Sex-stereotyping claim involving sexual harassment allegations fails

Fact patterns like this often reach the office of plaintiffs' lawyers. Someone over the age of 40 is fired unfairly, or so the caller says. We now have a potential claim for age discrimination. There may be more to the story, but that's the case. Turns out the extra facts are that the ex-employee was accused of sexual harassment in the workplace. Now what?

The case is Bockus v. Maple Pro, Inc., a summary order issued on March 19. Plaintiff worked for the company for 13 years. He was let go when management told him they had received complaints about "some inappropriate behavior" toward other employees, and that the investigation uncovered a "pattern of disrespectful and inappropriate conduct." Plaintiff says management never even provided him with details of these complaints, and the state Department of Labor found these allegations were "unsubstantiated." Does plaintiff have a case?

The Court of Appeals (Leval, Lynch and Bianco) says he does not. This case was dismissed under Rule 12(b)(6), and the Second Circuit has relaxed pleading standards for discrimination claims, as per Littlejohn v. City of New York, 795 F.3d 297 (2d Cir. 2015). But even under these pleading standards, plaintiff cannot make out a plausible case of age or sex discrimination.

As for the sex discrimination, the Second Circuit in Sassaman v. Gamache, 566 F.3d 314 (2d Cir. 2009), said it is unlawful for an employer to presume that male employees were guilty of sexual harassment allegations and then to act upon that presumption, i.e., firing the man on the basis of that stereotype. I have not seen too many cases (if any) that have been sustained under the Sassaman principle, and this case fails as well. This is not a sex-stereotyping case, the Court of Appeals says, because (1) plaintiff does not allege that anyone at the company ever said or did anything that suggested the company treated men less favorably than women, and (2) his threadbare complaint "does not even identify the gender of the co-workers allegedly subject to harassment by him."

As for age discrimination, the case fails because "other than listing his age and date of birth, the complaint does not contain any allegations whatsoever relating to his age." While plaintiff contends that his "clam of bot sex stereotyping-plus-age discrimination is a claim of 'intersectional discrimination,'" the complaint simply does not allege enough facts to entitle the plaintiff to some discovery, and Being fired over the age of 40 is not enough to proceed under the Age Discrimination in Employment Act.

Evidence fabrication claim is revived on appeal as Court of Appeals says trial court misled the jury

This case implicates an unsettled area of constitutional law involving the fabrication of evidence against criminal defendants and when they can sue the police for that misconduct. The Court of Appeals holds the the plaintiff may sue the police because the criminal charge against him was dismissed in criminal court as facially insufficient, and the prosecutor ended up abandoning the charge altogether.

The case is Ashley v. City of New York, issued on March 26. The Second Circuit has long recognized the right to bring a fabrication of evidence claim. It has never held that the plaintiff must show the charges against him terminated in his favor, a necessary requirement for the different claim of malicious prosecution. But a recent Supreme Court case, McDonough v. Smith, 139 S.Ct. 2149 (2019), contains language that municipal defendants now think added the malicious prosecution-style "termination in favor of the accused" element to fabrication claims. 

In this case, the plaintiff's criminal case ended after the criminal court found the charges against the plaintiff insufficient and the prosecutor did not persist in pursuing the charge of marijuana possession. The city argues this dismissal was not a "favorable termination" because the prosecution's failure to proceed with the charge does not imply a lack of reasonable grounds to prosecute him. That language draws from "favorable termination" cases in our jurisdiction.

The Court of Appeals revives the fabrication claim following the district court dismissal without determining whether McDonough changes the landscape in adding a "favorable termination" element to these claims. Instead, it finds that, even if there is such a requirement, the jury may find the charges did terminate in plaintiff's favor because, while it was dismissed for facial insufficiency, the criminal court was super-critical of the charge, the prosecutor's second attempt at filing a clean charge was rejected, and then it abandoned the charge altogether. While facial insufficiency dismissals are not usually "favorable terminations," the problem with the prosecution's case, the Court of Appeals (Calabresi, Carney and Katzmann) says, is that the criminal court did not think the prosecution had any case against the plaintiff in the first place. 

The fabrication case originally went to trial in the Southern District. Plaintiff lost the jury verdict. But the Court of Appeals revives the claim and remands for a new trial because the jury charge was improper. The trial court told the jury that, in determining whether the police had a constitutional or fabricated basis to  arrest plaintiff for drug possession, it told the jury that paperwork errors, or mere mistakes by a police officer in making a written record, does not give rise to a constitutional violation. This was wrong, the appellate court says, because it could cause the jury to mistakenly believe "that fabrication turns in part of the severity of the error rather than simply the knowing falsity of the statement" used against the plaintiff. Since a fabrication claim only requires a knowing falsity against the plaintiff, this bad jury charge could have made a difference at trial. 

Collateral estoppel: how it works

Every dispute must end one way or another. One unhappy ending for the plaintiff is collateral estoppel, which means that a state court says something happened between the parties, the losing party in that case cannot bring another lawsuit in a different court that would challenge that initial adverse finding. So that plaintiff loses twice. This case shows us how it all works.

The case is Watley v. Department of Children and Families, issued on March 22. Plaintiffs are the parents of a child who was the subject of child neglect proceedings in Connecticut. The mother has significant disabilities, including narcolepsy, schizotypal personality disorder, antisocial personality disorder, etc. The state claimed the mother was not capable of raising the child, and sought to terminate her parental rights. The mother ultimately lost that battle. The plaintiffs then had two boys, and the state sought to terminate those parental rights under a "predictive neglect" theory, which I have never heard of but is self-explanatory. The plaintiffs lost their rights over the boys under state-law proceedings, as well. While the plaintiffs' defense to these proceedings invoked their disabilities, the state proceedings rejected those arguments on the basis that the Americans with Disabilities Act does not create special obligations in either termination or neglect proceedings. 

After the parents lost their cases in Connecticut court, they sued in federal court under the ADA and the Rehabilitation Act, claiming their rights under these statutes were violated, and they wanted a TRO to get the children back. They lost in the district court and appealed to the Second Circuit, which holds the factual findings in the state proceedings are binding on the federal court and cannot be challenged in the federal forum. 

That brings us to collateral estoppel. Under that rule, you cannot challenge state court findings in federal court when the state court resolved the same or a similar issue as the federal claim. The key to collateral estoppel is the identity of the issues in the state and federal cases. This is why the plaintiffs lose on that theory. While the state court proceedings did not consider the ADA or Rehabilitation Act defenses, they did consider the parent's mental condition in resolving this dispute. In other words, the arguments that plaintiffs advance in federal court were, for all intents and purposes, already resolved in the state court proceedings. So the plaintiffs lose.

A sad case all around, as the Court of Appeals (Pooler, Parker and Lynch) recognizes at the end of the opinion. But the Court notes that the Full Faith and Credit Clause under the Constitution compels this result and implicitly recognizes the collateral estoppel principle. 

When Rule 68 offers go wrong

I would say the most confusing rule in the Federal Rules of Civil Procedure is Rule 68. What makes the confusion even worse is that misunderstanding the rule can have huge financial consequences. Rule 68 says the defendant can serve an Offer of Judgment on the plaintiff for a sum of money that the plaintiff has 14 days to accept or reject. If the plaintiff rejects the offer and then goes to trial but recovers less money than the defendant had offered under Rule 68, then the plaintiff suffers a penalty. The rule does not make this clear, but the Supreme Court 25 years ago interpreted Rule 68 to mean the punishment requires the plaintiff to cover the defendant's costs, but not attorneys' fees, and that if the case involves fee shifting (such as an in a civil rights case), the plaintiff cannot recover any fees that accrued after the Rule 68 offer was served. It's all very complicated, and lawyers have to ensure that the Rule 68 offer is clear and unambiguous for these penalties to kick in. The offer in this case was not clear.

The case is Electra v. 59 Murray Enterprises, issued on February 9. Plaintiffs are eleven professional models and actresses whose images were used to promote what we call "Gentlemen's Clubs" in New York City. They brought eight causes of action. Plaintiffs says they did not consent to have their photos used for this purpose. As the case proceeded, the defendants served a Rule 68 offer on the plaintiffs. The offer read, that Defendants were offering "Plaintiffs collectively to take a judgment against Defendants in the amount of $82,500.00 . . . on each of the Causes of Action contained in the Complaint," inclusive of interest, attorneys fees, etc. Plaintiffs accepted the offer, claiming in their response that they were expecting $660,000.000 in the settlement checks.

You can imagine the confusion and rage among defendants' attorneys when they learned that plaintiffs had accepted the Rule 68 offer but were now demanding more than $600,000.00.  Its moments like that that cause lawyers to drink. "Where the hell do they get off demanding $660,000!" Or something like that. Plaintiffs said they $82,500 referred to each of the eight claims asserted in the lawsuit. Defendants probably responded that they never interpreted the offer to be interpreted that way. So the courts had to deal with this problem. The trial court rejected the plaintiffs' interpretation and said the were not entitled to the $660,000. The Court of Appeals (Pooler, Kearse and Calabresi) agrees and finds against the plaintiffs. 

The problem with the Rule 68 offer is that it was ambiguous. The Rule 68 process requires that the parties have a meeting of the minds, as the offer is would create a contract between the parties. Here is the ambiguity: while the Rule 68 offer said the plaintiffs "collectively" would take judgment in the amount of $82,500.00 . . . on each of the Causes of Action," the offer was unclear as to the amount of the settlement. The offer was "reasonably susceptible to more than one interpretation because the word 'collectively' contradicts the use of the word 'each.'" The Court concludes, "An offer that states a dollar amount to be specified in the judgment but does so using language that would permit the defendant to argue later that the offer was for a different amount has no Rule 68 validity."

The Court then adds another gloss to this case: that even if a Rule 68 contract had somehow been formed calling for a judgment in the amount of $660,000, the Court would find that defendants would have been able to avoid the contract on the basis that the offer had a unilateral mistake. Under settled contract law principles, "where a mistake of one part at the time of a contact was made as to a basic assumption on which he made the contract has a material effect  . . . that is adverse to him, and the other party had reason to know of the mistake, the contract is . . . voidable by him." That principle works to defendants' advantage because, during settlement negotiations that predated the Rule 68 offer, it was clear the parties were not going to settlement in the high six-figures, and defendants then told plaintiffs they were going to serve a Rule 68 offer in the amount they had previously offered in settlement negotiations, which was $82,500. So plaintiffs knew the Rule 68 offer couldn't have been for $660,000.

Second Circuit scales back the scope of the Fair Housing Act

The Court of Appeals holds en banc that the Fair Housing Act of 1968, which aims to eliminate racial discrimination in housing, does not allow a tenant to sue the landlord over his deliberate indifference to racial harassment committed by another tenant. The rare en banc vote was 7-5.

The case is Francis v. Kings Manor, issued on March 25. Francis lived in an apartment complex in Suffolk County. His neighbor targeted Francis for horrible racial harassment that eventually got the neighbor arrested for aggravated harassment. Francis complained on multiple occasions to the landlord about this abuse, but the landlord did nothing, though it did handle other non-race-related disputes among tenants on other occasions. 

This case reaches the Court of Appeals on a Rule 12(b)(6) posture, so there is no discovery yet, just the pleading. The majority says the FHA cannot provide a remedy because, unlike racial harassment in the workplace, landlords do not have the "substantial control" over tenants that employers have over employees. Judge Cabranes, writes, "We are hard-pressed to presume that an employer's manner and degree of control over its agent-employees is equivalent to that of a landlord over its tenants." Not only do "most employers have ready access to, effective control over, and the ability to move within, the physical workspace and can freely dismiss at-will employees," and they can monitor and investigate employees to remediate misconduct, the same cannot be said about landlords. In addition, 

New York tort law has long been clear that a landlord has no general duty to protect tenants even from “the criminal acts of yet another tenant, since it cannot be said that [a] landlord ha[s] the ability or a reasonable opportunity to control [the offending tenant]” and the “power to evict cannot be said to . . . furnish” such control. 

Judge Lohier writes the main dissent, having written the majority decision in this case a few years ago that the en banc ruling now reverses. After reviewing the extent of the racial harassment visited upon plaintiff and the landlord's indifference to his complaints, Judge Lohier notes that under the minimal pleading requirements in civil rights cases in the Second Circuit, plaintiff states a case in part because he alleges the landlord had authority to counsel, discipline and evict the harasser and it had intervened in other disputes among tenants. The lease gives the landlord authority to control bad tenants, and in this case we are not talking about a loud stereo but criminal activity that got the harasser arrested. Plus, we have the warranty of habitability that state law imposes on landlords to ensure the tenants have a safe living environment. 

En banc rulings in the Second Circuit are rare. The last civil case that the entire court took up was Zarda v. Altitude Express, where the Court held for the first time that sexual orientation discrimination is a form of sex discrimination under Title VII, a ruling that the Supreme Court upheld in Bostock/Zarda in 2020. That en banc case was heard in 2017. If you are keeping score, the lineup in the Francis case is as follows: of the seven judges in the majority, one was appointed by a Democrat (Cabranes), one was appointed by George W. Bush (Livingston) and five were appointed by Trump (Bianco, Nardini, Menashi, Sullivan and Park). All the dissenters (Chin, Lohier, Pooler, Katzmann, and Carney) were appointed by Democratic presidents.

 

New police misconduct trial for Occupy Wall Street protester

Occupy Wall Street cases continue to work their way through the courts. In this case, the plaintiff sued the police over assault and battery arising from an Occupy anniversary get-together in 2012. The case went to trial, and plaintiff lost. The Court of Appeals revives her case because the trial court did not properly instruct the jury on the elements of her claim.

The case is Tardif v. City of New York, issued on March 18. I wrote about the disability discrimination portion of the case at this link. Tardif lost the ADA  battle, but she also claims that officers shoved her and caused her head to strike the pavement, causing her to lose consciousness and sustain a concussion. Plaintiff claims this assault was not justified. The police claimed they were trying to prevent the situation from further escalating and they grabbed her and pulled her over to the side to prevent her from running into another officer. This is a classic fact dispute in most police misconduct cases, to be resoled by a jury. That is what happened here, but there will have to be a new trial.

The best way to appeal from an adverse jury verdict is to challenge the jury instructions. The trial court has no discretion to charge the jury properly. Either it's done right or it's done wrong. In contrast, you can't appeal on the basis that the jury improperly weighed the evidence. 

The trial court charged the jury that it "may consider the need for the application of force, the relationship between the need and the amount of force that was used, the extent of any injury inflicted, and whether force was applied in a good faith effort to maintain or restore discipline, or maliciously for the very purpose of causing harm." During the deliberations, the jury asked the court to clarify the instructions. The court again told the jury that it should consider, among other things, whether the officer used force "in a good faith effort to maintain or restore discipline, or maliciously for the very purpose of causing harm." 

Under the law, the jury is only supposed to examine the officers' actions through an objective standard, i.e., whether the officer acted reasonably under the circumstances. Cases have held that the officer's subjective intent is not relevant to this analysis. So even if the officer acted maliciously, if a good officer would have used the same amount of force, then there is no excessive force claim. An officer's motives simply do not count. The Court of Appeals (Bianco, Livingston and Parker) says the jury instruction in this case, to the extent it asked the jury to consider whether the officer acted maliciously or in good faith as a means to maintain or restore discipline, was wrong. Since the error was not harmless in that the proper instruction could have yielded a favorable verdict for plaintiff, we got ourselves a new trial.

Appellate Division upholds recent vaccination requirements

In June 2019, the State Legislature revised the vaccination rules for measles following an outbreak in Rockland County. The new law eliminated the religious exception for these vaccinations, sparking protests statewide among parents who do not want this immunization for their children. Since public schools may reject students who are not vaccinated, the new law created an urgency for these parents, who cited their religious objections to the vaccination requirements. Litigation followed. The lower courts have ruled against the parents, and now the Appellate Division has rejected those challenges as well.

The case is F.F. v. State of New York, a Third Department ruling issued on March 18. This constitutional challenge stems from the parents' rights under the Free Exercise Clause, which protects religious freedom. As a preliminary matter, the Third Department determines that since the legislative revisions apply to everyone, and not just parents with religious objections, the standard of review is whether the the law has a rational basis, a legal term of art that means any justification that the legislature could have relied upon in passing the law. Rational basis review is the death knell for constitutional challenges, as courts will always find a reason why a legislative body passed a particular law.

The Third Department says the law was motivated by important health concerns: that under mass immunization, we will have nearly 100% immunity against measles, and that the legislature was entitled to rely on medical and scientific experts for this judgment. 

Plaintiffs' primary claim is that the law was not rational because it was motivated by anti-religious hostility. The Supreme Court recognized such an argument in the Masterpiece Cakeshop case from 2018, where they ruled that a state administrative agency ruled against an anti-gay baker because the agency demonstrated hostility toward religious beliefs. But that case does not apply here, the Third Department says, because the 11 floor statements that plaintiffs claim demonstrate religious hostility are simply not enough to win. Not only were the statement made by only five of the more than 200 legislators who voted on the bill, but "many of the statements do not demonstrate religious animus" but instead "display a concern that there were individuals who abused the religious exemption to evade the vaccination requirement based on non-religious beliefs" by, for example, hiring consultants to help evade the vaccination requirement through false applications for the religious exemption. 

What about the argument that repealing the religious exemption would actually target religious freedoms under the First Amendment? That is not the case, the Third Department says, because repealing the religious exemption now makes the law a neutral one that applies to everyone. While the religious exemption had favored religious families, its repeal "subjects those in the previously covered class to vaccine rules that are generally applicable to the public." And, given the significant public health concern over stopping any measles outbreak, that repeal was rational under constitutional standards. The Appellate Division also rejects the parents' Equal Protection and free speech arguments, finding on the basis of Supreme Court authority that "there is no equal protection violation where children are not permitted to attend school without a vaccination," and the new rules regulate conduct, to speech, and parents remain free to express their views on vaccinations, even the rule forces parents to make difficult choices about whether to vaccinate their children.