Fair Housing Act claim against male fraternity houses at Yale is dismissed

This case alleges that nine fraternities at Yale University are liable under the Fair Housing Act in connection with the same-sex membership practices of the fraternities. The district court dismissed the case on constitutional standing grounds, and the Court of Appeals affirms.

The case is McNeil v. Yale Chapter of Alpha Delta Phi International, a summary order issued on November 15. Plaintiffs alleged they were sexually assaulted and harassed at these fraternity houses, which only admit members on the basis of gender, that is, men. They are suing the fraternities and the landlords who own the fraternity houses. Since the fraternities are discriminatory organizations, plaintiffs claim, the landlords are violating the Fair Housing Act. In dismissing the case, the district court identified this deficiency in the case under Rule 12:

Plaintiffs' Fair Housing Act claim revolves around the denial of membership by fraternities. Under Plaintiffs' construction, a landlord would be responsible for addressing housing discrimination based on a rental agreement with tenants, tenants who belong to an organization with allegedly discriminatory membership practices. The predicate act for discrimination, therefore, is denial of membership; the separate act of denial of housing does not necessarily follow, because other factors could create the same circumstances.

As they admit, "Plaintiffs repeatedly sought membership in the Fraternities, which would have entitled them to housing benefits ... [b]y denying Plaintiffs membership, Defendant fraternities effectively denied them housing rights that would have been available to them but for their gender." At no point do Plaintiffs allege they sought to rent the same properties as the fraternities and were denied based on their gender.

The alleged injury here, the denial of housing, thus is not fairly traceable to the conduct of the landlords, but instead to the failure of the Fraternity Defendants to admit women. Here, the converse also is true. That is, the alleged denial of housing by the Fraternity Defendants is not linked to a policy regarding housing, which the landlords—not the Fraternity Defendants —control, but rather to the Fraternity Defendants' decision not to admit women. In other words, there is no direct effort to make housing unavailable to women.

The "fairly traceable" language derives from Supreme Court caselaw on standing. The Court of Appeals agrees with the district court, noting that plaintiffs did not allege they sought housing with a fraternity or expressed any interest in such housing. But the Court does allow plaintiffs an opportunity to amend the complaint to correct this pleading deficiency. 

 

Second Circuit strikes down Department of Education vaccine mandate as unconstitutional

The Second Circuit has enjoined the City of New York from enforcing a  mandatory vaccination order against people who work for the public schools. The Court reasons that the religious accommodation provisions are probably unconstititional

The case is Kane v. DeBlasio, issued on November 28. The Second Circuit rarely issues full opinions over the weekend, but this one came out on Sunday, less than a week after oral argument. The expeditious ruling reflects the urgency of the case, yet another in the Covid-19 rulings that the courts have been grappling with for more than a year, as judges try to balance constitutional standards with the public interest in stopping the spread of the virus.

The Department of Education order, issued on August 24, said that all DOE staff must receive at least one dose of the vaccine by September 27. Unvaccinated employees would be placed on leave without pay without losing their health insurance. Since this order omitted any provision for religious accommodations, the United Federation of Teachers took the case to an arbitrator, who issued accommodation standards that allowed employees to submit a request that is "documented in writing by a religious official," such as clergy. 

Under the arbitrator's ruling, the accommodation request would be denied if "the leader of the religious organization has spoken publicly in favor of the vaccine," as discerned from the media, including an online source. The request would also be denied if the objection is personal, political, or philosophical and not religious. I don't know where the arbitrator came up with these standards but the Court of Appeals (Livingston, Kearse and Lee) notes that the City's lawyers conceded on appeal that the arbitrator's ruling was "constitutionally suspect." Concessions like that are taken into account by judges, who appreciate the lawyers' candor.  

The Court of Appeals finds that the vaccine mandate is not unconstitutional on its face, as it does not directly single out people for their religious views and it also applies to everyone, whether they are religious or not. But the arbitration award likely violates the religious freedom provisions of the Constitution, for a variety of reasons.

First, the arbitration ruling allows City officials to pass judgment on the legitimacy of someone's religious beliefs, as the reasonable accommodation test devised by the arbitrator provides that "exemption requests shall be considered for recognized and established religious organizations" and requests will be denied if your religious leader has spoken publicly in favor of vaccines. Courts and arbitrators cannot deny a religious accommodation based on someone else's religious views, even a religious leader's views. 

In addition, the accommodation standards have been applied differently by other arbitrators in reviewing religious accommodation requests. These decisionmakers appears to have substantial discretion in making these decisions. That is improper under the First Amendment's religion clause. 

To win an injunction, you also have to show that, without the immediate injunction, you will suffer irreparable harm. Losing money is usually not enough to show irreparable harm. The Court finds in favor of the plaintiffs on this issue because they face the threat of permanent discharge from their public employment. You do not see this reasoning very often, and the Court further explains itself in footnote 18, noting this is an "unusual case" because (1) plaintiffs have shown the likely violation of their First Amendment rights, and (2) the accommodation procedures at issue in this case require the plaintiffs to forego a lawsuit to avoid harm and the City has consented to entry of an injunction that will provide for these claims to be promptly decided under constitutional procedures. 

When is management required to start the interactive process under the Americans with Disabilities Act?

In 2008, the Court of Appeals made it easier for employees to get a reasonable accommodation under the Americans with Disabilities Act even when they don't specifically request an accommodation. The employer has to start the interactive process if it knows the employee has a disability and needs an accommodation. But that doctrine has its limits, and this case highlights that.

The case is Dolac v. County of Erie, a summary order issued on November 12. The district court said plaintiff cannot state a claim under the ADA. The Court of Appeals agrees that plaintiff cannot state a prima facie case because all she did was give her employer three notes from a nurse practitioner stating "off work DBL," "continue DBL," and "continue disability." 

In a prior case, Costabile v. NYC Health & Hosp., 951 F.3d 77 (2d Cir. 2020), the Court of Appeals said that while the plaintiff sent his employer medical notes that updated management about his condition and suggested he needed leave, the Court could not "reasonably infer from the general allegation that the updates adequately informed Defendants about the nature of Plaintiff's condition such that Defendants should have known he was disabled and that Plaintiff was thereby excused from the requirement that he request an accommodation." I would guess that Costabile is the employer's go-to case on issues like this, when plaintiffs invoke Brady v. Wal-Mart Stores, Inc., 531 F.3d 127 (2d Cir. 2008), the case I mentioned in the first paragraph about management's obligation to start the interactive process when it knows plaintiff is disabled and needs an accommodation.

This case is like Costabile, the Court of Appeals (Jacobs, Pooler, Gujarati [D.J.]) says. Dolac's missives to management were not enough to trigger the interactive process. Here is the reasoning:

Here, Dolac alleges she sent three notes and the exhibits appear to indicate she refused to engage in further communication. In her briefing, Dolac argues that she was suffering from extreme stress and therefore could not communicate with her employer. But she cites to no cases that support her proposition that she did not have to communicate with her employer. Her interpretation would put the onus on the employer to determine whether its employee was suffering from a disability and then inquire as to what accommodation the employee would seek—actions not required by either the statute or case law.

The moral of the story is that, if possible, the employee must be explicit in asking management for an accommodation. If she fails to do so, a good lawyer may cite Brady in litigation to show that management should have known all along that an accommodation was needed. But Brady does not save every case. 

 

2d Circuit upholds $355,000 punitive damages award in police beating case

The Second Circuit has sustained a punitive damages award in the amount of $355,000 where a jury found that three police officers subjected the plaintiff to excessive force and then took steps to cover up the unlawful conduct.

The case is Jennings v. Yurkiw, issued on November 17. The jury found the officers beat up plaintiff so badly in the context of a domestic dispute in Brooklyn that he fell in and out of consciousness. The officers then fudged the paperwork to make it look like it was plaintiff's fault in trying to run away when the officers said he was under arrest. Video evidence proved that plaintiff was beaten so badly he could not walk on his own and therefore could not have run away. The Second Circuit ruling details other ways the police covered up their beating. 

There were two trials. The first trial yielded a jury verdict for plaintiff in the amount of $500,000 in compensatory damages and $2.5 million in punitive damages spread out over three defendants. Post-trial, the court reduced the compensatories to $115,000 and the punitives to $140,000. Plaintiff opted for a second trial (which is your right if you don't like the way the trial court reduced the damages). At the second trial, the jury awarded $90,000 in compensatory damages and $355,000 in punitives. Note that the second jury was not as generous as the first jury.

The City appeals from the $355,000 punitive damages award, arguing it shocks the conscience, which is the legal standard. The Second Circuit has taken a skeptical eye toward punitive damages in recent years, concerned that the jury usually has no concrete legal standards to based its decision on, and the belief that some punitive damages awards are just too high. The City was counting on that in this appeal, but the Second Circuit (Parker, Menashi and Lohier) rejects that argument and finds this amount was appropriate in light of the seriousness of the beating and coverup by the police officers. Here are some excerpts from the ruling:

The officers attempt to diminish the seriousness of their misconduct by characterizing their unprovoked beating as “a few minutes of violence against [Jennings]." But, “a few minutes of violence” is not a trivial matter. The jury heard testimony that Jennings received an unprovoked beating at the hands of the officers. It heard that LaGrandier snatched Jennings’s three-year-old son from his arms, grabbed Jennings and pinned him against the wall. Yurkiw then struck Jennings in the face with such force that he fell to the ground, at which point he began experiencing “all kind of blows coming from everywhere.” The jury heard testimony from Jennings that he never threw punches at any of the officers, attempted to flee, or otherwise resisted arrest. Even though Jennings had  visible injuries, he was brought straight to the police precinct, placed in a cell, chained to a bar, and denied the medical attention he requested.

Moreover, the Court said, the other officers did not intervene to stop the attack, and they covered up their misconduct by falsifying charges against plaintiff, providing a false account of the beating, and perjured trial testimony. The latter point is significant. You don't see too often the Court of Appeals considering trial behavior as part of the punitive damages equation. But it is fair to say the Court is very unhappy with how the officers handled this, and they allow the $355,000 in punitives to stand.
 

 

Circuit identifies special-needs exception under Fourth Amendment in gun seizure case

We have ourselves a "special needs exception" case under the Fourth Amendment. That amendment says nothing about bypassing the warrant requirement in "special needs" cases, but judges have created exceptions to ensure that the police can take care of emergency situations when there's no time to get a warrant.

The case is Torcivia v. Suffolk County, issued on November 9. The police came to the plaintiff's house after his daughter called 911 to report a violent domestic incident, arising from, believe it or not, her guinea pig. Plaintiff was taken to the mental health facility for evaluation after he asked the officers to tase him. After the police discovered there were firearms in the house, they got them out of the gun safe because CPS expressed concerns about the safety of plaintiff's daughter. Plaintiff was eventually discharged from the facility after it determined he did not need in-patient treatment. The case therefore involves the seizure of plaintiff's guns without a warrant.

Plaintiff challenges the county's firearms removal policy, claiming it violates the Fourth Amendment. These Monell claims, however, are hard to prove. The district court said the policy allows officers to safeguard weapons when someone is transported to a mental health facility following a domestic incident. As for the special-needs rule, the police can seize property or enter the residence without a warrant in the event of an emergency, so long as the temporary gun seizure is not for law enforcement purposes but, instead, public safety. Since this is not a crime-control policy, the Court holds, but a policy intended to protect public safety when firearms are present, the policy satisfies the special-needs exception. The Court holds this policy is constitutional. It looks like this is the first time the Second Circuit has upheld such a policy under the Fourth Amendment.

Plaintiff still tries to win the case by arguing that the County failed to properly implement the policy. The problem with that argument is that if the officers did not properly follow the policy, then the policy is not implicated. Deviations from a constitutional municipal policy do not create a Monell claim. Since (1) the individual officers who seized the guns were exonerated at trial on plaintiff's Fourth Amendment claim, and the Court of Appeals finds no basis to upset that verdict, (2) and the mental health facility defendants won qualified immunity, it appears the case is over.

Can a municipality legislate against filing a late Notice of Claim?

If you sue municipalities for a living, you are aware of the Notice of Claim requirements in New York. To sue towns, villages, counties and school districts under state law, you have to file such a Notice within a tight time-period, often 90 days. This becomes a problem when a potential client calls you with the deadline approaching. You might tell the client that a Notice of Claim is not required for federal claims, but you don't want to walk away from the state law claims, as well, which might include breach of contract, or state law false arrest, assault and battery. This case highlights another Notice of Claim trap for litigators. 

The case is Canario v. City of Newburgh, issued by Supreme Court, Orange County, on November 12. I represent Canario in this Article 78, which alleges that his termination from the police department was arbitrary and capricious. Canario was terminated following a Civil Service Law sec. 75 hearing at which the hearing officer concluded that Canario had unnecessarily used pepper-spray to subdue an arrestee. 

Adverse Section 75 findings are challenged pursuant to CPLR Article 78. Normally, Article 78's are filed without a Notice of Claim. But the City of Newburgh has embedded in its City Charter a Notice of Claim provision that requires such a Notice for all "action[s] or special proceeding[s]," including Article 78's. The Notices of Claim have to be filed with the City "in the same manner as a summons under the Civil Practice Law and Rules within three months after the accrual of such claim." That means you have to serve the Notice like a lawsuit; that requirement differs from state-wide Notice of Claim procedures.

The City moved to dismiss the Article 78 because we did not file a Notice of Claim. We cross-moved for leave to file a late Notice of Claim, arguing that the Article 78 petition was filed within the 90-day period (and was therefore the functional equivalent of a Notice of Claim) and the City faced no prejudice in defending the case since it had already investigated the circumstances leading up to Canario's claim. (Prejudice in defending the case is one of the arguments in favor of rejecting a late Notice of Claim). Critically, the City argued that since the City Charter contained no provision allowing for a late Notice of Claim, State Supreme Court had no authority to grant the cross-motion and the case has to be dismissed on that basis.

Provisions like the one in the Newburgh City Charter are the reasons why lawyers drink. What do you mean the City Charter contains no provision for a late Notice of Claim? After all, the General Municipal Law, which governs the filing of most Notices of Claim in New York, outlines such a procedure. Can a municipality legislate against late Notices of Claim? And what about the more stringent Notice of Claim requirements under the City Charter? Is that legal?

The more stringent requirements are legal, and cases allow municipalities to require Notices of Claim in Article 78 petitions. We normally associate Notices of Claim with slip-and-fall claims on public property, contract disputes with the county, and state-law tort claims. But the City is allowed to require them for Article 78's as well. 

This case asked whether Canario was able to file a late Notice of Claim. There was no question that the City would not have been prejudiced by a late notice. Their memo of law in support of the motion to dismiss defends against the Article 78 on the merits, and there was a full evidentiary hearing demonstrating the City was already familiar with its case against Canario. We argued that the City Charter's Notice of Claim necessarily incorporates the General Municipal Law's provision outlining a procedure for late notices of claim, which provides a multi-part standard for granting motions for late filings. 

There are no published cases that address this particular issue, so Justice Sciortino had to engage in statutory analysis. The Court also noted that, in Picciano v. Nassau County Civ. Serv. Comm., 290 A.D.2d 164 (2d Dept. 2001), "[t]he Second Department considered a motion for leave to file a late notice of claim, filed simultaneously with the complaint for violations of the Human Rights Law." In that case, the plaintiff's attorney argued that it was unclear whether a notice of claim was required, and, in any event, defendants had notice of the essential facts within 90 days of the date the cause of action accrued." As Justice Sciortino noted, "Similar to the facts at bar, neither County Law § 52 nor the Nassau County Administrative Code contained any provision for a late notice. The Court found that defendants had actual knowledge of the facts underlying the plaintiffs claim. On that basis, and because the statute was unclear regarding the need for a notice of claim in the circumstances, the Second Department found that permitting plaintiff to serve a late notice of claim was a provident exercise of its discretion." Justice Sciortino ultimately held:

In the matter at bar, the City does not seriously dispute that it lacked notice of petitioner's claims, or the facts underlying the matter. It has not alleged any prejudice that would inure to it as a result of a late filing of the notice of claim. As petitioner argued, the City's comprehensive arguments advanced in response to the merits of the petition evidences its  investigation and knowledge of the underlying facts.

In the end, Canario gets to file a Notice of Claim, and the case proceeds on the merits. 

 

Hostile housing environment claim fails

The Second Circuit has affirmed the summary judgment dismissal of a hostile housing environment claim brought under the Fair Housing Act, finding that plaintiffs did not plausibly allege that they suffered severe or pervasive harassment by the landlord.

The case is B.L.M. v. Board of Managers of the Vireum Schoolhouse Condominium, a summary order issued on November 4. There is such a thing as a hostile housing environment case, based on the same principles as a hostile work environment claim, in that you have to show the racial (or other unlawful) harassment was severe or pervasive. But under a recent Second Circuit case, Francis v. Park Manor, 992 F.3d 67 (2d Cir. 2021), you cannot sue landlords for the racial harassment of the tenants. You have personally attribute the harassment to the landlords in some way, i.e., the landlord himself engaged in the harassment.

First, there is no severe or pervasive harassment. The Court of Appeals (Pooler, Lee and Englemayer [D.J.]) writes, "the only instances of alleged conduct that could be attributed to the Board, one of the Board’s members, or a Vireum resident acting in concert with the Board were the pattern of banging, stomping, and scraping noises coming from the unit above the unit occupied by A.L.M. and her family, and the pattern of behavior in which Vireum residents would intersect, come unwantedly close to, or temporarily block, Moore Family members as they came to or from their unit . . . We are unpersuaded, however, that a reasonable juror could not find that the Moore Family experienced a pervasive and severe hostile housing environment." While the noise was excessive (more than 100 times) and frequent, there is no evidence that it was motivated by race (plaintiffs are Chinese), gender or age. Their allegations about unlawful motivation are conclusory, the Court finds. 

Instead, the records suggests there were non-discriminatory reasons for this senseless harassment. It looks like the parties hated each other for other. The Court writes, 

there was evidence of long- standing antagonistic relations between Scott Moore [the plaintiff-tenant] and the Board relating to the operation of the building. The record includes, for example, email exchanges with the Board in which the Moores attempted to limit Vireum residents’ use of the condominium’s common areas, such as prohibiting them from gardening in front of the Moore Family’s unit, limiting the use of their parking spots, or standing in the parking area. Those exchanges indicate that the personal relations between the Moores and the Vireum Board and residents had irreparably broken down, for reasons independent of A.L.M.’s race and national origin or other protected characteristics.