Wednesday, June 12, 2024

Court of Appeals allows jury to hear threats against postal employees

The Court of Appeals has issued an good old-fashioned evidentiary ruling that applies the settled rules guiding relevance and admissibility. It arises in a criminal case where the defendant was accused of making threats relating to his employment with the Post Office.

The case is United States v. Garnes, issued on May 28. After the defendant was fired, he spoke to the Department of Labor about his unemployment benefits. Those conversations led to an indictment alleging defendant had threatened to injure another person. During the call, the Government alleged, defendant threatened to assault and murder two Post Office employees after he was told he did not qualify for unemployment benefits. 

What did defendant say: the Government claims he said, "If I go back to the post office, I'm gonna shoot somebody," and other similar comments. Prior to trial, defendant's attorney successfully moved to exclude certain other statements that mentioned his prior time in prison and that it would not bother him to be in jail. Defendant argued these were not threatening statements but, instead, "poorly phrased attempts . . . to characterize the absurdity of his predicament; one where it is preferable, from an economic standpoint, to be incarcerated than to live as a free man." The trial court excluded these statements as more prejudicial than probative.

The Court of Appeals (Lynch, Nardini and Kahn) reverses the trial court and says the jury can hear the jail comments, which are relevant to the charge that he threatened to assault or murder postal employees. Here is the reasoning:

the five statements made by Garnes that repeatedly refer to, and indeed overstate, his criminal history, at a minimum have a “tendency” to make it more probable that the threatening language would convey to listeners that they had something to fear, and that Garnes made those statements with an awareness, and even with the intention, that he would create such fear. See Fed. R. Evid. 401. A jury could find that Garnes’s statements about his history of criminal acts, his past experiences in jail and prison, and his comfort with returning to jail would convey to a reasonable listener a sense that Garnes was willing and able to act on his violent words, and that he made those statements in a conscious attempt to make his threats to shoot and kill employees of  the DOL and USPS more credible.

While the defendant claims the statement create the potential for unfair prejudice, the Court of Appeals disagrees. The Court notes that the statements "may create some potential for unfair prejudice," but "the five statements are part of the 'res gestae,' the narrative the government rightly seeks to tell at the guilt phase of the trial." Defendant's exaggerated statements about his criminal record are a part of that: the jury may find the stretched the truth about his jail time in order to make his threats more credible.

Friday, June 7, 2024

Reverse gender discrimination case under Title VII is dismissed

This plaintiff alleges he was fired from his position on the basis of his gender. The case is dismissed because the record shows he was really fired for setting up a fake bank account in his brother's name. Plaintiff tries to argue he was singled out for disparate treatment, but the Court of Appeals finds his "comparators" are not really comparators.

The case is Carter v. TD Bank, NA, a summary order issued on June 4. It all started when plaintiff's brother visited a TD Bank branch in Florida and told the staff that several accounts had been opened in his name without his knowledge or authorization. An investigation followed. The bank determined that plaintiff had opened up the accounts as a scam. The investigator determined that plaintiff's defense was not plausible - plaintiff said his brother must have forgotten that he had opened the accounts only five days earlier. The investigator also thought that plaintiff had forged his brother's name on the new account documents. 

If setting up a false bank account is not grounds for termination, then I don't know what is. But plaintiff said the real reason was gender discrimination because two women were not fired despite engaging in fraudulent activity. One comparator was negligent in failing to detect fraudulent paperwork submitted by a customer. The other woman was found to have committed an act of dishonesty that, according to plaintiff, should have resulted in his termination. 

Are these legitimate comparators? The Court of Appeals' leading case on this issue is Graham v. Long Island Railroad, 230 F.3d 34 (2d Cir. 2000), which says the comparators must be "similarly situated," or subject to the same workplace standards as the plaintiff. The comparators must also have engaged in comparable conduct.

Not this case, the Court of Appeals (Jacobs, Sack and Sullivan) holds. The first comparator was only negligent in her misconduct. She did not engage in intentional fraud. The other comparator was not subject to the same workplaces standards as plaintiff. The Court finds that no reasonable jury could find these two women were comparable to plaintiff. Without additional evidence of gender discrimination, the case is dismissed. 

Wednesday, June 5, 2024

COVID vaccine-related disability discrimination claim fails

We have another COVID-19 vaccination case in the Second Circuit, this one alleging that a medical contractor fired the plaintiff in violation of the Americans with Disabilities Act after he refused to take the vaccine. Plaintiff argued that his employer regarded him as disabled and then retaliated against him after he objected to the vaccine mandate. Plaintiff loses the case.

The case is Sharikov v. Philips Medical Systems MR, Inc., issued on June 4. Plaintiff worked in defendant's Latham, N.Y., office. After defendant began implementing COVID-19 health measures, including masking, glove-wearing, screening, etc., it told its employees that it had to comply with a federal vaccine mandate for federal contractors like Philips Medical Systems. Employees were told they would have to resign if they did not comply with the mandate. Eventually, the federal mandate was put on hold due to court rulings, but defendant continued to adhere to local vaccine mandates. Plaintiff objected to the mandate and claimed he was being discriminated against. In December 2021, plaintiff field an EEOC charge and also sent a missive to defendant's global ethics complaint system, claiming that defendant was

regarding me as having a disability (an impaired immune system and an impaired respiratory system) without any diagnosis or individualized assessment and has also made a record of such disability by misclassifying me as having, in ADA terms, a mental or physical impairment that substantially limits one or more major life activities. My employer is also coercing me to submit to medical examinations and interventions as accommodations ("mitigation measures") without any informed consent.
Plaintiff was eventually fired and his departure was classified a voluntary resignation. 

The Court of Appeals (Livingston, Kearse and Chin) holds that plaintiff's discrimination claim fails for the following reason:

1. Plaintiff's "regarded as" disabled claim under the ADA is dismissed because defendant's vaccine mandate applied to all employees, not just plaintiff, and the company imposed the mandate pursuant to federal rules and also to protect employees and customers from infection. The Second Circuit holds that a plaintiff is not "regarded as" disabled when he is terminated for not complying with an office-wide vaccination mandate. Put another way, the company did not regard plaintiff as disabled because he was not singled out for the mandate on the basis of any perceived disability. "Sharikov does not explain how adopting measures to prevent the spread of a communicable disease implies an impairment, and he cites no case law equating prophylactic measures with assumptions of disability. Moreover, taken to its logical conclusion, Sharikov's position would subject many companywide safety policies to potential challenge under the ADA on the theory that such policies perceived all employees as disabled."

2. Nor is there a retaliation claim. Yes, plaintiff objected to the vaccine mandate and filed an EEOC charge, which is protected activity. But no, he cannot show, even under Rule 12 motion to dismiss standards, that he would not have been fired had he not lodged these objections. "The allegations of the Complaint instead make clear that Sharikov was discharged because he refused to comply with the company-wide policies first announced in October 2021, when all employees were told they had to be vaccinated or approved for an exemption by February 4, 2022 or be deemed to have resigned." The Complaint instead confirms that plaintiff was fired because he would not comply with a company-wide policy that applied to all employees.

Monday, June 3, 2024

NRA wins free speech case against State of New York

After the country endured another mass shooting -- this one in Parkland, Florida, which killed 17 students and staff members -- the Superintendent of the New York Department of Financial Services -- which regulates insurance companies and financial services companies -- sent a letter to organizations that administered insurance policies to National Rifle Association members. That letter and related comments form the basis for this First Amendment lawsuit that the NRA filed against the State of New York. The Supreme Court says the NRA has a case.

The case is NRA v. Vullo, issued on May 30. Vullo was the Superintendent. The letter mentioned the social backlash that the NRA was facing in the aftermath of the Parkland shootings and that businesses were severing their ties to the NRA as a result. In the "Guidance Letters," Vullo urged the DFS-regulated entities to evaluate and manage their risks, including reputational risks, from their relationship with the NRA, and to review any relationships they have with the NRA or similar gun-rights organizations. Three such entities, including Lloyd's, shortly thereafter entered into consent decrees with the State over allegations that they had violated regulations in providing insurance coverage for intentional acts, among other things. Vullo and Governor Cuomo then issued a press release urging insurance companies and banks in New York to discontinue their relationships with the NRA. 

The Supreme Court rarely takes up a case like this, alleging that governmental directives or guidance letters might violate the free speech rights of a private organization. In 1963, the Court held in Bantam Books v. Sullivan, that the government cannot attempt to coerce private parties in order to punish or suppress views that the government disfavors. The NRA case provides another opportunity to develop this area of the law. 

The general rule is that, to state a claim, the private organization must assert that, in context, the message would be reasonably understood to convey a threat of adverse government action in order to punish or suppress free speech. That the NRA was not the recipient of Vullo's guidance letters is of no moment in this analysis. The Court holds that the NRA states a free speech claim because (1) Vullo has regulatory authority over the insurances companies that did business with the NRA, and (2) Vullo had investigated Lloyd's over insurance-related violations and (3) told insurance executives that DFS had been investigating insurance companies and "was less interested in pursuing those infractions unrelated to any NRA business so long as Lloyd's ceased providing insurance to gun groups, especially the NRA." Vullo also told these entities that she would focus her enforcement actions solely on the organizations with ties to the NRA and ignore other syndicates writing similar policies. This was a thinly-veiled threat, the Supreme Court unanimously holds, and the NRA was the target. 

Writing for the Court, Justice Sotomayor reverses the Second Circuit (where she sat prior to her nomination to the Supreme Court). Here is the heart of the analysis:

As alleged, Vullo’s communications with Lloyd’s can be reasonably understood as a threat or as an inducement. Either of those can be coercive. As Vullo concedes, the “threat need not be explicit,” and as the Solicitor General explains, “[t]he Constitution does not distinguish between ‘comply or I’ll prosecute’ and ‘comply and I’ll look the other way,’” So, whether analyzed as a threat or as an inducement, the conclusion is the same: Vullo allegedly coerced Lloyd’s by saying she would ignore unrelated infractions and focus her enforcement efforts on NRA-related business alone, if Lloyd’s ceased underwriting NRA policies and disassociated from gun-promotion groups.

Thursday, May 30, 2024

Inmate's religious freedom case fails over technical roadblocks

In this prisoner rights case, the plaintiff argues to the Second Circuit that a mandatory program that required him to accept responsibility for his sex crimes violates his statutory and constitutional religious rights because the program required him to tell a falsehood in violation of his religion, the falsehood being that he is guilty of the crimes. Plaintiff loses the case.

The case is Tripathy v. McCoy, issued on May 29. Since plaintiff says he never committed any sex crimes, the program, he says, would require him to lie. His religion prohibits such lying. 

The problem for plaintiff is that the Religious Land Use and Institutionalized Persons Act (RLUIPA), under which plaintiff brings this lawsuit, does not provide for compensatory damages, as it is a Spending Clause legislation and, for reasons too complicated to lay out here, such statutes do not provide for pain and suffering awards unless they expressly say so. The other problem for plaintiff is that he cannot recover injunctive relief against participation in the program because he is no longer in jail and any such application is moot. (Plaintiff is out of jail because a state court said he received ineffective assistance of counsel at his criminal trial). As the Second Circuit has already held that RLUIPA provides for no compensatory damages, plaintiff cannot assert otherwise, as one Second Panel has no authority to overrule a prior panel decision from a different case, and plaintiff cannot show that any intervening change in the law (such as through a U.S. Supreme Court ruling) undermines the reasoning of these prior adverse precedents. 

Plaintiff (or his lawyers who joined the case on appeal) is smart enough to argue that a different religious freedom statute, the Religious Freedom Restoration Act, does provide for pain and suffering damages, but the Second Circuit notes that cases under RFRA do not undermine the bad RLUIPA cases because RFRA is not a Spending Clause statute and is not useful in this analysis.

That brings us to plaintiff's First Amendment religious freedom claim. The First Amendment and Section 1983 (which enforces the First Amendment) has no damages caps, but plaintiff runs into a different procedural issue: qualified immunity, which shields public defendants from lawsuits when the case raises a novel issue of law. This is such a case, the Court of Appeals (Sullivan, Jacobs and Nardini) holds, because "no binding precedent establishes that a generally applicable program violates the Free Exercise Clause by requiring an inmate who is an incarcerated felon to accept responsibility for the conduct underlying his conviction."

Wednesday, May 29, 2024

Landmark malicious prosecution claim will go to trial

This case returns to the Second Circuit after a trip to the U.S. Supreme Court and a remand to the Eastern District of New York. It's a police misconduct case that the Supreme Court used as a vehicle to clarify when someone can sue the police for malicious prosecution. That ruling came down in 2022, and it's still being litigated. Since the plaintiff wins this appeal in the Second Circuit the case will continue, though the next step is probably trial.

The case is Thompson v. Clark, a summary order issued on May 28. It all started when the police came to plaintiff's house on a 911 call claiming plaintiff was abusing his newborn daughter. Plaintiff would not allow the police to enter his home without a warrant, and he was arrested for obstructing governmental administration and resisting arrest. These charges were eventually dismissed, and plaintiff sued the officers for malicious prosecution, among other claims. 

The case reached the Supreme Court, which held that you do not have to show the criminal charges "ended with some affirmative indication of innocence." You only have to show the charges ended without a conviction. This was good news for lawyers who represent police misconduct victims. So the case returned to the Eastern District of New York, which held that plaintiff must lose the case for a different reason: the police had probable cause to arrest him for obstructing. The Second Circuit (Calabresi, Park and Merriam) disagrees.

Plaintiff gets a trial on his malicious prosecution claim because the jury may find he did not actually obstruct any police activity. When plaintiff stood in his doorway, spoke peacefully with the officers and invoked his Fourth Amendment rights in demanding to see a warrant, he was not obstructing. He did not physically interfere with the police, and verbally refusing to allow the officers to enter his home is not enough to make the arrest. Nor did he engage in inappropriate or disruptive conduct at the scene. And the parties dispute whether plaintiff yelled or raised his voice. In addition, plaintiff has the right to invoke his constitutional rights to let the police enter the residence or demand to review the warrant. The jury will have to decide whether plaintiff deserves to win the malicious prosecution claim on the obstructing charge. The jury will also decide whether the police had probable cause to pursue a resisting arrest charge against plaintiff.

Friday, May 24, 2024

What to do when arbitration agreements have conflicting provisions?

This is another case that interprets the Federal Arbitration Act. Courts usually defer to management on arbitration disputes, as the national policy is to respect arbitration agreements unless there was deception on management's part or the employee can find a loophole that favors her position and allows her to keep the case in court rather than arbitration, where, let's face it, cases are less likely to succeed than in court. This case has a loophole.

The case is Coinbase, Inc. v. Suski, issued by the Supreme Court on May 23. In this case, there were two arbitration agreements. The first said that an arbitrator determines all disputes under the arbitration agreement, including whether a given dispute is even arbitrable or whether it needs to be decided in court. The second agreement says that all disputes related to the first contract must be decided in California courts. The Ninth Circuit said the second contract's forum selection clause superseded the prior agreement. Here is the question posed by this case: when two such contracts exist, who decides the arbitrabilty of a contract between the parties: -- an arbitrator or the court? (Another question, not resolved by this case, is how the parties wound up signing contradictory arbitration clauses).

This is a tricky case but it yields a unanimous ruling from the Supreme Court, which is probably spending most of its time dealing with blockbuster cases that will be decided by the end of June, such as whether the President enjoys immunity from criminal prosecution. But the mundane cases still must be decided. This is not mundane if you handle cases in arbitration, however, and the Court took this case because it wanted to clarify this legal issue.

The Court starts off this way: "In prior cases, we have addressed three layers of arbitration disputes: (1) merits, (2) arbitrability, and (3) who decides arbitrability. This case involves a fourth: What happens if
parties have multiple agreements that conflict as to the third-order question of who decides arbitrability? As always, traditional contract principles apply."

The short answer is that "before either the delegation provision or the forum selection clause can be enforced, a court needs to decide what the parties have agreed to — i.e., which contract controls." This holding draws from basic contract law principles. "When we home in on the conflict between the delegation clause in the first contract and forum selection clause in the second, the question is whether the parties agreed to send the given dispute to arbitration—and, per usual, that question must be answered by a court." What it means in plain English is that the lower courts have to decide what the parties actually agreed to.