appeals for further review.

Appellate Division sustains sex discrimination finding by State Division of Human Rights

This Appellate Division ruling reminds us once again of an unpleasant fact relating to discrimination cases litigated in the State Division of Human Rights: that agency does not award a lot of money even when they find someone is a discrimination victim. At the same time, the Appellate Division usually defers to the judgments of the SDHR when that agency does find discrimination.

The case is In the Matter of State Division of Human Rights v. Adler, issued on July 10. The complainant won her hearing in the SDHR, finding that she was the victim of sex discrimination. The victim was a housekeeper. She won $6,000 in back pay and $25,000 for pain and suffering. The employer was also hit with a civil fine in the amount of $25,000. The SDHR usually rules in favor of the employers, so it looks like the complainant had a good case. 

The Appellate Division does not provide us with the facts giving rise to this case, but the SDHR's brief sure does, making it clear the sex discrimination was horrifying, causing the employer to be arrested and subject to a restraining order.

A good case in the SDHR does not always get you a high damages award. The SDHR brief says the victim "awoke night after night, terrified, from nightmares about the assault." She can no longer clean the homes owned by other men. The imposition of a civil fine means the SDHR thinks the employer's civil rights violation was serious, and judging from the SDHR's brief on appeal, it was serious. That might get you serious damages for pain and suffering in federal court, but not at the SDHR. 

The Appellate Division sustains the finding of liability and the amount of the damages. It does not look like the employer, named as a defendant in this appeal, filed a brief, but the SDHR brought this action to confirm the SDHR ruling, maybe to get a judgment that they can enforce against the employer.

Joyriding plaintiff cannot name John Doe defendants after the statute of limitations expires

Another lesson learned on when you can and cannot name John Doe defendants in police misconduct cases. The plaintiff waited too long to name them, and any claims against a John Doe defendant is dismissed.

The case is Gudanowski v. Burrell, a summary order issued on July 31. The case began when plaintiff was joyriding someone's tow truck and the police, following a high-speed chase, pulled him out of the vehicle and subdued him to the ground. Plaintiff claims the officers used excessive force.

As an initial point, there is such a thing as excessive force even if the police have the right to subdue someone. The joyriding does not make plaintiff a sympathetic litigant, but the law says the police have to use restraint when restraint is called for. Anyway, plaintiff did not know the names of the offending officers, so he named them as John Doe defendants. That is a common tactic, but the rule is you have to learn their names and identify them in the lawsuit within the statute of limitations, which is three years in New York.

At some point, plaintiff did get the names of the officers who were on the scene. But when he brought the lawsuit pro se, he did not name the officers as defendants and instead identified them as John Doe defendants. He says he proceeded this way because when he filed the case, he was in jail, and a prison law librarian told him that he could be sanctioned by the court if he accused people of wrongdoing without being sure of their culpability. This made plaintiff nervous, because the officers denied any misconduct.

While plaintiff eventually hired a lawyer who identified the John Doe defendants, the federal court said it was too late, and the case was dismissed. The Court of Appeals affirms the dismissal ruling, holding that plaintiff did, within the statute of limitations, know which officers had pulled him from the tow truck, subdued him, or both, and he therefore was in a position to name them in the excessive force lawsuit. It was not enough for plaintiff to accept at face value the officers' statements denying the use of excessive force. Since he named the officers after the three year statute of limitations expired, the case is dismissed against those officers.

What about the legal advice from the prison law librarian? The Court (Menashi, Lee and Nathan) holds that is no excuse for not naming the John Doe officers within the three-year window. You can excuse an untimely filing under the "mistaken identity" provided for in the federal rules, but the Court of Appeals holds that the librarian's advise is not the kind of mistake contemplated under the federal rules, as the mistake has to relate to the identify of the defendants, and not mistaken legal advice.

University students cannot sue Yale over the remote COVID classes

Here is another case involving a university COVID shutdown and efforts by the students to gain tuition reimbursement because they had to settle for remote learning, not in-class instruction. The students lose the case.

The case is Michel v. Yale University, decided on August 7. In March 2020, colleges and universities transitioned to remote Zoom classes because the COVID-19 wildfire. Next came the lawsuits claiming the colleges were not meeting their obligations to the students because remote learning is not as good as classroom learning. The Second Circuit has resolved a few of these cases lately, see Goldberg v. Pace University, 88 F.4th 204 (2d Cir. 2023), and Rynasko v. New York University, 63 F.4th 186 (2d Cir. 2024), as it takes a few years for these cases to litigate their way through the district courts and up to the Court of Appeals.

Plaintiff, who wanted to bring a class action after Yale transitioned to online classes for the rest of the semester, loses the case. The Court of Appeals (Livingston, Raggi and Robinson) treats this as a contract case. Students, upon entering the university, sign a contract that says the institution has discretion to suspend university programs and operations in the event of public health or significant safety or security concerns. Here is the relevant clause in the contract:

Temporary Suspension of University Operations. In the unlikely event that public health or other significant safety  or  security  concerns  cause  the  University temporarily  to  suspend University  programs  and operations, the University will make arrangements for appropriate refunds,  consistent  with  the  principles enunciated in these Regulations, as may in its judgment be warranted in light of all the circumstances of the suspension and consistent with applicable law and regulations. The decision to suspend programs shall be made at the discretion and judgment of the University.

When Yale adopted this policy, I am sure they did not anticipate in a million years it would take effect due to a pandemic. But policies like this are a testament to advance planning, and it saves Yale from  a costly class action lawsuit. The Court of Appeals finds this policy, which the plaintiff agreed to when commencing studies at Yale, is an enforceable force majeure clause, which is a “contractual provision allocating the risk of loss if performance becomes impossible or impracticable, esp[ecially] as a result of an event or effect that the parties could not have anticipated or controlled.”Clauses like this are legal, and other institutions should probably use the Yale policy in case they don't have one already.

New Jersey train operator prevails on workplace injury claim

The Federal Employers' Liability Act protects federal employees from certain work-related injuries arising from the employer's failure to maintain a safe working environment. This case asks whether a railroad company's faulty air conditioning that results in the employee's injuries can give rise to a case.

The case is Lupia v. New Jersey Transit Operators, issued on August 1. Plaintiff was a locomotive engineer whose train did not have a functioning air conditioning unit for his workspace, causing the cab to reach 114 degrees, which is hotter than hell. Plaintiff was ordered to operate the train anyway, and he eventually collapsed from heat exhaustion, suffering head and neck injuries, ending his career. Does he have a case? Yes, though the issue is not as simple as you might think.

The legal standard is that a railroad carrier can only operate the train when its "parts and appurtenances" in in proper condition. What is a part and appurtenance? That's a legal term of art adopted by Congress in passing the FELA. The Court of Appeals finds that a temperature control system is an integral or essential part of a locomotive, which cannot operate safely if its engineer is incapacitated from exposure to extreme heat. If the carrier bases its temperature control system on an air conditioning unit, then it must maintain that system in proper condition without unnecessary danger of personal injury. 

The jury in this case ruled for plaintiff, awarding him $11 million. The Court of Appeals (Calabresi, Lohier and Cabranes) therefore affirms, holding the New Jersey Transit was obligated to properly maintain the air conditioning unit once it determined to base its temperature control on that unit. 

Side issue: the railroad's lawyer objected when plaintiff's counsel asked the jury for a particular damages amount. In a footnote, the Court of Appeals notes that this issue is within the trial court's discretion. The Court of Appeals is not going to second-guess the trial court's judgment on this issue, and that objection is therefore no basis for a new trial.