Inmate's civil rights case against New York State is rejected

The Court of Appeals has held that an inmate in a New York prison cannot win his constitutional claims alleging the prison was deliberately indifferent to certain jail conditions or retaliated against him for exercising his free speech rights.

The case is Smith v. New York State, a summary order issued on November 12. Smith was incarcerated at Coxsackie State Prison, south of Albany. He claims the temperature during his prolonged confinement in the jail infirmary was freezing cold in order to terminate his hunger strike, in violation of the Constitution. 

These cases are not easy to win. Under the Fourteenth Amendment, the inmate has to prove that jail officials were deliberately indifferent to a serious medical need, and that, objectively, the conditions were inhumane under constitutional standards created by the U.S. Supreme Court. Eighth Amendment cases, asserting cruel and inhumane treatment, carry similar legal standards. 

Prolonged cold can support a case like this. But plaintiff loses because there is no evidence that prison officials knew about and disregarded any serious harm to plaintiff. Instead, the record shows that, while in the infirmary, plaintiff had a set of closing, including shirts and other apparel and even an extra blanket if he requested one, and even cold-weather clothing for the winter months, and that his hunger strike affected his perception of coldness in the infirmary. 

The First Amendment case also fails, the Court of Appeals (Carney, Bianco and Nardini) holds. Inmates do have free speech rights, but you still have to show that the prison's conduct toward you was sufficiently adverse, i.e., it would deter other inmates from asserting their speech rights in the future. The Court applies a court-made doctrine in cases like this: "We approach prisoner retaliation claims with 'skepticism and particular care,' given that 'virtually any adverse action taken against a prisoner by a prison official—even those otherwise not rising to the level of a constitutional violation—can be characterized as a constitutionally proscribed retaliatory act.'” With that in mind, plaintiff loses. "The conduct that Smith perceived as retaliatory, including restricting his library access and recreation time, was primarily a function of his admission to the infirmary due to his hunger strike, and no rational jury could find that such conduct, under the particular circumstances here, would deter a 'similarly situated individual of ordinary firmness from exercising his or her constitutional rights.'”

2d Circuit upholds NLRB's ruling against employer

In this case brought under the National Labor Relations Act, the National Labor Relations Board ruled against the employer, Blue School, which refused to bargain with its employees or certify the election after its employees voted to join a union. The Court of Appeals sustains the NLRB's ruling.

The case is NLRB v. Blue School, a summary order issued on November 12. The NLRB certified the election. To win this case, the employer faces a "heavy burden" in proving the NLRB abused its discretion in ruling against the employer. The employer argues the NLRB abused its discretion because the Regional Director directed an immediate mail-ballot election and then overruled the employer's objections without a post-election hearing. Both arguments fail, says the Court of Appeals.

First, we have a problem: the Blue School does not exist any longer. In a footnote, the Court (Jacobs, Merriam and Velardo [D.J.]) says the NLRB was still pursuing this action because "providing notice of its action to the former employees furthers the Board's mission of ensuring that workers are aware of their rights." All this places this case in a very odd procedural context.

On the merits, here is the factual background giving rise to this case:

The Union filed its representation petition on June 7, 2021. A few weeks later, at the end of the school year, approximately 48 out of the school’s 93 employees were terminated. The remaining eligible employees were able to vote in the election over the summer and voted overwhelmingly to unionize – 24 votes in favor and four against. Because the election took place over the summer, Blue School had limited opportunity to communicate with the remaining employees about their options. The new employees that joined the school in the fall were bound by the vote, though they had not had the opportunity to participate. In the end, one population of employees made the showing of interest, a second population voted to join the union, and yet a third was subject to the results of that election. 

No delay in the election was warranted here, the Court of Appeals says, because the faculty maintained their employment throughout the year with little to no fluctuation. They were not seasonal employees. The Regional Director also found that the school's employees constituted at least 84 percent of the planned collective bargaining unit, so the current employees occupied 100 percent of the anticipated job classifications. "The Regional Director therefore reasonably determined that Blue School’s then-current employees easily met the minimum threshold for a substantial and representative complement of the planned unit, and the Board appropriately directed an immediate election."

The Regional Director was also allowed to conduct the election by mail. There is a body of case guiding decisions like this. "Substantial evidence supported the Regional Director’s determination that the scattering of employees during the summer break presented a challenge to in-person voting. The Board thus appropriately upheld the Regional Director’s decision to conduct a mail-ballot election."

What about the school's objection that it wanted a hearing to resolve its post-election objection? The school said that, due to the conduct of nonparties, the employees were to able to exercise their freedom of choice on whether to join a union. That argument fails, the Court says, because the school did not indicate which employees would testify or summarize their anticipated testimony.

 

Hostile work environment case against Buffalo Archdiocese may proceed

This case raises an odd procedural question, but the underlying issue is interesting. The plaintiff brought a charge of discrimination with the State Division of Human Rights, claiming religious discrimination. The employer wants to assert the "ministerial exception," which allows certain religious institutions to avoid litigation if the plaintiff's job duties were "ministerial" in nature and required them to preach the gospel in some way. Does the defendant have to raise the ministerial exception in its Answer to assert it in litigation?

The case is Ibhawa v. New York State Division of Human Rights, issued by the New York Court of Appeals on November 26. The real defendant is not the NYSDHR but Plaintiff's former employer, the Archdiocese in Buffalo, which fired him after it subjected him to racial slurs. The defendant did not raise the ministerial defense in its Answer to the charge of discrimination. That omission would not matter if the ministerial defense were a jurisdictional defense, which the defendant can raise at any time. You cannot waive a jurisdictional defense. 

This case reaches the New York State Court of Appeals to resolve this issue. The NYSDHR ruled in favor of the former employer and dismissed the case, and the Fourth Department agreed with that determination. But that was wrong, the Court of Appeals holds, because the Supreme Court cases that adopted the ministerial exception have characterized it as an affirmative defense and not a jurisdictional defense. That means you have to raise this defense in the Answer if you want to raise it. The case is therefore reinstated and plaintiff can litigate his claims.

The larger issue is whether the ministerial exception applies when the plaintiff asserts a hostile work environment claim. This defense always applies when the employer wants to fire an employee whose job, for example, involves teaching students about religious principles. The courts do not want to tell religious employers who can take on these positions. This concern is rooted in the religious freedom clauses under the First Amendment and the principle that religious employers have the right to determine who will spread the gospel, even if the plaintiff insists he was fired for reasons that have nothing to do with spreading the gospel. But courts have disagreed on whether the ministerial exception applies when the plaintiff claims he was subjected to racial or sexual harassment. In those cases, the employer is not asserting the right to employ religious messengers of its choice. In that circumstance, some courts have held, the ministerial exception does not apply. New York courts have not definitely resolved this issue, and it is not resolved in this case.

Excessive force claim is dismissed on summary judgment

This was an awful case that led to someone's death. But that does not mean the plaintiff can win the lawsuit. The trial court granted New York City's motion for summary judgment, and the Court of Appeals affirms.

The case is Purcell v. City of New York, a summary order issued on December 5. On August 14, 2015, the police shot the Garland Tyree, Jr. outside his apartment, causing his death. This shooting followed a standoff. The Court of Appeals notes that "Purcell has suffered a tragic loss. But upon independent, de novo review of the summary judgment record and the briefs on appeal, we agree with the District Court’s conclusion: 'The evidence put forth by Defendants establishes that their lethal use of force against Tyree on August 14, 2015, though tragic, was not excessive.'”

Excessive force claims under the Fourth Amendment cannot prevail if the police acted in a manner that was objectively reasonable in light of the circumstances confronting them. This is a fact-specific inquiry, as no two cases are alike. Excessive force claims often go to trial because it is impossible for the court to determine on the papers if the police acted reasonably. But this is not one of those cases. The Court of Appeals (Calabresi, Merriam and Rakoff [D.J.]) holds as follows:

The record reflects that Tyree was shot by police officers after a protracted armed standoff during which Tyree fired several shots and wounded a New York firefighter; officers on the scene were able to observe Tyree (by video feed) in his apartment “with an AK-47-style rifle and a bulletproof vest.” 

Purcell disputes this evidence – contending, for instance, that Tyree was unarmed and did not fire any shots – but she points to no evidence in the record to support her position. Indeed, the record reflects, and Purcell admits in her appellate brief, that the officers were the only witnesses, other than Tyree, to the fatal shooting; in so doing, she concedes that her own assertions about the event are not based on personal knowledge. 

By contrast, the defendants’ version of events is supported by, among other things, deposition testimony of multiple officers present at the scene and photographs suggesting that Tyree fired an AK-47-style rifle in the direction of officers prior to their use of deadly force. On this record, there is no genuine dispute of material fact regarding the reasonableness of force used by the officers.