Court upholds prior restraint in criminal case

In this case, a journalist was convicted of threatening to disseminate nude photographs of a woman who rejected his romantic advances. One part of the sentence was that the defendant must seek approval from the district court if he wants to publish anything about the female victim. Does this part of the sentence violate the First Amendment?

The case is United States v. Farooq, issued on January 30. The woman is referred to as Jane Doe in the opinion. After Doe rejected Farooq's advances, he somehow got ahold of nude photos of her without her consent. He threatened to publish the photos in retaliation. This threat was especially problematic because Doe isfrom a conservative Paskistani community where women may be harmed or killed if they bring dishonor on their families. Farooq was arrested in Brooklyn over this and found guilty of extortion. He challenges a portion of the sentence that requires him to get permission from the court if he wants to publish anything about Doe in the future.

Were this any other case, this prior restraint would be struck down by the Court of Appeals so fast it would make your head spin. Courts cannot restrict your speech in advance. But this is a criminal case involving serious charges against the defendant. The government can enforce a prior restraint for compelling reasons, and if the restraint is narrowly tailored to that compelling interest. 

Not every First Amendment restriction in a criminal case is upheld. Even convicts have some constitutional rights. The Second Circuit (Kearse, Menashi and Park) cites a few cases to illustrate this point. "We have thus vacated overly broad conditions of supervised release implicating First Amendment rights. In one case, the Court rejected as unconstitutional a condition of supervised  release prohibiting defendant from engaging in internet speech “that promotes or endorses violence, unlawful activity, or any groups that espouse such ideas.” But another case upheld as  constitutional a condition prohibiting association with groups advocating noncompliance with tax laws. 

This case involves a narrowly-tailored speech restriction that satisfies a compelling interest, as it relates directly to the defendant's crime, the defendant was found to have violate court orders in this case,and the speech restriction relates only to the victim in this case and not defendant's speech in general.

New trial ordered in gang case because of faulty voir dire

The Court of Appeals almost never reverses a criminal conviction on the basis that the trial court did not properly conduct voir dire in assessing the suitability of potential jurors to sit in the cases. The trial judge enjoys substantial discretion in managing this phase of the trial. But in this case the Second Circuit reverses because the judge did not ask questions that would determine if potential jurors held any preconcieved notions about criminal gangs.

The case is United States v. Nieves, issued on January 26. Defendant was convicted of witness intimidation. As this case involves gang members, defendant's lawyer wanted Judge Rakoff to ask potential jurors for bias against gang members. Judge Rakoff declined that request and instead mostly asked where the potential jurors lived, whether they have a significant other and if so what their loved one does for a living. Like other judges, the trial judge here also asked potential jurors about their kids. Voir dire in federal court is usually brief and does not tell the trial lawyers much about the jurors who will hear the case. The trial court said it does not ask "attitudinal questions" that might invade anyone's privacy during voir dire. But again, convictions are almost never overturned on the basis of faulty voir dire. 

I note that Judge Rakoff also said on the record that he will not ask potential jurors questions about whether they read the New York Times or what is their favorite newspaper, as these questions also intrude on juror privacy. Other judges have asked questions like this in my experience and they give is a better sense of who the potential juror is. Questions about news sources and political opinions are not part of the Second Circuit's holding in this case.

As cursory as voir dire frequently is, trial judges are required to screen potential jurors for bias.  The Court (Lynch, Lee and Robinson) writes, "It is within a judge’s discretion to decide whether or not to ask questions that elicit jurors’ general attitudes about political or social questions, permitting counsel to speculate about jurors’ reactions to the evidence in a case when allocating their peremptory challenges. But where the “attitude” in question is a bias or predisposition for or against one side or the other, and particularly where key evidence targets the subject of that bias or predisposition, it is the judge’s responsibility to make some inquiry. Prospective jurors have no right to keep those attitudes private."

The Second Circuit breaks new ground in this case in holding that Judge Rakoff should have inquired about potential juror bias about gangs. The Court holds that "(1) prejudice against people associated with gangs represented a pervasive bias relevant to a key dynamic likely to arise at trial, and (2) the district court neglected to 'inquire about, or warn against,' that bias." In support of this holding, Judge Lynch (an expert on criminal law) noted that news reports at the time of this trial focused on a recent spike in violent crime that law enforcement had attributed to gang violence. That increased the risk of prejudice against gang members among prospective jurors. 

This holding is rare, but it will not lead to more conviction reversals in other voir dire challenges. The panel says this may be the first time the Court has ever reversed a conviction on this basis. What this case does is require trial judges to ask more questions about potential juror bias against gang members in gang cases.

First Department Reinstates Racial Discrimination Claim by Black Former Manager at Famed Carlo's Bakery

 

New York Law Journal

By Jason Grant

January 26, 2021

 In a reversal of the lower court, a state appeals court has reinstated a claim for racial employment discrimination leveled by a Black former assistant manager against the hugely popular Carlo’s Bakery location near Times Square and that store’s senior general manager.

The reinstatement of the state law and city law-based claim comes despite the plaintiff apparently mislabeling her lawsuit’s discrimination cause of action as one rooted in a “hostile workplace,” when her complaint describes a single incident and a next-day firing.

Wrote a unanimous panel of the Appellate Division, First Department court in reinstating Chontay Kirby’s first and only cause of action for discrimination in her 11-page complaint, “Although plaintiff’s first cause of action is labeled as one for ‘hostile workplace,’” the lower court “was not bound by that designation and plaintiff has sufficiently stated a cause of action for employment discrimination under both the New York State and New York City Human Rights Laws,” citing Matter of Local 621 v New York City Dept. of Transp., 178 AD3d 78 and Vig v New York Hairspray Co., L.P., 67 AD3d 140.

According to Kirby’s lawsuit complaint, which shows it was filed on her behalf by the Law Offices of James F. Sullivan in Manhattan, she made a call on Nov. 4, 2020, to human resources for the Carlo’s Bakery Times Square store at 42nd Street and Eighth Avenue in Manhattan. (The larger Carlo’s Bakery organization is today a successful national chain of dessert shops associated with food television’s “Cake Boss,” Bartolo ”Buddy” Valastro Jr. It appears Kirby’s lawsuit is brought only against the chain’s Times Square location, named as defendant Carlo’s Bakery 42nd & 8th LLC.)

At the time, Kirby had been working as a manager at the Times Square store for about a year, says the complaint, and she decided to phone H.R. to ask for clarification about “what to do,” after her direct supervisor gave very little information when she’d asked him for instructions about how to handle pick-up orders that remained in store at closing time.

That same day, Kirby allegedly got a call from her supervisor, the lawsuit’s named individual defendant, John Pernini, and he allegedly said to her over the phone, in part, ”Why did you call HR? Blacks…I should have never hired her,” according to Kirby’s 2021-filed complaint.

The next day, on Nov. 5, 2020, Kirby was “feeling uneasy regarding her conversation” with senior general manager Pernini, and she called out sick. Pernini then allegedly sent a text to Kirby that day “informing her that she needed to call Human Resources,” and “upon calling Human Resources, [she] was informed that she was being terminated allegedly due to her calling in sick,” the complaint said.

In reversing Manhattan Supreme Court Justice Nancy Bannon’s 2022 decision that had dismissed Kirby’s employment-discrimination cause of action, the five-justice First Department appellate panel detailed why Kirby had “sufficiently stated a cause of action for employment discrimination” under state and New York City law such that the claim shouldn’t have been tossed out at the motion-to-dismiss stage.

The Appellate Division, First Department courthouse in Manhattan (Photo by David Handschuh/NYLJ)

“Plaintiff [Kirby] alleges that she is a member of a protected class; that she was qualified for the position by, among other things, having a decade of experience in leadership roles; and that she was subject to an adverse employment action under circumstances giving rise to an inference of discrimination,” the panel wrote, citing Moore v Bronx-Lebanon Hosp., 50 AD3d 286.

“Specifically, plaintiff, a Black woman, alleges that her supervisor, defendant John Pernini, irritated that she had telephoned Human Resources for advice, allegedly stated to her the night before her termination, ‘Why did you call HR? Blacks . . . I should have never hired her.’” the panel said.

The panel, comprised of Justices Rolando Acosta, Troy K. Webber, Peter Moulton, Martin Shulman and John Higgitt, also reversed Bannon’s ruling to the extent it had dismissed three other claims in Kirby’s lawsuit, all for various alleged Carlo’s Bakery and Pernini violations of state Labor Law.

“Affording plaintiff [Kirby] the benefit of every possible favorable inference, we find that she has sufficiently stated a claim for unpaid overtime under the Labor Law by alleging that she worked more than 40 hours per week and that defendants never paid her for the overtime,” wrote the justices.

They also said, “Plaintiff’s claim based on defendants’ failure to pay her weekly also is sufficiently pleaded, as she alleges that she was a nonexempt employee under Labor Law § 190, and that defendants were required to pay her each week as a manual worker under New York Labor Law § 191.”

The panel further wrote that Kirby “states a claim based on defendants’ failure to give her a wage notice in accordance with Labor Law § 195(1)(a) by alleging that defendants failed to give her a notice apprising her of her regular pay day.”

Bannon, in her March 2022 decision dismissing four of the Kirby lawsuit claims, issued a terse opinion that “granted” dismissal of the claims “for the reasons stated in the defendants’ motion papers.”

In a memorandum in support of dismissal filed by the defendants, they’d argued, in part, “In conjuring breaches and slights against her, Kirby asserts, further, a cause of action for a hostile work environment … Such a cause of action is premised upon an allegation that she was subjected to a single comment made by her immediate superior … and thereafter chose not to return to work.

“In concocting this narrative,” continued the memorandum, “Kirby has demonstrably failed to plead any pervasive or systematic behavior or comments by her employers to give rise to any inference of a hostile work environment,” adding that “the one incident alleged with any degree of specificity, a supposed one-time lone ‘racial’ comment made to Plaintiff by her immediate superior, is nothing more than conclusory and is insufficient to support a claim of a hostile work environment or any other kind of race discrimination.”

Bannon denied a fifth and final lawsuit claim from Kirby that alleged a failure to provide her with accurate wage statements under the Labor Law.

Stephen Bergstein of Bergstein and Ullrich in New Paltz represented Kirby in the appeal, according to the First Department opinion. He couldn’t be reached for comment.

Joseph Dimitrov, an attorney at Litchfield Cavo, was counsel to Carlo’s Bakery 42nd & 8th LLC and Pernini in the appeal. He also couldn’t be reached.

Summary judgment sustained for scaffold-injury plaintiff

The Appellate Division has sustained the grant of summary judgment to the plaintiff in a scaffolding case, holding that any dispute about the nature of the plaintiff's damages do not speak to liability to but to damages and will be resolved at a damages hearing.

The case is Sangare v. 985 Bruckner Boulevard, issued on January 24. I briefed and argued the appeal. The case is being litigated at the trial level by James Sullivan, Esq., of New York City. The New York scaffolding law requires property owners to provide employees protection against falling scaffolds as well as any gravity-related accidents that might result from poorly-secured scaffolds. That would include falling bricks, two-by-fours and other objects. Supreme Court, Bronx County, granted plaintiff's motion for summary judgment because there was no dispute that he was injured when wooden planks fell from a scaffold, hitting plaintiff in the head (he was wearing a hard-hat). 

In opposition to the summary judgment motion, and on appeal, defendants argued that plaintiff cannot prevail on liability because, in order to win the case, the plaintiff has to show his damages resulted from the accident. The logic was that since plaintiff's back injury might have been caused by something else, he cannot win on liability as a matter of law. The problem with that argument is that the First Department held in Gramigna v. Morse Diesel, 210 A.D.2d 115 (1st Dept., 1994), that arguments like defendant's are really for the jury and that the plaintiff can win summary judgment on liability if there is no dispute that the accident happened and something went afoul with the scaffold. The problem with Gramigna is that the case is nearly 30 years old and, since that time, the courts have not cited it for that proposition. Having a case on all-fours is all well and good, but courts sometimes view older cases differently over time and maybe the First Department will think the case was outdated. At  least that was my worry.

The First Department, however, cited Gramigna in affirming summary judgment for the plaintiff in this case. So Gramigna has been reaffirmed nearly 30 years later. Here is the First Department's reasoning: "Defendants’ argument that all or some of the injuries pled were not caused by the subject accident is not an issue of liability, but rather an issue of damages, which remains unresolved The dispute concerning damages does not raise credibility issues relative to the issue of liability where plaintiff gave no inconsistent version of how the accident occurred nor is there any evidence contradicting the allegation that the scaffold collapsed."

Second Circuit asks State Court of Appeals for guidance on State and City Human Rights Law

The Second Circuit is asking the New York Court of Appeals to interpret the New York State and City Human Rights Laws on an esoteric issue that no one seems to have definitively resolved just yet.

The case is Syeed v. Bloomberg LP, issued on January 23. The Second Circuit from time to time asks the state's highest court to interpret a state or city law so the state judges, who are presumably more familiar with the issue, can provide their unique guidance. The federal judges do not want to resolve unsettled state and city issues without giving the State Court of Appeals a chance to weigh in on the issue. This is one such case.

The issue is the scope of the New York State and City Human Rights Laws, which provide far greater employee protections than federal employment discrimination statutes. Plaintiff in this case obtained a position with Bloomberg LP's Washington, D.C., office as a news reporter. In 2018, she applied to work at Bloomberg's New York City office. She was denied the position, which was offered to a male candidate. Someone at the company told plaintiff that her position was not designated as a "diversity slot." After complaining to management that the company had a racist and sexist culture, plaintiff quit her job.

Plaintiff wants to proceed under the State and City laws, but Bloomberg argues that she cannot because she did not feel the impact of any discrimination in New York City or New York State. That argument stems from a New York State Court of Appeals ruling, Hoffman v. Parade Publications, 15 N.Y.3d 285 (2010), which said the employment discrimination plaintiff who worked and lived in Georgia could not get relief under the City law even though he worked for a New York City company. The State Court of Appeals ruled that way based on the City law's legislative history, which emphasized that the City law protects the City's inhabitants.

The question now is whether Hoffman precludes plaintiff in the Bloomberg case from invoking the state and city law where, but for the employer's discriminatory conduct, she would have worked in New York City or New York State. This issue has particular relevance in failure-to-hire and failure-to-promote cases. While the Second Circuit (Jacobs, Sullivan and Perez) looked for guidance in state appellate rulings on this issue, it found nothing that clearly points in one direction or another. The Circuit has look around for this guidance  before it asks the State Court of Appeals to intervene, as the state judges are busy enough and have their own problems to worry about.

A footnote to this case points out that a case I argued a few years ago touched on this issue, but that was not a binding precedential ruling but a non-binding summary order. See Ware v. L-3 Vertex Aerospace, LLC, 833 F. App’x 357, 358–59 (2d Cir. 2020) (in a hostile-work-environment and retaliatory-termination case, holding that a plaintiff who was a Florida resident, worked as a supply technician in Afghanistan, and signed an employment agreement with a Mississippi choice-of-law provision, did not satisfy the NYCHRL or NYSHRL impact requirement by virtue of his employer’s parent company being headquartered in New York). 

Once the State Court of Appeals issues a ruling on this issue, the Second Circuit will apply that reasoning to the Bloomberg case and this issue will be settled once and for all.

Sexist comment not enough to win discriminatory discharge case

This case shows how a discriminatory comment by a supervisor does not necessarily mean an aggrieved plaintiff will win her case. The plaintiff sues for gender discrimination and retaliation for seeking medical leave. Her request for medical leave was met with an insensitive comment and she was ultimately fired. Plaintiff still loses the case on summary judgment

The case is Willford v. United Airlines, Inc., a summary order issued on January 19. Plaintiff was a flight attendant who was undergoing treatment for in-vitro fertilization. She was based at Dulles Airport in Washington, D.C., and requested a transfer to the New York City area, where she was undergoing the IVF treatment. Supervisor Waterman told plaintiff that if she "wanted to take time off to be a mother, then this wasn't the job for [her] and [she] should quit." If Waterman said this, that would be the last thing to say to an employee who wants medical leave. A few months later, plaintiff was fired after the airline determined that plaintiff had abused her sick leave. Waterman played a role in plaintiff's termination, but the ultimate decision to terminate was made by the Dulles Base Director, Panos, who held an internal hearing on the issue and found against plaintiff.

As plaintiff argues she did nothing wrong in using her sick leave, she argues that Waterman's role in her termination proves this was an unlawful personnel decision. But that is not how the Court of Appeals (Sack, Nathan and Jacobs) sees it, and it affirms the grant of summary judgment. While Panos made the ultimate decision to fire plaintiff, the impermissible bias of anyone during the decisiomaking process can make the ultimate decision illegal. That's the rule in Bickerstaff v. Vassar College, 196 F.3d 435 (2d Cir. 1999). I need not remind you that Bickerstaff is a great case for plaintiffs who are trying to prove discrimination infected a multi-tiered termination process.

Since Waterman conducted the initial investigation into plaintiff's use of sick leave, Bickerstaff is a useful case for plaintiff. But Bickerstaff does not save the case, though, because the investigation into plaintiff's alleged misuse of FMLA leave was initiated by someone else. Waterman only took action against plaintiff when someone else at the airline flagged plaintiff as a potential sick leave abuser. In addition, in terminating plaintiff, Panos did not passively accept Waterman's recommendation against plaintiff. Instead, Panos conducted an independent unbiased factfinding inquiry into plaintiff's alleged misuse of FMLA leave. That severs any causal link between Waterman's allegedly biased investigation and plaintiff's termination.

Probable cause for the officers who arrested plaintiff on sexual touching charges

This case reminds us once again how difficult it is to maintain a false arrest claim even when the underlying criminal charges are dismissed following a trial in criminal court. The victorious defendant still has to show the police officers lacked probable cause to make the arrest. This plaintiff cannot do so.

The case is Keyes v. City of New York, a summary order issued on January 13. Plaintiff was arrested and charged with forcible touching and third-degree sex abuse after police officers claimed to see him touching numerous womens' buttocks on the sidewalk in New York City. The criminal court judge dismissed the charges following a bench trial. That led plaintiff to file this false arrest case.

Plaintiff said he touched no one. But the arresting officers "each testified to separately following Keyes after he caught their attention by walking very closely to female pedestrians and appearing to look at their waistlines, creating a concern that he was pickpocketing.  According to both officers, they observed, from different vantage points, that Keyes was touching the buttocks of multiple women." While, the Court of Appeals notes, plaintiff testified that he did not touch any of the women, "Keyes has submitted no evidence that disputed the officers’ testimony that he walked closely behind multiple women even though there was room on the sidewalk for him to maintain more distance." Moreover, the Court (Bianco, Sack and Nathan) says, "although Keyes denied touching the women, he never testified to where his hands were while he walked closely behind these women, and it is thus uncontroverted that, at the very least, his hands were in close proximity to the women’s backsides. In other words, these uncontroverted facts were sufficient to establish probable cause for his arrest, even if the officers ultimately were mistaken in their observations."

This is how probable cause works under Section 1983. The police officers are allowed to get it wrong so long as they reasonably believed you committed an offense. Their version of some of the facts, which plaintiff does not controvert, is close enough. They reasonably thought plaintiff was touching womens' buttocks, even though he claims he was not. While the factual disputes were enough to ensure plaintiff's acquittal in criminal court, he cannot recover any damages in civil court.