Any municipality can be sued for age discrimination under federal law

The Supreme Court has ruled that the all municipalities may be sued under the Age Discrimination in Employment Act, even if they employ fewer than 20 people, the numerical threshold for private employers.

The case is Mount Lemmon Fire District v. Guido, decided on November 6. Three anti-discrimination laws largely govern equal employment litigation: Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act of 1967. We also got the Americans with Disabilities Act of 1990. The statutes are not co-terminus; they each have some minor distinctions, including how many employees an employer may have before someone can bring a discrimination lawsuit. You need 15 under Title VII and the ADA but 20 under the ADEA. Another distinction lies in whether that threshold applies across the board. It does  not.

Under Title VII, the 15-employee minimum applies to private and public defendants. The question in this case is whether the 20-employee minimum holds true under the ADEA. Under the ADEA,“The term ‘employer’ means a person engaged in an industry affecting commerce who has twenty or more employees . . . . The term also means (1) any agent of such a person, and (2) a State or political subdivision of a State . . . .” Justice Ginsburg employs some statutory construction here. The case turns on the phrase "also means." Parsing out the statute, the Court unanimously holds that the 20-employee rule does not apply to public employers, essentially holding municipalities to a higher standard of personnel management, as it is easier for workers to sue a town, village or county for age discrimination.

The statutory analysis seems clear, which explains the 8-0 decision. But management did tell the Court that the holding it would eventually reach would result in more litigation against municipalities. The Court rejected that argument:

The Fire District warns that applying the ADEA to small public entities risks curtailment of vital public services such as fire protection. Experience suggests otherwise. For 30 years, the Equal Employment Opportunity Commission has consistently interpreted the ADEA as we do today. And a majority of States forbid age discrimination by political subdivisions of any size; some 15 of these States subject private sector employers to age discrimination proscriptions only if they employ at least athreshold number of workers. No untoward service shrinkages have been documented.

2d Circuit clarifies test for federal malicious prosecution claims

The Court of Appeals has clarified the standard for malicious prosecution claims under Section 1983. The Court says the plaintiff cannot win unless he can show the underlying criminal case against him ended in a manner that affirmatively indicates his innocence. This standard is more strict than the test for state-law malicious prosecution claims.

The case is Lanning v. City of Glens Falls, decided on November 7. The case originates from a domestic dispute. Plaintiff was arrested for criminal contempt after his estranged wife falsely reported that he threatened to kill her. Following his indictment on various charges, the town court dismissed the charges during the jury trial, for reasons that are not clear to the Second Circuit.

You can bring a malicious prosecution claim under state or federal law. Plaintiffs usually like to bring these actions under federal law, which provides for more damages and attorneys' fees. State law claims are often brought in state courts that are not as familiar with civil rights as federal courts.

Under state law, the plaintiff must show the charges were dismissed in a manner that is not inconsistent with the plaintiff's innocence. That standard is not precise. The problem is that federal rulings have said that claims for malicious prosecution are "substantially the same" under state and federal law. That formulation, too, is not precise. As prior cases under federal law have not been clear on this issue, the Court of Appeals tries to straighten it all out.

Here is the bottom line. Bearing in mind Supreme Court authority that says common law principles (such as those under state law) are meant to guide rather than control Section 1983 claims, the Second Circuit does not formally adopt the more plaintiff-friendly standard for malicious prosecution claims. Instead the Court (Kearse, Cabranes and Lohier) says the plaintiff cannot win unless he shows the criminal proceeding affirmatively indicates the plaintiff's innocence. If the question of guilty or innocence remain unanswered, then the plaintiff has no federal malicious prosecution claim.

For plaintiff, this means the malicious prosecution cannot proceed any further. The charges against him were dismissed "in the interests of justice," a common formulation in the local courts. That means the plaintiff was able to walk away from criminal court a free man, but it does not tell us about his innocence. "Interests of justice" is too vague.

Qualified immunity strikes down another speech case

This case once again acquaints us with qualified immunity and how it can scuttle a civil rights lawsuit if the plaintiff's rights were violated in a way that was not readily apparent to the defendants at the time of the rights violation.

The case is Colvin v. Keen, decided on August 15, a case I overlooked when it first came down but discovered when I was researching qualified immunity in another case. Plaintiff worked for SUNY Farmingdale as an admissions counselor. She gave advice to a co-worker who was being arrested by campus police. The co-worker, Buch, was accused of trespassing on campus. This all happened after yoga class. Colvin told the police she was an attorney and she told Buch "to wait to say anything until we got an attorney and a union rep." Colvin also told the police she wanted to accompany Buch to the police station. Plaintiff's employment was then terminated.

Plaintiff says her First Amendment rights were violated because her speech to the police in connection with their interaction with Buch was protected. Generally, public employees cannot be fired in retaliation for protected speech. In the public employment context, protected speech addresses anything relating to a matter of public concern to the community. As Section 1983 lawyers know, public employees also have to show they spoke as a citizen and not as part of their job duties. That so-called Garcetti standard often kills off free speech cases, but plaintiff's case is dismissed for another reason: it was not clear at the time of plaintiff's termination that her speech was protected by the First Amendment.

The case law is not clear enough to help plaintiff. In other words, cases with a similar set of facts have not been resolved in the Second Circuit. Here is how the Court of Appeals sees it:

The precedents do not show a “clearly established” law favoring Colvin on this question. This court has found, on the one hand, that speech debating issues of discrimination, speech seeking relief from “pervasive or systemic misconduct” by public officials, and speech that is “part of an overall effort to correct allegedly unlawful practices or bring them to public attention” all go to matters of public concern. Golodner v. Berliner, 770 F.3d 196, 203 (2d Cir. 2014). By contrast, we have found speech that “concerns essentially personal grievances” does not qualify as speech on a matter of public concern. We have also reasoned that speech is not on a matter of public concern where it has “no practical significance to the general public.” Examples include speech alleging that a public school employee forged a signature on a teaching observation, survey questions about coworkers’ office morale, speech concerning the speaker’s own work assignments or salary, and speech accusing a supervisor of favoritism. (Citations omitted).

It is true that, under certain circumstances, we have found speech to be on a matter of public concern where it sought to “vindicate . . . constitutional rights . . . in the face of alleged police misconduct.” But in that case, Golodner, the speech related to polices and practices of police misconduct that "raised serious constitutional concerns." Unlike Golodner, the plaintiff in this case did not speak to police misconduct at all. She merely identified herself as a lawyer, "told her co-worker and the police officers that she wanted to get her co-worker an attorney and union representative, and advised her friend not to say anything until such representatives arrived. Colvin said nothing to indicate that Ms. Buch’s arrest was constitutionally improper." In other words, even if Golodner comes closest to plaintiff's case, it is not close enough, and defendants were not on notice they were violating plaintiff's rights when they fired her. Since it is otherwise legal to fire someone even for bad reasons so long they do not violate any specific constitutional or statutory command, the case is over.

$2.5 million pain and suffering award in discrimination case is reduced to $125,000

The funny thing about trials is that we tell the jury they are the ultimate factfinders and that the case is in their hands once the lawyers wrap up their summations and the judge charges with jury with legal instructions. But the verdict does not usually end the case. If the plaintiff wins -- particularly if the plaintiff wins a lot of money -- the defendant is allowed to continue fighting off the case, often challenging the damages award as excessive. The jury is unaware of these maneuverings. They have never heard the word "remittitur."

The case is Saber v. New York State Department Financial Services, 2018 WL 3491965 (S.D.N.Y. July 27, 2018). The plaintiff is an Iranian-born professional who suffered discrimination and retaliation based on his national origin. He worked for a state agency, which makes this case all the more unusual, since the state is not a mom-and-pop employer and trains its personnel not to discriminate. But for some people, all the training in the world is not going to make a difference. Maybe the jury in this case wanted to teach the state a lesson in awarding plaintiff $2.5 million dollars. But post-trial, the judge teaches us a lesson in remittur, and a dramatic one at that. The court reduces the pain and suffering award to $$125,000, as dramatic a reduction as you'll ever see.

The court notes that you can get emotional distress damages even without seeking medical treatment, and even if the distress does not manifest itself in physical symptoms. But courts also look to similar cases to see if the damages are too high. The court classifies this case as "garden variety" emotional distress (as opposed to significant or egregious) because the plaintiff did not seek medical attention. The court also bears in mind that the damages cap under Title VII for large employers is $300,000, so that's the ceiling against the State of New York. Under the cases, the upper limit for garden variety damages is $125,000, and that's what plaintiff gets in this case.

Plaintiff and his wife testified about his emotional distress. I seem to remember that, in the past, plaintiffs would get more money if other witnesses corroborate their pain and suffering, but this trend seems to have subsided. In this case, the trial court simply adopts the $125,000 (judge-made) cap on garden variety damages. Here is the testimony on this issue, which references the discriminatory comments directed toward plaintiff (who is from Iran) including "yellow cake" (a supervisor's comment about plaintiff hiding nuclear material) and waterboarding, which brings to mind Middle East torture:

At the trial, Plaintiff testified that he felt “extremely uncomfortable ... because people turn and stare at you” in response to Logan’s “yellow cake” comment and that he felt “very, very much offended,” “very angry,” and “also upset and concerned” in response to Gollop’s “waterboarding” comment. Plaintiff described feeling “that I am always the target ... And when you go to work, you absolutely do not know what can set off something very negative and uncomfortable,” leaving him feeling “very insecure about the future and very isolated, and looking over the shoulder constantly.” He also testified that he was sleeping less and at times felt humiliated and embarrassed. Plaintiff’s wife similarly testified that Plaintiff “has become more reserved and ... doesn't like to engage with people that much, and kind of upset” and that Plaintiff “cannot sleep good and cannot sleep long,” “is very distracted” and that he listens to music a lot “to get peace with music, like holding himself.” Plaintiff has not sought treatment for any physical or mental conditions associated with the injuries he alleges were attributable to the actions of DFS that form the basis of this lawsuit.

The court, in a second ruling, also awarded plaintiff front pay, or future lost income. The court decides not to reinstate plaintiff to his old position, as that will cause untold tension in the workplace. So the court instead compensates plaintiff for the lost wages. At 65 years old, the court says, plaintiff is unlikely to find a comparable position. So the court gives him five years' front pay. Front pay awards vary from case to case, as courts try to ensure the awards are not too speculative. Five years works in this case. Here is the analysis:

t age 65, Plaintiff is unlikely to obtain a position with another employer for the next five years with a comparable level of responsibility and compensation; a new employer is unlikely to hire and train Plaintiff for a position comparable to CRMS, given how close Plaintiff is to retirement. The position that DFS is offering Plaintiff also is not comparable to the CRMS position, as Plaintiff’s duties, level of responsibility, status, and working conditions would remain unchanged, albeit with an increased salary.

An award of front pay for a 5-year period is not unduly speculative. Plaintiff has worked at DFS or its predecessor since 2001. He rose through the ranks and has remained at DFS since then. Plaintiff states that he intends to retire at age 70, in five years, in order to maximize his social security annuity and his New York State pension. See, e.g., Chisholm v. Memorial Sloan—Kettering Cancer Center, 824 F.Supp.2d 573, 577 (S.D.N.Y. 2011) (award of front pay for two years found to be warranted); Hill v. Airborne Freight Corp., No. 97 Civ. 7098, 2003 WL 366641, at *5 (E.D.N.Y. Feb. 20, 2003) (awarding front pay for approximately one year and collecting cases); Padilla v. Metro-North Commuter R.R., 92 F.3d, 117, 126 (2d Cir. 1996) (awarding front pay for over 20 years); Bethlehem Steel Corp., 958 F.2d at 1189 (2d Cir. 1992) (awarding front pay for a 17-year period).

Saber v. New York State Dep't of Fin. Servs., No. 15 CIV. 5944 (LGS), 2018 WL 3611718, at *5 (S.D.N.Y. July 27, 2018)

t age 65, Plaintiff is unlikely to obtain a position with another employer for the next five years with a comparable level of responsibility and compensation; a new employer is unlikely to hire and train Plaintiff for a position comparable to CRMS, given how close Plaintiff is to retirement. The position that DFS is offering Plaintiff also is not comparable to the CRMS position, as Plaintiff’s duties, level of responsibility, status, and working conditions would remain unchanged, albeit with an increased salary.

An award of front pay for a 5-year period is not unduly speculative. Plaintiff has worked at DFS or its predecessor since 2001. He rose through the ranks and has remained at DFS since then. Plaintiff states that he intends to retire at age 70, in five years, in order to maximize his social security annuity and his New York State pension. See, e.g., Chisholm v. Memorial Sloan—Kettering Cancer Center, 824 F.Supp.2d 573, 577 (S.D.N.Y. 2011) (award of front pay for two years found to be warranted); Hill v. Airborne Freight Corp., No. 97 Civ. 7098, 2003 WL 366641, at *5 (E.D.N.Y. Feb. 20, 2003) (awarding front pay for approximately one year and collecting cases); Padilla v. Metro-North Commuter R.R., 92 F.3d, 117, 126 (2d Cir. 1996) (awarding front pay for over 20 years); Bethlehem Steel Corp., 958 F.2d at 1189 (2d Cir. 1992) (awarding front pay for a 17-year period).

Saber v. New York State Dep't of Fin. Servs., No. 15 CIV. 5944 (LGS), 2018 WL 3611718, at *5 (S.D.N.Y. July 27, 2018)

An award of front pay for a 5-year period is not unduly speculative. Plaintiff has worked at DFS or its predecessor since 2001. He rose through the ranks and has remained at DFS since then. Plaintiff states that he intends to retire at age 70, in five years, in order to maximize his social security annuity and his New York State pension. See, e.g., Chisholm v. Memorial Sloan—Kettering Cancer Center, 824 F.Supp.2d 573, 577 (S.D.N.Y. 2011) (award of front pay for two years found to be warranted); Hill v. Airborne Freight Corp., No. 97 Civ. 7098, 2003 WL 366641, at *5 (E.D.N.Y. Feb. 20, 2003) (awarding front pay for approximately one year and collecting cases); Padilla v. Metro-North Commuter R.R., 92 F.3d, 117, 126 (2d Cir. 1996) (awarding front pay for over 20 years); Bethlehem Steel Corp., 958 F.2d at 1189 (2d Cir. 1992) (awarding front pay for a 17-year period).

Saber v. New York State Dep't of Fin. Servs., No. 15 CIV. 5944 (LGS), 2018 WL 3611718, at *5 (S.D.N.Y. July 27, 2018)

An award of front pay for a 5-year period is not unduly speculative. Plaintiff has worked at DFS or its predecessor since 2001. He rose through the ranks and has remained at DFS since then. Plaintiff states that he intends to retire at age 70, in five years, in order to maximize his social security annuity and his New York State pension. See, e.g., Chisholm v. Memorial Sloan—Kettering Cancer Center, 824 F.Supp.2d 573, 577 (S.D.N.Y. 2011) (award of front pay for two years found to be warranted); Hill v. Airborne Freight Corp., No. 97 Civ. 7098, 2003 WL 366641, at *5 (E.D.N.Y. Feb. 20, 2003) (awarding front pay for approximately one year and collecting cases); Padilla v. Metro-North Commuter R.R., 92 F.3d, 117, 126 (2d Cir. 1996) (awarding front pay for over 20 years); Bethlehem Steel Corp., 958 F.2d at 1189 (2d Cir. 1992) (awarding front pay for a 17-year period).

Overall, plaintiff is awarded back pay of $121,231, discounted front pay of $185,926 and discounted pension loss of $168,167.

Court upholds discrimination verdict against state agency

A trial court has upheld a discrimination verdict in which an Iranian-born man was denied a promotion because of his national origin. But the court reduced the damages award from $2.5 million to $125,000, ruling that the plaintiff's damages were merely "garden-variety" and not substantial.

The case is Saber v. New York State Department of Financial Services, 2018 WL 3491695 (S.D.N.Y. July 27, 2018). Plaintiff was rejected for the CRMS position in 2012 and 2013. The guys chosen for the position were initially deemed unacceptable by the decisionmakers. But according to the district court, plaintiff is highly educated and experienced. In 2013, plaintiff filed an internal grievance with the company over his rate of pay. A few weeks later, he received his first formal counseling. He then filed an EEOC charge in November 2013. Shortly afterwards, he got a mixed performance review. So where was the discriminatory intent? In May 2014, when management said staff had to take a course in handling hazardous materials in the workplace, plaintiff's superior said "that the reason is that plaintiff is hiding yellow cake in his cubicle," a reference to the materials needed to make an atomic weapon. Then, in July 2014, he received a notice of discipline which proposed 20 days' suspension without pay, leading to an arbitration in which the lead of labor relations joked with plaintiff, "I didn't waterboard you, did I?" As plaintiff is Iranian, both comments reflect discriminatory intent.

The trial court finds the jury had an evidentiary basis to find discrimination and retaliation. But another issue surfaced in the post-trial motion. The judge asked the jury for an advisory verdict on when the agency first decided not to select plaintiff for the promotion. The court did this because it wanted guidance in case it had to decide the amount of front pay, which is left to the judge and not the jury. In answering Question 3, the jury answered "October 2011," which actually predates when defendant posted the position that was denied to plaintiff, in early 2012. The state argues this answer means the jury was confused, requiring a new trial.

The trial court disagrees, for three reasons. First, the verdict is actually consistent, because Question 3 was only an advisory verdict, which is non-binding, and the other evidence at trial supports the overall discrimination/retaliation verdict. Second, the jury is entitled to “an idiosyncratic position, provided the challenged verdict is based upon the evidence and the law.” The judge reasons that "the jury’s finding may be interpreted to mean that Plaintiff had no realistic chance of being hired as CRMS since the DFS’s inception," and the evidence at trial supports this view, as October 2011 coincides with the date of DFS’s creation, and, referencing the testimony of a non-party witness, "based on Ms. Atabaki and Plaintiff’s testimony, DFS, since its inception, had a strong focus in enforcing U.S. sanctions against Iran; Ms. Atabaki testified that since October 2011, she was demoted from being the head of her division." Third, "the jury had clear guidance on the verdict form (which is in the record as a court exhibit) that the discrimination claim was based on the failure to promote him to CRMS."The binding questions before the jury were clear and placed the ultimate issue at trial squarely before them.

Like all huge verdicts, the trial court cuts it down. This case is no different. Part II of this discussion will focus on remittitur and other damages-related issues.

$3 million EDNY police brutality verdict reduced to $255,000

For plaintiffs, the euphoria of winning at trial is soon tempered by the motion practice that follows. The defendant will ask the trial court to reduce the damages award and even throw out the verdict entirely. This means the case is not yet over, and the fight could make its way to the appellate court. While trial courts rarely throw out the verdict, they often reduce the damages, sometimes in dramatic fashion. That's what happened in this case.

The case is Jennings v. Yurkiw, 2018 WL 5630454, an Eastern District of New York case issued on October 31. This is a police brutality case. When plaintiff showed up at his son's mother's apartment to  drop off the boy, the police arrived after the mother said plaintiff had violated an order of protection. Plaintiff says, and the jury apparently agreed, that one officer, LaGrandier grabbed him by the vest while another officer, Yurkiw, punched him in the face for no reason, causing plaintiff to stumble to the ground and curl up like a baby as the officers beat the hell out of him. The police had to carry him out of the building. The trial court easily finds the jury had a basis to rule for plaintiff, as the case turned on credibility. Plaintiff says the police beat him up, and the police denied it. The jury credited plaintiff's testimony, and trial courts cannot second-guess credibility assessments on a post-trial motion. Damages are another story. Here is the damages evidence:

With respect to damages, it is uncontroverted that Plaintiff suffered a right eye hematoma, a bilateral nasal fracture, a deviated septum, and an inflamed ethmoid sinus, injuries that Dr. Hussein Matari recorded after reviewing Plaintiff’s CT scan at Woodhull Hospital on the day of Plaintiff’s arrest. Dr. Frank Flores, an emergency medicine physician at Rikers Island Correctional Center who examined Plaintiff two days later, on April 25, substantially confirmed these injuries. Dr. Flores noted that the area around Plaintiff’s eye was ecchymotic, or bruised, and had a hematoma, or “blood swelling.” Dr. Flores also observed Plaintiff’s nasal bone fracture. Mugshots of Plaintiff clearly depicting his right eye bruised and swollen shut were also received in evidence at trial. 

 

Plaintiff alleges that the long-term impact from these injuries is that his nose is permanently crooked and that he suffers from “definitely painful” headaches. Plaintiff did not offer any evidence of ongoing medical care to treat these conditions, and acknowledged on cross-examination that the last time he sought treatment with respect to his nose was around May 3, 2014, roughly ten days following his arrest. As for emotional distress, Plaintiff did not allege anything other than the distress he was in during and following the altercation, arising largely from being beaten in front of his son. Defendant Yurkiw confirmed that, at the time of the arrest, Plaintiff was actually in tears and asking Defendants, “Why are you doing this?” Plaintiff did not offer evidence of any psychological treatment.

The jury awarded plaintiff $500,000 for pain and suffering and $2.5 million in punitive damages: $1 million against Yurkiw and $750,000 each against LaGrandier and officer Solomito. The trial court reduces the pain and suffering to $115,000. The punitives are reduced as follows: $120,000 against Yurkiw and $10,000 each against the two other officers.

As for the compensatories, Magistrate Judge Gold says the $500,000 shocks the conscience, the legal standard under federal law, because the physical injuries "occupy a middle ground between non-permanent and permanent," including the crooked nose and frequent and painful headaches. Yet, the emotional damages are "garden variety," meaning there is no evidence of treatment with a mental health guy or medication for depression.Similar cases involving beatings and police abuse usually net around $100,000 in damages for physical injuries. As one case awarded $123,00 and another awarded $100,000, the judge in this case finds a middle number for this plaintiff: $115,000. 

What about the punitives? The court notes that juries have almost no guidance in awarding punitives and that judges have to regulate them to ensure we don't have runaway punitive damages awards. Reviewing similar cases that awarded punitives, Judge Gold slashes the award from $2.5 million to $140,000 between three defendants, with the most culpable officer assessed at $120,000.

Appellate courts mostly defer to the trial court's damages calculations in wage and hour cases

In this Fair Labor Standards Act case, the trial court ruled in plaintiffs' favor on liability but did not award a whole hell of a  lot of money in damages, about $25,000 for three plaintiffs. The trial court said defendants largely complied with the law and that the man who ran the restaurant, was the most credible witness at trial and even had genuine concern for the employees' well-being. The Second Circuit affirms.

The case is Gamero v. Koodo Sushi, Corp., a summary order issued on October 18. The district court did rule for plaintiffs while finding defendants credible on some important issues. Judge Failla wrote:

Plaintiffs all testified that they worked over 50 hours per week for most of their tenures at Koodo Sushi. They also claimed that Koo paid them fixed salaries—per shift for Gamero, and per week for Mastranzo and Sanchez—that fell below then-prevailing federal and state minimum wage statutes.

But in general, Plaintiffs' accounts of their hours and wages did not square with the payroll records Defendants submitted. Relying on those records and Koo's recollection of how she operated her restaurant, Defendants argued that Plaintiffs had overestimated—and in Gamero's case, substantially overestimated—their hours. Defendants also contended that Koo paid Plaintiffs by the hour, at rates that met or exceeded minimum wage, either in the first instance or once certain credits were deducted..

To be sure, the Court was troubled by many issues with Defendants' payroll records. Koo inconsistently tracked Plaintiffs' hours and wages. Some of her records are confusing; some are nearly illegible. But in the main, Defendants' account of Plaintiffs' hours and wages was more credible than the accounts Plaintiffs offered. Koo, in addition to evincing genuine concern for her employees' well-being, was by far the most credible witness at trial, and the Court largely accepted her testimony concerning the accuracy of the records she kept.

Appellate courts are not going to lightly question the trial court's damages calculations following a bench trial. Plaintiffs say the district court did not properly calculate damages because it did not calculate their "regular rate of pay," which is the hourly rate. While the trial court resolved this in terms of how much plaintiffs were owed per week, it appears the court did base its calculations on a per hour "regular rate" of pay. For the most part, the trial court credited one of the plaintiffs with a standard 50-hour work week. For another plaintiff, the trial court settled upon a "regular rate" of pay of $5.00 per hour (the minimum wage plus tips and meal credits), finding that he was paid $65.00 per week on average. On the basis of that weekly average, the court aggregated what this plaintiff was paid throughout his employment and calculated the difference between that figure and what the labor law required management to pay him within the time period covered by this lawsuit.

Plaintiffs also want liquidated damages under both state and federal labor law. The trial court did award plaintiff liquidated damages under state law. But the Court of Appeals recently held in another case that you cannot get duplicative liquidated damages under federal law (when the plaintiff already gets them under state law). That case is Rana v. Islam, 887 F.3d 118 (2d Cir. 2018).