Tuesday, December 30, 2014

Parent company is responsible for racial harassment in million dollar verdict case

This racial harassment case against a steel plant near Buffalo provides insight into how the Court of Appeals views damages awards in these cases. The jury awarded the black plaintiff $1.32 million in compensatory damages and $24 million in punitives. That's right, $24 million in punitives. The Court sustains the compensatories but finds the punitives excessive.

The case is Turley v. ISG Lackawanna, Inc., decided on December 17. This is the second racial discrimination case in a year that the Second Circuit has to use the N word and other vulgarities in summarizing the case. The first case was Matusick v. Erie County Water Authority. Both cases are written by Judge Sack, who once again apologizes to the reader about having to use this language in the decision. In this case, plaintiff worked in a "living hell" characterized by every sort of racial harassment you can imagine. Just use your imagination on this one. Management did not properly investigate his complaints about the harassment, and some supervisors had even engaged in the abuse. The question on appeal is not whether the jury properly found liability under the civil rights laws, but whether (1) the judge properly charged the jury; (2) the parent company was properly held responsible and (3) the damages were too high. I'll write up four blog posts on this case, starting with parent-subsidiary liability.

The jury said that Lackawanna and its corporate parent, ArcelorMittal USA, were both liable for the harassment. The Court of Appeals says the record supports that finding. While the law allows a corporation to organize in a way that isolates liabilities among separate entities, they can still be a "single employer" under the employment laws. The Court of Appeals has tread this ground before. Here is the legal standard:

ʺUnder this test, ʹa parent and subsidiary cannot be found to represent a single, integrated enterprise in the absence of evidence of (1) interrelation of operations, (2) centralized control of labor relations, (3) common management, and (4) common ownership or financial control.ʹʺ Although no one factor controls the analysis, the second, ʺcentralized control of labor relations,ʺ is the most significant.
The trial record contains "some evidence" that the parent company was involved in decisions relating to plaintiff's employment "and to the course of harassment." In our world, "some evidence" can be enough to sustain a jury verdict. The parent company negotiated the union contract, which governed the resolution of harassment complaints. The parent company did in fact handle harassment complaints. Summing up, the Circuit says:

A 2007 harassment training seminar explained that all complaints must be reported to the corporate human resources department, and that any settlement that changes anyoneʹs terms of employment must be approved by the corporate office. Employees were directed to report harassment to the ʺAlertline,ʺ a nationwide ʺhotline.ʺ Plant managers repeatedly stated that they were required to check with the corporate legal department in Chicago before providing information to assist police investigations concerning threats against Turley. And Turleyʹs employment ended when the parent company shut down the Lackawanna plant and sold its assets.

I don't see significant overlap among corporate entities over plaintiff's case, but it is enough to sustain the jury's finding that the parent company is partly liable for the harassment as part of a "single employer."

Monday, December 29, 2014

Circuit takes a look at anti-unionization effort at New York hotel

A few months after the housekeeping employees at the Hyatt Hotel considered whether to unionize, the hotel launched a disinformation campaign against the union and subcontracted out its housekeeping work. The subcontractor hired most of the former hotel employees, but the hotel then cancelled the subcontract, fired its old employees and replaced them with new people. The U.S. government filed an unfair labor charge against the hotel, and an administrative law judge ruled against the hotel. When the case reached federal court, the judge refused to dismiss the unfair labor practice petition but also declined to enter an injunction against the hotel.

The case is Paulson v. Remington Lodging & Hospitality, LLC, decided on December 12. This case highlights the usual tactics of an anti-union campaign. Since the ALJ ruled in favor of the union on the merits, we deem the above sequence of events as true for purposes of deciding whether the hotel went too far in opposing the union campaign. The issue for the Court of Appeals (Winter, Parker and Hall) is what to do about this violation. The district court declined to reinstate the employees who were fired; it said that the NLRB had waited too long to seek that relief, and rehiring the employees would displace the replacement employees. The Court of Appeals disagrees.

The Second Circuit writes that "the district court's analysis ... focused heavily on the harm to individual employees (both those discharged and their replacements) caused by the discharges and delayed reinstatements. That analysis, however, failed adequately to account for harm to unionization efforts." First, the Court of Appeals says, "the rights of improperly discharged employees take priority over the rights of those hired to replace them." Second, time was of the essence in replacing the fired employees, as their absence from the workplace "can quickly extinguish organizational efforts and reinforce fears within the workforce concerning the consequences of supporting a unionization campaign." The Court of Appeals relies on extra-Circuit authority for these propositions, so this ruling covers new ground in the Second Circuit.

Without citation to any authority, though, the Court rejects the district court's belief that the fired workers knew they were being offered reinstatement and also knew this case was pending in court, which should have reassured them that they had a right to organize. But the countervailing concern, says Judge Parker, is that litigation is always uncertain and the hotel was challenging the ALJ's findings.

In the end, however, reinstatement is not appropriate because circumstances have changed in the case over time. All the housekeeping employees have been offered reinstatement. Some came back, and some did not, but the ones who did not would probably not return at this point. And a cease and desist order against unfair labor practices remains in place.  

Friday, December 26, 2014

Another look at the independent contractor/employer distinction

The nurses at Harry's Nurses Registry were denied overtime, so they brought a lawsuit. The district court granted them summary judgment, and the nurses won. The Court of Appeals affirms the ruling.

The case is Gayle v. Harry's Nurses Registry, Inc., a summary order issued on December 10. The employer argues that the nurses cannot win because they are not employees. This prompts the Court of Appeals to review once again the rules governing when people are employees or independent contractors. Under the "economic reality test," we consider "(1) the degree of control exercised by the employer over the workers, (2) the workers’ opportunity for profit or loss and their investment in the business, (3) the degree of skill
and independent initiative required to perform the work, (4) the permanence or duration of the working relationship, and (5) the extent to which the work is an integral part of the employer’s business."

These factors favor the nurses. Harry's -- which places nurses with outside entities -- has economic control over them because nurses are not allowed to contract independently with placements, they cannot subcontract a shift to another nurse, they cannot take partial shift and Harry's fixes their hourly rate. Harry's also has professional control over the nurses because the nursing supervisors monitor the nurses' daily phone calls reporting to shifts, and nursing supervisors can require nurses to attend continuing education to maintain their licenses. The nurses have no opportunity to share in profit and loss of the company. They are simply paid an hourly wage and are paid even if the insurance carrier pays Harry's promptly.

Harry's goes so far as to say that nurses are not integral to the business. The Court of Appeals (Katzmann, Winter and Marrero [D.J.]) will have none of this. "Notwithstanding that 'Nurses' is—literally—Harry’s middle name," the Court notes that placing nurses accounts constitutes Harry’s only income, "The nurses are not just an integral part but the sine qua non of Harry’s business. Considering all these circumstances, we agree with the district court that these nurses are, as a matter of economic reality, employees and not independent contractors of Harry’s."

Nor does the Court like another argument made by the employer, that the nurses were not nurses but home health aides who are not entitled to overtime under the exemption for domestic companionship workers. The employer also says "they do not meet the threshold requirement of having performed overtime 'work.'" The Court says, "This argument does violence to the dictionary definition of work as well as to the dignity of nurses, and we reject it emphatically." 

Tuesday, December 23, 2014

Second Circuit decides tricky labor law issue (with help from State Court of Appeals)

This is the kind of complex labor law question that prompts the Second Circuit to refer the issues to the State Court of Appeals for a definitive ruling interpreting state law. The issue is whether employee contracts committing parties to pay prevailing waves under a provision of the State Labor Law must specify what particular work the prevailing wages will be paid for.

The case is Ramos v. SimplexGrinnell LP, decided on December 4. The case was argued in September 2013, but this trick question needed clarification from the New York Court of Appeals, which issued a ruling in October 2014.

Plaintiffs did testing and inspection work. They sued because they did not receive prevailing wages for that work, despite the contract to do so. Again, what was the scope of that contract? With guidance from the State Court of Appeals, the Second Circuit (Calabresi, Livingston and Chin) says that, since plaintiffs were "laborers, workmen or mechanics" under state Labor Law, and since the State Department of Labor interprets the statute to mean that testing and inspection falls within that statutory language, plaintiffs may recover the prevailing wages that were denied to them.

The case is remanded to the district court to calculate damages. Plaintiffs argue that they are entitled to damages right now and that remand is not necessary. Not so fast, the Second Circuit says, because the employer challenges the conclusions reached by plaintiff's expert report on how many hours they spent on testing and inspection work as compared with other work.

Monday, December 22, 2014

Here is how IDEA exhaustion works

The federal courts will defer to the expertise of state officials in certain areas, like education, which means plaintiffs must exhaust state remedies before seeking federal relief. This is particularly true when plaintiffs sue over the rights of disabled schoolchildren. This case summarizes the lay of the land.

The case is Stropkay v. Garden City Union Free School District, a summary order issued on December 3. Under the Individuals with Disabilities in Education Act (IDEA), disabled students get an IEP, or an Individualized Educational Plan that the school and the parents create to accommodate the student's learning and other disabilities. Normally, a dissatisfied family challenges the bad IEP at an administrative hearing and, if they lose at the hearing, appeal to the State Educational Department. If that fails, the parents can then sue in federal court. Courts will allow families to proceed straight to federal court without exhausting state administrative procedures in rare circumstances, like when they are challenging systemic problems with the process that the administrative process cannot remedy, or when exhausting state remedies would be futile.

Some of the claims in this case are not appropriate for federal court. The parents raise "grievances related to the education of disabled children," so they must exhaust state remedies, even if they are suing under other civil rights statutes, and not the IDEA. Since plaintiffs did not do that, the question is whether their claims are suitable for federal court. One is, the others are not.

One claim alleges that the school retaliated against plaintiffs for invoking their rights under the disability laws. Since that claim raises a matter "related to the education of disabled children," the parents had to go through the state system first. Another claim also fails because, while plaintiffs said there were systemic violations relating to the need for specific student services, "alleging some students were denied services is not sufficient to allege systemic violations and thus does not exempt plaintiffs from the need to exhaust administrative remedies."

But another claim survives the exhaustion requirement.  Plaintiffs say the district did not comply with the student's IEP requirements. Normally, if the parents don't like the IEP created by the district, they have to exhaust all state remedies. Not when the IEP is in place and the school fails to honor its terms. Under Second Circuit authority, plaintiffs can proceed straight to federal court. A fine line, to be sure.

Thursday, December 18, 2014

En banc review in Occupy Wall Street protest case

In August 2014, the Court of Appeals ruled 2-1 in favor of the Occupy Wall Street protesters who got arrested after crossing the Brooklyn Bridge. The Second Circuit rejected the City's Rule 12 motion and allowed the case to proceed to discovery. The full Court of Appeals has now voted to hear the case en banc, and the 2-1 decision is withdrawn. A new decision will issue when the full 13-judge Court hears the case on reargument.

The case is Garcia v. John Doe Officers. The en banc order was issued on December 18. Here is how I covered the case in August:

This case arises from the Occupy Wall Street movement, which sprouted in 2011 in New York City. On October 1, 2011, the protesters marched across the Brooklyn Bridge. They allege that the police allowed them to do this and even led them onto the bridge. The police initially did not prevent the protesters from walking along the roadway. While some officers eventually told the protesters to get on the sidewalk, few protesters heard this command. They were then arrested for disorderly conduct. The plaintiffs sue for false arrest.

The case is Garcia v. Doe, decided on August 21. The crux of the complaint is that "'[p]rior to terminating the march when it was mid‐way across the bridge, the police did not convey that they were going to revoke the actual and apparent permission of the march to proceed,' and that the officers therefore did not have probable cause to arrest them for disorderly conduct." The officers seek qualified immunity, arguing that "an objectively reasonable police officer would not have understood that the presence of police officers on the Bridge constituted implicit permission to the demonstrators to be on the Bridge roadway in contravention of the law." The Court of Appeals (Calabresi, Lynch and Livingston [dissenting]) disagrees, and the lawsuit can proceed.

The Supreme Court held in 1965 that "when officials grant permission to demonstrate in a certain way, then seek to revoke that permission and arrest demonstrators, they must first give 'fair warning.'” The officers try to get around this by arguing that they sanctioned the bridge march so long as the protesters remained on the sidewalk, and that once the protesters spilled into the roadway, they were fair game for arrest; without an implicit invitation to walk along the road, the protesters got what they deserved when the officers arrested them.
The two-judge majority in Garcia said the Complaint stated a cause of action and that the officers were not entitled to qualified immunity at this early stage of the case. Judge Livingston issued a thorough dissent in the case. That dissent, I am sure, will drive the City's arguments this time around. En banc review is quite rare in the Second Circuit. This case must have hit a raw nerve with someone on the Court. And, I must say, I predicted this turn of events, writing in August:

Qualified immunity continues to be a subject of great debate among judges, with many emphasizing that this immunity allows the police and other public officials to do their jobs without the fear of crippling lawsuits. This debate exposes the liberal-conservative judicial divide. I would guess this case is a good candidate for full court, or en banc, review.

Wednesday, December 17, 2014

Suicide note was in "plain view"

The Court of Appeals grants summary judgment to police officers who seized a suicide note that was in plain view after the entered the house following a 911 call. Even if the police could have handled things better, they are entitled to qualified immunity because they did not violate clearly established law.

The case is Veeder v Nutting, a summary order decided on December 15. Under the "plian view" rule, the police can take things without a warrant if the police ha a right to be there and the items are literally in plain view, i.e., laying on the kitchen table or on the dashboard. the polkice had the right to be in the Veeder home after someone called 911 because of a self-inflicted hanging. A women inside the house told the police that the manila folder she was holding contained the suicide note and that she was going to read it in front of them. "Under the circumstances, defendants had probable cause to believe that the manila folder contained suicide notes," the Court of Appeals (Cabranes, Wesley and Hall) says.

Plaintiffs brought this action because the law generally confers upon you a privacy interest in letters and other sealed packages delivered through the mail. But the Second Circuit cannot identify any clearly established case law that says "the police may not subsequently read a person's private papers, the text of which is not in plain view, that have lawfully been seized under the plain view doctrine." Since the state of the law was not clear at the time, the police get qualified immunity and plaintiffs cannot sue them for damages.

The police could have gotten a warrant, the Court of Appeals says, but that does not affect their entitlement to qualified immunity. Left unsaid in this decision is why the police wanted the note. The district court ruling suggests the police treated the home as a potential crime scene. A quick Google Scholar search turns up a worker's compensation decision relating to this case, suggesting that the suicide grew out of a work-related problem (the decedent worked for the state police). That decision reads:

Decedent had been employed as a forensic scientist for approximately 31 years by the employer. In April 2008, the forensic lab where decedent worked underwent a reaccreditation process, during the course of which an audit uncovered an inconsistency in the fiber proficiency tests that were regularly performed by decedent. An investigation into the issue was commenced by the employer and, over the course of three days, several meetings were held between decedent and his supervisors to discuss the inconsistencies in the test results. After decedent advised his supervisors that he had skipped a step in the fiber test analysis procedure and, therefore, was noncompliant in performing the test, a "nonconforming work inquiry" was initiated by the employer. Decedent subsequently stopped going to work and weeks later, on May 23, 2008, committed suicide.
A few words on qualified immunity, which bear repeating. The Constitution protects certain rights which may be enforced in court, but if the case law interpreting those provisions is not clear at the time of the violation, then the defendants cannot be sued for damages. This means that only the truly incompetent may be sued in Section 1983 cases. Public officials are presumed to know about binding case law (whether they actually do or not). When the state of the law is fuzzy, then these abstract rights get you nowhere in court.

Monday, December 15, 2014

Court of Appeals upholds huge sanctions award against plaintiff

The plaintiff alleged that the police subjected him to excessive force. The plaintiff survived a motion for summary judgment and the case went to trial. The jury found for the police officers. But the case did not end then and there. Arguing that the case was completely frivolous, the City of New York asked the trial court to order that plaintiff pay its attorneys' fees. The trial court granted that motion and the Court of Appeals affirms.

The case is Abeyta v. City of New York, a summary order decided on December 15. For you non-lawyers out there, defendants file summary judgment motions to prevent to trial from taking place. They will argue either that the plaintiff has no evidence or that the case is so one-sided in favor of the defendant that the plaintiff cannot win. The plaintiff's sworn pre-trial testimony alone may entitle him to a trial if he testifies that the police beat the hell out of him without good reason. That does not mean the plaintiff will win at trial or even that the case is not frivolous.

When this case went to trial, the jury returned a verdict for the defendant police officers. The City then moved for attorneys fees. Normally, plaintiffs who lose don't pay the defendants' attorneys fees. Otherwise, plaintiffs would be afraid to bring lawsuits in the fear that if they lose, they could pay a huge attorneys' fees judgment. But if the plaintiff brings a frivolous case, the judge can order him to pay defendants' fees. That's what happened here.

In sustaining the attorneys' fees award, the district court stated:

while it seemed at the summary judgment stage that the officer defendants could have slammed plaintiff’s head against the hood of their squad car, it became clear at trial that there was no credible evidence to support such a claim. Similarly, while it seemed at the summary judgment stage that plaintiff could have suffered life-altering brain injuries as a result of the alleged incident, it became evident at trial that plaintiff could not prove the existence of any injuries proximately caused by the alleged incident. . . .

For example, during plaintiff’s cross-examination, plaintiff conceded that he had continued playing video games, drinking, and going to strip clubs following the alleged incident, wholly undermining his allegation that as a result of the supposed incident, he was unable to work, leave his apartment for long periods of time, watch television, socialize with friends, or use a computer.
The district court therefore ordered the plaintiff to pay the City $211,747.50 in attorneys' fees. As the Court of Appeals does not like to second-guess the district courts on attorneys' fees rulings, this order stands, and plaintiff has to now pay out an enormous amount of money to the City.

Friday, December 12, 2014

No pretext, no case.

Another tutorial from the Court of Appeals tells us what it takes to win an employment discrimination case, and how hard it is to prove that the employer's reason for firing the plaintiff is a pretext.

The case is Mathew v. North Shore Long Island Jewish Health System, Inc., a summary order decided on November 13. Here is how these cases work: the plaintiff has make a prima facie, or initial, showing of discrimination. If the plaintiff was terminated from his job under circumstances creating an inference of discrimination (black plaintiff replaced by a white employee, comparable employees not fired, etc.), the employer then has to articulate a reason for the termination. To win, the plaintiff has to show the articulated reason is a pretext for discrimination. Pretext means a knowingly false reason. The courthouse graveyard is filled with cases where the plaintiff could not prove that management's reason was a pretext.

Plaintiff in this case says he was fired because he suffered from a hernia, in violation of the Family and Medical Leave Act and state law. The hospital says plaintiff falsified his time records. Plaintiff says this is a bogus reason. The Court of Appeals (Katzmann, Hall and Livingston) says No Dice. "We are decidedly not interested in the truth of the allegations against plaintiff when evaluating pretext. Instead, we are interested in what motivated the employer." Since plaintiff actually admitted to submitting inaccurate time records in a meeting with management, "even if this admission was inaccurate or incomplete, it provided the [hospital] with a sound basis to conclude that Mathew had stolen time, and thus undercuts any inference that Mathew's termination was motivated by the hernia."

Plaintiff's second argument is that he was the victim of selective enforcement. But plaintiff "has not identified any other similarly situated employees -- that is, employees who admitted submitting erroneous timesheets -- much less shown that they were treated more leniently than he was." So, no pretext here, which means no discrimination under Second Circuit authority.

Thursday, December 11, 2014

No one gets paid for security screenings at Amazon

Have I told you lately how complicated the Fair Labor Standards Act is? It basically says that employees must be paid for the work, and that some employees are eligible for overtime. But it says more than that, as shown by the many court rulings that apply the FSLA in a million different ways. This time around, the Supreme Court asks whether Amazon.com workers can get paid for the 25-minute security checks when they leave the warehouse to ensure they are not stealing anything.

The case is Integrity Staffing Solutions v. Busk, decided by the Supreme Court on December 9. This decision was written by Clarence Thomas. Before you charge the conservatives on the Court with further hostility toward the working man, bear in mind that this was a unanimous ruling. The basic facts are these: "Integrity Staffing required its employees to undergo a security screening before leaving the warehouse at the end of each day. During this screening, employees removed items such as wallets, keys, and belts from their persons and passed through metal detectors."

A word or two about employee theft. When I worked at a supermarket back in high school, there were no security cameras or security checks. One guy happily filled up a shopping cart with stuff and rolled it right out the front door. Another guy clocked in early and then went back outside to the gym to lift weights. Management has gotten smarter over the years. Security cameras are now trained on every cash register in every supermarket and big-box store in America. Employee handbooks tell you in 20 point type that you are an at-will employee who can be fired for any reason or for no reason at all. The Amazon warehouses are mammoth. These security checks are in place to ensure that employees and temp workers do not rob the place blind.

Should the employees be paid for the time they have to pass through security screening to satisfy management that they are not stealing anything? Your initial impression would be that this is compensable time, as this seems a work-related requirement and the employees are not free to leave the workplace until they comply with the security screening.

Under the law, the employees don't have to be paid for "activities which are preliminary to or postliminary to said principal activity or activities.” Do these "postliminary" screenings fall within this exception? The Court says they do. Justice Thomas explains, "An activity is ...integral and indispensable to the principal activities that an employee is employed to perform if it is an intrinsic element of those activities and one with which the employee cannot dispense if he is to perform his principal activities."

The employees are not paid for this. "The screenings were not the 'principal activity or activities which [the] employee is employed to perform.' Integrity Staffing did not employ its workers to undergo security screenings, but to retrieve products from warehouse shelves and package those products for shipment to Amazon customers.” In addition, "The security screenings also were not 'integral and indispensable' to the employees’ duties as warehouse workers."  

Wednesday, December 10, 2014

What happens in the jury room stays in the jury room

If you try cases, you know that the X factor is the jury. They sit in judgment of the plaintiff, the defendant, the lawyers and probably the judge. We trust the jury to make the right decision, yet we know nothing about these people other than what they reveal during jury selection, which in federal court is often very little. When I talk to clients about what happens at trial, I tell them that eight strangers will decide their case. It may not be a jury of your peers. Take a good look at the next eight people you see on your way home from my office. That is your jury. The guy who works at the gas station has not read a newspaper in years. The woman ahead of you at the traffic light has a Ph.D. The jaywalker only cares about his cellphone. The crossing guard has no time for jury selection and will fake an excuse to get out of it. You get the picture.

The case is Warger v. Shauers, decided by the Supreme Court on December 9. This case examines when a juror's lies during jury selection can get you a new trial. During jury selection, the judge will ask the potential jurors questions about their backgrounds and whether they can decide the case fairly. In this traffic accident case, one juror, Whipple, said she could be fair. After the plaintiff lost at trial, the plaintiff's lawyer heard from a juror who said that Whipple told the other jurors during deliberations "about a motor vehicle collision in which her daughter was at fault for the collision and a man died,” and had “related that if her daughter had been sued, it would have ruined her life.” Whipple was the jury forewoman. If this account was true, then Whipple was not being honest at jury selection. If she mentioned her daughter at jury selection, she probably would not have been picked for the jury.

Plaintiff's lawyer got the juror to sign an affidavit describing what Whipple said during deliberations, arguing that Whipple had lied about her impartiality during jury selection, denying plaintiff a fair trial. However, under Federal Rules of Evidence 606(b), certain juror testimony regarding what occurred in a jury room is inadmissible “[d]uring an inquiry into the validity of a verdict.” This rule disallows plaintiff from seeking a new trial, a unanimous Supreme Court says.

The Court notes that "If a juror was dishonest during voir dire and an honest response would have provided a valid basis to challenge that juror for cause, the verdict must be invalidated." That language does not help plaintiff. "As enacted, Rule 606(b) prohibited the use of any evidence of juror deliberations, subject only to the express exceptions for extraneous information and outside influences." In enacting Rule 606, Congress declined to "permit[] the introduction of evidence of deliberations to show dishonesty during voir dire." Congress wanted jurors to be able to deliberate without fear that their private deliberations (which take place behind closed doors) would be exposed and picked apart. What happens in the jury room stays in the jury room.

Monday, December 8, 2014

Chimpanzees are not people

Corporations may be people, but chimpanzees are not. At least not for purposes of filing a habeas corpus petition.

The case is The Nonhuman Rights Project v. Lavery, a ruling from the Appellate Division Third Department decided on December 4. For the uninitiated, a habeas petition is filed when someone claims that he is being held in custody unconstitutionally. This usually arises in criminal cases. Habeas petitions are what distinguish civilized societies from authoritarian societies. It's like a hail-Mary legal procedure when all else has failed, the last safety valve.

In this case, an animal rights group filed a habeas petition in New York State court, claiming that the chimpanzee, Tommy, was being unlawfully detained by a private business. The court decision does not tell us why the plaintiff wants Tommy away from his captor. To read more about the case from the plaintiff organization and its evidence that Chimpanzees have many human-like traits, click here.

The Third Department frames the issue this way: "This appeal presents the novel question of whether a chimpanzee is a 'person' entitled to the rights and protections afforded by a writ of habeas corpus." After noting that habeas procedures only protect "persons," the court finds a definition of "person" from legal scholarship and Black's Law Dictionary. But that kind of research is window dressing. There is no way the plaintiff will win this. Courts are not going to extend to animals the protections enjoyed by humans. The court notes that other courts have rejected this argument, and there is no case in favor of plaintiff's position.

Anyway, 'legal personhood has been defined in terms of both rights and duties," emphasis on the word "duties." "Associations of human beings, such as corporations and municipal entities, may be considered legal persons, because they too bear legal duties in exchange for their legal rights." So here's how the court wraps it up:

Needless to say, unlike human beings, chimpanzees cannot bear any legal duties, submit to societal responsibilities or be held legally accountable for their actions. In our view, it is this incapability to bear any legal responsibilities and societal duties that renders it inappropriate to confer upon chimpanzees the legal rights – such as the fundamental right to liberty protected by the writ of habeas corpus – that have been afforded to human beings.
So, Chimpanzees are not people for purposes of a habeas corpus petition. Like I said (and as the Third Department states in this case), corporations are treated as people under the law in certain instances. If Tommy the chimpanzee makes a campaign contribution, would he then count as a person?

Wednesday, December 3, 2014

Rats on a plane!

When is a psychological quirk a disability under the Americans with Disabilities Act? In this case, the Court of Appeals provides some guidance.

The case is Giambattista v. American Airlines, a summary order decided on November 25. Plaintiff worked as a stewardess. Her co-workers accused her of smuggling her pet rat onto an airplane, pushing the false perception that she "had a mental disability because she was unable to be away from her pet rats for any period of time." These accusations resulted in embarrassing searches and interrogations by federal authorities. Co-workers gossiped that plaintiff was "crazy" and had to be taken "away in white coats."

This case got some publicity. Her lawyer said, "Every time she came into an airport they basically stripped her ... "If she had had a rat on her, they would have found it. They never did. Enough already." The district court quotes from the complaint that "The Plaintiff alleges that she subsequently developed a debilitating fear and anxiety of being detained overseas and was unable to work on international flights, causing her lost income."

Under the ADA, you can argue that management mistreated you because of a perceived disability. The perceived disability here is that everyone thought plaintiff was "crazy" because of the pet rat. But this case fails under Rule 12, and the Court of Appeals (Pooler, Parker and Wesley) says plaintiff cannot satisfy the requirement under Iqbal that the complaint allege a plausible claim. The Court reasons it out like this:

Although Giambattista claims that she was subjected to discrimination and harassment due to the false perception that she “had a mental disability because she was unable to be away from her pet rats for any period of time,” Compl. ¶ 2, we need not credit “[g]eneral, conclusory allegations . . . when they are belied by more specific allegations of the complaint.” The complaint explicitly alleges that Giambattista was subjected to a number of unpleasant encounters all “as a result of” the false reports filed by two of her fellow flight attendants. Compl. ¶ 26. Similarly, under the circumstances alleged, the stray comments of her co-workers fail to raise a reasonable inference that American Airlines discriminated against her on the basis of a perceived disability. The complaint itself asserts that these comments were motivated solely by the rumors regarding conduct that Giambattista concedes would be illegal if established.

Monday, December 1, 2014

Plaintiff is a prevailing party but gets reduced attorneys' fees in IDEA case

One of the reasons we can file civil rights cases is that the plaintiff's lawyer recovers his legal fees if he wins the case. Most civil rights plaintiffs cannot afford an attorney, and if they can pay for some legal services, they cannot afford to cover all legal expenses, which can exceed $100,000. So the questions remain in many cases: when is the plaintiff a prevailing party, and if she is one, how much money does she (or her lawyer) get?

The case is K.L. v. Warwick Valley School District, a summary order decided on November 25. The parents sued under the Individuals with Disabilities in Education Act, which ensures that disabled students get the educational services they need. These time-intensive cases cost a fortune. When the case settled, the parents moved for attorneys' fees, and the district objected. The trial court awarded the fees, and the Court of Appeals (Pooler, Parker and Wesley) affirms.

“[A] plaintiff ‘prevails’ when actual relief on the merits of his claim materially alters the legal relationship between the parties by modifying the defendant’s behavior in a way that directly benefits the plaintiff.” Pursuant to the parties’ settlement agreement, Warwick Valley provided K.L.’s child summer 2012 ESY services, which it had originally sought to deny and not all of which it was legally obligated to provide pursuant to the pendency provisions of the IDEA and New York State Law. 20 U.S.C. § 1415(j); 8 N.Y.C.R.R. § 200.5(m). This relief modified Warwick Valley’s behavior in a way that benefitted K.L. and provided him with a portion of the relief sought in his hearing request. This provides a sufficient basis for prevailing party status.
Being a prevailing party does not mean you get all your money. The court then has to decide how much legal fees the defendant has to fork over. Appellate courts don't like to second-guess trial court attorneys' fees rulings, and this ruling reflects that deference. "Although the relief obtained by K.L. was comparatively small, he achieved a primary goal in bringing these proceedings: ensuring full summer 2012 ESY for his child. The mere fact that relief is small in nature does not imply that a plaintiff’s success is de minimis."

Plaintiff also takes up an appeal, arguing that the district court did not award enough in fees. The Court of Appeals rejects the argument that the hourly rate was too low. Although experienced attorneys in the Southern District get $300 to $450 per hour in complicated educational cases, the district court awarded plaintiff's attorney $250 per hour. "Taking into account the straightforward nature of this case, which involved few disputed issues and a prompt settlement prior to any administrative proceedings, the district court deemed an hourly rate of $250 appropriate."

A few other rulings: first the Court of Appeals says the district court did not abuse its discretion in reducing the fees for limited success. "The district court appropriately concluded that the settlement agreement only afforded K.L. a portion of the relief originally sought in the hearing request, with K.L. conceding several of his original demands in order to settle the proceedings."

In addition, while plaintiffs normally get fees for the time spent drafting the attorneys' fees petition, the district court did not abuse its discretion in awarding plaintiffs no fees for this petition. This ruling is somewhat remarkable, as plaintiffs usually get at least some money for this work. Not this case. "'If the fee claims are exorbitant or the time devoted to presenting them is unnecessarily high, the judge may refuse further compensation or grant it sparingly.' Here, the district court concluded that (1) thirty hours was an excessive hourly total for litigating a straightforward fee petition, and (2) the underlying fee request was exorbitant. In light of our previous statement that a district court “may refuse further compensation,' in such circumstances, we find no error in the decision to award no fees for the fee petition phase." In other words, plaintiff is punished for asking for too much money.