Discrimination case knocked out by stray remarks doctrine

Sometimes, offensive comments in the workplace are not enough to support a discrimination lawsuit. In this case, the plaintiff tries to connect her termination with stupid comments that were made prior to that event, but the Court of Appeals says the comments were too far removed from her termination to allow the case to proceed to trial. This case acquaints us with a few judge-made rules governing employment discrimination cases.

The case is Bentley-Ammonds v. Northwell Health, Inc., a summary order issued on March 28. Plaintiff was a Senior Director for Northwell Health Home. She says the Medical Director of Home Health at Northwell, Wolff, made two comments in particular. The first comment took place in April 2017, when Wolff said, “it would be helpful if you had a bong at your desk and took a couple of hits off of that bong, that would help with your knee pain.” Plaintiff says this comment was racially-motivated "because Wolff knew that she was African-American, that her father was from the Caribbean, and there are stereotypes about people from the Caribbean smoking marijuana." The second comment was made in June 2016, when Wolff said she had hired a “Caucasian nurse, not a black nurse like Erika, and she doesn’t have a black name. I think her name is . . . Valerie.” More than three months later, plaintiff was fired.

Even if these were racist comments, the Second Circuit says these comments cannot give rise to an inference of discriminatory intent because they were too remote from plaintiff's termination, and they do not relate to plaintiff's job performance, retention, or eventual termination. In other words, these are what we call "stray remarks." Plaintiffs' lawyers hate the "stray remarks" doctrine, and I am sure that some jurors would hold comments like this against the employer, but the courts long ago decided to draw the line on comments like this to prevent a finding of liability for comments that are too remote in time and do not relate directly to the plaintiff's termination.

Even if plaintiff survived the stray remarks hurdle, the Court says, she cannot win the case because she is unable to show the employer's reason for her termination was false or discriminatory. Management said it fired plaintiff because she shared details about the impending discipline of one of her subordinates with other employees. Plaintiff says that justification is false because a nurse, Alfaro, had already revealed that information to the entire department, but the nurse suffered no consequences for this.

At first glance, this is a great argument. But that overlooks another principle guiding these cases: similarly-situated comparators. The courts want your comparator to be similar to the plaintiff in job title and workplace standards. The Court (Cabranes, Raggi and Carney) says, "Bentley-Ammonds and Alfaro were obviously differently situated, because Bentley-Ammonds was a supervisor—Alfaro’s supervisor, in fact—and because Alfaro immediately attempted to remediate the effects of her inadvertent disclosure, whereas Bentley-Ammonds did not."

Defendant also says plaintiff was fired because she took "time back," that is clocking in for work when she was not actually there. That will get you fired, but not if others are also doing it without consequence. That defense works in this case because plaintiff's evidence on other time abusers is either hearsay or conclusory. Nor does plaintiff assert that the other time abusers were outside her protected class.

Board's verbal reprimand of one of its members does not give rise to First Amendment claim

The Supreme Court has provided important guidance on what constitutes an "adverse employment" in First Amendment retaliation suits. Except that the holding is limited to the facts of this case. The Court  holds that a member of the community college Board of Trustees who was verbally reprimanded by the rest of the Board following his disagreements about college policy cannot bring a retaliation claim.

The case is Houston Community College System v. Wilson, issued on March 24. The acrimony between the parties is set forth in the opinion. Wilson went to war against the Board, publicly accusing it of violating its bylaws, he hired people to surveil other Board members, and he sued the Board, accusing it of having prohibited from performing his core duties as a trustee. When it had enough of this, the Board censured Wilson, who claims in turn the censure was in retaliation for his free speech. The Supreme Court votes 9-0 in holding that Wilson cannot sue the Board because the censure is not enough for a lawsuit. In legalese, the censure is not an adverse employment action.

The Court does not approach this like the usual employment dispute, in which it would only ask whether this alleged adverse action was enough to chill Wilson's speech. Instead, the Court considers the history of elected bodies in the United States to censure their members. This has been the practice since at least 1811, when the U.S. Senate censured one of its members. The history lesson in this decision outlines other examples of public bodies censuring its members over bad behavior. While the Court notes that adverse actions usually exist when the governmental body takes action that might chill someone's speech in the future, the holding in this case really rests on two factors.

First, elected representatives like Wilson are expected to shoulder public criticism; it's part of the job. People like Wilson are also expected to publicly respond to this criticism. That's necessary to ensure the free discussion of governmental affairs. Second, the censure itself was a form of free speech by the Board of Trustees. They have rights, too. Since the censure did not prevent Wilson from performing his job, it did not actually silence his speech (as he continued to attack the Board over one of its reprimands) and it was not defamatory, "we do not see how the Board's censure could have materially deterred an elected official like Mr. Wilson from exercising his own right to speak."

The Court is careful to note that some reprimands may in fact constitute adverse actions, depending on the plaintiff. This language will be useful for lawyers who handle these cases on behalf of rank-and-file employees, was well as lawyers who defend such cases. Citing Circuit court cases, Justice Gorsuch writes:

In rejecting Mr. Wilson’s claim, we do not mean to suggest that verbal reprimands or censures can never give rise to a First Amendment retaliation claim.  It may be, for example, that government officials who reprimand or censure students, employees, or  licensees  may  in  some  circumstances materially impair First Amendment freedoms. Likewise, we do not address today questions concerning  legislative censures accompanied by punishments, or those aimed at private individuals. Nor do we pass on the First Amendment implications of censures or reprimands issued by government bodies against  government  officials who do not serve as members of these bodies.

Moreover, the Court says, "when the government interacts with private individuals as sovereign, employer, educator, or licensor, its threat of a censure could raise First Amendment questions. But those cases are not this one." Ultimately, "Our case is a narrow one" dealing only with "a censure of one member of an elected body by other members of the same body."

False arrest and excessive force claim by Connecticut doctor will go to trial

The Court of Appeals holds that a jury trial is necessary to resolve a doctor's claim that a police department in Connecticut entered her home without a warrant, subjected her to malicious prosecution, and used excessive force during the arrest.

The case is Pal v. Cipolla, a summary order issued on March 14. It all began when Pal called the police to report that her child's preschool teacher was driving back and forth in front of her house after having threatened her. The police told Pal that she cannot call 911 for non-emergencies and directed her to call on the other line; Pal insisted this was an emergency. Generally, Pal says the police were dismissive of her concerns and did nothing to stop the back-and-forth driver. When the police finally arrived at Pal's house, after a brief exchange of words, she went inside her house but the officers pulled her out of the house, slamming her head against the door frame in the process. One of the officers called Pal a "Muslim bitch." Eventually, the officers sent her to a psychiatric evaluation. In the ambulance, Pal says, she was attacked and sexually assaulted. She was arrested for misusing the 911 system, assault on a public officer, and related offenses. This is just a summary. The district court opinion provides a frame-by-frame detail of this encounter.

Summary judgment was denied on some of Pal's claims, and the officers appeal, claiming entitlement to qualified immunity. Such an early appeal is allowed, but only if the undisputed facts (or the facts as alleged by the plaintiff) allow this immunity to be resolved prior to trial. (Generally, you can't appeal in federal court until the entire case is over).

On the home search claim, the district court denied the officers' motion for summary judgment, and the Court of Appeals affirms. The trial court wrote, "the parties dispute whether the defendants entered Pal's home, and the video footage submitted does not show a clear picture of what occurred at the front door. [Officer] Cipolla maintains he was at the doorway of Pal's home when he grasped Pal's shoulders and pulled her to the front stoop. He denies that the officers entered the house. Pal, however, testified that as she started to close the door, Cipolla 'stepped inside' and that all three officers entered" The Second Circuit agrees this issue must be tried before a jury, as the jury may find the officers entered her home without a warrant or any exigent circumstances that would have justified immediate entry to prevent a health or safety problem. And there was no risk that she would escape if not immediately apprehended or that she was armed and dangerous.

Disputed facts also preclude qualified immunity for the officers on the malicious prosecution claim, as the jury may credit Pal's account that she never assaulted any EMT employees or tried to bite an officer. If the jury believes Pal on these issues, then it may find there was no probable cause to arrest on these charges. The facts in this case are convoluted, and the jury will have to sort it all out.

Finally, excessive force. Same result. The trial court reasoned, "when the evidence is viewed in the light most favorable to Pal, the record shows that the three officers rushed into her home, and dragged her out while she clutched the bannister of the staircase, causing her head and the right side of her upper body to be “slammed” against the door frame. Under that set of facts, a reasonable jury could find that the defendants violated Pal's clearly established constitutional rights." The Court of Appeals agrees.

Pal v. Cipolla, No. 3:18CV616 (MPS), 2020 WL 6881455, at *15 (D. Conn. Nov. 23, 2020), aff'd, No. 20-4222-CV, 2022 WL 766417 (2d Cir. Mar. 14, 2022)

Pal has proffered sufficient evidence in support of her claim to show a genuine issue of material fact exists. ECF No. 179-2. Specifically, the affidavit of her daughter states that she “saw policeman [Cipolla] going into the bedroom and my mom's office and opening closets and drawers” and, later, “standing in the guest room,” where “[h]e was taking my mom's gold necklace” and “money” and putting those items in his pocket.

Pal v. Cipolla, No. 3:18CV616 (MPS), 2020 WL 6881455, at *15 (D. Conn. Nov. 23, 2020), aff'd, No. 20-4222-CV, 2022 WL 766417 (2d Cir. Mar. 14, 2022)

Pal has proffered sufficient evidence in support of her claim to show a genuine issue of material fact exists. ECF No. 179-2. Specifically, the affidavit of her daughter states that she “saw policeman [Cipolla] going into the bedroom and my mom's office and opening closets and drawers” and, later, “standing in the guest room,” where “[h]e was taking my mom's gold necklace” and “money” and putting those items in his pocket.

Pal v. Cipolla, No. 3:18CV616 (MPS), 2020 WL 6881455, at *15 (D. Conn. Nov. 23, 2020), aff'd, No. 20-4222-CV, 2022 WL 766417 (2d Cir. Mar. 14, 2022)

A rare win for Rule 60 motions in the Second Circuit

The procedural history of this gun-rights case is strange, so strange that it resulted in the case being dismissed. The Court of Appeals reopens the case, making this the rare case where the district court abused its discretion and someone can open up a judgment under Rule 60. 

The case is Passalacqua v. County of Suffolk, a summary order issued on March 1. A companion case, Lin v. County of Suffolk, was also issued on March 1 and has the same reasoning. All plaintiffs in this case handled the appeal pro se. 

In February 2020, following a status conference, the trial court entered an order that closed the case, stating that the parties could move to reopen the case no later than August 20, 2020. While the case was administratively closed, the trial court accepted a motion from defendants to dismiss the case on the merits. In February 2021, the trial court sua sponte terminated all motions because plaintiffs had not timely moved to reopen the case. Plaintiff's motion under Rule 60(b)(6) to reopen the case was denied.

The Court of Appeals (Kearse, Walker and Livingston) reverses and finds for the plaintiffs. Rule 60 is the last resort when something goes wrong with your case. It allows the trial court to vacate the judgment and reopen the case for good cause and to avoid extreme hardship. But the trial court has discretion to grant or deny these motions. For most cases, the "abuse of discretion" is the kiss of death, as the standard for determining whether such abuse existed is broad and deferential to the trial court.

Rule 60 helps plaintiffs here because administrative closure (like the one entered in February 2020) is reserved for that rare case when other alternatives are impossible or would significantly interfere with the district court's operations. As it is not clear why the district court closed out the case in February 2020, plaintiffs' confusion about that maneuver constituted "extraordinary circumstances" requiring the trial court to reopen the case. You never see people winning their Rule 60 appeals in the Second Circuit, so savor this one and enjoy it for all it is worth. 

Court once again holds that prosecutors cannot be sued even in egreguious cases of prosecutorial misconduct

This case provides a vehicle for the Court of Appeals to clarify when prosecutors are immune from any lawsuits arising from their official duties. The Court holds that district attorneys in Suffolk County cannot be sued under Section 1983 for prosecuting the plaintiffs for child endangerment and other allegations after plaintiffs left their positions as nurses working in nursing home facilities in Long Island.

The case is Anilao v. Spota, issued on March 9. On the advice of their attorney, plaintiffs quit their jobs claiming the nursing facility had breached its contracts with them, allowing them to resign without any legal repercussions once their shifts ended. Plaintiffs and their lawyer were prosecuted for child endangerment and other professional misconduct, and the jury indicted them for these crimes, but after State Supreme Court said the prosecutor was able to proceed with the case, Appellate Division dismissed all the charges, holding plaintiffs did not commit any crime in leaving their jobs and that their lawyer did not do anything wrong in providing them legal advice.

Prosecutors have absolute immunity for actions taken during the judicial phase of the criminal process. they can be sued (and invoke qualified immunity) if they act without any colorable claim of authority, or if the prosecution's decision had a jurisdictional defect. No matter how you slice it, it's quite hard to sue the prosecutor; otherwise, every criminal defendant would do so, particularity following their acquittals.The Court of Appeals reviews a few cases of pretty bad prosecutorial misconduct that did not allow the victims to sue them under Section 1983, including one case where prosecutors maliciously went after someone despite knowledge that the charges were false. 

There is no dispute on appeal that the District Attorney was authorized by statute to prosecute the plaintiffs for endangering children and physically disabled persons, for conspiring to do the same, and for soliciting others to do so.8 Neither the dissent nor the plaintiffs propose that the state Supreme Court of Suffolk County lacked jurisdiction over the offense. Instead, the plaintiffs submit only that the prosecutors in this case had no power to act as they did — not because they lacked the statutory authority to do so, but because their conduct violated the nurses’ rights[.] [U]nder our precedent absolute immunity shields Spota and Lato for their prosecutorial and advocative conduct even in the absence of probable cause and even if their conduct was entirely politically motivated.

Judge Chin dissents, stating that this is the rare case where prosecutors can be sued  under Section 1983. He writes:

In this case, the Suffolk County District Attorney's Office (the "DA's Office") brought criminal charges against ten nurses and their lawyer for "patient abandonment" because the nurses resigned their positions at a nursing home to protest their work conditions and the lawyer advised them of their rights and filed a discrimination claim on their behalf with the Department of Justice. The Appellate Division, Second Department, took the extraordinary step of issuing a writ of prohibition to bar the DA's Office from pursuing the charges, recognizing that the nurses and their attorney were "threatened with prosecution for crimes for which they [could not] constitutionally be tried." Vinluan v. Doyle, 873 N.Y.S.2d 72, 83 (2d Dep't 2009) (Eng, J.). Indeed, as the Second Department held, "these criminal prosecutions constitute[d] an impermissible infringement upon the constitutional rights of these nurses and their attorney." Id. at 75. . . . In the extraordinary circumstances presented here, where the prosecutors were "proceeding . . . 'without or in excess of jurisdiction,'" Vinluan, 873 N.Y.S.2d at 77 (quoting N.Y. C.P.L.R. § 7803(2)), they were not protected by absolute or qualified immunity

ADA reasonable accommodation claim will go to trial

Here is a reasonable accommodation case under the Americans with Disabilities Act for the modern age: the plaintiff wanted to be able to work from home to accommodate her disability, but management denied that request. The Court of Appeals says she has a case.

The case is Laguerre v. National Grid USA, a summary order issued on March 11. Plaintiff was a customer service representative who also has lupus. Her job involved handling phone calls for the company. While her first claim alleging that she wanted to be transferred to a new position failed because plaintiff was unable to identify identify the existence of a vacant position to which she could have been reassigned, her other claim may proceed to trial. That's the telecommuting claim.

The telecommuting claim may proceed to trial because the record shows it was plausible for customer service representatives to work from home, and the employer was able to acquire the technology to make that happen. "The evidence demonstrates that CSR's at National Grid who perform functions other than receiving inbound customer calls have worked remotely, National Grid has piloted remote work positions in the past, and inbound calls can be routed to other call centers. The president of the union, who worked as a CSR in the call center for 25 years, also stated her belief that it was possible to route calls to other locations, and based on her experience, she did not see why calls could not be routed to a CSR’s home." On this record, plaintiff has satisfied her modest burden in showing that a plausible accommodation was available.

The employer therefore must show that the accommodation was not reasonable or that it would be unduly burdensome for the company. The company cannot satisfy that burden. The best that National Grid can do is provide conclusory testimony that plaintiff cannot work from home because the company lacked the technology to make it happen. But the ADA says that a reasonable accommodation "may include acquisition or modification of equipment or devices and other similar accommodations." The company did not say on the summary judgment motion that the technology was unavailable or was too expensive, and it did not claim to have investigated the feasibility of procuring such technology in response to plaintiff's request for an accommodation.Nor did the company show what it would cost to acquire the technology, much less an analysis to show that the cost would have exceeded its benefits.

Bottom line: this case will go to trial on whether National Grid violated the ADA in denying plaintiff's request for a reasonable accommodation. Now that we've all seen how telecommuting can work in the COVID-19 era, the jury ( most of which will be working men and women) may understand plaintiff's claims better than it might have five or ten years ago.

 

PBA can intervene in lawsuit over police tactics at 2020 racial justice demonstrations

The racial justice demonstrations in Summer 2020 have given rise to lawsuits that are now making their way through the courts. This one alleges the NYPD subjected demonstrators to excessive force, unreasonable searches and seizures, and free speech violations. This appeal, however, covers a far less exciting issue: can the police union intervene in the case to ensure its interests are protected?

The case is In re New York City Policing During Summer 2020 Demonstrations v. City of New York, issued on March 4. This appeal involves multiple lawsuits making similar allegations. The Court of Appeals summarizes the plaintiffs' claims:

Individual plaintiffs allege that such tactics were deployed unlawfully against them when, for example, a “group of at least 100 NYPD officers form[ed] a line” and “began to move towards the protesters with their helmets on and batons out.” An officer then allegedly “pointed his drawn baton at” one plaintiff, “lunged at” her, “forcefully knocked the phone” out of her hands, “struck” her “across her chest,” and “began beating [her] on the arms and upper body,” at which point “[a]dditional NYPD members descended” to “beat her with their batons and kick[ ] her.” The plaintiffs allege that such interactions reflect the NYPD's “long history of violence towards Black and Latinx people,” and “historical brutality against protesters.”

The state Attorney General's office got involved with these cases and asked the district court to enter injunctive relief against the NYPD to ensure they are complying with constitutional standards. Some of the plaintiffs seek the same relief. The PBA then tried to intervene in these lawsuits, arguing that this injunctive relief will affect New York City police officers in such a manner as to require their input into that relief, and the only way for that to happen is allowing the PBA to join the case as an interested party, even if the PBA was not actually sued. Motions like this will be granted in the circumstances warrant it. The trial court rejected that motion, but the Court of Appeals (Menashi, Livingston and Jacobs) disagrees and allows the PBA to join the case.

Since the PBA asserts an interest in the safety of its officers, which may be impaired by a court determination that NYPD policies governing protests are unlawful and must be altered, it can join the case. This is not some outside interest group that wants the court to consider its views on the case. Rather, the PBA has a cognizable interest in these cases. While the district court said the PBA was simply interested in preserving any allegedly unconstitutional policies that the NYPD may be employing, the real issue is that the case has not yet determined that these policies are illegal, and in resolving motions to intervene under FRCP 24, we don't consider the ultimate merits of the case.