Judge's ex parte conversation with jury gets defendants a new trial

This case is maybe the most bizarre criminal appeal this year from the Second Circuit. The Court of Appeals orders a new trial for two people accused of marriage fraud because the trial judge had an ex parte conversation with the jurors and may have compromised the integrity of the jury process by undermining the presumption of innocence.

The case is U.S. v. Mehta, issued on March 21. The defendants are a man and woman who were charged with charged with marriage fraud in violation of the immigration laws. During trial, the judge met with five jurors to discuss their concern about the defendants' behavior outside the courthouse during trial. The jurors told the judge that the defendants "have been kind of lingering and staring, like, walking noticeably slow and I feel like I see them, see me, if I was coming in, even if I've been behind them, like, from the second floor parking ramp to the entrance." In other words, the jurors thought the defendants were following them around suspiciously outside the building. The judge told the jurors, "That's disturbing," and said he would assign a court officer to accompany the jurors to their cars. The judge also told the jurors that, after years of presiding over trials, this situation was unusual. The lawyers were not present during this colloquy. When the judge discussed this issue with the lawyers moments later, he instructed counsel to tell their clients "to stay the hell away from the jury."

At the close of trial, the judge instructed the jury, "You may consider the fact that a defendant's interest in the outcome of the case creates a motive for false testimony, but it by no means follows that a defendant is not capable of telling the truth."

New trial for defendants. The ex parte conversation with the jurors was wrong because whenever the jury communicates with the court during trial (even if it's in the form of a note), counsel must be present. This is what the public trial provision of the Bill of Rights is all about. The same holds true when the court communicates with the jury. That did not happen here. Counsel is supposed to get involved in these conversations because they can suggest how to handle the inquiry. While the defendants were charged with non-violent crimes, "the judge's comments to the jurors strongly implied that the defendants posed some kind of threat of physical danger to the jurors." Defendants' counsel could have helped find a better way to deal with the jurors' concerns. Making matters worse, the other jurors who were not present during this ex parte meeting were never told what happened in that meeting, which raises the risk that the jurors "reached unfounded conclusions about the defendants . . . without any guidance from the District Court or from counsel."

Making matters worse was the jury charge, which violated the settled rule that "district courts should not instruct juries to the effect that a testifying defendant has a deep personal interest in the case." The jury charges undermines the presumption of innocence. Taken together, these trial errors get defendants a new trial. 

Retaliation case fails for a variety of reasons

A pretty basic rule governing retaliation claims is that a case can survive a motion for summary judgment if the plaintiff has a timeline that shows everything at work went south shortly after he engaged in protected activity, i.e., filed an EEOC charge, internally complained about discrimination, etc. But many cases are not so clear-cut. We have nuances.

The case is Hazelwood v. Highland Hospital, a summary order issued on March 1. The plaintiff requested an accommodation because of her disability (she is hearing-impaired). At some point, she complained about discrimination. Then she got fired. At the cocktail party, it would sound like plaintiff has a retaliation case. But she does not, the Court of Appeals (Raggi, Sullivan and Hall) says, for the following reasons:

First, in order to have a good retaliation claim, your internal discrimination complaint must be made in good faith. The decision does not provide enough details on this issue, which is too bad, because I don't see too many cases holding the initial complaint predicating the retaliation claim was made in bad-faith. Often, defendant's counsel does not even argue the complaint was made in bad faith. But here, the Second Circuit says, plaintiff's complaint about discrimination was conclusory and that a particular form that was relevant to her employment was "redundant," not that it constituted discrimination in violation of the Americans with Disabilities Act.

Second, even if the complaint was made in good faith, plaintiff's termination took place too long after she made that complaint. As the Court of Appeals notes, "while a causal connection can be established indirectly by showing that the protected activity was closely followed in time by the adverse action, the temporal nexus here -- ten months -- is insufficient to establish such a connection." This sounds about right. I have seen Second Circuit extend the timeline to eight months, but many cases are dismissed even under a shorter timeline. There is no bright-line time-frame for these cases. The Court in this case cites Clark County Sch. Dist. v. Breedon, 532 U.S. 268 (2001), which says prior cases "uniformly hold that the temporal proximity must be 'very close.'" That language actually conflicts with Second Circuit cases that allow for an eight-month gap. But we can worry about that for another day.

What really kills the case is that supervisors began criticizing plaintiff's job performance before she even complained about discrimination. "Where timing is the only basis for a claim of retaliation, and gradual adverse job actions began well before the plaintiff had ever engaged in any protected activity, an inference of retaliation does not arise," the Second Circuit says, citing Slattery v. Swiss Reinsurance, 248 F.3d 87 (2d Cir. 2001).

Suspended student has no due process claim under Section 1983

This plaintiff says the public school denied him due process in suspending him for most of his senior year in high school following a hearing. The Court of Appeals sees it differently, giving us a brief tutorial in how federal due process claims work in cases like this.

The case is Horton v. Board of Education of the Sherburne-Earleville Central School District, a summary order issued on March 15. Horton was suspended over "alleged bullying and other violations of his school district's Code of Conduct." While the district gave him a hearing, Horton says it was bogus. The numerous procedural flaws include the hearing officer's alleged advocacy for the district during the hearing, the hearing officer ignored exculpatory evidence and met ex parte with district officials several times during the hearing and appeals process. The Court of Appeals (Katzmann, Livingston and Droney) says it does not matter.

For Horton, due process may be realized post-hearing, when he can file an Article 78 petition in state court. Now, an Article 78 petition may not be as exciting as a federal lawsuit, but at least in theory, the state court can find the hearing was arbitrary and capricious, the standard governing these expedited proceedings. The availability of an Article 78 petition is by itself a due process remedy provided by the State of New York. The Second Circuit has held that many times over the years, including in Hellenic Am. Neighborhood Action Comm. v. City of New York, 101 F.3d 877 (2d Cir. 1996).

How does Horton get around this? He says the Article 78 remedy is inadequate in part because that proceeding does not provide for money damages. But the Court of Appeals held in the Hellenic case that Article 78's are adequate for due process purposes "even though the petitioner may not be able to recover the same relief that he could in a Section 1983 suit."

Appellate Division allows defamation claim against Trump to proceed

A state appellate court in Manhattan has ruled that a woman may sue Donald Trump for defamation even while he occupies the White House, rejecting an expansive interpretation of the constitutional Supremacy Clause and holding that this provision "does not provide a basis for immunizing the President from state court civil damages actions."

The case is Zervos v. Trump, decided on March 14. Zarvos was a contestant on the Apprentice, a game show starring the future President. After the Access Hollywood tape surfaced in October 2016 in which Trump was caught on video stating he was able to use his celebrity to sexually assault women, Zervos publicly accused Trump of sexually assaulting her in 2007. Trump then called Zarvos and other accusers liars. Zervos sues Trump for defamation.

The primary issue is whether the Supremacy Clause prevents you from suing the President in state court for acts that predate the presidency. The Appellate Division holds in a 3-2 vote that the Clause does not prohibit such a lawsuit. The Supremacy Clause states that federal law has primacy over state law, so that any state law that conflicts with federal law is a nullity. Trump's lawyers argued that the Supremacy Clause also means that a state court has no authority over the President because he is the "ultimate repository of the Executive Branch's powers and is required by the Constitution to be 'always in function.'" The Appellate Division says this interpretation "finds no support in the constitutional text or case law," and that "Despite the assertion in his brief that he is the 'embodiment of the Executive Branch,' and although he is tasked with significant responsibilities, the President is still a person, and he is not above the law."

The case is full of irony. The key precedent in this area is Clinton v. Jones, a Supreme Court ruling from 1997 that held Paula Jones could sue President Clinton for sexual harassment that predated Clinton's presidency, so that Jones' lawyers could require Clinton to give sworn testimony as a sitting President. The Appellate Division says Clinton v. Jones compels the holding that Trump may also be subjected to pretrial discovery. It was the deposition testimony in Jones' case that led to Clinton's perjury and impeachment. For the first time in 20 years, impeachment is back in the American conversation. What if Trump denies assaulting Zervos, but Zervos produces solid eyewitness testimony or other evidence to the contrary?

As an aside, during the oral argument in Clinton v. Jones, the Solicitor General (who defends the federal government before the Supreme Court) tried to argue that even Paula Jones' lawsuit would intrude on presidential scheduling. Justice Scalia shot back the following:

But we see Presidents riding horseback, chopping firewood, fishing [laughter in the courtroom], playing golf and so forth and so on. Why can't we leave it to the point where, if, and when a court tells a President to be there or he's going to lose his case, and if and when a President has the intestinal fortitude to say, ''I am absolutely too busy'' -- so that he'll never be seen playing golf for the rest of his Administration [laughter] -- if and when that happens, we can resolve the problem. But really, the notion that he doesn't have a minute to spare is just not credible.

The Appellate Division ruling also has a few passive-aggressive case and other citations. The Court summarizes the holding in Nixon v. Fitzgerald, a Supreme Court ruling from 1982 that said a federal employee cannot sue an ex-President for actions the defendant took while in the Oval Office. We all know about President Nixon's retaliatory impulses, but the Appellate Division does not have to remind us that Nixon resigned the presidency to avoid impeachment. Another passive-aggressive act in the ruling is citation to a prior defamation case against Trump for the proposition that the false but rock-solid denial of an embarrassing allegation (along with calling someone a liar) is potentially libelous as opposed to nonactionable hyperbole, which the listener may not take seriously. As that legal principle is well-settled under New York law, the Appellate Division did not really have to cite that case. But, what the hell, right?

The Appellate Division also cites a law review article written by Brett Kavanaugh in 2009 that suggests Congress can enact a law prohibiting lawsuits against sitting Presidents for pre-presidential actions. (Congress has never passed such a law). The Appellate Division did not have to cite the Kavanaugh article, as the Court also cites Clinton v. Jones for the same proposition. My guess is the Appellate Division highlights the Kavanaugh piece because this case may wind up in the Supreme Court, a place that Kavanaugh now calls home. And, again, what the hell.

Two judges dissent from this ruling, stating in part that the Supremacy Clause cannot allow this case to proceed because a state court does not have authority to regulate presidential behavior by compelling him to respond to discovery demands, to sit for a deposition, and to appear before it. The dissenters also offer what it deems the unacceptable hypothetical that, under the majority's holding, the state court would have power to hold the President in contempt. I just throw that out there.

Topless gardener may sue police for false arrest

A federal court in White Plains holds that a topless gardener can sue the police for arresting her for public lewdness.

The case is Igoe v. Village of Red Hook, 18 Civ. 3846, 2019 WL 1015174 (S.D.N.Y. March 4, 2019), issued by Judge Briccetti of the Southern District of New York. I am co-counsel to the plaintiff, along with Christopher D. Watkins, Esq. Plaintiff lives in a rural area. On hot days, she gardened in her front yard without her top. Someone complained to the police about this, and plaintiff was arrested and booked. The local criminal court dismissed the charges, finding the arrest was not legal because courts have already held that women cannot be arrested for going topless in public.

Under the New York Penal Law, "A person is guilty of public lewdness when he or she intentionally exposes the private or intimate parts of his or her body in a lewd manner or commits any other lewd act: (a) in a public place, or (b) (i) in private premises under circumstances in which he or she may readily be observed from either a public place or from other private premises, and with intent that he or she be so observed."

Plaintiff was arrested under this statute. The problem is that, in 1991, the New York Court of Appeals ruled that arrests like this are illegal. As Judge Briccetti wrote:

The New York Court of Appeals, however, refused to apply Section 245.01 to topless women protesting in a Rochester, New York, park. See People v. Santorelli, 80 N.Y.2d 875, 877 (1992). Recognizing the statute was originally enacted to discourage topless waitresses and their promoters, the court found the statute does not apply to the noncommercial exposure of a woman’s breasts. Id. Since then, no court has upheld the arrest of a woman for the noncommercial exposure of her breasts, and the media has widely recognized the holding in Santorelli as allowing women in New York to be topless in public.

That reference to the media comes with a footnote from the New York Times, which reported on the issue in 2015. You don't see newspaper articles quoted in court rulings this way, but it does show that the public is aware that arrests like this are not legal. For these reasons, the arresting officers are also not entitled to qualified immunity.

Needle-phobic pharmacist prevails on appeal in disability disability case

If you want a reasonable accommodation under the disability laws, you have to show the accommodation will not eliminate an essential job function, so that you can still perform your job duties despite the accommodation. These cases can be won and lost on whether the accommodation actually impacts an "essential" job duty.

The case is Noel v. Wal-Mart Stores, LP, a summary order issued on March 11. Noel was a pharmacist who suffers from trypanophobia (or needle phobia). That was a problem. In April 2016, Wal-Mart announced that all new pharmacy employees would be required to be certified to administer immunizations right away and all other employees would be required to be so certified by October 16, 2016. Since immunizations involve needles, you get the picture. Noel could not do this. He asked management to exempt him from this requirement. In June 2016, Wal-Mart told him in writing that administering immunizations was not an essential job function. Good news for Noel.

But then in October 2016, a Walmart representative told Noel that he would have to obtain certification to continue his job, which Noel declined to do. Noel claims that he was constructively discharged at this time. The district court granted Wal-Mart's Rule 12(b)(6) motion on the basis that administering immunizations was an essential job function, so that no accommodation could allow him to perform his duties.

The Court of Appeals (Hall, Lynch and Gardephe [D.J.]) reverses. Noel has a case. The district court overlooked his Wal-Mart told Noel in July 2016 that using the needles was not an essential job duty. Here's the law on essential job duties:

When considering whether a job function is “essential,” “this Court considers ‘the employer’s judgment, written job descriptions, the amount of time spent on the job performing the function, the mention of the function in a collective bargaining agreement, the work experience of past employees in the position, and the work experience of current employees in similar positions.’”

This is a fact-specific inquiry. That means that a recent Second Circuit case on similar facts, Stevens v. Rite-Aid Corp., 851 F.3d 224 (2d Cir. 2017), where the jury verdict in plaintiff's favor was vacated because the needle-phobic pharmacist could not show that eliminating the immunization job duty was not an essential job duty, does not control this case. In Stevens, there was no dispute the needles were an essential duty. Not in Noel's case.

In Stevens, it was undisputed that Rite Aid changed the job description for pharmacists to include immunizations as an essential duty of the position. Here, however, Noel specifically alleges that his job description had not yet changed as of the time of his constructive discharge, and Walmart’s July letter—which grants him  an accommodation on the ground that administering injections was not an essential function of the job—tends to support that allegation. The question then becomes whether the district court was correct when it held that, even taking the factual allegations of the complaint as true, administering injections was an essential function of Noel’s job.

It all comes back to the July 2016 letter that said administering the needles was not an essential job function. The Second Circuit concludes,

The only way to arrive at the conclusion reached by the district court—that it was established as a matter of law that administering immunizations was an essential function of Noel’s job—is to both discredit Noel’s well-pleaded allegation and discount Walmart’s own July statement. This a court
may not do on a motion to dismiss. At least at this stage of the litigation, the district court erred by concluding, as a matter of law, that administering immunizations was an essential function of Noel’s job.

Court of Appeals finds ADA plaintiff makes out a hostile work environment claim

The Second Circuit holds for the first time that the Americans with Disabilities Act makes it illegal for an employer to maintain a hostile work environment on the basis of an employee's disability. The Court then reinstates the claim brought by a disabled worker who was harassed because of his disability.

The case is Fox v. Costco Wholesale Corp., issued on March 6. Plaintiff worked for Costco on Long Island. He has Tourette's Syndrome and Obsessive Compulsive Disorder. As a result of his neurological condition, plaintiff would often touch the floor before moving, and he would cough when he felt a verbal tic coming on to prevent others from hearing him use foul language. But his coworkers mocked him over his disability. Summarizing his testimony, the Court of Appeals (Hall, Droney and Jacobs) writes:

In his deposition, Fox described how certain Costco employees would make “hut‐hut‐hike” remarks to mimic Fox’s verbal and physical tics. Fox also testified that these comments “were audible to the managers of the Holbrook warehouse from their position on the warehouse’s podium,” and “happened in plain view of the Supervisors and the Front End Managers and nothing was ever said.” Fox testified further that these types of comments happened for “months and months” and “whenever” he would experience tics.

Plaintiff eventually complained to Costco's CEO about the stressful work environment which was aggravating his Tourette's. While Costco investigated this complaint, the harassment continued, and he was singled out for minor acts of misconduct that coworkers had gotten away with.

Two issues on the hostile work environment claim: (1) does the ADA recognize such a claim and (2) is there a  hostile work environment.

On the scope of the ADA, the Court says that the ADA's language relating to "terms, conditions and privileges" of employment is identical to the protections under Title VII, which does prohibit a hostile work environment on the basis of race, sex, etc. Since the Supreme Court had already held that Title VII prohibits a hostile work environment when the ADA was enacted in 1990, we can assume that Congress intended the ADA to protect disabled workers from disability-related harassment. Plus, the Fourth, Fifth, Eighth and Tenth Circuits have already interpreted the ADA this way, so the Second Circuit safely joins them, giving plaintiffs a new federal cause of action in this jurisdiction.

As for whether Fox has a hostile work environment claim, some managerial acts do not get him there, including certain discipline for not performing his duties properly, as "legitimate reprimands by an employer are not abuse." But the jury may find that plaintiff suffered ongoing and pervasive harassment from coworkers who ridiculed his disability. While the district court in dismissing this claim said plaintiff had to introduce “evidence regarding the number of times the comments were made per shift, week and/or month” to show that the “hut‐hut‐hike” comments pervaded Fox’s working environment. But that "demand[s] too much of Fox, the Court of Appeals says, because he "is not required to list the shift, week, or month to be able to present this issue to a jury." The Second Circuit has said this before, and it now says it again. A plaintiff in a hostile work environment case will not remember the times and dates or even the specifics of much of the harassment. But testimony like this will survive summary judgment. The Court explains:

Because Fox identified specific comments—his co‐workers mocking his Tourette’s by repeating “hut‐hut‐hike,” presumably while touching the floor—and because he testified that “whenever I said [the F word], they said ‘hut‐hut‐hike’” for “months and months,” Fox has provided evidence sufficient to meet his burden to demonstrate pervasiveness. On Fox’s evidence at this stage, we hold, a reasonable fact finder could conclude that the “hut‐hut‐hike” comments made for months by co‐workers when Fox experienced verbal tics were sufficiently severe and pervasive to change the conditions of Fox’s employment. Since the phrase “hut‐hut‐hike” is borrowed from football, and Fox alleges that he often touched the floor when he suffered from verbal tics, presumably resembling a three‐point stance, we can fairly infer that the phrase “hut‐hut‐hike” was mockery of his disability as opposed to, for example, discussing last night’s game or motivating each other to get going.

In addition, and crucial to our analysis, Fox introduced evidence that his supervisors witnessed this conduct for “months and months” and did nothing, demonstrating a specific basis for imputing the objectionable conduct to Costco. Thus, Fox has met his burden to defeat Costco’s motion for summary judgment on his hostile work environment claim.