No compensatory damages under Title II of the Americans with Disabilities Act

The Court of Appeals in this case considers whether a former college student may recover damages for an Americans with Disabilities Act violation against a public college that issued no-contact orders against him following a situation that happened during freshman orientation. Plaintiff is not entitled to damages.

The case is Doherty v. Bice, issued on May 10. During freshman orientation at SUNY Purchase, plaintiff got into a dispute with someone else in the dormitory, which led to a no-contact order: plaintiff was to stay away from three students in particular. Plaintiff claims the no-contact orders constituted discrimination because of his disability. Plaintiff loses the case.

First, his challenge to the no-contact order is moot. He wanted a declaratory judgment and injunction against the order, but now that plaintiff has graduated, there is nothing to litigate on this issue. An injunction would be pointless. The college said the order is no longer in effect, and that is enough for the Court of Appeals (Sullivan, Lee and Carney) to find that this issue is moot. I guess one way around this might have been to seek an injunction at the outset of the case, when plaintiff was still a student. The Second Circuit ruling is silent as to this and my guess is there was no such application.

What about compensatory damages flowing from the no-contact order? Plaintiff says the campus found out about the order, causing him mental anguish. Here is where things get tricky. Normally, you might recover damages for this if the court determines the order violated the ADA. But not all civil rights violations will get you damages. In Cummings v. Premier Rehab Keller, 596 U.S. 212 (2022), the Supreme Court said that certain civil rights statutes, like Title IX, do not provide for compensatory damages because they were enacted pursuant to the Constitution's Spending Clause. Certain statutes, like Title VI, Title XI, the Rehabilitation Act, and the Affordable Care Act, the Supreme Court said, are silent as to such damages, and the only way we can infer that they provide for such damages is if the funding recipient is on notice that it may be on the hook for compensatory damages if it accepts federal funding and it exposes itself to liability. There is no such notice under these statutes, the Cummings Court said. This is a complex area of constitutional law, to be sure.

The reasoning in Cummings, the Court of Appeals holds, applies to this action under the ADA. While the ADA is not Spending Clause legislation, Title II of the ADA, under which plaintiff brings this action, expressly links the remedies, procedures, and rights provided by Title II to the remedies under the Rehabilitation Act. Under the ADA, then, damages are similar to those available under the Rehabilitation Act, which also prohibits disability discrimination in certain contexts. Since the Rehabilitation Act is Spending Clause legislation, no damages are available under that law. That limitation on damages applies to cases brought under Title II of the ADA. What it means for plaintiff -- and other ADA plaintiffs who are suing under Title II, which prohibits discrimination in the provision of public services and governmental activities. 

When plaintiff brought this action in 2018, no one had the benefit of the Supreme Court's ruling in Cummings, so no one anticipated this holding. On appeal, plaintiff tries to get around Cummings by arguing that he is really suing for breach of contract. But that is not asserted in the complaint. He further argues that he is entitled to nominal damages, but the complaint does not expressly seek such relief. While plaintiff argues in his reply brief that he is not required to assert nominal damages in the complaint, since that argument was raised for the first time in the reply brief, the Court of Appeals deems that argument forfeited.

Important rule for the filing of notices of appeal in federal court

The rules of appellate procedure may not be exciting, but they are important. You have to follow them. Not following them can have important consequences. Consider this case.

The case is Hampton v. McDonough, a summary order issued on May 7. Plaintiff sued the Department of Veterans Affairs for employment discrimination. The jury ruled against him and entered a verdict for the Department. Judgment entered on February 2, 2023. Plaintiff then did two things. First, he timely filed a post-trial motion on February 27, 2023. Then, on March 7, 2023, he pro se filed a notice of appeal from the judgment entered on February 2. The district court ruled on -- and rejected plaintiff's post-trial motion -- on April 28, 2023. But plaintiff never filed a notice of appeal from the April 28, 2023 order. 

Without a notice of appeal from the April 28, 2023 order, what issues are legitimately before the Court of Appeals? Was it enough for plaintiff to file a notice of appeal on March 7, 2023? Does that filing give the Second Circuit jurisdiction to rule upon the trial court's April 28, 2023 decision denying the post-trial motions? The issue is crystalized by this fact: plaintiff only wants to appeal from the April 28, 2023 order, not the verdict itself, which the only notice of appeal in this case makes reference to.

The Court of Appeals has no jurisdiction to resolve this appeal because plaintiff did not file a notice of appeal from the April 28, 2023 ruling. Under the Federal Rules of Appellate Procedure, plaintiff had to file another notice of of appeal -- or an amended notice of appeal -- after the trial court issued the April 28, 2023 decision. That's Fed. R. App. P 4(a)(4)(A), if you care enough to look it up, but you probably won't.

Plaintiff seeks equitable relief in asking the Court of Appeals (Jacobs, Menashi and Nardini) to resolve the appeal anyway, in part because he was pro se during the initial stage of the appellate process. But, the Second Circuit says, there are no equitable reasons here. The Court writes:

Although Hampton was pro se when he filed his March 7 notice of appeal of the February 2 judgment, he had retained appellate counsel as of May 6. His counsel had until late June 2023 (60 days after the entry of the April 28 order denying his post-trial motions, see Fed. R. App. P. 4(a)(1)(B)) either to file a new notice of appeal of the April 28 order or to amend his existing notice of appeal. But Hampton’s appellate counsel did neither, and counsel’s failure to comply with the Rules cannot be attributed to, or excused by, Hampton’s earlier pro se status.

This is unpleasant to read. The Court of Appeals is saying that plaintiff's appellate lawyer failed to file the notice of appeal from the April 28, 2023 order. No lawyer wants to read something like this, be it the lawyer who failed to make the proper filing, or the lawyers who are reading the decision. The moral of the story is: when in doubt, file an amended notice of appeal. It will not cost you anything if the first notice of appeal has already been validly filed.

Grainy video and eyewitness testimony gets criminal defendant a new trial

 Eyewitness testimony. Do you trust it? In recent years, the courts have looked more carefully at eyewitness accounts, noting that such accounts are often unreliable. In this case, the New York Court of Appeals chips away a little further on eyewitness testimony and holds that the criminal conviction needs to be vacated.

The case is People v. Mosley, issued on April 23. Here is what happened: police cameras in Syracuse captured a grainy video of a man running through the street firing three shots into a van. No one saw the shooter. But again, it was hard to know who was captured on the video. So the police looked around for people who could identify the guy in the video. They found Detective Kilburn, who said Mosely was the guy in the video. Kilburn testified that knew Mosley and had sat in a room with him in the past (maybe in relation to other cases). 

Kilburn accordingly told the jury that he met Mosley about seven months after the video was captured during his routine “canvassing” of the Syracuse neighborhood where the shooting occurred, had known him for about a year and a half, and that he had “interacted” with Mosley, “walked” with him, and spoken with him on a “couple” of occasions. He testified that he was familiar with Mosley’s “body language,” “body type,” and “build.” He then viewed the video and identified the shooter as Mosley. He explained that though he did not know Mosley at the time of the shooting and did not know what Mosley had been wearing that day, he based his identification on his interactions with Mosley, his “build,” the “shape of his nose,” and “on previously viewing the video and being able to zoom in and stuff.” Though he referenced Mosley’s nose, he conceded when shown screenshots of the video “the face is a blur” and there was no nose apparent at all. Kilburn also opined that Mosley’s appearance had not changed, and that Mosley “as he sits there now is the same as when I first encountered him, which is the same as he appears in that video.”

This testimony was not admissible, the Court of Appeals holds under a "totality of the circumstances" test, as (1) "the People did not establish that Kilburn was sufficiently familiar with Mosley to render his identification helpful to the jury"; and (2) "Kilburn did not connect any distinctive traits of Mosley’s to the person depicted in the surveillance photo. Before the jury, Kilburn stated that he was familiar with Mosley’s 'build,' 'body language,' 'body type,' and the 'shape of his nose.'" Admitting this testimony was not harmless error, as it probably convinced the jury that Moseley was the man in the video. The case will have to be tried again. Whether the prosecution has enough evidence without Kilburn's testimony is not clear.
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Exam proctor can be fired for reporting Regents exam shenanigans

The plaintiff was a New York City exam grader and proctor who reported to the New York City Special Commissioner of Investigation that a high school principal tried to enlist plaintiff in a scheme to alter a student's Regent's exam. Plaintiff said no to this and reported the principal. Plaintiff brings this action, claiming he was terminated in retaliation for his whistleblowing. What result?

The case is Severin v. New York City Dept. of Educ., a summary order issued on May 1. Morally, plaintiff is in the right. You want whistleblowers like this working for the city. He was probably shocked to know that his case was dismissed because his whistleblowing does not count as First Amendment speech. Sure, it is speech. But it is not free speech under the First Amendment.

The reason for this is that the Supreme Court has held that public employees are not protected if they engage in work speech, only citizen speech. Work speech is pursuant to your job duties. Citizen speech is what the rest of us do. Employees can engage in citizen speech, but it must be unrelated to their job duties, for the most part. The Supreme Court said this in Garcetti v. Ceballos (2006). In 2010, the Second Circuit said it's work speech if the statements are "part and parcel" of the plaintiff's "concerns about his ability to properly execute his duties. That framework takes a lot of speech out of the First Amendment's protection, and ever since Garcetti, free speech retaliation cases by public employees have been dismissed with regularity.

Plaintiff's case fails because reporting testing irregularities, even fraud, are part and parcel of his capacity to perform his work. He was an exam grader and test proctor, after all. While his written job duties did not compel him to report this misconduct, that does not matter. Courts look beyond the job description in ruling on cases like this. Nor does it matter that plaintiff was not overseeing the specific exam at issue in this case, the Court of Appeals (Livingston, Calabresi and Perez) says, "because the proper administration of a system-wide exam, such as the Regents exam, requires the vigilance of those responsible for the exam throughout the system."

Criminal defendant gets new trial after juror thought he was following her during trial

I would guess that it's a nightmare for a judge to deal with a jury problem during trial. In this case, a juror told the judge a few days into the criminal trial that she thought the defendant had been trailing her in his car a few days earlier, and she had shared this concern with her fellow jurors. The court has to discharge an unqualified juror, but you know the court does not want to declare a mistrial either. What to do?

The case is People v. Fisher, issued by the New York Court of Appeals on April 23. The defendant was charged on a drug offense. On the first day of jury selection, one  juror thought the defendant was following her in his car, six to eight car lengths away from her. She did not promptly share this concern with the court but waited three days, telling other jurors in the meantime about this while they deliberated on the defendant's guilt. When the juror finally told the judge, he did not believe the defendant had been following her, and the jury proceeded to find the defendant guilty.

Defendant gets a new trial. The Court of Appeals finds the jury was "grossly unqualified" to sit on the case, as it finds the juror held a strong bias against the defendant such that he was denied an impartial jury. The key here is that her concern related to the defendant's character and her concern that he was trying to intimidate her, as she was almost certain he was in fact following her, though she admitted it was possible the defendant was going somewhere else and it may have been a coincidence that she saw him on the road that day.

Also concerning is that the juror did not share her concerns with the court right away, after she told the other jurors that she thought the defendant had been following her. That brings an irrelevant concern into the jury deliberations. Another problem is that when the court asked the juror if she could be fair and impartial, she replied, "I can be a fair and impartial juror, yes, I can say that, because the other juror members encouraged me, because their safety might be at risk." The Court of Appeals observes, "By reiterating her concern for safety even while assuring the court that she could be fair, Juror Six undercut the value of her assurance" that she could be fair and impartial.

NY Court of Appeals holds plaintiffs cannot sue individual coworkers for discrimination under the NYC Human Rights Law

The New York State Court of Appeals has held that the City Human Rights Law, one of the most expansive in the nation, does not allow plaintiffs to sue co-workers for discrimination, including the creation of a hostile work environment.

The case is Russell v. New York University, issued on April 25. Under Title VII, the federal employment discrimination statute, plaintiffs can only sue their employers. For that reason, and many others, the New York City HRL provides for greater protections, making it easier for plaintiffs to win their cases. The statute has been amended several times over the years to correct "bad" court rulings that, in the City Council's mind, misinterpreted the City law and failed to honor its legislative intent to construe the statute liberally and to avoid simply parroting federal court decisions interpreting Title VII.

In this case, plaintiff sued NYU for employment discrimination under federal and city law. The federal court dismissed the federal claims on summary judgment and declined to exercise jurisdiction over the city law claims, sending the case to New York Supreme Court, which determined that collateral estoppel required the same result as the federal court ruling. The question for the New York Court of Appeals -- the highest court in New York -- is whether plaintiff can get around collateral estoppel by claiming an individual co-workers created a hostile work environment on the basis of gender. The Court writes:

The City HRL expressly provides for liability at the individual employee level, making it “an unlawful discriminatory practice . . . [f]or an employer or an employee or agent thereof, because of the actual or perceived age, race, creed, color, national origin, gender, disability, marital status, partnership status, caregiver status, sexual and reproductive health decisions, sexual orientation, uniformed service, height, weight, or immigration or citizenship status of any person . . . [t]o discriminate against such person in compensation or in terms, conditions or privileges of employment.” (Emphasis supplied).

The 6-1 majority holds this language means the only individuals who can discriminate against employees under the City law are those "who wield any ability to dictate or administer the compensation, terms, conditions, or privileges of the plaintiff's employment." The Court reaches that conclusion basis on a plain-language reading of the statute. Co-workers who do not wield that authority over the plaintiff cannot be sued for discrimination under the City law.

In dissent, Judge Rivera argues strongly that the majority got it wrong, noting that its analysis ignores the liberal statutory construction and even favorably cites an Appellate Division ruling on this issue, Priori v. New York Yankees, 307 A.D.2d 67 (1st Dept. 2003), that the City Council in 2005 disavowed in amending the City HRL to provide greater protections for plaintiffs who sue their coworkers. 

The City law does use different language for retaliation cases:

It shall be an unlawful discriminatory practice for any person engaged in any activity to which this chapter applies to retaliate or discriminate in any manner against any person because such person has (i) opposed any practice forbidden under this chapter, (ii) filed a complaint, testified or assisted in any proceeding under this chapter, (iii) commenced a civil action alleging the commission of an act which would be an unlawful discriminatory practice under this chapter, (iv) assisted the commission or the corporation counsel in an investigation commenced pursuant to this title, (v) requested a reasonable accommodation under this chapter, or (vi) provided any information to the commission pursuant to the terms of a conciliation agreement made pursuant to section 8-115 of this chapter. 

The italicized language says that "any person" cannot retaliate against anyone who engages in protected activity under the statute. That provision was not before the New York Court of Appeals in this case.

Defendant's outburst allowed trial court to remove him from courtroom as jury announced its verdict

In this case, the criminal defendant in state court was removed from the courtroom while the jury was issuing its verdict because the trial court decided that a prior warning was not practicable. This is the rare case where the conviction is affirmed even though the defendant was not present in the courtroom during all proceedings.

The case is People v. Dunton, issued by the New York Court of Appeals on April. The defendant, standing trial in a shooting case, had a violent record while in custody at Riker's Island, requiring the court take additional security precautions during trial. As the majority states in this case, the defendant had known "explosive tendencies." During trial, the prosecution told the court that one of its witnesses complained that defendant had stared her down while she was testifying against him, signaling that she should keep her mouth shut. 

When the jury began reading its verdict in court, after finding him guilty on the sixth count, and with one count to go, defendant yelled at the jury in open court and told them to "suck my d***." The judge then removed defendant from the courtroom and the jury proceeded to find him guilty on the seventh charge. 

While criminal convictions can be overturned for a new trial when the defendant is improperly removed from the courtroom during all proceedings, there are exceptions to that rule, and this case creates an exception. The Court of Appeals holds that removal was proper in the unique circumstances of this case. The majority reasons:

In disregard of his professed assurances, and demonstrating his contempt for the proceedings and the court, defendant disrupted the announcement of the verdict three times. First, he laughed after the foreperson announced guilty on five counts, including the top count of attempted murder. Second, moments later, after the foreperson announced guilty on the sixth count, defendant directed a verbal outburst at the jury. Third, after the court instructed counsel to control defendant, defendant continued his tirade, using profanity directed specifically at the jury. It was only after defendant could not be controlled and the jurors had become visibly upset by defendant's verbal abuse that the court directed the officers to take charge and defendant was removed from the courtroom.

 

Contrary to the dissent's view, the totality of defendant's misconduct in and out of the courthouse rendered a warning to defendant immediately preceding his removal impracticable. Any delay in defendant's removal would have permitted further disruption of the proceedings and risked physical danger to the public, jurors, judge, court officers and staff and the lawyers. As the court had earlier observed, “things get ugly very fast in a [quite small] courtroom.” The fact that defendant was handcuffed did not eliminate the possibility that he could physically move about and further disrupt the proceedings and injure those in attendance. Indeed, defendant had previously displayed violent sudden outbursts and there was no certainty that handcuffs would prevent him from reacting in the same manner.

 

In disregard of his professed assurances, and demonstrating his contempt for the proceedings and the court, defendant disrupted the announcement of the verdict three times. First, he laughed after the foreperson announced guilty on five counts, including the top count of attempted murder.⁵ Second, moments later, after the foreperson announced guilty on the sixth count, defendant directed a verbal outburst at the jury. Third, after the court instructed counsel to control defendant, defendant continued his tirade, using profanity directed specifically at the jury. It was only after defendant could not be controlled and the jurors had become visibly upset by defendant's verbal abuse that the court directed the officers to take charge and defendant was removed from the courtroom.⁶

Contrary to the dissent's view, the totality of defendant's misconduct in and out of the courthouse rendered a warning to defendant immediately preceding his removal impracticable (see dissenting op. at ––––, ––– N.Y.S.3d at ––––, ––– N.E.3d at ––––). Any delay in defendant's removal would have permitted further disruption of the proceedings and risked physical danger to the public, jurors, judge, court officers and staff and the lawyers. As the court had earlier observed, “things get ugly very fast in a [quite small] courtroom.” The fact that defendant was handcuffed did not eliminate the possibility that he could physically move about and further disrupt the proceedings and injure those in attendance. Indeed, defendant had previously displayed violent sudden outbursts and there was no certainty that handcuffs would prevent him from reacting in the same manner.

People v. Dunton, No. 42, 2024 WL 1723124, at *5 (N.Y. Apr. 23, 2024)

In disregard of his professed assurances, and demonstrating his contempt for the proceedings and the court, defendant disrupted the announcement of the verdict three times. First, he laughed after the foreperson announced guilty on five counts, including the top count of attempted murder.⁵ Second, moments later, after the foreperson announced guilty on the sixth count, defendant directed a verbal outburst at the jury. Third, after the court instructed counsel to control defendant, defendant continued his tirade, using profanity directed specifically at the jury. It was only after defendant could not be controlled and the jurors had become visibly upset by defendant's verbal abuse that the court directed the officers to take charge and defendant was removed from the courtroom.⁶

Contrary to the dissent's view, the totality of defendant's misconduct in and out of the courthouse rendered a warning to defendant immediately preceding his removal impracticable (see dissenting op. at ––––, ––– N.Y.S.3d at ––––, ––– N.E.3d at ––––). Any delay in defendant's removal would have permitted further disruption of the proceedings and risked physical danger to the public, jurors, judge, court officers and staff and the lawyers. As the court had earlier observed, “things get ugly very fast in a [quite small] courtroom.” The fact that defendant was handcuffed did not eliminate the possibility that he could physically move about and further disrupt the proceedings and injure those in attendance. Indeed, defendant had previously displayed violent sudden outbursts and there was no certainty that handcuffs would prevent him from reacting in the same manner.

People v. Dunton, No. 42, 2024 WL 1723124, at *5 (N.Y. Apr. 23, 2024)