Female basketball referee was not an "employee" and can't sue under Title VII for sex discrimination

One barrier to winning a Title VII employment discrimination case is proving that you were an actual "employee" of the company that discriminated against you. This may be an easy call for most plaintiffs, but under Title VII, independent contractors are not entitled to any relief under Title VII because they are not employees. That is what happened here.

The case is Girard v. International Association of Approved Basketball Officials, a summary order issued on January 22. Plaintiff was a female middle and high school basketball referee who claims the Association's subjective methods for assessing referees resulted in her assignments to less lucrative sub-varsity games. Most of the referees are men. When plaintiff complained about this gender discrimination, she suffered retaliation in the form of a reduction in the number of games she was assigned to. 

While plaintiff sues the International Association and the School Board in Connecticut where she worked, the problem is that plaintiff was not an employee of either entity. She claims the employers are "employment agencies" and may therefore be sued under Title VII.The Court says that, for plaintiff to prevail, she must "plausibly plead an employer-employee relationship with the schools for defendants to have acted as employment agencies." She cannot prove that, and the Court finds she was instead an independent contractor. Under the multi-part test that court have devised in determining whether an employee is an employee or contractor, we consider the following:

[1] the hiring party's right to control the manner and means by which the product is accomplished . . . . [;] [2] the skill required; [3] the source of the instrumentalities and tools; [4] the location of the work; [5] the duration of the relationship between the parties; [6] whether the hiring party has the right to assign additional projects to the hired party; [7] the extent of the hired party's discretion over when and how long to work; [8] the method of payment; [9] the hired party's role in hiring and paying assistants; [10] whether the work is part of the regular business of the hiring party; [11] whether the hiring party is in business; [12] the provision of employee benefits; and [13] the tax treatment of the hired party.

The Court of Appeals cites Gulino v. N.Y. State Educ. Dept, 460 F.3d 361 (2d Cir,. 2006), for these factors. This may seem too complicated, but the ultimate question in these cases is the degree of control the defendant had over the plaintiff's employment. Normally, the "control" factor makes things a little easier, but this case identifies another wrinkle in the analysis: whether the plaintiff was hired in the first instance. "In determining whether a person has been 'hired,' we look primarily to 'whether [a plaintiff] has received direct or indirect remuneration from the alleged employer.'" The Court cites Gulino for that proposition as well.

While plaintiff on this Rule 12(b)(6) motion "clears the renumeration hurdle with respect to the schools because she alleges that the schools, school districts and league of schools pay her on a per-game basis," she cannot show, even on the face of her complaint, that the Association had the necessary control over her employment, among other things. The Court says:

Girard has not plausibly alleged that she was an employee of the schools in her capacity as a referee. She does not allege that the schools exercised meaningful control over how games are officiated.  She also fails to allege the duration of the relationship between a referee and a school. While the complaint alleges that Girard refereed a total of 37 games in the 2008–2009 season, the complaint does not indicate whether she  did so for the same or different schools or whether she refereed for the same school on more than one occasion or whether she had a relationship with any school that would suggest an employer-employee relationship. And Girard does not allege she received any employment benefits
from the schools other than pay for games she officiated. As the district court observed, these facts do not distinguish Girard's relationship with the schools from that of an independent contractor where the schools otherwise lack the right or ability to control how the services are performed.

No damages claim for inmate who remained in jail after his release date

This case tells us something about qualified immunity. The Court of Appeals finds that an inmates Eighth Amendment rights were violated because he remained incarcerated beyond his release date. But the Court also finds that the defendant cannot be sued because the inmate's rights were not clearly established at the time.

The case is Hurd v. Fredenburgh, issued on January 12. Plaintiff was sentenced for various misdemeanors. A complex formula governs prison sentences, taking into account concurrent sentences and possible early release depending on whether the inmate served time on the charge while awaiting trial. Inmates may also be eligible for "good time," which allows for early release for good behavior. In this case, even after plaintiff got a release date for April 19, 2016, he remained incarcerated for nearly a year. Plaintiff claims that prison officials reduced his jail-time credit to prevent his release. The Court of Appeals notes that plaintiff did not provide a motive for this.

The district court dismissed the case, holding that plaintiff did not identify an Eighth Amendment violation. The Court of Appeals disagrees. "Unauthorized detention of just one day past an inmate's mandatory release date qualifies as a harm of constitutional magnitude under the first prong of the Eighth Amendment analysis. Hurd's unauthorized imprisonment for almost one year certainly qualifies under that standard." This is because Hurd's release was mandatory under New York law. So why doesn't Hurd win the appeal?

Hurd loses on qualified immunity grounds, which lets government defendants off the hook if they do not violate clearly-established case law that specifically held their actions were illegal. The Court begins is analysis by noting that if prolonged detention in jail results from mistakes made in good faith, mistake, or processing or other administrative delays made in good faith, then there is no deliberate indifference under the Eighth Amendment. After pausing to consider (1) the defendant in this case was deliberately indifferent to Hurd's rights or whether she was powerless to do anything about it (since the City made the calculations), or (2) whether there was a due process liberty-interest violation, the Second Circuit holds that she is entitled to qualified immunity"it was not clearly established during the period of Hurd's prolonged detention that an inmate suffers harm of a constitutional magnitude under the Eighth Amendment when they are imprisoned past their mandatory conditional release date, nor was it clearly established that an inmate has a liberty interest in mandatory conditional release protected by the Fourteenth Amendment's substantive due process clause." 

Plaintiff tried to get around the qualified immunity hurdle by arguing that existing cases "confirm a uniform legal principle that no federal, state, or local authority can keep an inmate detained past the expiration of the sentence imposed on them." But those case provide a general rule. "None of the cases upon which Hurd relies addresses a conditional release scheme, let alone one in which an inmate is entitled to mandatory release prior to the expiration of their maximum sentence. More to the point, none of them confirm that prolonging an inmate's detention past their conditional release date might violate the inmate's rights under the Eighth Amendment."

Court of Appeals revives inmate's due process claim

This case has been kicking around forever. The plaintiff-inmate claims that prison officials retaliated against him for speaking out against the prison grievance system. The retaliation took the form of contraband planted in his cell. He also has a due process claim that relates to the retaliation claim. After the district court dismissed the case prior to trial, the Court of Appeals reinstated it, and the plaintiff lost the retaliation claim at trial. The case returns to the Second Circuit, which affirms the jury verdict but remands the case to the district court again, this time in finding the plaintiff has a due process claim that the district court had overlooked.

The case is Kotler v. Jubert, issued on January 19. In this appeal, we have some procedural issues that would mostly be of interest to federal practitioners, but they should also interest anyone who marvels at how slowly the system of justice mete out justice. For the practitioners, though, this case clarifies (1) what the party must do when an opposing party dies during litigation, and (2) when a party has abandoned a claim on appeal such that the district court may ignore that claim on remand. Our plaintiff here wins on the second issue but loses on the first.

Issue 1: when the Jail Superintendent died mid-litigation, plaintiff did not move the district court to name the estate's executor as the defendant. Under the rules, when a party dies, the decedent's attorney lets the other side know about it, and the latter party has 90 days to make that motion. If that motion is not made within 90 days, the case against that "defendant" is dismissed. Plaintiff says that deadline does not really count because the Superintendent's attorney did not let him know who the estate's executor was. Plus plaintiff notes that inmates are sometimes given a break in complying with the procedural rules. Not this case. The Court of Appeals (Pooler, Lohier, and Nardini) says this rule applies across-the-board, even for inmates, and that there is no requirement that the Superintendent's attorney identify the executor. If plaintiff needed more time to make that motion in order to identify the executor, he could have done so, but he did not, the Court observes. While a case from 1969 out of the D.C. Circuit might support plaintiff's position, the Second Circuit declines to follow that case, Rende v. Kay, 415 F.2d 983 (D.C. Cir. 1969).

Issue 2: when the district court originally dismissed plaintiff's case in its entirety, he went to the Court of Appeals, which to get it reinstated. One of plaintiff's claims was a due process action, which was premised in part on his retaliation claim. The Court of Appeals remanded the case back to the district court, specifically addressing the retaliation claim but not affirming the dismissal of the due process claim either. The due process was sort of impliedly revived on appeal. But the district court overlooked that implied ruling and said the due process claim was gone for good because plaintiff had abandoned it on appeal. The Second Circuit, in this second appeal, says the due process claim never actually died and that plaintiff did not actually abandon it. Although plaintiff focused on the retaliation claim during the first appeal, he noted that his due process claim was related to the retaliation claim. And when the Court of Appeals in the first appeal reinstated the retaliation claim, it vacated the entire district court judgment, which necessarily included the due process claim. So while the jury rejected the retaliation claim on remand, it will now take up the due process claim on the second remand.

Circuit forecloses post-trial appeals from summary judgment denials

The Second Circuit has conclusively ruled that you cannot appeal an order denying summary judgment when the case proceeds to trial. This issue may be of no interest to lawyers, but federal practitioners will take note the summary judgment denials are mere interlocutory orders for which a subsequent appeal is improper.

The case is Omega SA v. 375 Canal, LLC, issued on January 6. This a trademark infringement case in which a $1.1 judgment was entered following trial, after the jury found that counterfeit watches were being sold at defendant's property. Prior to trial, defendant moved for summary judgment, claiming the evidence did not support the plaintiff's claim as a matter of law. That motion was denied, and the case proceeded to trial. Post trial, defendant argues in part that the case never should have gone to trial because it was entitled to summary judgment.

This issue would never arise in state court, because under the state system, you can appeal any ruling by a judge at the time she issues the ruling. So you can have multiple appeals at the same time in the same case. This is one reason why the state appellate courts have a huge backlog. But in federal court, there is only one appeal per case, when the judgment is entered. That appeal can encompass issues that the district court resolved prior to entry of judgment, such as when a few claims are dismissed on the summary judgment motion and the case proceeds to trial on the remaining issues. In that scenario, the plaintiff can appeal the summary judgment order that dismissed the claims, even if that order issued a year ago.

Defendant in this case wants to appeal the district court's order denying summary judgment on the case. That procedural tactic was foreclosed by the Supreme Court in Ortiz v. Jordan, 562 U.S. 180 (2011), the Second Circuit (Menashi, Raggi and Lohier) says. In Ortiz, the Court said a party cannot "appeal an order denying summary judgment after a full trial on the merits." Such an order, Ortiz said, "retains its interlocutory character," which in plain English means it cannot be appealed because no final judgment has entered on that order.

The Second Circuit explains that "a motion for summary judgment does not preserve an issue for appellate review of a final judgment entered after trial because 'once the case proceeds to trial, the full record developed in court supersedes the record existing at the time of the summary judgment motion.'" That language derives from Ortiz. An exception to this rule is when the issue decided on the summary judgment is a purely legal issue, but even then, a post-trial appeal is not proper if (1) the party had the opportunity to petition the trial court for permission to take an immediate appeal under 28 U.S.C. 1292(b), or (2) the party can file a motion during trial under Rule 50(a) for judgment as a matter of law and appeal the district court's denial of that motion. Since litigants nearly always file Rule 50(a) motions during trial, this reasoning forecloses most post-trial appeals from the denial of a summary judgment motion.

Judge Lohier dissents from the summary judgment appealability issue, stating that the Second Circuit held in Rothstein v. Carriere, 373 F.3d 275 (2d Cir. 2004), that "where the trial court's denial of a summary judgment motion is not based on the sufficiency of the evidence, but on a question of law, the rationale behind Rule 50 does not apply, and the need for such an objection is absent." Judge Lohier writes, 

Until now, we have never deviated from this easily administered rule: "In general, where summary judgment is denied and the movant subsequently loses after a full trial on the merits, the denial of summary judgment may not be appealed . . . . We have recognized an exception to this rule and permitted appeals from the denial of summary judgment after a full trial on the merits where the district court's error was purely one of law." Period. We have never suggested, as the majority opinion does today, that the "pure issue of law" exception is confined to cases where the "two alternative paths to review"—interlocutory appeal and a Rule 50 motion—"[are not] available."

In fact, in Rothstein, we held the opposite. So even if the majority were right that requiring appellants to appeal a Rule 50 motion is more "desirable" than permitting parties to appeal a denial of summary judgment after trial where the purported error is one of law, "[w]e cannot steer around binding precedent even were we not to agree with it."Only our Court sitting in banc, not a three-judge panel, can do that. By ignoring this important restriction and barreling forward with a decision that contradicts binding precedent, my colleagues in the majority have created an intra-circuit split that will ultimately need to be resolved. See Fed. R. App. P. 35(a)(1).

Oneida County Jail's unequal treatment of female inmates may violate Constitution

This case alleges that the Oneida County Jail is violating the Constitution by placing women in inferior cells that do not compare with the roomier and living conditions enjoyed by male inmates. The district court denied the plaintiffs' motion for a preliminary injunction, but the Court of Appeals reverses and returns the case to the district court to reconsider the case.

The case is Williamson v. Maciol, a summary order issued on January 11. In January 2020, all female inmates were moved to housing units that are smaller than the units they were previously living in. Since plaintiffs claim this new living arrangement denied them access to certain privileges and programs, they argue that this treatment violates the Equal Protection Clause, which applies in the jail context, though courts will defer to the judgment of jail officials in how to manage their inmates. 

But deference is not a rubber-stamp. While the district court said that plaintiffs cannot show these women did not receive substantially equivalent treatment to the man, the Court of Appeals (Kearse, Livingston and Sullivan) is not so sure about this. 

The record is clear that a cell in the linear housing units is half the size of a cell in the pods, lacks a window to the outdoors, and has bars, rather than a door with a small window, at the front of the cell, which arguably diminishes privacy. Moreover, the roomy common areas available in pods likewise contrast sharply with the six-foot-wide corridor where  inmates  can  gather  in  linear  housing  units.  Making  matters  worse,  female  inmates  are provided with only two hours of outside recreation while comparable male inmates receive up to six, depending on the number of men who wish to avail themselves of the outdoor space. Further development of the record may demonstrate that Plaintiffs are indeed treated equally based on a full  assessment  of  the  benefits  and  drawbacks  of  the  different  housing  units.  Absent  more, however, the present record does not support a denial of relief on the ground that Plaintiffs failed to show the required difference in treatment.

To avoid liability, the County has to show that this unequal treatment is justified by a substantial reason. We call that "intermediate scrutiny," giving jail officials some leeway to manage their affairs but also protecting the rights of these inmates, many of whom were probably not yet convicted of anything since this is a county jail. The district court said that a Chief Deputy's affidavit satisfied intermediate scrutiny because he said that it's harder to manage inmates when the housing units are less populated. The Court of Appeals wants to district court to take another look at this issue. It seems counterintuitive to believe that it's harder to manage fewer inmates. The appellate court thinks the Chief Deputy's affidavit is not specific enough about why this unequal treatment is necessary. 

The case heads back to the district court so the County can further develop this record, with a warning from the Court of Appeals that "Defendants must explain to the reviewing court why it would be more difficult to provide Plaintiffs with equal treatment and must assure the district court that these are not post hoc (or after-the-fact) rationalizations."

East Ramapo's at-large school district voting process is struck down under the Voting Rights Act

The Court of Appeals has upheld a trial court ruling that said the at-large voting process in the East Ramapo Central School District dilutes the votes of the minority community in violation of the Voting Rights Act. The Second Circuit holds that plaintiffs in these cases are not required to prove intentional racial discrimination to prove a vote-dilution claim. 

The case is Clerveaux v. East Ramapo Central School District, issued on January 6. At-large voting means the entire community selected the school board, unlike voting mechanisms where people in each voting district select their own representatives. East Ramapo is unique in that it has about 8,800 public school students and nearly 30,000 private school students, mostly going to white Orthodox and Hasidic Jewish private schools. Ninety-two percent of the students in the public schools are black or Latino, and 98 percent of the private school students are white. The problem with East Ramapo's voting system was that influential members of the white private school community chose the candidates for the school board elections, and their candidates usually win election. Candidates were chosen based on who the slating team knew personally. The elected school board seems to favor the private schools over the public schools, based on statistics relating to budget cuts and other acts of favoritism. 

After the district court, following a lengthy bench trial, ruled against the district, the defendants appealed to the Second Circuit, which affirms. The Supreme Court has devised a complicated framework for analyzing these cases, found in Thornburg v. Gingles, 478 U.S. 30 (1986). Here is what the Second Circuit (Pooler, Hall and Chin) did:

1. Evidence of racial animus is not necessary to prove a violation of the Section 2 of the Voting Rights Act. While the absence of racial animus is a factor to be considered under the "totality of the circumstances" of the case, it is not dispositive. It does not appear that Congress required proof of intentional discrimination when it amended the Act in 1982. 

2. One relevant factor guiding these cases is whether the minority community votes as a cohesive unit such that the whites could vote as a block to defeat minority-preferred candidates. Plaintiffs were able to prove that through expert testimony. Another factor is whether the elections in the community are racially-polarized; plaintiff proved that, the Court of Appeals says, rejecting the district's claim that the elections are driven by policy disagreements (like lower taxes), not race. The record shows a "near-perfect correlation between race and school type," and "the circumstances indicate that schooltype [private vs. public] is a proxy for race" and "policies favorable tot the private-school community come at the cost of the public-school community." There is little evidence that candidates campaign on the basis of specific policies and many candidates are not chosen by the slating committee based on their policy positions. It is also difficult for minority candidates to be slated by the committee. And the elected school board members are largely unresponsive to public school concerns (which impact its mostly minority student body).

Time-Warner's investigation into cable-guy demonstration may not have violated labor law

Time Warner has won its challenge to an NLRB ruling that said the cable company violated federal labor law in questioning employees who took part in a strike that the collective bargaining agreement had prohibited. Well, the company kind of won, as the case is remanded to the NLRB.

The case is Time Warner v. NLRB, issued on December 10. The contract said that employees cannot go on strike. That ensures that the cable guy can make it to your house on time when the cable goes out. But employees struck after the company suspended several foreman who violated a company directive regarding when and where employees were allowed to carry tools. The strike led to a disruption that trapped service trucks in the Time Warner facility for an hour-an-a-half, causing a "ripple effect" of delayed or missed service appointments. Time Warner then investigated the strike by questioning employees who were responsible for the demonstration and resulting disruption.

The union challenged Time Warner's post-demonstration investigation, claiming the interrogations were coercive in violation of the National Labor Relations Act and that the suspensions arising from the strike constituted improper punishment for protected union activity. The NLRB agreed with the union in part, finding that while the strike was unprotected activity and the resulting suspensions were unlawful, the company had asked coercive questions, including "who told you about this gathering," "when did you receive notification about the gathering," and "how was this event communicated to you." The Board said there was no reason for the company to ask about pre-demonstration events except to identify people who had participated in the demonstration.

The Second Circuit (Leval, Livingston and Wesley) reverses and finds for Time Warner, remanding the case to the NLRB to reconsider the case. It seems the Board did not apply the right legal standard in assessing these questions. The Second Circuit says the following:

the Board's standard barred Time Warner from seeking information of very high pertinence to its investigation of the unprotected demonstration. By allowing no inquiry into any conduct preceding the demonstration except to identify "actual participants," the Board disallowed highly relevant inquiry into identification of those deserving of discipline and into making appropriate distinctions among them. For example, it prohibited Time Warner from seeking to identify those most responsible for the unauthorized stoppage because they suggested it, argued in its favor, or solicited or directed others to participate in it, regardless of whether those persons also participated in the stoppage. It also barred Time Warner from seeking information that would distinguish between those employees whose presence at the demonstration was less culpable, because they had attended based on a belief that it was a meeting about workplace safety and Weingarten rights, from those who were more culpable, because they attended for the purpose of participating in the unprotected stoppage.

In sum, the company had a legitimate interests in learning more about who exactly were the actual participants in the demonstration.

Employment of a standard that so narrowly constrained Time Warner's inquiry as to bar questions seeking any information other than who were actual participants in the unprotected work stoppage compelled the conclusion that Time Warner's more open-ended questions interfered improperly with Section 7 rights. Because that conclusion was arrived at through use of an unsubstantiated standard, we hereby set aside the Board's conclusion, not because we have reached any determination about the correctness of its result, but because the result was determined through use of an unjustified standard (at least as narrowly interpreted by the Board here). The mere fact that planning of the unprotected work stoppage may have occurred in conjunction with and alongside planning for a protected meeting (or other protected communications) does not necessarily compel the conclusion that the inquiry was an unlawful interference into protected activity.