Friday, February 23, 2024

Firefighters' COVID-19 vaccine due process claim fails

This due process case brought by numerous New York City firefighters challenging a vaccine mandate demonstrates how complex due process cases really are, and how hard they are to win even when a municipality violates state law. 

The case is Garland v. New York City Fire Department, a summary order issued on February 6. Many COVID-19 vaccine cases have been litigated in the federal courts in New York, and they eventually reach the Court of Appeals, which has to apply traditional due process rules to this new problem. But that's what precedent is for, correct? To apply old rules to new problems. Plaintiffs claim the City suspended and even fired firefighters who did not comply with the mandate, but that the City did not follow the rules requiring it to negotiate employment conditions with the unions. New York collective bargaining rules require such negotiation.

The Court of Appeals agrees that plaintiffs advance a plausible claim that the City's process in imposing the vaccine mandate violated state and municipal law. But that does not mean plaintiffs have a due process claim. Due process requires the government to impose a fair process in the deprivation of a liberty or property right. Reams, and I mean reams, of case law have developed this principle to such a degree that only experienced constitutional lawyers can understand it. 

The violation of state law does not per se create a due process violation, the Court of Appeals (Menashi, Merriam and Vaden (from the Court of International Trade)) notes, and the plaintiffs can only win if they were denied notice and an opportunity to be heard prior to the deprivation and that a full adversarial hearing is provided for afterwards. These rules make it difficult to win a due process case, because such process is often in place. 

In this case, while the plaintiffs got constitutionally-adequate notice of the property deprivation (your job is property in the civil service context), the issue is whether plaintiffs got an adequate opportunity to be heard on their religious or medical exemptions because the City did make provisions for an internal appeal, and the plaintiffs could also file an Article 78 petition on state court post-deprivation. While Article 78 petitions are not as exciting as a full-blown federal lawsuit, such petitions can be won, and they actually proceed faster than most federal cases. While plaintiffs claim the internal appeals process is a sham because only 100 such appeals (out of 3,200) were successful, they have not pled a plausible claim that this process was a sham, such as whether the accommodation requests were frivolous or meritorious. That particularized pleading requirement is another hurdle to successful litigation in federal court, but that's a story for another day.


Wednesday, February 21, 2024

Exposure to drug smoke at County jail gives rise to Fourteenth Amendment case

The inmate at the Orange County jail in upstate New York sued his jailers, claiming he was exposed to second-hand smoke from K2, a synthetic canninoid at the jail. The district court dismissed the case, claiming plaintiff did not assert a claim that the jailers were deliberately indifferent to a substantial health risk. Plaintiff wins the appeal as the Court of Appeals reinstates the case.

The case is Michel v. Orange County, a summary order issued on February 7. Plaintiff claims the secondhand smoke gives rise to a deliberate indifference case under the Fourteenth Amendment, which requires jailers to avoid exposing inmates to serious health risks. The Court of Appeals says plaintiff has pled a plausible case because he asserts the prison environment was permeated with K2 drug smoke resulting from the under-enforcement of jailhouse rules and overcrowding, as well as lousy ventilation. Plaintiff complained internally about this through a grievance, as required under the Prison Litigation Reform Act (PLRA).

The Court of Appeals (Leval, Parker and Merriam) holds that plaintiff's complaint sufficiently asserts a claim under the Fourteenth Amendment, either under a failure-to-train theory or an unconstitutional practice theory, both cognizable under Section 1983. I can tell you from experience that these are difficult theories of liability, as such Monell claims are frequently dismissed because the plaintiffs simply cannot meet the high bar set by the courts to hold counties and cities liable. (When that happens, the plaintiffs have to sue individual officers instead). But here, the allegations in the complaint support a claim against the County and not just individual officers, as plaintiff asserts the K2 drug smoke was so widespread that municipal policymakers were aware of the problem but did nothing to remedy it. Plaintiff also asserts claims against individual correction officers, who were allegedly aware of the problem but did not protect plaintiff's civil rights to be free from exposure to harmful smoke. 

The Court of Appeals thinks this case may be strong enough to have the court appoint plaintiff a lawyer to handle the case in the trial court. The Court of Appeals does not make appointments like this very often, as there is of course much skepticism about inmate cases, many of which are thrown out of court from the outset. But a pro bono attorney handled the appeal, so that suggests the Second Circuit thought at the outset that this case had some promise. But this victory is an early one for plaintiff, as he still must take depositions and prove his case in discovery. Once discovery is over, the County will probably move again to dismiss the case, this time on a motion for summary judgment.

Tuesday, February 20, 2024

Excessive force claim, occasioned by eating French fries, will go to trial

The plaintiff claims that three police officers in Derby, Connecticut used excessive force while effectuating her arrest. The officers tried to dismiss the case on qualified immunity grounds, but that motion failed, so they appealed to the Second Circuit. The Court of Appeals says qualified immunity cannot attach at this early stage of the case.

The case is Mehaylo v. Loris, a summary order issued on February 14. If you handle Section 1983 excessive forces cases, then a case like this is familiar to you. I take these facts from the district court ruling. Bear in mind this all started because plaintiff got into a car accident because she reached for a French fry while driving and got distracted. 
On February 15, 2017, after 7:30 p.m., Ms. Mehaylo was driving approximately 20 miles per hour when she collided with Naseen Senan at a stop light. Ms. Mehaylo stated that she had taken her eyes off the road for a moment while she reached for a French fry and failed to stop in time. . . . When Ms. Mehaylo returned home, she did not turn on any lights because she noticed flashing lights on her street that she believed were coming from two ambulances parked outside of her neighbor's house, as well as several police cars. At approximately 7:55 p.m., Officers Loris, Dominguez, and Chapman, of the Shelton Police Department, arrived at Ms. Mehaylo's residence in Shelton to locate Ms. Mehaylo and her car for charges related to leaving the scene of an accident. . . . Ms. Mehaylo stated that once she knew it was the police that she knew she had to open the door. She asked the officers outside her front door why they were at her house and answered questions about her involvement in the earlier car accident through the closed wood front door, which required her to raise her voice. Ms. Mehaylo agreed to open the wood front door as long as she could speak to the officers with the screen storm door between them. 
Once Ms. Mehaylo opened the front wood door, Officer DeAngelo opened the screen storm door, reached into Ms. Mehaylo's home, and grabbed Ms. Mehaylo's right arm to pull her out of her home and onto the front porch. As she was initially grabbed, Ms. Mehaylo pulled back. Once on the porch, Officer DeAngelo pushed Ms. Mehaylo against the wall to secure her with her arms behind her back. Officer Loris then grabbed Ms. Mehaylo's left arm, and Officer Dominguez came to assist by holding Ms. Mehaylo's left arm while Officer Loris handcuffed her. The three officers picked Ms. Mehaylo up and brought her from the front porch to a police car parked on the street. 
While Officer Loris attempted to grab Ms. Mehaylo's legs so they could pick her up, she kicked backwards, and her foot made contact with Officer Loris’ groin.  At some point during the arrest, Ms. Mehaylo urinated on Officer Dominguez. Once the officers reached the police car, still carrying Ms. Mehaylo, they threw her into the back of the car on her stomach with her hands handcuffed behind her back and her head hit the center console.
It must have been a hell of a French fry. Moral of the story: do not eat while driving. At least plaintiff was honest about why she was distracted. Most people would probably say something else, like they took their eyes off the road for some reason. Anyway, excessive force claims are difficult to dismiss on motions for summary judgment because the trial court cannot always be sure the jury will find the force was not excessive. These factual disputes are difficult to resolve on the papers. But officers can also seek dismissal based on qualified immunity if the trial court finds the jury would have to find the officers acted reasonably under the circumstances. But even that such motion is difficult to win because we have to assume for purposes of the immunity motion that the plaintiff's version of events is true.

The trial court denied qualified immunity and the officers appeal, invoking one of the few exceptions to the rule that you cannot appeal federal orders until the case is completely over. But the officers lose the appeal because the Court of Appeals (Parker, Lohier an Park) finds the jury could still find that, even after she agreed to cooperate, the officers grabbed plaintiff from the house with too much force in violation of the Fourth Amendment. Unless it settles, the case will proceed to trial.

Monday, February 19, 2024

Developers lose Fair Housing Act case against Orange County community

A housing developer wanted to build a 181-unit project in Orange County, New York, but the Village of Monroe denied its applications for a building permit, prompting the developers to sue for housing discrimination, claiming the denials were motivated by animus against a Hasidic Jewish community, to which the developer intended to market the development. The developers lose the case, not because the Village did not demonstrate anti-Jewish animus, but on more mundane procedural grounds.

The case is BMG Monroe LLC v. Village of Monroe, issued on February 16, more than one year after the Second Circuit heard oral argument. Cases like this are not uncommon in the Hudson Valley. About 10 years ago, someone wanted to build a large community in Sullivan County but met up against community opposition, leading the developers to also claim anti-Semitic discrimination. That case went kaplotz, as the civil rights laws pose a variety of hurdles to successful cases like this.

In today's hurdle, the issue is ripeness. You cannot sue in federal court over land-use discrimination without exhausting all remedies available to you at the local level. When that process is done, the case is ripe for federal court. That process only prolongs this case, which began in 2001, when plaintiffs first proposed the residential development plan, called the Smith Farm Project. But the local planners rejected the application, finding it did not comply with zoning rules. So the developers sued in federal court under the Fair Housing Act, which prohibits religious discrimination, among other things.

Under the case law, before a case like this can proceed in federal court, you have to go through the local planning process. Once you get a final decision from the Zoning Board of Appeals, you can then file in federal court. That exhaustion requirement is excused if the process will prove futile, or a waste of time, because the decsionmakers have already indicated they will reject the project. But proving futility is quite difficult. 

Plaintiffs did not bother with the Zoning Board of Appeals because, they said, such application would have been futile based on the Village Planning Board's having "made clear" it would "refuse to consider any amendment to its conditions on the Smith Project approvals." The Court of Appeals (Sullivan, Parker and Lee) disagrees, holding the record actually shows the Village Planning Board workshop minutes "demonstrate that its members were actually considering BMG's request for a variance, albeit with some initial skepticism." That skepticism does now show the planners were digging its heals and making it clear that it would deny all variances. Expressions of doubt are not the same as putting the kibosh on the project before the application is even filed. 

Friday, February 16, 2024

New York Court of Appeals adds teeth to state anti-retaliation law

The New York Court of Appeals has held that a housing complex that threatened litigation against a "tester" organization that accused it of housing discrimination can be liable under the state law that prohibits retaliation for asserting discrimination claims.

The case is Clifton Park Apartments v. New York State Division of Human Rights, issued on February 15. The tester organization is City Vision, which called Pine Ridge II Apartments, owned by Clifton Park Apartments, purportedly seeking to rent an apartment. The purpose of this inquiry was to see if the apartments were practicing discrimination. City Vision then filed a complaint with the Division of Human Rights (DHR), asserting that the apartments had discriminated against Leigh Renner, a City Vision employee, by directing her to a different apartment when it learned that Renner had children. That would violate the prohibition against marital status discrimination under state law. 

After the DHR dismissed the complaint and held there was no probable cause, the apartments sent City Vision and Renner a letter stating it was "looking to" City Vision and Renner "personally for the damages that" the apartments "sustained as a result of this wrongful conduct." The letter also said the apartments regarded the discrimination allegations as "false, fraudulent and libelous." City Vision next brought a retaliation charge against the apartments over this letter, and DHR ruled in City Vision's favor following a hearing. The letter threatening litigation was retaliatory, the DHR held. City Vision won their retaliation case, and DHR awarded $4,775.00 in damages for its diversion of resources to find counsel in the wake of the litigation threat. DHR also imposed a civil fine in the amount of $2,500.00.

While the Third Department vacated the DHR's finding on the basis that "the mere sending of the letter letter" was not retaliatory under state law, the Court of Appeals unanimously reverses. Under the federal standard guiding retaliation claims, an employer or apartment complex engaged in unlawful retaliation if its response to a discrimination allegation would dissuade a reasonable employee from making or supporting a charge of discrimination. That's the Burlington Northern test from 2006. The reason for this test is that those who accuse others of discrimination in good faith will not do so if the defendant takes action that will prevent others from doing so in the future. 

Under this test, there is enough evidence in the record to support the DHR's finding, the Court of Appeals holds, as (1) the letter reasonably suggested the apartments were threatening litigation against City Vision and Renner, and (2) the letter "shocked" its recipients and forced City Vision to spend resources to find counsel to address the threat. This would dissuade a reasonable entity such as City Vision from asserting discrimination claims in the future, because let's face it, who wants to be threatened with soul-killing and expensive litigation? 

Thursday, February 15, 2024

LGBTQ-rights organization lacks standing to challenge hostile Trump-era regulation

Not just anyone can sue the government over its policies. You need standing to sue the government, which means the plaintiff needs to have a concrete interest in the case and not a general interest in striking down the policy. This case, involving an organization that supports LGBTQ-identifying people, is dismissed because the plaintiff lacks standing to challenge the federal government's policy that would allow federal grant recipients to discriminate against people on the basis of sexual orientation or gender identity. 

The case is Family Equality v. Becerra, a summary order issued on February 14. In 2019, the Trump administration announced that it would no longer enforce a rule prohibiting HHS grant recipients from discriminating on the basis of sexual orientation or gender identity. 

This case is brought by several advocacy organizations who provide education and training to partner organizations that serve the LGBTQ community. They also lobby the government to promote anti-discrimination policies. Here is how plaintiffs describe their interest in bringing this lawsuit:

On appeal, Appellants argue that they have organizational standing because the 2019 Notice “perceptibly impaired” their organizational activities. Specifically, Appellants contend that the 2019 Notice made their education and advocacy activities more costly because they were no longer able to rely on HHS’s regulation prohibiting grant recipients from discriminating against LGBTQ people. Instead, they had to devote staff time to identifying for HHS grant recipients alternative antidiscrimination protections, encouraging grant recipients themselves not to discriminate, educating partner organizations about the effects of the 2019 Notice, and lobbying state governments to fill the gap left by the 2019 Notice. The significant time that staff spent responding to the 2019 Notice, Appellants claim, diverted resources away from their other organizational activities.
This does not confer standing to sue. The Court of Appeals (Parker, Lynch and Lohier) notes that "To allege injury-in-fact under their theory of organizational standing, Appellants must show that the 2019 Notice imposed 'an involuntary material burden on [their] established core activities,' that impeded their 'ability to carry out [their] responsibilities' or forced them to divert money from [their] other current activities to advance [their] established organizational interests.” 

The Court holds that "It is not enough for Appellants to claim that the 2019 Notice burdened their education, outreach, and lobbying efforts because they had to spend time assessing its impact and identifying other antidiscrimination protections that would permit them to continue advocating on behalf of the LGBTQ community." The Court adds that plaintiffs "would have spent time assessing the effects of a policy change no matter the content of the 2019 Notice." Therefore, "In the absence of 'any restrictions on [their] ability to perform the[ir] core activities,' Appellants cannot establish that they have suffered an injury sufficient to create standing."

Wednesday, February 14, 2024

2d Circuit tears apart district court in reinstating disability discrimination case

This disability discrimination case took the Court of Appeals almost two years to decide, and it totals 100 pages. The Court finds that a jury may find that the plaintiff, a medical doctor, was fired because of her disability. The decision emphasizes that trial courts must be careful in resolving disputed facts on a motion for summary judgment. The Second Circuit finds one strand of the district court's reasoning "puzzling."

The case is Porter v. Dartmouth-Hitchcock Medical Center, issued on February 6. Plaintiff began working at the medical center in the Reproductive Endocrinology and Infertility Division (REI) in 1996. In November 2015, she developed neurological problems and took a leave of absence, returning to work on a part-time basis, taking another medical leave of absence in August 2016, which lasted until November. By April 2017, plaintiff was again performing the full range of her prior skills and was working additional hours. But in Spring 2017, defendants decided to close the DEI unit. But they also decided to keep one medical provider on board for OB/GYN duties, and they were considering keeping plaintiff in the unit to handle ultrasound in the gynecology department. But she was denied the position.

One of the decisionmakers on plaintiff's discharge was Dr. Merrens. At a meeting, he was asked why plaintiff was not being retained by the medical center. Dr. Merrens said that "Misty," the nickname for plaintiff,  was "on disability." When someone mentioned that plaintiff "was coming back," Dr. Merrens changed the subject. On this topic, Dr. Merrens then said in an email that plaintiff "currently works at 20% of her time currently[.]" Another decisionmaker, Dr. DeMars, wrote in an email that people who wanted plaintiff to continue working at the medical center were "remembering Misty as a full time employee wearing 3 hats, and not the one who has been out for almost 18 months." While defendant knew plaintiff was interested in staying on at the medical center, Dr. Merrens did not discuss this with her.

Reversing summary judgment on the disability discrimination claim, the Court of Appeals (Kearse, Walker and Livingston) notes that Dr. Merrens' comments about why plaintiff was not being retained were direct evidence of disability discrimination, even if, as the district court held, these admissions were "not conclusive" evidence of discriminatory intent. The actual standard is not whether the admissions were conclusive but whether they might support a verdict in plaintiff's favor; they do. Nor was plaintiff required to present "a pattern of discriminatory comments" by decisionmakers. Such evidence would certainly strengthen plaintiff's case, the Court of Appeals holds. The Court writes, "When the decisionmaker was asked 'why' an employee was not being retained, his answer that she was 'on disability' virtually precludes a ruling as a matter of law that disability has played no role." In addition, the Court writes, "in rejecting Dr. Merrens's 'on disability' statement on the ground that it was not 'more explicit,' the court refused to view in Dr. Porter's favor a statement that on its face supported her claims, and it invaded the province of the jury to decide whether the 'on disability' response to 'why' was sufficiently clear to be accepted as showing disability motivation." 

Other problems with the district court's ruling in granting summary judgment include its finding that "it would not be reasonable" to infer that Dr. Merrens meant what he said because he gave the "on disability" answer "before the entire OB/GYN Department." The Court of Appeals states, "While it likely was not anticipatable that Dr. Merrens would make such a statement openly, the fact remains that there is first-hand evidence that he did. It was not within the province of the court in ruling on a motion for summary judgment to decide as a matter of law that Dr. Merrens's statement--which the court acknowledges was literally 'true,' --was not in fact responsive to the plain question that immediately preceded it."

The district court also improperly rejected other evidence of disability discrimination, including Dr. Merrens' email response that plaintiff was only working "at 20% of her time currently." While the district court noted this statement was "probably unwise" and it "is not reasonably possible to read it as evidence of animus or discriminatory intent," the Court of Appeals regards this as a "puzzling" rationale in disregarding Dr. Merrens' response. Dr. Merrens was not asked about the other two REI doctors, only about plaintiff, and "it would make no sense to explain that two of the three physicians were being terminated because the third was working only part time (especially if the part-time percentage were as low as the Dr. Merrens email mistakenly portrayed it)." In addition, "Doubtless DHMC would agree that the statement was 'unwise' from its point of view; but that is precisely because it would be quite   reasonable to read that express reference to limited capability as evidence of motivation based on disability."