Monday, June 17, 2019

Second Circuit outlines how to win (and lose) non-employment equal protection claims

In this case, the Court of Appeals tells us all we need to know about how to resolve equal protection cases when the government is accused to singing someone out in the provision of government services.

The case is Hu v. City of New York, issued on June 13. Plaintiffs are an Asian construction worker and Asian-owned companies who perform work in New York City. They claim that an Assistant Chief Inspector, Burkart, selectively enforced the building codes against plaintiffs out of anti-Asian animus, in part through a personal vendetta against Asians in general and Hu in particular. Plaintiffs claim Burkart has harassed and belittled Asian workers while constructive construction websites, and that he has singling them out for code violations, acts which have harmed the plaintiffs financially and cost them prospective customers.

Plaintiffs pursue two avenues for relief: they invoke LeClair v. Saunders, 627 F.2d 606 (2d Cir. 1980), which requires proof of disparate treatment and impermissible motivation (such as race), and Village of Willowbrook v. Olech, 528 U.S. 562 (2000), where the Supreme Court recognized "class of one" claims, which permits equal protection claims where the plaintiff is shafted by the government and others who are nearly identical to the plaintiffs' situation are left alone and not hassled. This case examines the interaction between Olech and LeClair.

These two precedents "offer distinct pathways for proving a non-class based Equal Protection violation," the Second Circuit (Jacobs, Lynch and Hall [D.J.]) says. Unlike a malice-based LeClair claim, an Olech claim does not require proof of the defendant's subjective ill-will toward the plaintiff, who can win under Olech on the basis of similarity alone. But in order to prove an Olech claim, that similarity must be almost identical to the plaintiff's situation, requiring almost a mirror-image.

Plaintiffs have made out a LeClair claim, the Second Circuit rules, reversing the district court on this issue. They argue that Burkart cited them for the same conduct (having a pool of standing water) on a job site without similarly charging a white company at the same job site. The Court says this is a close case, and discovery may show that there were meaningful distinctions among the alleged misconduct by the Asian and white companies. But for now, the plaintiffs have case, as the fact-intensive nature of the "similarly-situated" inquiry cautions against deciding whether two comparators are similarly-situated on a motion to dismiss.

Plaintiffs do not have an Olech claim, however, as none of their proffered comparators satisfy the more stringent similarly standard under that case. It looks like the allegations in the complaint are too sparse to satisfy Olech. "The Amended Complaint is silent as to a whole host of potential factors that could legitimately justify Burkart's behavior, including, inter alia, whether the white workers were engaged in the same type of work as the plaintiffs, the length of time between Burkart's visits to the 34th Avenue Jobsite, and the identity of the white workers' employer." This case reminds us just how difficult it is to win an Olech claim, or to even plead it plausibly.

Finally, plaintiffs had a plausible Section 1981 claim. These claims carry a similar burden of proof to claims under LeClair. Plaintiffs may proceed to discovery in part through allegations that Burkart has enlisted the help of other government employees by searching Department of Buildings databases to find construction firms that employ Hu, and the then inspect those worksites. It also looks like Burkart has bragged about shutting down Hu's worksites throughout the city. The complaint asserts that Burkart has been angry at Hu for years ever since Hu filed a complaint with the Department of Buildings against Hu in 2011, alleging that Burkart was enforcing the building code in a discriminatory manner.


Tuesday, June 11, 2019

Supreme Court to determine causation standard for Section 1981 discrimination cases

The Supreme Court decided on Monday morning that it will determine the scope of Section 1981, the federal statute that prohibits racial discrimination in the making of contracts. Section 1981 governs employment discrimination claims. This will be the third time in a decade the Court will take a look at the causation standard for employment discrimination cases.

The case is Comcast Corp. v. National Association of African American-Owned Media, a case out of the Ninth Circuit, which held that the statute does not require "but for" causation but "motivating factor" causation. This may seem like a meaningless distinction, but if you handle employment discrimination cases, you know exactly what this means. But-for causation means that race was the determining factor in the adverse decision, and that without consideration race, the adverse decision would never have happened. Motivating-factor means that race was one of several motives, even if the racial motive did not by itself make the difference.

The statute provides that “[a]ll persons . . . shall have the same right in every State and Territory to make and enforce contracts . . . as is enjoyed by white citizens . . . .” 42 U.S.C. § 1981(a). It further defines “make and enforce contracts” as including “the making, performance, modification, and dermination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.”

Enacted in the wake of the Civil War, Section 1981 does not articulate a causation standard. Other civil rights statutes do explicitly set forth a standard. Under Title VII's prohibition against racial, gender, national origin and religious discrimination, these characteristics cannot be a "motivating factor" in the adverse decision. We call these "mixed motive" cases. Under Title VII's antiretaliation provision, however, Congress used different language, stating that no one may suffer retaliation "because of" their protected activity under Title VII. In Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338 (2013), the Supreme Court said "because of" means determining factor, not motivating factor. The same analysis governs age discrimination claims under the Age Discrimination in Employment Act, as per the Court's ruling in Gross v. FBL Fin. Servs., Inc., 557 U.S. 167 (2009), as the ADEA also says no one may suffer discrimination "because of" their age.

 In Comcast, the Ninth Circuit went with the "motivating factor" test in Section 1981 cases, reasoning:

Section 1981 guarantees “the same right” to contract “as is enjoyed by white citizens.” 42 U.S.C. § 1981(a). This is distinctive language, quite different from the language of the ADEA and Title VII’s retaliation provision, both of which use the word “because” and therefore explicitly suggest but-for causation. Charter contends that the most natural understanding of the “same right” language is also but-for causation. We disagree and are persuaded by the reasoning of the Third Circuit in Brown v. J. Kaz, Inc., 581 F.3d 175 (3d Cir. 2009). There, albeit in dicta and without formally resolving the issue, the court reasoned that “[i]f race plays any role in a challenged decision by a defendant, the plain terms of the statutory text suggest the plaintiff has made out a prima facie case that section 1981 was violated because the plaintiff has not enjoyed ‘the same right’ as other similarly situated persons.”

If discriminatory intent plays any role in a defendant’s decision not to contract with a plaintiff, even if it is merely one factor and not the sole cause of the decision, then that plaintiff has not enjoyed the same right as a white citizen. This, we conclude, is the most natural reading of § 1981. Therefore, unlike the ADEA or Title VII’s retaliation provision, § 1981’s text permits an exception to the default but-for causation standard by virtue of “an indication to the contrary in the statute itself.”
 The certiorari petition in Comcast argues that the Ninth Circuit got it wrong and that it should have applied the common-law "but-for" test governing causation in torts cases unless Congress intended that another causation standard applies to that particular statute.

You may ask, if employment discrimination plaintiffs can bring their lawsuits under Title VII, which employs the more plaintiff-friendly "motivating-factor" test, why should it matter what the Supreme Court does under Section 1981? The answer is that (1) Section 1981 does not require any EEOC filing/administrative requirements before the plaintiff can bring a lawsuit, which requirements only prolong the case as the EEOC needs at least six months to investigate the claim, (2) the statute of limitations under Title VII is 180 or 300 days, depending on what state you live in, and Section 1981 claims carry a much longer statute of limitations; (3) unlike Title VII, plaintiffs under Section 1981 may sue employers with fewer than 15 employees; and (4) there are no caps under Section 1981 for pain and suffering, unlike Title VII.

If the Supreme Court adopts the "but-for" test for Section 1981 claims, litigants may face an anomaly: in employment discrimination cases brought under Section 1981 and Title VII, the jury may have to resolve both claims under different standards of proof, with the same evidence. How is the jury going to thread the needle? How are attorneys going to discuss this in summation? What will the jury instructions look like? 

Friday, June 7, 2019

Court of Appeals upholds national origin discrimination claim against the State of New York

The Second Circuit has upheld a jury verdict finding that a state agency discriminated against a financial analyst because of his national origin. The Court rejects the argument that the plaintiff did not produce enough evidence to support his discrimination. It also rejects the state's argument that the verdict form demonstrated jury confusion.

The case is Saber v. State of New York, a summary order issued on June 5. I helped defend the verdict on appeal. Doris G. Traub and Margaret McIntyre tried the case before Judge Schofield. I wrote about this case at these links, discussing the trial court's post-trial ruling that reduced the $2.5 million pain and suffering award to $125.000.

The state appealed from Judge Schofield's rulings, claiming plaintiff's Iranian heritage had nothing to do with its refusal to promote him, and that it did not retaliate against plaintiff with a series of adverse actions after he filed a charge of discrimination with the EEOC. The Iranian connection derives in part from the financial agency's mandate to crack down on banks that do business with Iran. Without much discussion, the Second Circuit (Lohier, Calabresi and Donnelly [D.J.]) says the trial court got it right in finding the record contains enough evidence of intentional discrimination. Some of that evidence included slurs about  Plaintiff hiding "yellow cake" in his workspace. We normally associate "yellow cake" with nuclear weapons. Iran's alleged nuclear ambitions were in the news at the time. The jury probably figured that plaintiff is a distinguished financial analyst; why should he put up with this?

The state also argued that the jury was confused because the trial court had it answer a question on the verdict form asking when it was clear plaintiff was first denied the promotion. That was actually an advisory question to help the trial court calculate lost wages. The jury's answer was October 2011, when the agency was first created. While the state said that answer made no sense because the actual decision to deny plaintiff the promotion took place afterwards, the trial court said (and the Second Circuit agreed) that October 2011 was a good answer because the jury was stating plaintiff never had a chance with the agency from the outset. Plus, this was an advisory verdict question; the answer was not binding on the court.

The trial court did award plaintiff lost wages, but the state challenged that on appeal as well, claiming the calculations ran afoul of guidelines in the state's Personnel Management Manual. The Court of Appeals deals with that argument this way: "But DFS failed to make the District Court aware of the Manual and relies on it for the first time only on appeal, and in any event the District Court had some discretion in using the salaries of comparators to determine backpay in this case." The Circuit cites Kirsch v. Fleet Street, Ltd., 148 F.3d 149, 166 (2d Cir. 1998), for the proposition that "salaries of comparators may be used to calculate backpay 'only insofar as the plaintiff lays a sufficient foundation to permit the reasonable inference that his salary would have matched…the salaries of others.”


Wednesday, June 5, 2019

Disability discrimination verdict is upheld

Appellate courts defer to the jury's credibility determinations. Whom do we believe? Whom do we disbelieve? Verdicts get appealed all the time. The Second Circuit will not upset a jury verdict unless it has a very good reason to do so. This verdict got affirmed because the Court of Appeals deferred to the jury.

The case is Presumey v. Board of Education, a summary order issued on May 30. Plaintiff was a schoolteacher. She claims the school district failed to accommodate her disability. She was a professional assistant who worked with disabled students. When she injured her shoulder at work, she requested light duty. The district told her there was no light duty assignment in her job class and it ultimately fired plaintiff on the basis that her medical condition made it impossible to perform the essential functions of her job. This language tracks the Americans with Disabilities Act, which says the employer must accommodate a disabled employee if the accommodation does not eliminate an essential job function.

At trial, the district said that the essential functions of a professional assistant include lifting, toileting and feeding students. True, plaintiff could not perform those functions, but she said they were not essential to her job. While defendant at trial put on witnesses who said these duties were essential to plaintiff's position, and that the the job description and handbook said that assistants like plaintiff have to take on these responsibilities, plaintiff controverted that evidence at trial. She noted that her students had a variety of disabilities, some of whom did not require lifting. Not all assistants had to lift and toilet the students, as "those functions were waived for certain professional assistants." Other assistants got light duty and were assigned to work with students in wheelchairs, which did not require lifting. You get the picture. Even the handbook is not controlling on this issue.

Since the trial evidence did not compel a finding that lifting and toileting students constituted an essential job requirement, the Court of Appeals (Lynch, Lohier and Cogan [D.J.]) allows the verdict to stand. That distinguishes this case from Stevens v. Rite Aid Corp., 851 F.3d 224 (2d Cir. 2017), where the Court of Appeals threw out a huge verdict in favor of a pharmacist who had needle-phobia and was therefore unable to perform an essential job duty: administering vaccines to customers.

What does this case teach us? Even if documents appear to support the defendant's case, the plaintiff can get around that if she finds the right witnesses to show that management did not always follow its light duty policies. 

Another interesting side note about the trial: it looks like plaintiff called a co-worker, Eileen Dailey, to the stand. Dailey had the same job as plaintiff but, plaintiff told the jury, Dailey did not have to do any lifting even though Dailey was disabled. Of course, if true, this argument would help plaintiff's case. Plaintiff called Dailey to the stand to refute the district's position that, despite Dailey's physical infirmities, she was in fact able to lift and toilet students. If Dailey got light duty, why not plaintiff? Plaintiff's counsel challenged the veracity of Dailey's testimony in arguing to the jury that Dailey was unable to perform these functions in light of her disabilities. The court rulings in this case are not clear on what exactly plaintiff's counsel did when Dailey was on the stand, but plaintiff testified that Dailey's left arm and leg were affected by paralysis, and the trial court ruling says Dailey had "an obvious foot drop, clearly walked with difficulty, and did not move her left arm at all." Plaintiff's counsel told the jury, "you saw with your own eyes what the truth is about that lady." It must have been uncomfortable to attack Dailey's testimony that way, but as one trial expert once said during a trial practice CLE, "trial lawyers don't go to heaven."

Monday, June 3, 2019

Title VII filing requirements are not jurisdictional

There are rules, and then there are rules. In litigation, some rules are more rock-solid than others. Some requirements must be satisfied before the case can go any further, and some rules are mandatory but the case can proceed anyway if the opposing party does not object to the oversight. This case involves these rules in the context of Title VII's requirement that the plaintiff must file a charge with the EEOC before she can litigate the case in court.

The case is Fort Bend County v. Davis, issued by the Supreme Court on June 3. If you suffer discrimination on the basis of race, gender, color, religion or national origin, you cannot go to court unless you have exhausted the EEOC filing requirements. In New York, that means you have 300 days to file with the EEOC, which then investigates the case and may try to reach a settlement. If those efforts fail, you can go to court within 90 days after the EEOC closes out the file.

The EEOC filing requirements are not difficult, but you have to set forth the basis for the alleged discrimination. In this case, plaintiff brought an EEOC charge alleging sexual harassment and retaliation for complaining about the harassment. She then tried to amend the charge to allege religious discrimination after she was fired for missing work on a Sunday and going to church instead. On the EEOC "intake questionnaire," she wrote in "religion" as the basis for the discrimination, but she did not formally amend her charge; that oversight was apparently a mistake on plaintiff's part. The employer presumably did not notice this error until late in the game, when it moved to dismiss plaintiff's charge because she did not properly complete the form.

What is the effect of Davis's failure to complete the form properly? Did the employer properly object, or was that objection waived? The courts place errors like Davis's into two piles: jurisdictional errors and claim-processing errors. Jurisdictional requirements are mandatory, and the court can dismiss the case even if the other side does not not object, or if they take forever to object. An example of this is the requirement that federal courts cannot hear claims over which they do not have subject matter jurisdiction. Claim-processing rules are also mandatory, but the objection to a bad filing can be waived.

We know that a court rule or filing requirement is jurisdictional or claim-processing by reviewing the statute. The Court says this:

While not demanding that Congress “incant magic words” to render a prescription jurisdictional, the Court has clarified that it would “leave the ball in Congress’ court”: “If the Legislature clearly states that a [prescription] count[s] as jurisdictional, then courts and litigants will be duly instructed and will not be left to wrestle with the issue[;] [b]ut when Congress does not rank a [prescription] as jurisdictional, courts should treat the restriction as nonjurisdictional in character.”
Under this standard, the EEOC filing requirement is not jurisdictional but a claim-processing rule. "Title VII’s charge-filing provisions 'speak to . . . a party’s procedural obligations.' They require complainants to submit information to the EEOC and to wait a specified period before commencing a civil action. . . . Title VII’s charge-filing requirement is a processing rule, albeit a mandatory one, not a jurisdictional prescription delineating the adjudicatory authority of courts."

Friday, May 31, 2019

Here is how the interactive process works under the Americans with Disabilities Act

This case highlights a loophole in the Americans with Disabilities Act that employees may be unaware of. The Court of Appeals affirms the grant of summary judgment where the plaintiff had to miss work because of a disability. She loses because she cannot show there was a way for her employer to reasonably accommodate her, and plaintiff rejected a position that management did offer to her.

The case is Barton v. Unity Health System, a summary order issued on May 28. Plaintiff was a dental hygienist. She was unable to work because of her disability. When her doctor cleared her to resume working in February 2013, she wanted to be transferred to one of two positions that became available during her medical leave. That can be a good argument in an ADA case. But it does not work here, because plaintiff did not update her employer about her condition while she was out on leave, which means her employer did not know whether or when she might be cleared to return to work. Nor did management know what restrictions might enable her to return to work.

This analysis applies a rule unique to disability discrimination cases: the interactive process. Under the ADA, if the plaintiff wants her employer to accommodate her disability, the employer should initiate the discussion by identifying positions that she might be able to fill. The employer then has to negotiate with the employee in good faith to see if that position will work for the plaintiff. But it does not look like plaintiff initiated the interactive process, leaving management in the dark about how to proceed. As the Court of Appeals (Cabranes, Walker and Hall) writes:

That Barton might have broached the possibility of a transfer as early as May 2012 is of no consequence. The Americans with Disabilities Act “envisions an interactive process by which employers and employees work together to assess whether an employee’s disability can be reasonably accommodated.” The evidence shows that Unity was prepared to engage in an interactive process when Barton went on indefinite medical leave in June 2012. After that point, however, Unity was unable to investigate Barton’s concerns, learn more about her disability, or discuss with her various potential accommodations. In the circumstances, Barton’s transfer request does not resemble the first step in an interactive process so much as an attempt to short-circuit whatever process Unity might ordinarily undertake.
What also hurts plaintiff's claim is that, when she sought to return in February 2013, Unity reviewed its vacancies and offered Barton a dental secretary position at one of its other locations. Barton rejected the position. "Though dental secretaries and dental hygienists perform different tasks, the new role would have allowed Barton to remain with Unity, maintain her seniority, and apply for any dental hygienist vacancies that arose in the future. In the circumstances, it appears that Unity made a good-faith effort to accommodate Barton. The law requires no more."

Thursday, May 30, 2019

Supreme Court outlines standard for retaliatory arrests

With little fanfare, the Supreme Court has issued an important ruling on retaliatory arrests, that is, how to resolve cases where someone claims the police arrested them in retaliation for their First Amendment speech. The Court sets forth a framework that seems to favor the police.

The case is Nieves v. Bartlett, decided on May 28. It all started in a remote part of Alaska, where about 10,000 maniacs show up once a year for Arctic Man, "an event known for extreme sports and extreme alcohol consumption," as Chief Justice Roberts writes. He goes on to describe Arctic Man in detail, mostly from the standpoint of morbid fascination, noting that alcohol and snowmobiles "do not always mix well." As I am learning from a recent biography on Roberts, this is the last place he would have gone to as a young man. Arctic Man looks like an Alaskan Beerstock. Anyway, plaintiff got arrested for disorderly conduct and resisting arrest after he told someone else they did not have to speak with the police. The charges were dropped and Bartlett filed this lawsuit.

The Supreme Court uses this case to set out a framework for deciding these cases. On one hand, you cannot be punished for the exercise of free speech. But the police can also arrest you if they have probable cause to believe you committed a crime. So this case involves a clash between the First and Fourteenth Amendments. The Court decides that the plaintiff cannot win a retaliatory arrest claim if the police have probable cause to arrest him. The idea is that if the police have probable cause, then there was an objective basis to arrest the plaintiff, speech or no speech. The Court notes that some people are even legitimately arrested because of their First Amendment speech. As Roberts states,

protected speech is often a “wholly legitimate consideration” for officers when deciding whether to make an arrest. Officers frequently must make “split-second judgments” when deciding whether to arrest, and the content and manner of a suspect’s speech may convey vital information—for example, if he is “ready to cooperate” or rather “present[s] a continuing threat.” Indeed, that kind of assessment happened in this case. The officers testified that they perceived Bartlett to be a threat based on a combination of the content and tone of his speech, his combative posture, and his apparent intoxication.
The Court makes a narrow exception to this rule for cases in which the police have probable cause to make arrests but typically exercise their discretion not to do so, such as in jaywalking cases.

For example, at many intersections, jaywalking is endemic but rarely results in arrest. If an individual who has been vocally complaining about police conduct is arrested for jaywalking at such an intersection, it would seem insufficiently protective of First Amendment rights to dismiss the individual’s retaliatory arrest claim on the ground that there was undoubted probable cause for the arrest.
The plaintiff in this case loses under this standard because he cannot show the officer who arrested him did so because of his protected speech in opposing police activity.

Justice Sotomayor dissents, arguing that the majority's new rule is needlessly complicated. The better approach, Sotomayor says, draws from established First Amendment retaliation cases in other contexts governed by the Supreme Court's ruling in Mount Healthy v. Doyle (1977), which says the plaintiff wins if his speech was a substantial or motivating factor in the adverse action. In those cases, however, the defendant wins if he can show he would have arrested the plaintiff even without the protected speech. This "timeworn standard is by no means easily satisfied," Sotomayor says.

Even in cases where there is “proof of some retaliatory animus,” if evidence of retaliatory motive is weak, or evidence of nonretaliatory motive is strong, but-for causation will generally be lacking. That is why probable cause to believe that someone was a serial killer would defeat any First Amendment retaliatory arrest claim—even if, say, there were evidence that the officers also detested the suspect’s political beliefs.

With sufficient evidence of retaliatory motive and sufficiently weak evidence of probable cause, however, Mt. Healthy is surmountable. Its orderly framework thus “protects against the invasion of constitutional rights” while burdening legitimate exercises of governmental authority only so far as is “necessary to the assurance of those rights.”