Friday, January 30, 2015

2d Circuit provides some guidance on the Mount Healthy defense

First Amendment retaliation cases brought by public employees who get fired for speaking out have a trap door that we call the Mount Healthy defense, named after a Supreme Court decision from 1977 that says that even if the plaintiff proves he was fired or demoted for speaking out, the employer can still win the case if it proves that it would have fired or demoted the plaintiff for non-retaliatory reasons. This case provides some much-needed guidance on that principle.

The case is Smith v. County of Suffolk, decided on January 14. In many ways, Mount Healthy is a hypothetical question, but one that can break any case. I am not sure how jurors can apply this confusing defense, but at trial, the question is dropped in their lap. In this case, the case never went to the jury because the trial court said the employer satisfied its Mount Healthy defense on paper. The Court of Appeals (Hall, Livingston and Brodie [D.J.]) reverses and remands the case for trial.

The plaintiff was a police officer who got nailed at work for various computer-related offenses, including unauthorized Internet use and some job-related problems. But he was also written up for emailing newspaper reporters about a botched murder case and abuses committed by the Suffolk County DA's office. Since the newspaper emails constitute free speech, we have a mixed motive case. The charges against Smith make reference to the free speech, so the jury can find that he was disciplined in retaliation for speaking on matters of public concern. But what about the other stuff he was written up for, things that were not protected by the First Amendment? That's where Mount Healthy kicks in.

The question is "whether defendants have demonstrated that a reasonable jury would have to find by a preponderance of the evidence that the Department would have investigated, transferred, and suspended Smith absent his citizen-media speech." The Court adds, "the unprotected conduct, standing alone, must justify the adverse actions." In other words, "would the defendant have taken the same adverse action even if the impermissible reason had not existed?"

While defendants "have presented considerable evidence of considerable misconduct that is separate and distinct from the incidents of speech the district court determined were subject to First Amendment protection," the best that defendants can do at this stage of the case is to argue that "irrespective of Smith's expression of his opinion to news media and others, reasonable and adequate grounds supporting charges for misconduct for flagrant disregard of department computer and Internet use existed." That general statement won't cut it on a summary judgment motion. The Court says "the Mount Healthy defense ... demands more than this type of general conclusion."

So here's the bottom line: "defendants asserting a Mount Healthy defense may not rely solely on the occurrence of unprotected misconduct: they must also articulate and substantiate a reasonable link between that misconduct and their specific adverse actions. A general statement that the employer would have taken some adverse action will not suffice." So, the Court says, while a jury can find that Smith would have been disciplined solely for the non-speech related misconduct, "a reasonable jury might just as easily infer that because the Department did not transfer Smith following his similar misconduct in the past, he was transferred because of his protected citizen-media speech, rather than in spite of it as defendants argue." The issue raised here, then, is: "Why did the Department discipline Smith in the manner that it did?" As this raises questions about motive, that question is for the jury.


Tuesday, January 27, 2015

Brutish coaching does not violate the Constitution

The football coach was a brute, that's true. His players brought a federal lawsuit against him. The factual allegations are disturbing, but they do not establish a constitutional violation, so the case is dismissed.

The case is Votta v. Castellani, a summary order decided on January 23. The constitutional theory here is substantive due process, which says the government cannot treat you arbitrarily in a shocking way. This is the hail-Mary way to win a constitutional claim, when no other constitutional theories will work, which is why courts are so reluctant to recognize claims for substantive due process. Two points of interest here.

First, the Second Circuit has held that government officials (like schoolteachers) can violate the Constitution if they infringe on your bodily integrity. In Johnson v. Newburgh Enlarged School District (2001) (a case I briefed), the plaintiff schoolchild had a claim because the gym teacher beat the hell out of him. But in Smith v. Half Hollow Hills School District (2002), the student did not have a claim because the school instructor had merely slapped him in the face full-force, "allegedly causing the student both great physical pain and severe emotional pain for which he underwent psychotherapy."

Johnson and Smith are guideposts for this case. But the Second Circuit (Katzmann, Winter and Marrero [D.J.]) says this case is not even as bad as Smith. "This conduct included handling the players roughly, grabbing their facemasks and shoulder pads, shaking them, and screaming at them in such close proximity
that he spat on them. Such minor infringement, even considered in the aggregate, is certainly insufficient to permit a reasonable jury to determine that it shocked the conscience."

The Court does pause to note that the plaintiffs allege that the coach directed them to brutalize opposing players, i.e, breaking their bones, etc. The Court of Appeals says these allegations may give the opposing players a constitutional claim. But they are not the ones bringing the lawsuit. The Court reasons:

This alleged conduct is repugnant and, if proved at trial, such outrageous misbehavior, by itself or in combination with other offensive actions, could permit a reasonable jury to find that it shocked the conscience and caused serious emotional and physical harms to a player who was the victim of such intentional conduct ordered by the coach. However, none of these plaintiffs was a victim of such conduct. While these plaintiffs allege emotional and psychological injuries, these injuries are stated in such general and conclusory terms as not to permit a plausible inference that they were caused by Ward’s infringing on their fundamental rights.

Friday, January 23, 2015

New York's vaccination law does not violate the Constitution

A subculture in American society does not believe in vaccinating children. That belief runs afoul of New York law, which requires that parents vaccinate their kids before sending them to school. Some parents have challenged that law as unconstitutional. The Court of Appeals upholds the law and dismisses the case.

The case is Phillips v. City of New York, decided on January 7, only two days after it was argued. Plaintiffs raise a variety of constitutional theories. The first draws from substantive due process, rooted in the Fourteenth Amendment. But that argued died in 1905, when the Supreme Court said the state can mandate compulsory vaccinations.

The second theory draws from the Free Exercise Clause, which protects religious freedom. The Supreme Court has never directly addressed that argument, but it hinted at it in 1944, stating that a parent "cannot claim freedom from compulsory vaccination for the child more than for himself on religious grounds. The right to practice religion freely does not include liberty to expose the community or the child to communicable disease or the latter to ill health or death." The Second Circuit (Lynch, Chin and Korman [D.J.]) agrees with the Eighth Circuit that the mandatory vaccination law does not conflict with religious freedom, especially since state law allows for exemptions based on sincere religious beliefs. Under that exemption, "in the event of an outbreak ... of a vaccine-preventable disease in a school," the state "may order the appropriate school officials to exclude from attendance" any non-vaccinated students.

Another theory invokes the Ninth Amendment, everybody's favorite backup Amendment. Let's face it, the Ninth Amendment is vague and no one really know what to do with it. It reads, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." Constitutional historians know that it made its last significant appearance in a Supreme Court case back in 1965, when the Court identified a right to privacy, and Justice Arthur Goldberg invoked the Ninth in concurrence in support of that holding. The Ninth does not provide any independent source of rights, the Second Circuit notes, and it cannot help the plaintiffs here.

Thursday, January 22, 2015

Title VII plaintiff loses retrial on new retaliation standard

This case is a real downer for plaintiffs' lawyers. It tells us that the Supreme Court has the final say, and if you don't like it, lump it.

The case is Cassotto v. Donahoe, a summary order decided on January 14. This is a retaliation case brought under Title VII. Plaintiff said he suffered retaliation after asserting his rights under the antidiscrimination laws. The case went to trial, and plaintiff won. Post trial, the defendant filed a motion to vacate the verdict. When the motion was pending, the Supreme Court issued the Nassar ruling, which altered the legal standard governing Title VII retaliation cases.

Prior to Nassar, the Second Circuit (and other courts) said the plaintiff wins the case if the employer's retaliatory intent was a motivating factor in the termination/demotion. But in Nassar, the Supreme Court said the motivating factor test is wrong. The right test is "but for," as in, but for the employer's retaliatory motive, the plaintiff would not have been terminated. This is a higher burden of proof for the plaintiff to satisfy.

Is there a significant difference between "motivating factor" and "but-for" causation? In a recent case, the Second Circuit said that that "but for" causation does not mean retaliatory intent is the only reason someone was fired. In Kwan v. Aldalex, the court said,

A plaintiff's injury can have multiple "but — for" causes, each one of which may be sufficient to support liability. ... Requiring proof that a prohibited consideration was a "but-for" cause of an adverse action does not equate to a burden to show that such consideration was the "sole" cause.
Good language for plaintiffs. Yet, "but for" causation is still harder for plaintiffs to prove at trial. After the plaintiff in this case won his trial, the district court granted the defendant's motion for a new trial in light of the Nassar ruling. On retrial, under the new legal standard, the plaintiff lost. Plaintiff appealed, challenging the trial court's right to order a new trial. But the Court of Appeals (Lynch, Carney and Koeltl [D.J.]) says the trial court had no choice in light of the intervening ruling in Nassar. The trial courts follow what the Supreme Court says, and so does the Second Circuit. That means no relief for Cassotto, and the case is over.

Tuesday, January 20, 2015

Bridge toll differentials are legal in NYC

Every few years, someone sues the State of New York over the bridge and highway tolls, which sometimes charge motorists different amounts of money depending on where you live. These cases are brought under the U.S. Constitution. The Court of Appeals usually finds that these toll disparities are legal.

The case is Janes v. Triborough Bridge and Tunnel Authority, decided on December 24, a mere two weeks after the case was argued. If you drive over the Triborough Bridge from Staten Island, the Rockaway Peninsula and Broad Channel Island, you pay less than the other suckers who have to throw money out the window (into the toll basket) from other locales. Other bridges also provide for similar resident discounts.

Plaintiffs invoke the constitutional right to travel and the dormant Commerce Clause. The right to travel is an interesting legal theory that does not actually appear in the Constitution; the Supreme Court says it's an implied right. As for the dormant Commerce Clause, that may be the least interesting constitutional doctrine, and let's leave it at that.

Cutting through the complex constitutional doctrines, on the right to travel, the Second Circuit (Wesley, Hall and Cabranes) says that when the toll differentials "amount[] only to a minor restriction on travel, the courts will not carefully scrutinize the government's reasons for them. Under the legal standard, "the permissibility of fees charged for the use of state facilities is evaluated under three prongs, which ask whether the fee (1) is based on some fair approximation of use of the facilities, (2) is not excessive in relation to the benefits conferred, and (3) does not discriminate against interstate commerce.” The toll differentials do not violate this standard. The differentials are not that huge, and the tolls are used to defray the cost of bridges and "the facilities of a large integrated transportation system, the operation of which facilitates interstate travel." And, as a practical matter, no one has been meaningfully dissuaded from traveling interstate because of these tolls.

As the dormant Commerce Clause analysis is similar to the right to travel analysis , the case is dismissed.

Friday, January 16, 2015

Speculative retaliation claim is dismissed

The Court of Appeals can open-minded about Title VII retaliation claims, where plaintiffs argue that they got shafted by management after they asserted their rights under the civil rights laws. Plaintiffs sometimes succeed in reversing summary judgment on appeal, but not every case is a winner. This case loses in the Second Circuit.

The case is Henderson v. Sikorsky Aircraft Corp., a summary order decided on January 7. This case applies the settled legal standard that cases will not go to a jury on the basis of speculation or conjecture or conclusory allegations. Plaintiff says he was denied a pay raise after he was promoted to a supervisory position in retaliation for previously complaining about discrimination.

That plaintiff can articulate a claim does not mean he has a claim. Management testified that the raises are discretionary for new supervisors. Two other supervisors also failed to get raises. And "the company's decision to deny Henderson a raise owed specifically to his poor job performance, including one evaluation ranking Henderson in the bottom ten percent of his peers. Indeed, Sikorksy asserts that Henderson’s disappointing performance discouraged the company from awarding him a supervisory position for several years, and that Henderson was offered the promotion in 2012 only because there were no other qualified applicants to fill an immediate vacancy."

At best, the Second Circuit (Lynch, Chin and Koeltl [D.J.]) says, plaintiff only speculates as to his belief that he was denied the raise because of his race. This will not do in the Court of Appeals (or the trial courts for that matter). While retaliation cases with a logical timeline can be winning cases for plaintiffs, this case is not one of them.

Thursday, January 15, 2015

Police lies can support Section 1983 lawsuit

In 2012, the Supreme Court unanimously said that you cannot sue police officers for committing perjury during Grand Jury proceedings. The Rehberg case may have seemed insignificant three years ago, but nowadays, with increased attention on Grand Juries, my guess is that the public would be alarmed to learn that the police can get away with lying under oath during these proceedings without fear of civil liability.

The case is Coggins v. Buonora, decided on January 13. In this case, the plaintiff alleges that the police officers knowingly falsified and omitted material facts from police reports and lied to the district attorney and the Grand Jury, resulting in the plaintiff's malicious prosecution. Under Rehberg, can plaintiff proceed with his case?

He can. The Second Circuit (Wesley, Hall and Cabranes) noted that the Supreme Court in Rehberg gave officers absolute immunity for their Grand Jury testimony. This protects the sanctity of the Grand Jury process. But something you should know about Supreme Court rulings: they can be distinguished. My facts are not your facts. What drove the decision in the Supreme Court may not drive another case. The Coggins case is another case.

The facts here are pretty jarring. When he saw an officer reach for his gun, plaintiff ran away when the police approached him. Officer Buonora arrived on the scene, shouting,"shoot him in the back." The police told the DA they heard a metal noise while chasing plaintiff, and that they found a gun at the scene. After the police falsified their reports and lied to the Grand Jury, plaintiff was indicted for various crimes. The charges were dropped when one officer was found to have perjured himself.

The Court of Appeals allows this case to proceed. The case is not just about Grand Jury perjury. It's also about falsified police records and lies to the DA. Rehberg says you cannot sue over the perjury, but the Second Circuit notes that the Supreme Court did not rule out a lawsuit against the officers for the other falsehoods, even if they had some tangential relationship to the Grand Jury process. Rehberg is contained, and the case can proceed to discovery.

Tuesday, January 13, 2015

Circuit affirms huge tobacco/cancer verdict

Cigarettes are still legal in America. That does not mean the families of cigarette victims cannot sue the cigarette companies. In this case, the family won nearly $5 million to redress the cancer death of the plaintiff's husband. The Court of Appeals affirms the verdict.

The case is Mulholland v. Philip Morris USA, Inc., a summary order issued on January 7. Books and movies have covered tobacco cases like this one. The plaintiff's legal theory was "failure to warn," that is, Phillip Morris did not warn cigarette smokers in the early 1960s that smoking could cause cancer. Phillip Morris argues on appeal that the trial court should have instructed the jury on but-for causation on the failure to warn claim. The company "contends that such an instruction was required in this case because one of its central theories was that Mr. Mulholland would have smoked and contracted lung cancer regardless of any warnings [Philip Morris] had given him." The Court of Appeals (Pooler, Livingston and Droney) rejects this argument. The district court used the tried-and-true Pattern Jury Instructions that state judges and law professors have drafted and maintained over the years. If they are good enough for the state court experts, they are good enough for the U.S. Court of Appeals on a state law issue.

In any event, there is no reason to think that the but-for instruction that Philip Morris wants would have made a difference at trial. The Second Circuit says,

[I]n finding that PM USA’s failure to warn was a substantial factor in bring about Mr. Mulholland’s injury (as was required by the district court’s jury instruction), the jury would necessarily have had to reject the theory that Mr. Mulholland would have smoked even if he received adequate warning. For the failure to warn to have had any effect, it cannot be that Mr. Mulholland would have smoked regardless of any warnings. PM USA’s argument that a but-for instruction would have altered the verdict does not withstand basic legal scrutiny.
Philip Morris also argued that the trial court should not have allowed the jury to hear evidence that the decedent "wouldn't have smoked" cigarettes had he known smoking could cause cancer. This deposition testimony was neither speculative nor self-serving. The Court of Appeals does not like to vacate jury verdicts on the basis of evidentiary rulings. Even if the district court blew it, it would have made an difference. Interesting reasoning on this point:

PM USA introduced a great deal of evidence at trial to support its theory that David Mulholland would have smoked even if he had been adequately warned, including his testimony that he “never really looked” at the cigarette warnings once they did start appearing on cigarette packages. But Mulholland introduced a significant amount of other evidence that David Mulholland would have heeded an adequate waning if one were given. For example, she introduced expert testimony showing that many fewer teens take up smoking once exposed to health warnings, she emphasized that David Mulholland made several attempts to quit smoking once he learned of the hazards of smoking. She also introduced evidence that he wore protective safety equipment when doing career-related painting and welding because he knew the health dangers of paint fumes, indicating that he did avoid risks when he knew about them. On balance, we conclude that any error in admitting the testimony was harmless.

Friday, January 9, 2015

Establishment Clause challenge to utility pole Eruvs fails

Telephone poles in Suffolk County featured an Eruv. What is an Eruv, you ask? It's an outside religious space for certain Jewish residents. Plaintiffs sued the Town of Westhampton Beach under the Establishment Clause, claiming that plastic strips placed on telephone poles designating the Eruvs constitute a state-sponsored religious message. The Court of Appeals disagrees.

The case is Jewish People for the Betterment of Westhampton Beach v. Village of Westhampton Beach, a summary order decided on January 6. The Second Circuit (Jacobs, Livingston and Raggi) tells us about the Eruv:

An eruv is a “demarcation of a defined geographic area within which adherents subscribing to a certain interpretation of Jewish law believe that they may perform certain activities that are otherwise prohibited on the Jewish Sabbath and Yom Kippur.”
Wikipedia defines an Eruv as "a ritual enclosure that some communities construct in their neighborhoods as a way to permit Jewish residents or visitors to carry certain objects outside their own homes on Sabbath and Yom Kippur. An eruv accomplishes this by integrating a number of private and public properties into one larger private domain, thereby countermanding restrictions on carrying objects from the private to the public domain on Sabbath and holidays. The eruv allows these religious Jews to, among other things, carry house keys, tissues, medicines, or babies with them, and use strollers and canes. The presence or absence of an eruv thus especially affects the lives of people with limited mobility and those responsible for taking care of babies and young children."

In Westhampton, Eruvs are "inconspicuous strips attached to utility poles." Does their placement violate the First Amendment's Establishment Clause? The Second Circuit says they do not. "The Westhampton eruv was delineated by 'nearly invisible' staves and wires attached to utility poles.  Plaintiffs do not allege that these staves contain any overtly religious features that would distinguish them to a casual observer as any different from strips of material that might be attached to utility poles for secular purposes." Nor have plaintiffs plausibly alleged that the government action -- allowing the power company to place items of religious significance on utility poles -- serves no secular purpose.

And, the Court says, "No reasonable observer who notices the strips on [Long Island Power Authority] utility poles would draw the conclusion that a state actor is thereby endorsing religion, even assuming that a reasonable observer was aware that a state actor (LIPA) was the entity that contracted with a private party to lease the space." Nor do the Eruv strips on utility poles entangle the government with religion. As other courts have reached the same conclusion, the Second Circuit sides with the government in this case.

Thursday, January 8, 2015

Circuit examines million dollar verdict in racial harassment case

Damages awards are still a mystery to most of us. The jury gets almost no guidance on how much money (if any) to give the plaintiff, and lawyers and the courts spend the next two years scrutinizing what the jury did. In this case, the jury awarded the racial harassment plaintiff $1.32 million in pain and suffering and $24 million in punitive damages, which the trial court reduced to $5 million. The Court of Appeals sustains the $1.32 million but says the punitives were too high.

The case is Turley v. ISG Lackawanna, Inc., decided on December 17. The Court of Appeals (Sack, Katzmann and Rakoff [D.J.]) uses this case as a vehicle to clarify when it will reduce large damages awards.

We are required to police closely the size of awards rendered in the trial courts within our Circuit. In recent opinions, we have addressed at length the individual and social harms associated with excessive awards of  compensatory and punitive damages, many of which are relevant to this case. A juryʹs assessment of damages based on intangibles such as emotional harm or the need for punishment injects an additional element of the immeasurable and subjective into the proceedings, which trial and appellate courts are expected to oversee with care. Excessive punitive damages also implicate a defendantʹs constitutional due process rights insofar as they impose a substantial punishment without the safeguards, constitutional or otherwise, that attend criminal proceedings. Pursuant to these concerns, we scrutinize awards for fairness, consistency, proportionality, and, in the case of punitive damages, constitutionality.
On compensatory damages, while the jury has wide discretion to set an amount and the court will not reduce it unless is "shocks the judicial conscience," there are limits. A large jury award cannot be sustained lightly, but the Court of Appeals says the $1.32 million award for pain and suffering will stand. "The case before us appears to be unique, combining years of grotesque psychological abuse leading to a marked decline in Turleyʹs mental health and well‐being. He was hospitalized and diagnosed with, inter alia, post‐traumatic stress disorder, depression, and panic disorder as a result of the harassment that he suffered." In a 2012 student harassment case (that I litigated), the Court notes, the plaintiff won $1 million in pain and suffering without any medical treatment. The Court also cites other employment harassment cases with large verdicts that involved comparable or less severe conduct. "Under the exceptional and egregious facts of this case, we conclude that the $1.32 million compensatory award was fair and reasonable. Recognizing also the deference that we owe to the district court, which was 'closer to the evidence, and [] therefore in a better position to determine whether a particular award is excessive,' we will not disturb that award."

The punitive damages are another story. The Second Circuit will more closely scrutinize the punitive damages award than it does compensatory damages to satisfy due process principles and "to ensure that such damages are fair, reasonable, predictable and proportionate, to avoid extensive and burdensome social costs, and to reflect the fact that punitive awards are imposed without the protections of criminal trials."

While the harassment in this case was outrageous, that does not end the analysis. The $5 million punitive damages award gives us a 4:1 punitives/compensatory ratio. This is close to the line, the Second Circuit says. "Where the compensatory award is particularly high, as the one in this case assuredly was, a four‐to‐one ratio of punishment to compensation, in our view, serves neither predictability nor proportionality. As noted, this is particularly so where the underlying compensation is, as it is in this case, for intangible—and therefore immeasurable—emotional damages." The $5 million also seems to high in light of comparable cases. "It appears that punitive awards for workplace discrimination rarely exceed $1.5 million." The Court concludes that "a roughly 2:1 ratio of punitive damages to what, by its nature, is necessarily a largely arbitrary compensatory award, constitutes the maximum allowable in these circumstances."

Tuesday, January 6, 2015

Court blesses jury charge in million dollar racial harassment case

This is the third installment about a racial harassment case that won the plaintiff a fortune in damages. The Court of Appeals spent 10 months sorting out the issues. This time around, I will talk about the jury instructions.

The case is Turley v. ISG Lackawanna, Inc., decided on December 17. Once the jury decides the plaintiff was subjected to severe or pervasive racial harassment, it is hard to challenge that finding on appeal, as the court defers to the jury's credibility findings. The best avenue for appeal is to argue that the trial judge made a mistake. The jury instructions are often the first place to look. But while the trial court has no discretion to get the instructions wrong, even a mistake in the jury charge will not get you a new trial unless it truly made a difference in the outcome, or was not "harmless error."

In this case, the employer says the jury was improperly charged on how to hold the employer liable. Generally, even the worst racial or sexual harassment will not win you the case without proving the employer was responsible for it. If the plaintiff complains about the harassment and management does not take the complaint seriously or ignores it altogether, then the plaintiff wins.

As the employer notes, "The court instructed the jury that when a non‐supervisory co‐worker creates a hostile work environment, the employer will be liable only if the plaintiff proves that his ʺ'supervisor or successively higher authority knew . . . or should have known . . . of the hostile or abusive work environment and permitted it to continue by failing to take remedial action.'ʺ The employer says this charge is wrong because it says the employer is liable if any single supervisor or higher authority failed to adequately respond on his own to the harassment. The Second Circuit says "If the defendantsʹ interpretation is correct, then this instruction would constitute legal error because the employerʹs response to harassment must be assessed as a whole and in light of the totality of the circumstances."

But not so fast. In context, the charge was correct. right before that language, the trial court told the jury,

[A]n employerʹs response need only be reasonable under the circumstances. . . . Whether an employerʹs response was reasonable has to be assessed from the totality of the circumstances . . . . Factors to be considered in determining whether the response was reasonable include – okay, weʹre talking about reasonable employer response – the gravity of the harm being inflicted upon the plaintiff, the nature of the employerʹs response in light of the employerʹs resources, and the nature of the work environment. An  employerʹs response to co‐worker harassment is not unreasonable simply because it has not been successful in preventing further harassment.
As this passage uses the phrase ʺemployerʹs responseʺ five and explicitly states that the jury must consider the totality of the circumstances and also employs phrases, such as ʺthe employerʹs resources,ʺ the Court of Appeals says this language "would make little sense unless the jury was being asked to consider the employerʹs response as a whole. " As a whole, the jury charge asked whether management's response, in its totality, was proper.

Monday, January 5, 2015

Court finds IIED liability against supervisor over his failure to properly handle racial harassment.

This racial harassment case put the plaintiff through the proverbial "living hell." The language that co-workers threw around the workplace was so bad that the Court of Appeals has to remind the reader that it has no choice but to recite it in resolving the case. The jury awarded plaintiff millions of dollars in damages under federal law, but it also ruled in his favor under a state law doctrine called Intentional Infliction of Emotional Distress. The question for the Court of Appeals is whether the IIED verdict was appropriate. It was.

The case is Turley v. ISG Lackawanna, Inc., decided on December 17. Law students know that IIED cases are hard to win because the conduct has to be so severe and outrageous that no civilized society would tolerate it. Courts are wary of these claims because "outrage" is in the eye of the beholder and, let's face it, if these cases could be easily filed, everyone would be suing everyone else for all sorts of grievances. So the burden of proof is quite high.

But not so high that plaintiff cannot prevail against the employer and a head of security, Sampsell. Samsell's behavior was outrageous. While negligence or bureaucratic lethargy will not give rise to an IIED claim, Samsell crossed the line. As Judge Sack writes:

Sampsell permitted the hate‐ridden and menacing environment to persist for more than three years. On multiple occasions, he ignored, and failed to discipline employees responsible for, harassment of the plaintiff.  He blocked the efforts of local police to investigate threats against Turley. Rather than address Turleyʹs complaints, Sampsell set up a hidden camera that, whatever its intended purpose, in fact surveilled Turley while he worked. Although Sampsell was in charge of security for the plant, he did nothing when, in his presence, Turley was subjected to a vicious barrage of racial slurs. And when Turley and a witness went to Sampsellʹs office to report a particularly degrading verbal assault, they found Sampsell with the offending co‐worker, laughing; perhaps, the jury could have concluded, as though he were a co‐conspirator.

The Court of Appeals cites a few cases holding that the mere failure to properly deal with workplace harassment does not create an IIED claim. Without citation to any case law, though the Court sustains the verdict against Sampsell. So this case breaks some ground.

The employer, Lackawanna, was also properly held liable for IIED, the Court says. Since Samsell's inaction was outrageous, and as his failure fell within the scope of his employment, that outrageous non-behavior is imputed to the employer.