Monell, Monell, Monell

We used to have a judge at the federal courthouse in White Plains who held court every Friday morning, disposing of a smorgasbord of matters, one-by-one, from motions to dismiss to discovery disputes to pre-trial conferences to you name it. You would learn a lot while waiting for your case to be called, as everything was done in open court. Judge Brieant was decisive and did not mince words. One day, a lawyer was trying to advance his case but Judge Brieant kept reminding him of the rules guiding municipal liability in Section 1983. It's been around 20 years, but I can still hearing his voice booming: "Monell, Monell, Monell!"

The case is Kimble v. Kingston City School District, a summary order issued on November 26. Monell, Monell, Monell is still an issue. What is Monell? Many years ago, the Supreme Court said that if you want to sue the government for civil rights violations under 42 U.S.C. 1983, you have to name the individual violators. You could also sue the employer, such as a county, town or village, only if the constitutional violation resulted from a municipal policy or practice. You don't have to come forward with a written policy. Rather, we can assume a policy exists if the violation is widespread within the department or municipality, or if a final decisionmaker committed the civil rights violation. That was the Monell case, issued in 1978. It's all very complicated, because proving a Monell violation is time-consuming and turns on legal intricacies. While there are sometimes good reasons to pursue a Monell claim, i.e., pursuing municipal reform or avoiding qualified immunity (which individual defendants but not municipalities can invoke), it is usually easier to just sue the individual supervisors or police officers, whose damages or settlements are usually paid by the municipality anyway. 

In this case, the plaintiff sued the Kingston City School District, in my neck of the woods in Ulster County. Plaintiff, who worked as a school resource officer at the district (and also worked for the local police department), claimed the district retaliated against him because he complained that other students were bullying his son. The district court stated that "Plaintiff alleges that Defendant District took inadequate measures to protect his son; and, as a result, other students attacked and injured his son."

To bring a First Amendment retaliation claim, the plaintiff must show he complained about a matter of public, not private, concern. The district court said Kimble only complained about a private matter, because the complaint concerned his child. I am not sure that ruling was correct; student bullying is a problem nationwide. But the Court of Appeals does not take up that issue, though it deems it an interesting one. Instead, the Court of Appeals (Wesley, Livingston and Bianco) focuses on Monell, concluding that plaintiff failed to plead an adequate claim against the school district. Since plaintiff pleaded no claims against any individual defendants, the case is over.

Why did Kimball lose the case? The Circuit says, "Kimble makes no attempt to argue that the actions alleged to have violated his rights here were made pursuant to a 'policy' or 'custom'; he thus necessarily relies on the third theory—that an official with final policymaking authority took action regarding, or made the specific decision with respect to, his rejection from a school security officer position and his removal from his school resource officer position." But the Court says plaintiff did not allege facts tending to show the constitutional violation was pursuant to a municipal policy or custom. Instead, he argued that "the only fact he must allege is that a municipal defendant took some action that violated his rights." That is not enough, the Court says:

the decision not to hire Kimble as a school security officer may have been made by low-level employees who removed his name for consideration just as plausibly as by a final policymaker. Furthermore, while contracts submitted in support of the District’s motion to dismiss demonstrate that the superintendent had the authority to request Kimble’s reassignment from the Town of Ulster Police Department, Kimble alleged only that "defendant" directed his reassignment. In the absence of some factual allegations, it is impossible for any court to engage in the necessary analysis of whether Kimble’s claim properly stems from the action of a final policymaker under state law or, conversely, improperly seeks to impose respondeat superior liability on the District. Having failed to plead any facts regarding the chain of events involved in the decisions not to hire him as a school security officer and to remove him from his position as a school resource officer, Kimble has failed to plead a municipal policy or custom.

2d Circuit confirms employee was fired in retaliation for union activity

It is against the law for an employer to retaliate against an employee for her union activity. If the employee thinks she was fired for this reason, she can take her claim to the National Labor Relations Board, which will hold a hearing and issue a determination. If the employee wins the hearing, the employer can challenge that finding in federal court, which gives the NLRB some deference in its fact-finding. That is what happened here.

The case is Parkview Lounge, LLC v. National Labor Relations Board, a summary order issued on October 25. Davis was the employee. The NLRB said that management fired Davis for participating in union activity, and it ordered her reinstatement and backpay. Management says Davis was fired for cause.

The legal standard guiding federal court review of NLRB rulings is whether "its legal conclusions have a reasonable basis in law" and the factual findings are "supported by substantial evidence." Pay close attention to the standard of review. "Reasonable basis in law" does not mean the NLRB's legal analysis has to be ironclad and airtight. It means the legal analysis has to be "reasonable," a lower standard. And "substantial evidence" is lower than the "preponderance of the evidence" standard governing civil lawsuits, which is a 51 percent probability that the plaintiff is correct. "Substantial evidence" is lower than 51 percent, so long as the factual conclusions are still persuasive and stem from some evidence in the record. These lower standards of proof give the NLRB more leeway and discretion to manage the workplace based on its expertise.

This all means as follows: (1) the NLRB had a factual basis to find that management fired Davis because he took part in a union meeting. Management says the decisionmaker, Packin, did not know about Davis's protected activity. But the record shows that

according to Davis’s testimony, Ray Quiñones, a Parkview manager who was present at the January 27 meeting, gave a direct response to the staff and assured employees that he would relay to Packin the workplace concerns that Davis raised there. Geoffrey Daley, another manager present at the January 27 meeting, testified that he informed Packin about Davis’s comments at the January 27 meeting before she was terminated. This evidence, taken within the context of the record as a whole, adequately supports the Board’s conclusion that Packin knew of Davis’s protected concerted activity when he discharged her." 

This is not a conjectural inference but a rational one, the Second Circuit (Walker, Carney and Koeltl [D.J.]) concludes.

What about retaliatory motive? Substantial evidence supports the NLRB's findings as the motive, as well. Davis was fired only two days after she attended the meeting. "Although Parkview contends that the Board afforded the timing undue weight, the Board was entitled to treat the brief two-day interval as probative of retaliatory animus." And, the evidence supports the NLRB's finding that management gave a false reason for Davis's termination. While management said Davis was unable to work with management,

The record demonstrates that, in different contexts, Parkview gave inconsistent reasons for Davis’s termination and that Davis had been praised for her work not long before she was shown to the door. Davis testified, and Parkview did not challenge the assertion, that Packin told her she was being terminated because she did not “get[] along with management.” In its official report to the New York State Department of Labor, Parkview gave “issues with service,” in addition to management issues, as a reason for Davis’s termination. Moreover, these stated reasons were at odds with the compliments Packin and another manager had given Davis just one week before her discharge: that she “was one of the stronger servers.” The presence in this record of such inconsistent justifications and assessments justifies the Board’s determination that the employer’s explanation for discharge was pretextual.

Note to plaintiffs: inconsistent or shifting explanations for the employee's discharge is evidence of pretext.

So what about the remedy: backpay and reinstatement. Again, the Second Circuit defers to the NLRB. While management says the National Labor Relations Act says employees cannot be awarded back pay if they were suspended or discharged, and that this means Davis gets nothing because she was fired for cause, the NLRB found, and the Court of Appeals agrees, that while "the record does contain evidence that Davis had conflicts with management and that her performance had been subject to criticism on more than one occasion. But Parkview cites no authority for the proposition that, when the record contains evidence of an employee’s concurrent performance issues or conflicts with management, the Board may not order backpay and reinstatement after determining that an employer engaged in unlawful retaliatory acts with regard to that employee, and we are aware of none."

Court of Appeals says Congress can subpoena Trump financial records

Legal issues arising from the Trump presidency and taking up more space in the federal court dockets, from the district courts all the way to the Supreme Court. This time around, the Second Circuit rules that a congressional committee has the legal authority to subpoena the private financial records of Donald Trump and his family, who are also his business associates.

The case is Trump v. Deutsche Bank AG, issued on December 3. This case has been on the fast-track all year. The Southern District of New York issued a ruling in this case in May 2019, and the Second Circuit (Hall, Newman and Livingston in dissent) issued a 100+ page decision only a few months after hearing oral argument on August 23.

This is not one of the more glamorous issues that have arisen from the Trump presidency. Other cases involve sex payments to porn stars, impeachment, et. al. This case started when Congress decided to explore how loopholes allow corruption, terrorism and money laundering to infiltrate the American financial system. The Financial Services Committee said “The movement of illicit funds throughout the global financial system raises numerous questions regarding the actors who are involved in these money laundering schemes and where the money is going.” And the Chair of the Intelligence Committee said it is investigating

“[t]he scope and scale of the Russian government’s operations to influence the U.S. political process”; “[t]he extent of any links and/or coordination between the Russian government, or related foreign actors, and individuals associated with Donald Trump’s campaign, transition, administration, or business interests, in furtherance of the Russian government’s interests”; “[w]hether any foreign actor has sought to compromise or holds leverage, financial or otherwise, over Donald Trump, his family, his business, or his associates”; and “[w]hether President Trump, his family, or his associates are or were at any time at heightened risk of, or vulnerable to, foreign exploitation, inducement, manipulation, pressure, or coercion.”

What is the constitutional scope of a Congressional investigation? How far can Congress go in the course of overseeing the financial system and other institutions? There is no dispute that Congress has authority to conduct investigations. But that scope is not always clear, because few people bring lawsuits over these investigations. Judge Newman notes that while the Supreme Court says Congress can obtain information pursuant to its legislative authority under the Constitution, that power is not unlimited. In 1955, the Court said in Quinn v. United States that "The power to investigate 'must not be confused with any of the powers of law enforcement.' “Nor does it extend to an area in which Congress is forbidden to legislate.' 'Still further limitations on the power to investigate are found in the specific individual guarantees of the Bill of Rights . . . .' And, most pertinent to the pending appeal, the power to investigate “cannot be used to inquire into private affairs unrelated to a valid legislative purpose.'” Trump's lawyers invoke the italicized portion.

Over a lengthy dissent from Judge Livingston, the majority says that Congress can obtain the financial records of Trump and his family/business associates. Here is the holding:

The Committees’ interests concern national security and the integrity of elections, and, more specifically, enforcement of anti‐money‐laundering/counter‐financing of terrorism laws, terrorist financing, the movement of illicit funds through the global financial system including the real estate market, the scope of the Russian government’s operations to influence the U.S. political process, and whether the Lead Plaintiff was vulnerable to foreign exploitation.

The Court also holds that the legislative interest in investigating these areas outweighs any privacy interests invoked by Trump. Not only is Congress investigating matters "of the highest order," as lawmakers are looking into "national security and the integrity of elections. By contrast, the privacy interests concern private financial documents related to businesses, possibly enhanced by the risk that disclosure might distract the President in the performance of his official duties."

Pro se inmate wins excessive force, retaliation appeal

This inmate claims that correction officers smacked him around for no good reason. The district court dismissed the case from the outset, but the Court of Appeals reinstates the claim, ruling that the plaintiff has sufficiently alleged the officer hit him without justification, and that he did so in retaliation for the inmate's free speech.

The case is Fabricio v. Annucci, a summary order issued on November 6. It is not uncommon to see the Court of Appeals reinstate lawsuits like this. The trial courts often dismiss Section 1983 civil rights claims filed by inmates, many of who prosecute their appeals pro se, without a lawyer. This guy wins the appeal on his own. He alleges the following facts:

The excessive-force claim centers on Fabricio’s allegations that Officer Long “smack[ed]” him in the eye after several officers had subjected Fabricio to a search. Fabricio alleged that the officers’ stated reason for singling him out at first — that he was wearing too many layers of clothing — was pretextual, and that the real reason was that he had reported a correction officer’s misconduct at another prison. The officers then searched Fabricio who, believing the reasons for the search to have been pretextual, “start[ed] looking for [the officers’] names,” at which point one of the corrections officers told him to “go and sit down on [a] metal chair.” Fabricio did so, and then got up again, at which point that corrections officer pushed him back into the chair and said, “don’t miss[]pell my name.” Officer Long then “smack[ed]” Fabricio “hard . . . on his right eye.” Fabricio also alleged that, after Officer Long hit him, Officer Long warned Fabricio not to file a grievance or to seek medical attention lest he “go to the box” for an “assault on staff.”

Sounds like a case, no? To survive a motion to dismiss, inmates have to allege that the violence was not done "in a good-faith effort to maintain or restore discipline." While plaintiff did allege that one of the officers told him to sit down, which might suggest that he failed to comply with a directive, "Fabricio also alleged that another officer had already shoved him back in the chair, supporting an inference that no additional force was necessary to restore discipline, even assuming any had been necessary to begin with. Officer Long’s threat about what would happen if Fabricio sought medical attention, meanwhile, further supports a reasonable inference that Officer Long was not acting in good faith — as does Fabricio’s allegation that he was singled out in the first place because he had reported officer misconduct at another prison."

We also got a retaliation claim. Plaintiff's prior grievance against the correction officer. "Fabricio alleged that Officer Long warned him that 'if he [wrote] a grievance about” Officer Long’s alleged use of force, Fabricio would have to 'deal with the consequences.' After Fabricio filed such a grievance, and while Fabricio was waiting to be released from his cell so that he could go to the gym, Officer Long told him that he was 'on hold,' and added that he had 'got the grievance' and made an off-color remark about what he planned to do with it. We have little trouble concluding that Fabricio’s complaint sufficiently alleges protected conduct and, in light of Officer Long’s alleged comments, a causal connection between that conduct and the action alleged to have been retaliatory."

If you want First Amendment protections, join the union

In 2013, the Court of Appeals held that union membership is free speech activity. This means that management cannot retaliate against employees because they belong to a public employee labor union. The question is now whether non-union members who are represented by a union during collective bargaining also have First Amendment rights to associate with the union.

The case is Donohue v. Milan, issued on November 18. The 2013 decision was State Employees Bargaining Agent Coalition v. Rowland, 718 F.3d 126 (2d Cir. 2013). In this case, the plaintiffs were let go in a reduction-in-force in around 2012. They worked for the New York State Thruway Authority, which had to implement cost-saving measures around the time it was financing a replacement for the Gov. Malcolm Wilson Bridge, also known as the Tappan Zee Bridge. Some of the layoffs were non-union members, also called agency fee payers (AFP's). Can the AFP's sue under the First Amendment in a retaliation case? The Court of Appeals says they cannot.

The issue on this appeal is: "“Under Rowland, do employees enjoy First Amendment protections merely because they are represented by a union during collective bargaining such that an employment decision based on that representation is subject to strict scrutiny?” Why is this? Because, the Second Circuit says, "the First Amendment protects “the practice of persons sharing common views banding together to achieve a common end.” But that case "did not say that being represented by a labor union during collective bargaining by itself conferred First Amendment protection and the heightened scrutiny that comes with it." The Court adds for good measure, "we have never held that anyone who is represented during collective bargaining is for that reason alone entitled to First Amendment protection from government interference, and we decline to do so now."

Simply put, the AFP's did not "engage[] with others in a collective effort on behalf of shared goals." What this means is that "AFPs who affirmatively disassociated with a union by objecting to paying for a union’s political and ideological projects but who continued to be represented by the union during collective bargaining could not claim that an adverse employment action interfered with their right to associate with the union." On the other hand, the union member plaintiffs can proceed with their case. They did affirmatively join the organization and therefore enjoy the benefits of the Rowland decision.

Prison class-action consent decree is revived

In 1982, a consent degree was entered that required Green Haven Correctional Facility to provide inmates with adequate health care. An independent monitor then audited the health care at Green Haven to ensure that it satisfied constitutional standards. The consent decree was lifted in in 2015, after class counsel advised the district court that the state had represented that it would meet with plaintiff's expert to enable him to present his expert findings with respect to medical care. One inmate has now challenged the termination of the consent decree. The Court of Appeals agrees with him, and the consent decree is operative again.

The case is Irvin v. Harris, issued on November 19. Consent decrees became a thing in the 1970s and 1980s when plaintiffs' lawyers were able to prove that jails and prisons were not in compliance with constitutional standards. The decree meant that the institutions had to submit to monitoring from outside experts and lawyers. Under the Prison Litigation Reform Act of 1995, Congress made it easier for institutions to have the decrees lifted. As you can see from above, the Green Haven decree was lifted in 2015. But there were problems in lifting the decree. It appears the plaintiffs' class counsel did not adequately consult with Green Haven inmates about termination of the decree. One of those inmates is Irvin, who brought asked Southern District of New York to reopen the decree. The SDNY denied that motion, but the Court of Appeals (Pooler, Lohier and Carney) agrees with Irvin.

Irvin's arguments are as follows:

Irvin argued that the termination should be rescinded because, among other arguments: (1) if class counsel had just “taken the time to come to the prison and seen for themselves, by interviewing some of the class members themselves, they would have gotten completely different opinions,” (2) class counsel “lacked enough information and the authority to withdraw the opposition to the termination,” and (3) class counsel withdrew their objections to termination “without consulting with any of the individual members of the class, especially, those inmates housed in the Unit for the Physically Disable[d].”

The Court first rules that Irvin has standing to bring this motion. He satisfies the high burden associated with standing to reopen the case. The Second Circuit states that "it is undisputed that no named representatives were present to protect the interests of the class during termination proceedings, because none of them were still incarcerated at Green Haven and no new representatives had been substituted in. This exemplifies 'extraordinary circumstances in which a non‐party had interests on which the outcome of the proceedings had significant consequences . . . yet those interests had not been adequately represented during litigation, because of the peculiar structure of [the] case.'” And, Irvin is still connected with the suit and is therefore bound by the judgment terminating the consent decree. This case is Irvin's business, and that means he has standing.

On the merits, the Court notes that “the Due Process Clause ,. . . requires that the named plaintiff at all times adequately represent the interests of the absent class members.” The decree is so old that none of the named class representatives were still incarcerated at Green Haven when the termination proceedings were underway. This means none of the named class representatives retained interests in common with the class. "In short, named representatives of a Green Haven inmate class certified 35 years before the relevant proceedings do not adequately represent the class when they are no longer Green Haven inmates and have not continued to pursue the litigation." The Court concludes that, based on the lack of notice about the terminating proceedings, the class of current inmates were not adequately represented when the consent decree terminated.

How to plead discrimination under Title VII

A few years ago, the Second Circuit issued a ruling that had important consequences for pleading Title VII violations in federal court. The court seemed to make it more difficult to dismiss these cases for failure to state a claim, which in turn would make it easier for plaintiffs to proceed with discovery. This case demonstrates how it all works.

The case is Khanna v. MUFG Union Bank, a summary order issued on November 19. Note that this is a summary order that reverses the Rule 12(b)(6) dismissal. Normally, a Second Circuit ruling that reverses the district court is a big deal -- trial court judges in the federal system are not dummies, after all -- but I've noticed the Court of Appeals often reverses Rule 12 dismissals through short, summary orders that do not detail the facts or the reasoning. What the Court of Appeals is telling us is that some of these reversals are not that complicated. The message to the district courts is that these cases are not to be dismissed lightly. If you really want to get rid of the case, wait until the defendant moves for summary judgment.

In the world of Rule 12 dismissals, things got easier for plaintiffs in 2015, when the Court of Appeals issued Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72 (2d Cir. 2015), which is a must-read for any Title VII lawyer. In that case, the court said that "“Under Iqbal and Twombly, . . . in an employment discrimination case, a plaintiff must plausibly allege that (1) the employer took adverse action against [her] and (2) [her] race, color, religion, sex, or national origin was a motivating factor in the employment decision.” Iqbal and Twombly are the Supreme Court rulings from 2007 and 2009 that said the plaintiff must plead a plausible claim to avoid dismissal under Rule 12. While most plaintiffs' lawyers dislike Iqbal and Twombly (which made it easier to dismiss cases from the outset), the Vega standard is not burdensome, and it revives Khanna's case. The district court said plaintiff had no case for this reason: "“While it is true that many industries are dominated by white men, being out-numbered or the lone minority in an office setting is not enough, without more, to give rise to a gender or race-based discrimination claim.” But the Second Circuit (Sack, Hall and Bianco) sees it differently:

The District Court’s conclusion overlooks Khanna’s claims that she was treated less favorably than her white male coworkers. Khanna alleged that she was provided fewer resources, given fewer responsibilities, and held to a higher standard than her white male coworkers. Khanna also alleged that Nolen spoke to her in a patronizing manner and was pleasant and personable to her white male colleagues. For example, in a meeting about Khanna’s work performance, Nolen reminded Khanna in a condescending tone that she should say “please” and “thank you” at all times. Khanna further alleges that she was replaced by a white male the day after her termination.

In sum, the facts alleged in Khanna’s Second Amended Complaint show the sort of “mosaic” of intentional discrimination based on “bits and pieces” of evidence that we expect to see in a discrimination claim because “clever men may easily conceal their motivations.”

I have found that evidence like this is hard to prove: that the employer's office manner was more hostile to black or female employees than white or male employees. It's just tough to quantify this kind of evidence. But that kind of treatment does violate Title VII. Plaintiff will now have to prove it in discovery.