Friday, February 28, 2014

Sex offender has no "stigma plus" claim

Are there any civil rights cases that are harder to win than "stigma plus" cases under the Fourteenth Amendment? There are some, but few. My memory may be off, but I don't think the Second Circuit has sustained a "stigma plus" claim in years. This case fails as well.

The case is Balentine v. Tremblay, a summary order decided on February 11. Stigma plus claims allege that the government defamed you in such a way that you were deprived of a tangible interest, like a property or liberty interest, without due process. It often happens when someone is fired from a government job in a manner that the employee cannot find other work (like if was accused of ethical breaches). As the Second Circuit (Cabranes, Carney and Droney) reminds us, "reputation alone, apart from some more tangible interests, is not sufficient to invoke the procedural protection of the Due Process Clause."

Stigma-plus cases are frustrating for civil rights lawyers who wants to ride the white horse into federal court on behalf of someone who got screwed by the government. And these plaintiffs can be sympathetic, having been defamed and unable to find work because of that defamation. Other stigma-plus cases say that the loss of the right to a public education can meet this standard. The plaintiff in this case is not sympathetic, though. He is a convicted sex offender from New York who moved to Vermont. He sued because the state posted  his face on the "high risk" online sex offender registry without the notice or opportunity to be heard on whether he had successfully reintegrated into the community.

This mistake may have defamed plaintiff, so that satisfies the "stigma" prong of the "stigma plus" case. But there is no "plus" here. "Balentine was properly classified as a sex offender subject to the accompanying registration and notification requirements, and he does not claim that Vermont wrongfully imposed any substantive legal burden on him. Moreover, his alleged reputational damage resulting in the loss of private employment, humiliation, and embarrassment are inadequate to satisfy the 'plus' requirement." While plaintiff says he was denied the opportunity to be heard prior to the online registry posting, that denial does not count as a "plus," either. That is not the deprivation of a tangible interest under Supreme Court authority.

Tuesday, February 25, 2014

Sexual orientation claim is not permitted under Title VII

This employment discrimination case acquaints us with various ways that a lawsuit can be dismissed. The plaintiff sues for gender discrimination under state and federal law. The Court of Appeals upholds dismissal, and the case is over.

The case is Giudice v. Red Robin International, a summary order decided on February 13. The Court has a hard time figuring out what exactly the claim is. The plaintiff, a male, sues for gender discrimination. "It is difficult to discern from Giudice’s submissions on appeal whether he argues that his protected activity consisted of complaining to Red Robin about discrimination based on his sexual orientation or based on his sex." Yet, plaintiff's affidavit says he was harassed because of his sexual orientation. That knocks out the federal claim. The Court (Raggi, Pooler and Kearse) reminds us that Title VII prohibits sex discrimination, not sexual orientation discrimination.This is a retaliation claim, putting a new wrinkle on the issue. But since sexual orientation discrimination is not protected under Title VII, the plaintiff does not have a good-faith complaint of discrimination that would predicate a retaliation claim. Borrowing from a case where the plaintiff claimed retaliation for complaining about the boss's illicit lover, the Court says,

This Court has not yet ruled on the specific question of whether a plaintiff may, under Title VII, maintain a claim of retaliation based on adverse employment action resulting from his complaints about sexual-orientation discrimination, although in Kelly v. Howard I. Shapiro & Assocs. Consulting Eng’rs, P.C., 716 F.3d 10 (2d Cir. 2013), we did hold that a plaintiff could not maintain a Title VII retaliation claim based on a mistaken belief that complaining about “paramour preference” was protected activity under the statute.
Under New York State law, however, sexual orientation discrimination is illegal. But plaintiff still does not have a case. While plaintiff claims retaliation shortly after speaking out against the harassment, the Court says, "[w]here, as here, the only basis for showing causation at the prima facie stage is a temporal nexus, 'and gradual adverse job actions began well before the plaintiff had ever engaged in any protected activity, an inference of retaliation does not arise.' Red Robin began disciplining Giudice years before his formal complaint of harassment on June 14, 2010." In other words, management was disciplining plaintiff long before he engaged in protected activity. That undercuts the connection between his complaints about harassment and the discipline that prompted him to bring this lawsuit.

So, while "the record on summary judgment reveals that some of the treatment that Giudice experienced at work was disturbing and inappropriate," he does not meet the technical requirements needed to win a case like this.

Friday, February 21, 2014

Equal Pay Act case is revived on appeal

This Equal Pay Act case comes back to life after the Court of Appeals agrees with a pro se plaintiff that she has a claim for unfair treatment because of her gender.

The case is Chepak v. Metropolitan Hospital, a summary order decided on February 13. To win a case under the Equal Pay Act, the plaintiff must show that “(i) the employer pays different wages to employees of the opposite sex; (ii) the employees perform equal work on jobs requiring equal skill, effort, and responsibility; and (iii) the jobs are performed under similar working conditions.” Under this legal standard, what does it take for the plaintiff to make out a plausible claim that allows her to take discovery? The Second Circuit (Leval, Calabresi and Lynch) tells us: "Chepak alleged that she was given a different title, but required to do the same job for less pay, as her male predecessors. In light of Chepak’s pro se status, those allegations were sufficient to survive a motion to dismiss." 

Plaintiff also sues under Title VII of the Civil Rights Act of 1964, which more broadly gives you the right to sue for sex discrimination. She has a claim under that law as well. The Court of Appeals says, "Chepak’s complaint alleged that she is a woman, that she sought promotion to a status and pay level held by similarly situated males, and was denied. Especially in light of her pro se status, those allegations were sufficient to state a claim."

The district court threw out the case. The case now returns to the district court for discovery. Where did the district court go wrong? According to the Court of Appeals, the trial court "dismissed Chepak’s EPA and Title VII discrimination claims based on the job descriptions submitted by Metropolitan Health." This was wrong, the Court of Appeals says. I'm not sure how the job descriptions fit into the equation. Maybe the employer argued that plaintiff was not comparable to the male workers because she had different job duties. But that won't work on a motion to dismiss. "Whether or not the job descriptions may sometimes be considered on a motion to dismiss, it is clear that the job content and not job title or description is the standard for determining whether there was a violation of the anti-discrimination laws. Even if the job descriptions were properly considered in reviewing defendant’s motion, the job descriptions at most raise issues of fact, and do not, by themselves, provide a basis for dismissing Chepak’s claims."

Thursday, February 20, 2014

Church sex abuse case is stopped in its tracks

One of the distinctive features of federal practice is that you cannot appeal adverse rulings right away unless the ruling ends the case for good. This stands in contrast to New York appellate practice, where anything can be appealed at any time to the Appellate Division. There are exceptions to the federal rule, and this case -- involving child abuse by the Catholic Church -- is one of them.

The case is In re Roman Catholic Diocese of Albany v. Mecure, decided on February 7. The plaintiff sues the Church in Vermont federal court over the sexual abuse he suffered in the 1980s. The Church moved to dismiss the case under Rule 12, arguing that the court in Vermont lacked jurisdiction over the Church which has minimal operations in Vermont and is primarily a New York entity.  When the court denied the motion, it set the matter down for discovery and opened up the case for mountains of discovery on confidential church files from 1975 "reflecting allegations involving sexual abuse of minors by any Diocese employees, and the details of any resulting investigations."

The Church has some good lawyers. They took up an appeal, which under normal circumstances would be dismissed from the Second Circuit for lack of appellate jurisdiction. But the federal rules do set forth emergency mandamus rules that allow the Court of Appeals in special and rare circumstances, i.e., immediate relief from the appellate court is needed to prevent irreparable damage and the appellant has a clear and indisputable right to relief. Or, in non-legal parlance, without immediate action by the Court of Appeals, the "cat is out of the bag," though that language derives from an actual case outlining these procedures.

The Second Circuit (Wesley, Winter and Chin) says that the district court truly blew it in holding that the Vermont court had personal jurisdiction over the Church, which does minimal business in Vermont and therefore cannot be sued there. (Law students are familiar with the seminal Supreme Court case on this issue, International Shoe). Generally, in order to sue a defendant in Vermont, or any other state, the incident must have taken place in Vermont or the defendant must have a real corporate presence there. Plaintiff could not have sued in New York, because by the time he brought suit, it was time-barred in that state. Without a case in the District of Vermont, there is therefore no case at all. This means that the expansive discovery that the federal court in Vermont subjected the Church would be for naught. This is not just any discovery, though. Under normal circumstances, the Court would make you endure the discovery and wait until the case is resolved before entertaining an appeal. This case is different. The Court writes,

unlike a run‐of‐the‐mill tort case, this litigation implicates significant confidentiality interests for the Diocese, its priests, and (more alarmingly) other victims (and their families) who would likely be subjected to distressing depositions, revisiting pasts that would not otherwise be revisited in a case solely against Mercure.


While invasiveness and unpleasantness are not reasons to deny discovery, here disclosure would likely serve no purpose. Thus, any corrective measures would only mitigate a harm that should have been, and still can be, avoided altogether.
The Court of Appeals is careful to limit the reach of this ruling. It reminds us that it grants the writ of mandamus on the totality of the circumstances; no single factor was enough to stop this case in its tracks. The Court adds, "this opinion should not be read as inviting mandamus petitions to be filed whenever a party disagrees with a district court's jurisdictional ruling."

Friday, February 14, 2014

City Human Rights Commission's procedures satisfy due process

Nearly all employment discrimination cases are filed with an administrative agency that gets first crack at the case before the plaintiff can file in federal court. Federal and state agencies take on this task. At the federal level, it's the Equal Employment Opportunity Commission. At the state level, its the New York Division of Human Rights. New York City has its own agency. In this case, the plaintiff challenges the constitutionality of the New York City Commission of Human Rights' procedures. He loses.

The case is Rosu v. The City of New York, decided on February 7. Rosu was hounded at work because of his national origin and was then fired shortly after he suffered a stroke. This forms the basis for his hostile work environment and disability discrimination claims. He filed a charge of discrimination with the New York City Commission of Human Rights, claiming this maltreatment violated the City's civil rights laws. According to plaintiff, the investigators did not really investigate his claims before dismissing his case for lack of probable cause. In his due process case against the Commission that he filed in federal court, plaintiff says the Commission's procedures "permit a reviewer to dismiss an administrative complaint for insufficient information or investigation in the absence of a hearing and without allowing complainant to cross-examine witnesses or have access to the investigative file."

The due process clause of the United States Constitution is only a few words long. It reads, "[N]or shall any State deprive any person of life, liberty, or property, without due process of law." This brief statement has spawned thousands of lawsuits requiring the courts to decide what due process means in any conceivable context. The standards governing due process are judge-made. Judges decide what procedures are fair. This is not an easy task, but the Second Circuit (Pooler, Parker and Wesley) says "the question before us is refreshingly narrow: does the Commission on Human Rights' procedures facially satisfy the due process requirements" under Supreme Court authority? "We find that they do."

The lack of an evidentiary hearing before the Commission does not violate due process because an aggrieved plaintiff can always challenge that determination after-the-fact, by way of an Article 78 proceeding, a quick and easy state court process that requires filing a petition, affidavits and evidentiary materials for a state judge to resolve whether the Commission arbitrarily denied you a hearing. The Court of Appeals says the Article 78 process provides a fair opportunity to fully litigate your claims against the City Commission if it says you don't deserve an evidentiary hearing on the employment discrimination claims.

While the aggrieved employee has a substantial interest in vindicating his rights, the risk that the Commission's procedures will undermine those rights is minimized by the requirement that the case have merit before the Commission schedules a hearing. In other words, the Commission will give you a hearing if it finds you have a case. If you don't have case, then the lack of an evidentiary hearing will not cause you any harm, at least according to the Second Circuit. And if you really do have enough for a hearing, the Court says, the state court in the Article 78 proceeding will order the Commission to hold one.

Rosu brought his claims under the New York City Human Rights Law, by the way. You don't have to bring an administrative charge with the City Human Rights Commission to proceed against  your former employer under the City law. You must do so in order to proceed under federal law. But since the City law provides nearly the same relief as the federal law (and in some instances, more relief), if you want to bypass the administrative process altogether and your employment discrimination claim arises in New York City, you can go right into state court and proceed to discovery and a potential trial in that forum.

Wednesday, February 12, 2014

For DFR junkies only

I guess this is not the most exciting case in the world, but many important cases are not exciting.
If you handle Duty of Fair Representation cases against labor unions, keep reading. This one concerns the statutes of limitation for these cases, and when they accrue.

The case is Kalyanaram v. American Association of University Professors, decided on February 3. The plaintiff taught at New York Institute of Technology. After students complained about plaintiff, the school brought him up on charges, which went to arbitration. After the arbitrator found that the school had just cause to fire him, plaintiff sued the union on a DFR claim (Duty of Fair Representation). He claimed the union did not properly represent him at the hearing. The claim is time-barred.

Under DFR jurisprudence, the statute of limitations is six months, and it accrues when the arbitrator issues the decision. This allows the employee to trust in the union's abilities before he decided that the union stabbed him in the back. While plaintiff filed his lawsuit almost 11 months after the arbitrator issued the final award, he says the case is timely because he filed it within six months after the state court confirmed the arbitration decision, denying his motion to vacate the award. True, the union contract allows aggrieved employees to challenge the arbitration decision in state court, but the arbitration decision in this case was designated a "Final Award." That was when the statute of limitations began to run.

Plaintiff also argues that the statute of limitations was tolled by the state court action he filed to vacate the arbitration decision. "The question of whether the statute of limitations on a DFR claim is tolled during litigation in state court to confirm or set aside an arbitration award is one of first impression in this Circuit," the Court of Appeals (Newman, Winter and Droney) says. Hard to believe an issue this exciting has never found its way to the Second Circuit. It has now.

"Although equitable tolling of limitations periods has been recognized in other contexts where pursuing a separate administrative remedy is a precondition to filing suit ... , no such tolling is available where an optional, parallel avenue of relief is pursued." That's what's going on here. Plaintiff's state court action to vacate his arbitration was a parallel action to the DFR claim that he filed in federal court. He did not have to bring that state court action, in other words, to maintain the DFR claim. "Success in [plaintiff's] petition to vacate the arbitration award was not a prerequisite to bringing a DFR claim against the union," the Court says.

Tuesday, February 11, 2014

Bad search warrant on no-knock search goes to trial

Here we have a no-knock search gone wrong. A Drug & Gang Task Force investigator in Troy, N.Y. got a search warrant for a residence that his confidential informant had told him was a place to buy drugs. The search turned up nothing. As it happened, the search warrant affidavit did not tell the whole story. The woman whose apartment was searched brought a lawsuit, and the district court denied the investigator's motion for summary judgment. The case will go to trial.

The case is McColley v. County of Rensselear, decided on January 21.  First, let's talk about what went wrong with the search warrant. A confidential informant told the investigator, Riley, that he had gone to McColley's apartment and purchased drugs there. The informant had been reliable in the past. The search warrant affidavit left out two things: first, that McColley lived at that address and the fact that she did not have any criminal history, and second, that surveillance of that location did not turn up any evidence of drug-dealing or other criminal activity. This allows the jury to believe that Riley did not have probable cause to search the property.

By the way, this is what happens when your house is searched under a no-knock warrant:

On July 3, 2008, at approximately 6:00 a.m., McColley was awoken in her home by the sound of the City of Troy Police Department Emergency Response Team (“ERT”) knocking down her door and the explosion of a flash‐bang grenade. Dressed in all black, wearing face masks, and carrying automatic weapons, the members of the ERT screamed for McColley to get on the floor, but as there was not enough space for her to lie on the floor, a member of the ERT instead shoved McColley face down onto her bed.

As she had been roused from sleep, McColley was clad in only a t‐shirt and underwear. She repeatedly requested to cover herself but was repeatedly denied.
The search yielded no drugs. Hence this lawsuit. The Court of Appeals (Pooler, Calabresi and Raggi [dissenting]) agrees that the jury can find Riley liable for the bad warrant. The magistrate who issued the warrant was falsely led to believe that a drug dealer had custody and control of the property. The magistrate did not know that McColley lived there, or that she had no criminal record. And, of course, the magistrate was unaware that surveillance of the property did not turn up evidence of criminal activity. This information  affected the informant's credibility and could have nixed the warrant altogether.

Riley takes up an appeal, arguing that he is entitled to qualified immunity because his actions were objectively reasonable, even putting aside the errors in the search warrant application. The district court disagreed. The Court of Appeals normally can only entertain appeals when the case is over, not right after summary judgment is denied. But it can do so when qualified immunity is denied, on the theory that the defendant is allowed to make the case go away as soon as possible if he acted in good faith. But qualified immunity appeals cannot be entertained if material fact issues exist on the question whether the defendant did act in good faith. That's the case here; there are too many factual disputes to make a decision on paper. This means that the Second Circuit, while it provides guidance on when a search warrant application may lack probable cause, cannot resolve Riley's appeal. Over Judge Raggi's dissent, the case goes to trial.

Tuesday, February 4, 2014

Supreme Court tackles what it means to "change clothes"

The Supreme Court has unanimously rejected a claim that people working for United States Steel are entitled to compensation for the time spent dressing for work. The question boils down to the meaning of the phrase "changing clothes" under the Fair Labor Standards Act.

The case is Sandifer v. United Steel Corp., decided on January 27. The employees wear substantial protective gear, including flame-retardant jackets, special boots and a respirator. They remove this clothing at the end of the workday. "Donning and doffing" clothing is compensable under the FLSA, that is, you get paid for it like any other work activity. In this case, though, management says the union contract makes this activity noncompensable. You can do this under a contract, waive compensation for "time spent in changing clothes ... at the beginning or end of each workday." So the question is whether the employees are really "changing clothes." If they are, then the contract validly waives their compensation for this activity.

Justice Scalia writes the decision. He gives us a history of portions of FLSA that cover compensation for changing and washing clothes, even quoting from a New York Times article from 1946. Through it all, "the statute provides that the compensability of time spent changing clothes or washing is a subject appropriately committed to collective bargaining."

All the equipment and stuff that employees put on at the start of their workday: is it clothing? Some of it does not sound like clothing, but equipment. But clothing is not simply for decency or comfort, the Court says. "We see no basis for the proposition that the unmodified term 'clothes' somehow omits protective clothing." And the Court cannot allow the plaintiffs' interpretation swallow the rule. Some workers have to wear "what might be called workers' costumes," like doormen, train conductors and waiters. And in 1947, the Labor Department said that "changing clothes" applies to someone working in a chemical plant, who wears protective clothing. The employees are also "changing." Plaintiffs say changing means substitution. This is a clever argument, but the Supreme Court does not like clever. You don't change clothes when you put on an overcoat, right?

The workers do wear a few things that are probably not clothing, the Court says, like glasses and earplugs. But these exceptions are minor. Justice Scalia says the law does not like trifles. The Court will not parse out these trifles. Congress did not want federal judges to be "time-study professionals." Rather, "the question for courts is whether the period at issue can, on the whole, be fairly characterized as 'time spent in changing clothes or washing. ... If the vast majority of the time is spent in donning and doffing 'clothes' as we have defined that term, the entire period qualifies, and the time spent putting on and off other items need not be subtracted."