FIrst Department reinstates racial discrimination claim

The Appellate Division has reinstated a claim that a Black plaintiff was denied a promotion and fired because of his race. The First Department recognizes that the complaint asserts a cause of action. We see once again how the New York State and City Human Rights Laws operate.

The case is Altidor v. Medical Knowledge Group, LLC, issued on February 17. This is a classic disparate treatment case. Plaintiff asserts that that he was fired after making one mistake. Two of his white coworkers made similar mistakes. But they were neither reprimanded nor terminated. Hence the disparate treatment claim. 

As the First Department puts it, "Plaintiff specifically alleged that one of the white coworkers was an IT Help Desk Technician, the same position he held, and that the coworker performed substantially similar work under similar working conditions. He further alleged that he helped fix some of the mistakes that this coworker had made in the past." Is this enough to assert a disparate treatment claim? Yes, says the First Department. We don't have much analysis here, but the facts, as stated in the ruling, make out a claim, opening up the case for discovery.

Plaintiff also asserts a claim for failure to promote. Plaintiff says that someone else got the position: a coworker got the position that plaintiff had already been performing. Nor was the position posted before it was filled. Under the generous standards guiding discrimination claims in the state and city, the First Department writes, "These allegations are sufficient to meet plaintiff’s pleading burden as this Court has previously held that it is unnecessary for a plaintiff to allege that he applied for a promotion where he has alleged that promotions were typically made unannounced and unsolicited or where defendant failed to advertise the position."

Court rejects proposed settlement between EEOC and labor union as not in the "public interest"

In our world, if the case settles, then the case is over. Most civil rights cases settle privately and the court will issue an order dismissing the case without analyzing whether the settlement is fair or not. But there are exceptions to this rule. One of them arises in this case, where the EEOC has been in litigation against a labor union for more than 50 years and decided to resolve the case once and for all. The trial court had different ideas, and the settlement is rejected.

The case is EEOC v. Local 580 of the International Association of Bridge, Structural and Ornamental Ironworkers, a summary order issued on February 12. The Department of Justice sued the union in 1971. That was the Nixon Department of Justice, by the way, which accused the union of racial discrimination in denying employment opportunities to non-white job applicants by excluding them from union membership and refusing to send them out to available jobs. 

A consent decree was eventually put in place but the union violated its terms again and again over the years. But in 2019, after several years of not hearing any complaints of discrimination from Local 580 members, the EEOC decided that continued supervision over the union was no longer warranted. The agency's research showed that only 17% of those union members interviewed said they were victims of racial discrimination. The EEOC also hired an expert who found significant racial disparities with respect to overtime hours, but the expert said these disparities were the fault of employers, not the union. This analysis only focused on 2018-2019, however, as the union had only collected data from 2018 to the present. Based on this evidence, the EEOC moved to end the court/EEOC supervision over the union.

The trial court denied the motion, and the Court of Appeals (Calabresi, Lee and Nathan) agrees that it is still too early to withdraw this supervision over the union. Why? Because it is not "fair and reasonable" under the case law. The court finds the union had consistently ignored court orders to maintain good record keeping regarding critical data about the operation of its referral hall. So we do not have reliable data about how things really work at the union. It is therefore not clear if the proposed consent decree would improve racial disparities among union workers, the entire purpose of the litigation. 

Nor is it in the public interest to withdraw this court/EEOC supervision, the Second Circuit holds, not only because of the faulty record-keeping, and adopting the consent decree might signal to future litigants that disregard for court-ordered obligations will be rewarded. 

Children have standing to challence the State's child placement laws

This case examines the procedures in New York when a child is removed from their biological parents and the child's relatives want to provide care. Not everyone is allowed to adopt: those convicted of certain crimes are unable to do so, and if the evidence suggest the relatives had abused other children, their application will also be denied. This case is brought by the children, claiming these procedures violate the constitutional right to family integrity.

The case is B.B. v. Hochul, issued on February 2. This case does not actually review the legality of these child adoption procedures. We have a more esoteric issue to deal with: do the children have standing to bring this lawsuit? 

Standing can get in the way of a good lawsuit. You need to show you are in a position to benefit from a favorable court ruling. The district court said there is no standing because the children currently live with their relatives  and, for those who do not, they cannot show any injury because they were not under the state's care. Other children did not have standing, the trial court said, because they only alleged inadequate treatment, not suboptimal care.

The Court of Appeals (Park, Menashi and Kahn) reverses, finding the plaintiffs suffered a "concrete injury" under Article III of the Constitution. Without that finding, you cannot sue anyone simply to obtain a favorable court ruling. Here, the children have standing because "placements with non-relatives make children less likely to find permanent placements and increase the risk of psychological and other harms." Such harms are cognizable under the Constitution

The children also have standing because the Constitution itself protects familial relationships from unwarranted governmental interference. The Constitution does not actually say that, but the Supreme Court has ruled that such rights are implied under the Constitution. What is more, the Constitution ensures that people under the state's custody, be it prisoners or children in these circumstances, can legally expect the government to keep them free from harm.

This looks to be an important standing ruling from the Second Circuit, which goes on to find that the children may bring this lawsuit because they can trace their injuries to the allegedly unconstitutional child placement policy and its mandatory disqualification rules. As for whether these rules are legal, the case returns to the district court, as the Court of Appeals is "a court of review, not of first view."  

Defendant's medications were no barrier to plea bargain

In this criminal case, the defendant pled guilty. In order to do that, the trial court has to make sure the defendant is pleading guilty voluntarily and that he knows what he is doing. One way to accomplish that is to ask if the defendant is taking any medications. That line of inquiry brings this case to the Court of Appeals.

The case is United States v. Boria, issued on February 4. Defendant was charged with conspiring to distribute cocaine and possessing a firearm. He then decided to plead guilty. The judge asked if he was taking medication. Defendant said he was taking medication "for sleeping problems and bipolar." The judge then asked a series of questions relating to defendant's capacity to understand what was happening, i.e., "are you clearheaded" and "do you understand what's happening here in court?" Defendant answered Yes to these questions. 

Defendant seeks to vacate the sentence (a mandatory term of 15 years) on the basis that the trial judge did not adequately ask about his medication, their side effects, and their impact on him. Defendant loses the appeal under the "plain error" standard of review, one of the most difficult appellate standards, but which applies here since defendant did not raise this objection in the district court. But you get the sense that even under a less burdensome standard of review, defendant would lose the appeal.

The Court of Appeals (Park, Lohier and Kearse) finds that while the district court must ask about the side effects of medications, it did so here when it asked if defendant felt clearheaded and understood what was happening in court that day. The Court of Appeals sees no "red flags" in the record on this point that might have caused the trial judge to pause before proceeding with the plea proceeding.  

No speech retaliation claim where prison doctor criticized medication policy

First Amendment retaliation litigation has never been the same ever since the Supreme Court held in 2006 that it's not protected speech if the government worker speaks out pursuant to his official job duties. That was the Garcetti case. It was believed at the time, at least by some of us, that the lower courts might interpret Garcetti narrowly and hold only that "mandated" speech is unprotected but that otherwise speech that relates to your employee remains free speech for which you cannot be punished. That wistful hope is long behind us, and the courts now hold that speech that is part and parcel of your ability to perform your job is unprotected and management has the right to discipline you for it. This case shows us how it works.

The case is Salvana v. DOCCS, a summary order issued in February 5. Plaintiff was a doctor in the state prison system who claims he suffered retaliation after speaking out against the medication abuse policy that requires doctors to get permission from higher-level officials before they prescribe addictive or unsafe medications. So plaintiff did speak up. But was it protected speech that insulates him from discipline? It is not, the Court of Appeals (Jacobs, Leval and Sullivan) says.

Plaintiff spoke as an employee (unprotected) and not as a citizen (protected) because, while he claims it was not his job to criticize DOCCS policy, the Garcetti inquiry extends beyond that narrow issue-framing. Plaintiff loses because his "core duty" was to ensure the "high quality of medical care": for his patients. His criticism of the medication policy furthers that goal, as he discussed the policy's effect on the medical needs of specific individuals, focused narrowly on exempting only his own unit from its requirements; he said he knows what's best for his patients. 

Under this angle, plaintiff's speech was part and parcel of his ability to perform his core job duties. He did not raise abstract objections to system-wide, broad policy issues, which might bring his case within the First Amendment's protections. Instead, the Court of Appeals holds, "he attacked the policy primarily on the ground that it was interfering with his ability to care for his patients as he saw fit in the unit that he supervised."   

Excessive force verdict is gone

This qualified immunity case shows us what happens when the case is unique and the jury rules in your favor but the court determines later on that the case was sufficiently esoteric that the police officers who committed the constitutional violation were not on constructive notice that a judge later on would find they did anything illegal.

The case is Matusak v. Daminski, issued on January 29. This case went to trial in the Western District of New York. The jury awarded plaintiff $200,000 in damages. But that was not the end of the case. Defendants raised a qualified immunity argument, which led the trial court to ask the jury, in writing, to particularize what it believed took place when the defendants struck plaintiff. Those answers doomed the verdict.

Plaintiff was arrested following a foot pursuit, which ended after the officer directed plaintiff, without success, to stop resisting arrest. According to the jury, the police reasonably believed that plaintiff had posed a threat to officer safety when defendant Murphy struck him to effectuate the arrest. As for the second arresting officer, Unterborn, the jury also found he reasonably believed that plaintiff posed a threat to officer safety when he used excessive force. The trial court asked the jury to answer special interrogatories to gain further jury insight into the facts so that the court could then resolve the qualified immunity question, which is a matter of law. The trial judge threw out the verdict on qualified immunity grounds: that no clearly established case law barred the use of significant force by an officer against an arrestee who is resisting arrest and is reasonably believed to pose a threat to officer safety.

The jury does not know this, and few clients really understand this, but the verdict is not the final words on the case. There will usually be an appeal or at least post-trial motions to vacate the verdict. And making matters even more complicated, the verdict may be undercut by the trial judge's finding that the verdict was not appropriate under qualified immunity, which says the only public defendants (like police officers) who can lose at trial are those who violate clearly established and particularized case law. 

The Court of Appeals (Wesley, Livingston and Wolford [D.J.]), affirms the trial court's order dismissing the verdict, and the verdict is gone for good. The problem for plaintiff is that while courts have said the police cannot use excessive force in arresting someone who is compliant or not resisting arrest, the law was not clear as to the facts in this case: where a suspect, after fleeing the police, was resisting the officers' attempts to place him in handcuffs and the officers reasonably though he posed a threat to officer safety. After all, the chase brought everyone into a dark wooded area and when the officers arrived there, plaintiff still had not been handcuffed, and his hands were hidden beneath his body. 

Plaintiff argued that qualified immunity cannot attach because he was only passively and not actively resisting arrest. But, the Court says, that does not save the verdict. "Passive resistance" is another fuzzy concept under the Fourth Amendment. The Court holds there was no clearly established law that an individual resisting arrest and under circumstances like those in this case was merely passively resisting.   

Supreme Court once again rejects heightened pleading in federal court

The Supreme Court does not often issue stand-alone rulings on pleading requirements in federal court, a curious track record since every lawsuit was once filed in the clerk's office and many are then met with a notion to dismiss for failure to state a claim. This ruling examines when state law pleading requirements apply in federal court. The answer is that they do not. The plaintiff in this case was not mandated to include a doctor's affidavit in support of his medial malpractice claim.

The case is Berk v. Choy, issued on January 20. This case was filed in Delaware, alleging medical malpractice. In Delaware, you have to include a medical affidavit to prove the claim is brought in good faith. New York has the same requirement, perhaps the product of the medical establishment's lobbying efforts to prevent us from filing meritless lawsuits. But since the defendant found a way to remove this case to federal court, the district judge dismissed the case for lack of a doctor's affidavit. Was this a legitimate ruling? 

The Supreme Court says there is no such affidavit requirement under the federal rules. The states can do what they want, but don't impose these rules in federal court. Under the Federal Rules of Civil Procedure, you only have to file "a short and plain statement of the clam showing that [the plaintiff] is entitled to relief." That's Rule 8(a)(2). And, under Rule 12(b)(6), in determining whether the plaintiff has asserted a. claim, you normally cannot review matters outside the pleadings (in the way you would on a motion for summary judgment, post-discovery). 

The unanimous Court notes that it has frequently rejected efforts by lower federal courts to require more information than required under Rule 8, such as heightened pleading requirements in civil rights cases and prisoner suits. Affidavits of merit, such as the one that plaintiff did not supply in this case, is among those documents outside the pleadings that are not required in federal court. 

Of course, recall the Iqbal ruling from 2009, when the Supreme Court said lawsuits have to plead a plausible claim under the federal rules. Rules 8 and 12 say nothing about plausibility, but the Court read that language into federal practice. I suppose that reasoning is different from the logic in this case. Plausibility pleading is a debate for another day. For now, if you are pleading state law claims and the case somehow winds up in a federal courtroom, this case is for you.