$1 million damages award in student harassment sustained on appeal

The Court of Appeals has sustained a high damages award for the student victim of racial bullying in a Dutchess County high school. I talk about the liability portion of the decision at this link. Now for the damages.

The case is Zeno v. Pine Plains Central School District, decided on December 3. The student bullying went on for 3.5 years. The jury found that the school was deliberately indifferent to the harassment, and it awarded the plaintiff, Anthony Zeno, $1.25 million. The trial court reduced that amount to $1 million, and the Court of Appeals (Cabranes, Chin and Livingston) affirms.

In assessing a damages award on appeal, courts defer to the jury's judgment. But defendant argued that the award was too high because Anthony only suffered garden-variety damages and therefore the low damages awards under Title VII (for workplace discrimination) should govern. The school district also argued that the damages award is out of line with comparable cases. The Court of Appeals rejects both arguments.

First, Anthony put on corroborating evidence of his pain and suffering. His mother and an NAACP advocate who intervened on his behalf testified about his "increasing frustration, loneliness, and other emotional anguish. While Anthony's testimony alone arguably might not support his claim of emotional distress ..., others who testified corroborated Anthony's suffering and distress." Yes, there is a Second Circuit case that says that Title VII plaintiffs need to corroborate their damages, Annis v. County of Westchester, 136 F.3d 239 (2d Cir. 1998). The Court (and defendants) cite that case from time to time, and there are cases that go the other way. But if you represent plaintiffs, it's good to have family and friends testify about the plaintiff's distress.

Second, Anthony suffered "substantially adverse educational consequences" through prolonged harassment which ruined the high school experience, hurt his grades and compelled him to accept a substandard diploma because he was unable to complete Regents requirements, a diploma that does not get him into college. This is a new holding for the Second Circuit.

Third, Title VII damages awards are not applicable to student harassment cases under Title VI and Title IX. Title VII cases are brought by adults; student are more vulnerable than Title VII plaintiffs, as the U.S. Department of Education has stated in in its policy pronouncements. The harassment was particularly humiliating because it occurred in front of friends, classmates and teachers. "The jury reasonably could have found that the harassment would have a profound and long-term impact on Anthony's life and his ability to earn a living."

Although the Court of Appeals cites only one other student harassment case that resulted in a $1 million damages award, Anthony's award does not "shock the judicial conscience," which is the legal standard. A footnote summarizes other damages awards in student harassment cases. Most of the cases yielded damages in the six figures. One case got the plaintiff $800,000, but that verdict was overturned by the trial court because the evidence did not support the claim on liability; still, the Second Circuit cites that vacated case in support of Anthony's damages award. "Given the severity, duration, and egregiousness of Anthony's unchecked harassment, his reduced compensatory damages was not outside the 'range of permissible decisions.'"

The Fourth Amendment is soft on crime

If you remember politics from the 1980's, it was the kiss of death if your political opponent said you were soft on crime. That's how George H.W. Bush got elected in 1988. Anyway, it may surprise you to know that much of the Bill of Rights exists to protect criminal defendants. Including the Fourth Amendment.

The case is United States v. Murphy, decided on December 4. The police nailed the two defendants and found drugs in the car. The stop and search was recorded on police video. This is the rare case where the government loses the suppression hearing; the district court ruled against the police, who made an illegal stop of defendants' car. The Court of Appeals (Calabresi, Lynch and Lohier) affirms, and the drug evidence is suppressed for good.

The police testified that they stopped the car for not signaling onto the highway exit. But the district court had a factual basis to find that, instead, the police pulled over the defendants for no reason by turning on the police vehicle's emergency lights. In fact, there was overwhelming evidence that the police pulled over the defendants this way, particularly through the police-generated video and contemporaneous paperwork. The government's contrary factual arguments are in vain; the Court of Appeals is siding with the district court's findings, reached after a two-day hearing.

The government next argues that even if the stop was unjustified, the search was legal because the defendants consented to it. The government is allowed to make this argument. "When consent to search is preceded by an unlawful government seizure, the evidence obtained from the search must ordinarily be suppressed unless the Government shows both that the consent was voluntary and that “‘the taint of the initial [seizure] has been dissipated.’” The facts favor the defendants here. The car was seized only moments before the defendants supposedly consented to the search. The police tried to pull off a tactical maneuver called the "Kansas Two Step" in which they step back for a moment while the defendants ponder whether to consent, but the Second Circuit is not buying it. The government also argues that the consent is untainted by the illegal stop because the trooper was "calm and respectful ... during the encounter." That may be true, but it's not the kind of change in circumstances that can separate the stop from the search.

The defendants also made incriminating statements. Those statements are also suppressed. The police did not properly read their Miranda rights. The Court of Appeals agrees with the district court that, for one defendant, the Miranda reading gave an incomprehensible waiver instruction. As for the other defendant, he did not knowingly waive his Miranda rights, either. There is no evidence that he was even read his Miranda rights to start with.

So the drug evidence is suppressed and so are the incriminating statements. The police blew it, and these guys walk. The judges in this case, at the district and appellate court level, are mostly former prosecutors. It was the Constitution that got the defendants off.

Police officer survives Garcetti objection in free speech retaliation claim

A New York City police officer sued his employer because he suffered retaliation after he complained internally about a quota system within the department, "causing unjustified stops, arrests, and summonses because police officers felt forced to abandon their discretion in order to meet their numbers" and that the quotas were hurting the precinct's relationship with the community." Is this free speech? It might be.

The case is Matthews v. City of  New York, a summary order decided on November 28. Public employee speech claims have been difficult to win ever since the Supreme Court in 2006 held that speech arising from the plaintiff's official job responsibilities is not protected. This was the Garcetti case. Under Garcetti, the public employee has no First Amendment protection from retaliation even if his speech raises a matter of public concern.

The district court threw out the case, holding that the quota objections arose from Matthews' job duties. Technically, that was true. But dismissal was premature. Discovery is needed to see if plaintiff's speaking pursuant to his job duties. The Court of Appeals (Raggi, Hall and Carney) says:

The record in this case is not yet sufficiently developed, however, to determine as a matter of law whether Officer Matthews spoke pursuant to his official duties when he voiced the complaints made here in the manner in which he voiced them. See Garcetti v. Ceballos, 547 U.S. at 424–26 (distinguishing between giving employees an internal forum for their speech and making certain speech a duty of employment). As we have recently observed, “whether a public employee is speaking pursuant to h[is] official duties is not susceptible to a brightline rule.” ... The matter may require some inquiry into “the nature of the plaintiff’s job responsibilities, the nature of the speech, and the relationship between the two.” Here, some discovery as to these matters is necessary before it can be decided whether Matthews can or cannot pursue a First Amendment retaliation claim in this case.

This case is a summary order and therefore it carries little precedential value. But it has its moments for plaintiffs.Garcetti cases have fared poorly in the Second Circuit over the last six years. Matthews certainly spoke out on matters of which he was aware from his daily responsibilities. But was his speech part-and-parcel of his ability to do his job? That's the legal standard in the Second Circuit. Matthews' speech was certainly important. The Second Circuit is reluctant to dismiss the case completely and thinks some discovery and document review may shed further light on all of this.

School district was deliberately indifferent to endless racial harassment

School districts are liable for student-on-student harassment if they are deliberately indifferent to the problem. This legal standard contrasts with the more plaintiff-friendly negligence standard governing sexual harassment in the workplace. The Supreme Court devised the higher standard in part because kids do tend to tease each other at school and the school cannot be on the hook for everything. But these cases are still winnable. The plaintiff in this racial harassment case won $1 million in damages.

The case is Zeno v. Pine Plains Central School District, decided on December 3. My office represented the plaintiff at trial and on appeal. Anthony was racially harassed by various classmates for 3.5 years after he moved to Dutchess County from Long Island. The Second Circuit ruling details the harassment on a year-by-year basis, and if you think that we are beyond racial hatred in this country, take a look at pages 2-14 of the opinion. The verbal and physical harassment -- in the classroom, in the hallways, on the bus, in the cafeteria, and elsewhere -- was relentless. Anthony and his mother repeatedly complained to the school about the harassment. The family's lawyer and the local NAACP and Dutchess County Human Rights Commission also complained about it.

The question on appeal was whether the jury could find that the district was deliberately indifferent to the harassment despite punishing individual offenders and sponsoring an anti-bullying seminar and diversity program. (I will talk about the damages portion of the opinion in a later post). The Second Circuit (Chin, Cabranes and Livingston) writes, "In some circumstances, prompt disciplinary action against a student's identifiable harassers may show that a school district was not deliberately indifferent. The sufficiency of a response, however, must be considered 'in light of the known circumstances,' and as the 'known circumstances' change, the sufficiency of a response may also have to evolve." The Court of Appeals has never quite put it this way before, directing schools to reconsider their approach to the harassment if it gets worse or the remedial measures are not working. It cites a Sixth Circuit ruled to the effect that "where a school district has actual knowledge that its efforts to remediate are ineffective, and it continues to use those same methods to no avail, such district has failed to act reasonably in light of the known circumstances."

Here, five circumstances should have informed the District's continued response to student harassment of Anthony. First, it knew that disciplining Anthony's harassers -- through suspensions or otherwise -- did not deter others from engaging Anthony in serious and offensive racial conduct. (During his sophomore year alone, Anthony was subject to eight separate incidents of harassment.) Second, the harassment directed at Anthony grew increasingly severe. Of the eight incidents that occurred during his sophomore year, two were violent, three were threats on his life, and two resulted in Orders of Protection against the students involved. Third, the disciplinary action had little effect, if any, on the taunting and other hallway harassment, which persisted until Anthony left SMHS, three-and-a-half years after he arrived. Fourth, the District knew that the harassment predominantly targeted Anthony's race and color. And fifth, as early as November 2005, the Dutchess County HRC and N.A.A.C.P. offered the District both a free shadow, to accompany Anthony during the school day, and a free racial sensitivity training series.

The jury could find that the District's remedial response was inadequate and deliberately indifferent for a variety of reasons. While it disciplined many of the students who harassed Anthony, "it dragged its feet. before implementing any non-disciplinary remedial action -- a delay of a year or more. While many cases address delays preceding a school's initial response, once a school is aware of its ineffective response, a delay before implementing further remedial action is no less problematic. At some point after Anthony's first semester, the District should have done more, and its failure to do more "effectively caused" further harassment." Also, "the District's additional remedial actions were little more than half-hearted measures. For example, it coordinated mediation, but did not inform Mrs. Zeno when or where it would be held. Its additional programs either (1) did not focus on racial bias or prejudice, or (2) made attendance optional. This was evident in the District's training for students, parents, and teachers; it was for one day only and focused on bullying and sexual harassment, rather than racial discrimination."

These programs were not enough. The Court writes, "The record indicates that these programs were selected in lieu of the free shadow or racial sensitivity training offered by the Dutchess County Human Rights Commission and N.A.A.C.P. in November 2005, almost a year earlier and only nine months after Anthony was first harassed. Although actually eliminating harassment is not a prerequisite to an adequate response, the District's actions could not have plausibly changed the culture of bias at SMHS or stopped the harassment directed at Anthony." Moreover, the jury could find that "the District ignored the many signals that greater, more directed action was needed."

The deliberate indifference test is still evolving. The Second Circuit borrowed its reasoning from other circuits. That Anthony endured more than three years of harassment did not help the school's position on appeal. Nor did it help that the school ignored certain remedial options that could have made the harassment stop. Liability is affirmed.

The son dies and the parents are arrested: no case

Wrongful death cases against the police are difficult to win for a number of reasons. First, the victim is dead and therefore cannot contradict police accounts of what happened. The plaintiff's relatives -- who bring the lawsuit on his behalf -- may not have any witnesses who can support the argument that the police acted in haste. Second, it's usually (let's face it) difficult people who get into a shootout with the police. Juries like the police and dislike troublemakers on the street. Of course, all this assumes the case reaches the jury. It may not.

The case is Fortunati v. State of Vermont, a summary order decided on November 26. The police shot and killed Joseph Fortunati while attempting to take him into custody. His family sought a jury trial because of a factual dispute over whether Joseph pulled a gun on the police before they opened fire on him. There are some factual disputes in the record, but not enough to undercut as a matter of law the police's argument that they had no choice but to pull the trigger. The Court of Appeals (Jacobs, Pooler and Hall) says,

None of the small differences in testimony Plaintiffs cite creates a genuine dispute as to whether Joseph aggressively drew or reached for his gun immediately prior to being fired upon by the TSU team members. Some officers were able only to see Joseph reach for his waist, but small differences in testimony simply do not rise to the level at which a reasonable jury could find the officers’ credibility damaged. The district court was therefore correct to conclude that there was no genuine dispute of material fact as to the credibility of the officers.

The record also shows that two of the officers shot at Joseph. Here's where the qualified immunity kicks in. Qualified immunity gives police officers the benefit of the doubt in close cases. So that even if the officers violated Joseph's rights, they acted reasonably under qualified immunity. "The Troopers understood Joseph to either be armed or in close proximity to the gun he had brandished hours earlier. The intervening nine hours did not diminish the danger Joseph posed to police and the surrounding community. Thus, the use of non-deadly force by the Troopers who deployed the bean bag ammunition against Joseph meets the objective reasonableness test."

Joseph's parents also sued the police for false arrest after the police detained them for 45 minutes in the aftermath of their son's death. Again, on paper, the police violated their rights in detaining the parents (it does not look as if the parents were charged with any offense). But the police acted objectively reasonably, at least in the eyes of the Court of Appeals:

The encounter was tense; it took place at a crime scene; and the officers had reason to believe that Robert might be armed. The officers were undoubtedly aware that the Fortunati family would be upset over Joseph’s death, and they could also reasonably protect against disruption of the scene of the shooting and interference with their investigative duties. It was therefore objectively reasonable for Defendants to believe that Susan and Mark’s detention did not rise to the level of an arrest, notwithstanding that they may have been detained for a period of up to forty-five minutes after Robert had been taken into custody.

One more try for the inmate litigant

We have not yet reached the point where pro se inmates are prohibited from filing lawsuits against their jailors. I'm sure if such a measure came up for a popular vote, no inmate would be allowed to bring lawsuits, at least if they cannot find a lawyer willing to take on the risks of the litigation. That day is not upon us, probably because the anti-litigation forces have not thought about such a ballot proposal. In the meantime, we are reluctant to pull the plug. We know that inmates get slapped around when no one's looking.

The case is DeBoe v. DuBois, a summary order decided on November 27. Plaintiff's civil rights lawsuit against Orange County corrections officers was dismissed. The district court said that DeBoe's complaint did not state a claim under Rule 12(b)(6). The Second Circuit (Walker, Katzmann and Hall) reinstates the lawsuit because plaintiff has the right to re-plead his failed claims. The Court of Appeals reasons:

In his complaint, DeBoe alleged that, after he refused [Orange County Correctional Facility] officer Kessner’s “sexual demands,” Kessner threatened DeBoe, “punish[ed]” him, and instituted “[p]unitive retaliations.” Given these allegations, we cannot say at this juncture that, if the district court had provided DeBoe with an opportunity to amend his complaint, he would have been unable to state a § 1983 claim under the due process provisions of the Fourteenth Amendment. We therefore find that a remand is necessary to permit DeBoe to amend his complaint against the OCCF defendants.

Who knows what happened to this guy at the Orange County Jail? The Complaint was probably too conclusory to exit the starting gate. The Court of Appeals knows the plaintiff is an inmate who doesn't know how to draft a complaint. But his conclusory allegations may lead to something, so he gets another chance.

Second Department upholds sexual harassment verdict

Any lawyer who prepares clients for deposition will certainly advise him not to volunteer anything. Any lawyer who takes depositions knows to ask enough questions to box in the witness on critical facts before closing out the deposition. How does this play out at trial?

The case is Cheathem v. Ostrow, decided by the Appellate Division, Second Department, on November 21. My law partner and I tried the case, and I argued the appeal. This is a sexual harassment case that went to trial in Orange County Supreme Court in February 2009. The plaintiff worked for a small employer who persisted in seeking sex and groped and touched her over the course of two weeks, causing her quit her job because she couldn't take it anymore. At deposition, counsel asked her to describe the harassment. Each time, she testified about more incidents. But plaintiff was never asked the "close out" question that would box her in, i.e., "have you told me everything he did to you?" So, at trial, she testified for the first time that her employer wanted to play "Simon Says" at work. He took off his shirt, suggesting that she do the same.

On cross-examination, defendant's counsel wanted to impeach plaintiff for not testifying about Simon Says at deposition. The trial judge said this was impermissible because plaintiff did not have the opportunity to testify about this in deposition. Plaintiff went on to win this he-said she-said case; the jury awarded her $25,000 for pain and suffering. The Appellate Division affirms, reasoning that the trial court did not abuse its discretion in limiting the scope of cross-examination:

At trial, the plaintiff testified that her employer, the defendant Stephen Ostrow, required her to play the game “Simon Says,” and that during this game, he instructed her to hop on one foot and expose her bare chest to him. Although the plaintiff did not testify about this event during her deposition, the plaintiff was not asked in her deposition whether she testified to every alleged instance of sexual harassment. Under these circumstances, the use of the plaintiff’s deposition testimony to impeach this portion of her trial testimony would have been confusing and unfairly prejudicial, and the Supreme Court properly precluded defense counsel from doing so.

A contrary ruling would allow the jury to think the plaintiff was making up the story because she did not mention Simon Says at deposition. There is nothing like getting the plaintiff to admit that her account was omitted (or different) from her prior sworn testimony. In a close case, that kind of impeachment can turn the case around. What this case tells us is that the plaintiff should not volunteer testimony at deposition, and that defendants have to box-in the plaintiff so there are no surprises at trial.