Six figure civil rights verdict thrown out on appeal

Private individuals can be sued for a constitutional violation if they conspire with public officials, i.e., police officers, in depriving someone of his rights. This is the exception to the general rule that private actors are not governed by constitutional standards. In this case, the plaintiff recovered damages against a bar which allegedly conspired with the police to violate his rights. The Court of Appeals takes that verdict away.

The case is Demeo v. Tucker, a summary order decided on January 29. Demeo claimed that an officer and a bar bouncer assaulted him at a bar, the Phlip'n Spill. He also says the bar and the officer conspired to destroy video surveillance footage of the assault, in violation of the due process right to access the courts. The jury agreed that the bar conspired with the police officer in this regard, and plaintiff was awarded $110,000 in compensatory and punitive damages.

As the Court of Appeals (Jacobs, Pooler and Chin) puts it, "the jury concluded that Phlip’N Spill acted as a willful participant in joint activity with Trooper Reyner and deprived DeMeo of due process by altering, destroying, or losing video evidence. However, the jury concluded that Trooper Reyner did not deprive DeMeo of due process by altering, destroying, or losing video evidence."  This looks to be an inconsistent verdict. If the officer did not violate plaintiff's rights, then the private actor could not have conspired with the officer to violate his rights.

Trying to save the verdict, the district court post-trial said that the trooper may have encouraged the bar to destroy the evidence. But the Court of Appeals says this is "naked conjecture" for which there is no proof. "It is, quite simply, a fiction." The verdict is gone.

The ADA's reasonable accommodation requirement may trump state law

The Court of Appeals has held that the Americans with Disabilities Act may require the state to waive certain eligibility deadlines if waiver would reasonably accommodate a disabled person under the Act.

The case is Mary Jo C. v. New York State and Local Retirement System, decided on January 29. This case is an Americans with Disabilities Act tour de force, giving us a tutorial on the ADA and what it all means. The case arose when plaintiff, a librarian who suffers from a mental illness, was unable to meet the strict deadline for classifying the termination of her employment as a leave of absence. She "failed to recognize" the three-month filing deadline "because of her mental illness." That reclassification was necessary for plaintiff to recover disability retirement benefits.The district court threw out the case because the plaintiff missed the deadline. The Second Circuit reinstates the case.

Two competing legal rules clash in this case: New York's deadline for filing disability retirement claims, and the ADA's requirement that public entities reasonably accommodate the disability if the accommodation does not interfere with essential eligibility requirements. A requirement is essential if waiving the requirement would fundamentally alter the program's nature. The Second Circuit (Sack, Raggi and Swain [D.J.]) says that a formal eligibility requirement is not necessarily essential to the program. "we read the ADA to require us to analyze the importance of an eligibility requirement for a public program or benefit, rather than to defer automatically to whatever 'formal legal eligibility requirements' may exist, no matter how unimportant for the program in question they may be." A contrary interpretation of the ADA would undercut that statute's broad remedial purpose, the Second Circuit says. "The district court's view that the ADA's reference to 'essential eligibility requirements' necessarily refers to each and every formal legal eligibility requirement imposed for participation in a public program or benefit is mistaken."

The Court next determines whether the retirement benefits deadline is an essential component of the retirement program. It is not. Congress wanted Title II of the ADA to "sweep broadly." And, as state law cannot preempt federal law, "the ADA's reasonable modification requirement contemplates modification to state laws, thereby permitting preemption of inconsistent state laws, when necessary to effectuate Title II's reasonable modification provision." But there is some judicial modesty here: the Court does not say that all state deadlines must be waived in the interests of accommodating the disabled. "Because 'the determination of what constitutes reasonable modification is [a] highly fact-specific, . . . case-by-case inquiry,' '[w]hether the plaintiff['s] proposed alternative' to New York's filing deadline 'constitute[s] [a] reasonable modification[] or [a] fundamental alteration[] cannot be determined as a matter of law on the record before us.'" On this motion to dismiss, the Court of Appeals holds that the district court should not have granted Rule 12 dismissal of plaintiff's Title II claim against the state retirement system. The take-away is that in some cases, the ADA's reasonable accommodation requirement will override state law.

One final holding in the case: employment discrimination cases under the ADA may only be filed under Title I of the Act, not Title II, which prohibits discrimination in government programs. The Court of Appeals finds that Congress wanted Title I to cover employment discrimination, not Title II. Employment is not a government program, at least in the way that most people interpret the word "program." In a related claim, the plaintiff sued her former employer, a library, under the Act. She alleged that the library failed to file a retirement application on her behalf. While there is a split among the courts on this issue, the Court of Appeals sides with the library's position on this one.

The 2d Amendment comes to the 2d Circuit

The national gun debate came to the Second Circuit this week as the Court of Appeals took up a Second Amendment issue that is so tricky that it sent the case to the New York Court of Appeals to iron out a threshold legal issue.

The case is Osterweil v. Bartlett, decided on January 29. The plaintiff was a temporary New York resident who wanted a gun for his part-time residence in Schoharie County (he lived in Louisiana). New York law provides for gun licenses "where the applicant resides, is principally employed or has his principal place of business as merchant or storekeeper." Plaintiff's application was denied because he did not reside in New York anymore. Does this violate the Second Amendment?

Chief Judge Jacobs and Judge Walker are sitting on the panel of this case. Also on the panel is retired Supreme Court Justice Sandra Day O'Connor, who writes the decision. She notes that the Supreme Court in 2008 said that the Second Amendment protects the right to keep a handgun at home for self-defense. She thinks this case raises a serious constitutional issue, and my guess is that the Supreme Court would say that New York's residency restriction violates the Constitution.

The district court said that the law is reviewed under intermediate scrutiny because "the law allows the government to monitor its licensees more closely and better ensure the public safety." But Justice O'Connor is not sure New York's law really prohibits non-residents from owning a gun. In different contexts, state laws define "residence" differently. If "residence" in this instance includes a temporary residence, then there is no constitutional problem, because then plaintiff can get the gun license even though he now primarily lives out of state. If residence means "domicile," then we have a real issue here. To solve this riddle, the Second Circuit certifies this case to the New York Court of Appeals, which can issue a definitive issue on this important issue of state law.

Religious speech may be restricted at school-sponsored graduation ceremony

The Court of Appeals has ruled that an upstate New York school district had the right to censor a student's middle school graduation speech that included religious language.

The case is A.M. v. Taconic Hills Central School District, a summary order decided on January 30. It all started when the plaintiff's class was moving up from middle school to high school. She was allowed to deliver a brief speech at the school-sponsored ceremony. The final sentence of the speech said, “As we say our goodbyes and leave middle school behind, I say to you, may the LORD bless you and keep you; make His face shine upon you and be gracious to you; lift up His countenance upon you, and give you peace.” The principal told A.M. to take out the religious reference, and she complied. Then she sued under the First Amendment.

The Supreme Court held 50 years ago that mandatory school prayer is unconstitutional. Over the years, that holding has been extended to prayer and religious statements at graduation ceremonies. Another line of cases (including the Hazelwood decision) gives school administrators discretion to control student speech in school-sponsored newspapers and events. The graduation ceremony was school sponsored, the Court of Appeals (Chin, Droney and Gleeson [D.J.]) says, in part because "the Ceremony was set to occur at a school-sponsored assembly, to take place in the school [auditorium], to which parents of the students were invited.” Had A.M. given the religious speech, reasonable observers would have believed that the school district had endorsed it. The lenient standard under Hazelwood thus governs this case.

The next question is whether the school's directive that A.M. edit out the religious message was reasonable under Hazelwood. It was, because it was a content-based restriction, which administrators can impose in order to avoid an Establishment Clause problem. The plaintiff argued that this was actually a viewpoint-based restriction, which the district cannot impose without a compelling interest. (The plaintiff has a better chance at victory in challenging a viewpoint restriction). But the Second Circuit says that defendants excluded a content-based "general subject matter" (religious speech) from the event rather than a viewpoint-based "prohibited perspective" restriction. In other words content-based restrictions exclude an entire arguably inappropriate subject matter (such as religion) while viewpoint-based restrictions narrow student dialogue or debate on an issue. It's a fine line, but one that makes all the difference in determining what school administrators can get away with.

This case raises a complex issue that consumes nine pages of analysis, an anomaly for summary orders. My guess is that the plaintiff will petition this case for Supreme Court review.

Public employee due process claim is tossed

Plaintiff was reappointed on four occasions to his "Building Official" position. Each reappointment got him another four years. The Board of Selectmen in this Connecticut community had discretion to bring plaintiff back each time. After plaintiff filed a grievance protesting a town official's effort to restrict his speech activity, he filed a First Amendment lawsuit. After plaintiff filed the lawsuit, the town hired another Building Official to replace plaintiff. He sues under the Due Process Clause.

The case is Looney v. Black, decided on December 21. The district court denied defendants' motion to dismiss the claim, but the Court of Appeals reverses and dismissed the claim on qualified immunity grounds because the law was not clearly established that town officials violated Looney's due process rights. You need a constitutionally-protected right to continued employment to maintain a claim like this, but the Second Circuit (Straub and Jacobs) says the law was not clear that Looney's rights were violated, and the case is tossed. Judge Droney dissents.

Circuit precedent holds the Due Process Clause creates a property right if the plaintiff "had been promised something explicitly -- either verbally, or in the terms of the applicable collective bargaining agreement -- about specific conditions during the future term of their employment."

Reviewing the cases, the Second Circuit says, "Ezekwo was told both in writing and in person that she could expect to be chief resident during her third year of residency. Ezekwo v. Health and Hospitals, 940 F.2d at 782 (2d Cir. 1991). Ciambrello was working pursuant to a collective bargaining agreement that stated he would not be demoted without engaging in incompetence or misconduct. Ciambrello v. County of Nassau, 292 F.3d at 319 (2d Cir. 2002). Harhay was contractually promised that she would be reappointed to an available position. Harhay v. Town of Ellington, 323 F.3d at 212 (2d Cir. 2003)."


Those cases do not help Looney. No one promised him anything. He creatively argues instead that provisions of Connecticut law and certain statements made to him at the start of his employment along with the fact that he was repeatedly reappointed to his position for years and years created a course of conduct giving rise to a protected property interest in his position that could not be deprived without due process, i.e., a hearing. But state law does not provide for that kind of expectation, and the fact that the Board kept reappointing him to the position does not trigger protection under the Due Process Clause. Even in his last appointment, the Board made no explicit promises.

Counsel's technical error kills off $2.7 million appeal

The Court of Appeals has dismissed as untimely an appeal in a challenge to a $2.4 million judgment because the lead counsel did not file the notice of appeal in time. The Second Circuit says it was the lawyer's fault because his failure to update his email address meant that the ECF system sent the judgment to the wrong location.

The case is Communications Network International v. MCI WorldCom, decided on January 24. This is a bankruptcy dispute. The district court ruled in favor of MCI in the amount of $2.7 million. Judgment was entered on September 24, 2010, and the notice was sent by the Electronic Case Filing system to the email address that counsel registered with ECF when he worked for a different law firm. When counsel moved to a new law firm, he did not update his email address with the ECF system. So the judgment went to the old address, and counsel did not see it until long after the deadline to file a notice of appeal. The district court took mercy on counsel and extended the time to file the notice of appeal. The Court of Appeals reverses, and the appeal is dismissed.

The 30 day deadline to file a notice of appeal is jurisdictional, which means it cannot be changed. Except that sometimes it can be changed, for good cause, i.e., if the clerk's office forgets to send out the judgment or there is some other "excusable neglect." The district court has discretion whether the extend the deadline, but that discretion is not unlimited. Here, the district court abused its discretion. Writing for a 2-1 majority, District Judge Kaplan (sitting by designation) writes, "The purpose of the rule was to ease strict sanctions on litigants who had failed to receive notice of the entry of judgment in order to file a timely notice of appeal, whether the fault lay with the clerk or other factors beyond the litigants’ control, such as the Postal Service. There is nothing in the history of the rules, however, to suggest that the drafters sought to provide relief when the fault lies with the litigants themselves."

Here, the late filing was counsel's fault. When he signed onto the ECF system and created his profile, he agreed to update his contact information. We all agreed to do this, whether we remember doing this or not. Counsel must have forgotten to update his email address when he changed law firms. So the $2.7 million judgment cannot be challenged on appeal. A bad day for the client that wanted to take up the appeal, and a horrendous day for counsel, whose name and email addresses are sprinkled all throughout the decision.

50-50 deal on Title VII retaliation claims

A double-plaintiff discrimination claim goes to trial on the hostile work environment claims, but only one of the plaintiffs goes to trial on his retaliation claim. The case is Rivera v. Rochester Genesee Regional Transportation Authority, decided on December 21. Read all about the hostile work environment claims here. Both plaintiffs claimed that management retaliated against them for complaining internally about the work environment.

Let's start with Rivera, who goes to trial because co-workers harassed him over his national origin. Under the Supreme Court's Burlington Northern precedent, in order to win a retaliation claim, the employer's reaction to the good-faith complaint has to dissuade a reasonable worker from making or supporting a charge of discrimination. While context matters in this equation and the Court will look at the alleged acts of retaliation in the aggregate and not piecemeal, Rivera does not have enough. "Rivera points to two disciplinary citations he received for insubordination over a two-year period, his assignment to drive particularly 'dirty buses,' one late overtime payment, and Lift Line’s one-time refusal to give him a half-day off for a doctor’s appointment." But, the Court of Appeals (Lohier, Droney and Kearse) says that Rivera "presented no evidence that they reflected anything other than RGRTA’s 'enforce[ment] [of] its preexisting disciplinary policies in a reasonable manner.'”

Talton, though, gets a trial on his retaliation claim. His supervisor, Tibero, told Talton that filing complaints of discrimination could get him fired. And, when Talton told Tibero about the hostile work environment, Tibero responded, "suck it up and get over it, nigger!" If that does not dissuade someone from complaining about discrimination again, then I don't know what would. The Court of Appeals agrees with me: "In our view, such discriminatory harassment from a supervisor may alone suffice to establish an adverse employment action, as 'unchecked retaliatory co-worker harassment, if sufficiently severe, may constitute adverse employment action so as to satisfy the [third] prong of the retaliation prima facie case.'” In contrast, when other co-workers complained about Talton's alleged disruptive behavior in the workplace, management took care of it expeditiously. "A reasonable juror could infer that RGRTA’s swift response to the complaints by Talton’s co-workers was designed to, and did, send a message that Talton’s employment at Lift Line was in serious jeopardy as a result of the EEOC charges."