Wednesday, July 27, 2016

Habeas petition is granted in rape case

This is a complicated habeas corpus case where a man was found guilty of rape but he challenges the constitutionality of that conviction because the prosecution never turned over the victim's psychological report, which would have allowed the defendant's lawyer to impeach her and to support the defendant's claim that the sexual contact was consensual.

The case is  Fuentes v. Griffin, decided on July 15. Fuentes met the victim at an arcade in New York City. He says they had a consensual one-night stand but that she yelled at him at the subway station after the sexual contact when he said he did not want to see her again. She said he raped her. At the criminal trial, Fuentes's lawyer realized that the victim's psychiatric records were turned over at the last minute. Those records said she had pre-existing depression, suicidal thoughts and frequent crying spells. Defense counsel asked for (but was denied) a mistrial.

He argued that the cross-examination he could have conducted if he had known of the ROC "would have had a major effect on th[e] jury's opinion of [G.C.'s] credibility in this case." Further, G.C.'s mental health history as shown in the ROC would have substantiated Fuentes's account of G.C.'s erratic behavior at the subway station, and thus supported Fuentes's version of the events. Counsel also pointed out that during her trial testimony, G.C. "broke down on the stand and cried many times. And the jury could have very easily been led to believe the reason she was crying was the result of this incident. Now, after looking at this psych. record, we find she was crying well before the events of that evening . . . ."
Before you can bring a federal habeas corpus petition, you have to exhaust all appeals in the state system. For most people, that means going to the Appellate Division, and then asking the State Court of Appeals to take up the case, which it can reject without comment because the State's highest court can pick and chose what cases it wants to hear. But in this case, the State Court of Appeals did hear the case and it upheld the conviction. But the Second Circuit finds that the State Court of Appeals had actually misread part of the victim's psychiatric records in upholding the conviction. In the end, the Second Circuit (Kearse and Straub with Wesley in dissent) says, the State Court of Appeals did not reasonably apply settled constitutional law in upholding the conviction. It's been at least a few years since the Second Circuit has said this about the State's highest court, which is considered among the most prestigious in the country.

The Second Circuit grants the habeas petition in holding that Fuentes had a clearly-established constitutional right to receive psychiatric records like this as Brady material, which the prosecution must turn over to the defense before trial. The Circuit also says that the Confrontation Clause in the U.S. Constitution allows defendants to challenge a witness's credibility by challenging their ulterior motives, i.e., vindictiveness or malice. Psychiatric evidence allows you to challenge the witness's credibility in this regard. Here is the crux of the Second Circuit's reasoning:

The suppressed psychiatric record stated unambiguously that on January 27, 2002, G.C. told the hospital psychiatrist that she had been depressed and suicidal for two years. This information was consistent with the Record of Consultation's notation of "Dysthymic Disorder", a condition whose "essential feature," according to the American Psychiatric Association's Diagnostic & Statistical Manual of Mental Disorders (Fourth Edition) ("DSM-IV") -- which is "an objective authority on the subject of mental disorders," is a "chronically depressed mood that occurs for most of the day more days than not for at least 2 years," with symptoms that may include "low self-esteem." Among "the most commonly encountered symptoms in Dysthymic Disorder may be feelings of inadequacy" and "excessive anger," and the "chronic mood symptoms may contribute to interpersonal problems or be associated with distorted self-perception,"

Thus, while the Court of Appeals majority, not recognizing the actual content of the psychiatric record, viewed its impeachment value as "at best, minimal," the information as to G.C.'s chronic depression and Dysthymic Disorder would have, inter alia, provided a way to cross-examine G.C. as to her mental state, and potentially corroborated Fuentes's account of her behavior as "unstable" and "erratic" when he declined to see her again, to wit, being angry and volubly upset at being rejected. And, importantly, timely disclosure of the ROC would have provided defense counsel with an opportunity to seek an expert opinion with regard to the ROC's indication of other significant symptoms, in order to establish reasonable doubt in the minds of the jurors because of G.C.'s predisposition toward emotional instability and retaliation--an opinion he was able to obtain after he eventually learned of the psychiatric record but not in time to present it to the jury.

Tuesday, July 26, 2016

Flawed PLRA grievance process means Inmate can bring excessive force case

Inmates can no longer just run to court when something bad happens inside the jail. They have to file an internal grievance first. After that grievance is ignored or thrown away, they can then file suit in federal court. This results from a law that Congress passed during the Clinton presidency. The law was intended to reduce the number of inmate lawsuits. But courts are still figuring out how it all works.

The case is Williams v. Priatno, decided on July 12. This guy was jailed at Downstate Correctional Facility. He says the prison guards kicked the hell out of him. Under the grievance procedures in the federal system, you not only grieve bad food or other uncomfortable occurrences but your beatings. Think about that for a minute ("I would like to file a grievance about my beating"). Williams asked a correction officer to file the grievance on his behalf. The problem here was that the jail says the CO never filed that grievance for Williams. The jail's grievance rules were not a model of clarity regarding how to file an internal appeal of your grievances once the jail denies them at the first level. Rather, the Court of Appeals says, "the regulations only contemplate appeals of grievances that were actually filed. ... The regulations give no guidance whatsoever to an inmate whose grievance was never filed." Williams argues that even if the CO did not file the grievance for him, that omission cannot be held against him because the rules are too opaque with respect to his obligation to file an appeal of any grievance denial.

In 2004, the Second Circuit issued a series of rulings that interpreted the 1996 law that addressed inmate grievances. The leading case in this trilogy, Hemphill, said we consider whether administrative remedies inside the jail were available to the inmate. We then consider whether the jail forfeited the affirmative defense of exhaustion by failing to preserve it in litigation or their own actions in the jail made it impossible for the inmate to exhaust internal remedies. The third factor under Hemphill asks whether any special circumstances would excuse the inmate from having filed an internal grievance. But in 2016, the Supreme Court in Ross v. Blake, 136 S. Ct. 1850, essentially rejected the "special circumstances" rule, so that part of Hemphill is overruled.

Still, Williams can win the appeal and proceed with his lawsuit, the Second Circuit says, if the "regulatory scheme providing for the [grievance] appeal is so opaque and so confusing that no reasonable prisoner can use it." The Circuit draws that language from the Ross decision. That exception applies here. The rules at Downstate were not clear on how to appeal or exhaust internal administrative remedies, which normally must be exhausted before you can sue in court. As the regulations "do not describe a mechanism for appealing a grievance that was never filed," and the options offered by the State in defending itself on appeal are too confusing, Williams's case is reinstated and he can litigate his excessive force claim in court.

Monday, July 25, 2016

No pepper emergency in drug stop

A Terry stop happens when the police search your person on the street based on the "reasonable suspicion" that criminal activity is afoot. That's a low standard for the police to satisfy, but if you're arrested following a Terry stop, you will probably ask the judge to rule that the police exceeded their authority and that the fruits of the unlawful search -- usually drugs or a gun -- should be suppressed. That's what this guy did. But the Second Circuit says the stop was legal.

The case is U.S. v. Compton, decided on July 19. Compton was driving near the Canadian board, where the police had set up a checkpoint. Compton slowed down his SUV as he approached the checkpoint and abruptly veered into a the driveway of a vegetable stand. Compton and his brother then got out of the vehicle and each bought a pint of peppers. And by peppers, I mean the kind that grow in the ground. A police officer heard about Compton's maneuverings and peered into the SUV. He saw a blanket in the back that looked like it was concealing something. The police then got out the drug-sniffing dog, which found 145 pounds of marijuana in duffle bags. Was this warrant-less search legal? It was.

In determining whether a Terry stop is legal, we look at the totality of the circumstances. Beware of the totality of the circumstances test. It means the court can emphasize one fact over another or just look at the "big picture" in reaching a conclusion. With tests like this, we know lawfulness or unlawfulness when we see it. Here, the officer's suspicion was legitimate because (1) Compton avoided the checkpoint, (2) the checkpoint was near the border and (3) the brothers attempted to conceal the avoidance in a peculiar way.

While avoiding a checkpoint is usually not enough by itself to authorize a Terry stop (as some people simply don't like interacting with the police), we can still consider that factor in the analysis. Proximity to the border is relevant because "national borders uniquely implicate various criminal activities -- including contraband smuggling and illegal entry," according to the Supreme Court. The concealment attempt was also suspicious. As Judge Walker puts it, we consider "the peculiar circumstances surrounding the precipitous pepper purchase." Not the alliteration. If you think the Court is getting cute here, you are correct. The Court writes:

Because Gottschall had already determined that the SUV had made the abrupt turn into the vegetable stand in order to avoid the checkpoint, Gottschall could reasonably interpret the pepper  purchase to be an attempt to conceal that avoidance. He could reasonably discount the probability of an alternate explanation, such as a sudden pepper emergency (such predicaments occur infrequently) or a simple desire to avoid a delay (taking the extra time to park a car and go shopping is hardly consistent with a motorist who avoids a checkpoint because he or she is in a hurry). And he could reasonably be suspicious of individuals who appeared to be taking steps to actively deceive law enforcement.

Moreover, the improbability of a pepper emergency occurring immediately upon the appearance of a border checkpoint rendered the brothers’ ruse even more suspicious. A person who resorts to an odd and poorly conceived concealment measure to avoid contact with law enforcement authorities is more likely to be desperate to avoid detection of unlawful activity.
No one really has a pepper emergency, do they? Unless you are hosting a barbeque, which these guys were not. Which is why the defendant gets nailed on a drug charge.

Thursday, July 21, 2016

Small-town constitutional retaliation claim is reinstated

Small-town politics once again makes it way to the U.S. Court of Appeals, which decides that a jury may find that a town in Dutchess County retaliated against a police captain for supporting the incumbent Town Supervisor (who lost her re-election campaign) and was then demoted by the Town Board.

The case is Bierce v. Town of Fishkill, a summary order issued on July 13. Bierce supported Pagones, who sought re-election. Pagones lost. LaColla won. Afterwards, plaintiff was demoted. The case was dismissed, but the Court of Appeals (Jacobs, Chin and Droney) brings it back in an unpublished decision that could easily have been a precedential ruling. I say that because this decision is a mini-tutorial on what it takes to win a political retaliation case under the First Amendment.

Plaintiff had the First Amendment right to support Pagones in her re-election campaign. The town did not have the right to retaliate for plaintiff's political activity. The town argued that the town board voted to demote plaintiff, and that he did not prove that a majority of the board took action against him in retaliation for his political activity. There is logic to this argument. But the Court of Appeals previously held in another case that "plaintiff 'may prevail—and, at the very least, should survive summary judgment—even when the plaintiff has not presented evidence that a majority of the individual members of [a] body acted with unconstitutional motives.'” The defendant has the burden of showing a majority did not intend to retaliate against the plaintiff.

Plaintiff can win the case because the board voted to demote him only one month after LaColla took office. That short time-gap permits the inference of retaliation. Also, the board did not follow its usual procedures in eliminating plaintiff's position, more evidence of illicit motive, since violating procedural rules to hurt the plaintiff suggests the defendants were bending the rules for an ulterior motive. What's more, two other Pagones supporters also lost their jobs after the election. There is also some direct evidence. "After finding out that Bierce supported Pagones politically, LaColla warned him that 'police and politics don’t mix.'”

Tuesday, July 19, 2016

A cornucopia of reasons to reinstate a teacher's Title VII claims against an upstate school district

This is a 20 page summary order issued by the Court of Appeals in resolving an upstate school-teacher's employment discrimination claim. Summary orders are normally four to five pages, but this one goes on and on because the district court made various mistakes that require extended discussion. Buried in the otherwise routine analysis is an interesting discovery ruling in which the district court abused its discretion.

The case is Carter v. Syracuse City Sch. Dist., issued on July 11. Here are the rulings in bite-size chunks:

1. Plaintiff did not have to file a notice of claim against the district in order to preserve her state law claims. The Second Circuit cites a recent State Court of Appeals ruling that "a notice of claim need not be filed for a Human Rights Law claim against against a municipality." That is so because HRL claims are not torts claims.

2. Plaintiff has plead a racial and gender discrimination claim against the district under Title VII. The district court got it wrong in holding that she had to plead a prima facie case of discrimination in order to thwart a Rule 12(b)(6) motion. She pleads a claim in alleging her negative performance review was a sham that caused her to be placed on an "assistance plan" for deficient teachers and rendered her ineligible for certain teaching programs that would have paid her cash money. Lest there be any doubt, the Vice Principal allegedly told plaintiff the negative performance review "was due to her race and gender." Did the Vice Principal really say this? Will a jury believe plaintiff's testimony that he did? That's what trials are for. If plaintiff said it happened in her complaint, then the district court has to believe it's true for purposes of ruling on the Rule 12 motion.

3. She also has a retaliation claim. Plaintiff does not have to plead a prima facie case of retaliation, the Second Circuit reminds us. After she filed a discrimination charge with the State Division of Human Rights, plaintiff asked the district to relocate her to another school, which could have been done without difficulty, and requests like this are routinely honored. The district did not relocate her. I am sure the district's lawyers argued that this was not an adverse action because the denial did not affect the terms and conditions of her employment, and teachers do not have the right to demand a transfer. But the Court of Appeals says the relocation denial qualifies as an adverse action because it would have dissuaded a reasonable teacher from complaining about discrimination again, as the relocation would have moved her away from co-workers who were causing her work-related stress. This is actually an interesting holding which might deserve further analysis, as I have not seen this before in a Second Circuit ruling.

4. The district court abused its discretion in rejecting plaintiff's request for additional discovery when she sought leave to depose the Vice Principal after he backed away from his initial willingness to sign an affidavit that plaintiff's counsel had prepared in opposition to the summary judgment motion; he was afraid to sign because he feared retaliation from the district and refused further contact with plaintiff's lawyer. The Veep instead signed an affidavit in support of the district's summary judgment motion. Of course, plaintiff says the affidavit that Vice signed had false information. The district court says plaintiff could have taken this guy's deposition in discovery, but the Court of Appeals says that's not a good reason to deny the request for a late deposition under the circumstances. The Second Circuit goes on to reason as follows:

Although the District Court concluded that the affidavits [in support of the application to reopen discovery] did not contain any explanation that justified Carter’s failure to depose Vice Principal Frazier during discovery, this finding is untenable in light of the detailed allegations contained in the affidavits. The affidavits establish that Carter did not depose Vice Principal Frazier at an earlier date during the discovery period because, up until the submission of Defendants’ reply brief, Carter was under the impression that Vice Principal Frazier was going to serve as a witness in support of her case, not Defendants’, and therefore she previously had no reason to depose her own witness. It therefore follows that she was not afforded a reasonable opportunity to obtain information within the control of Defendants. Moreover, the sworn affidavits also identify the potentially discoverable evidence that would raise a genuine issue of material fact as to Carter’s claims, thereby satisfying the requirements warranting additional limited discovery.
This is a fascinating holding that you never see in the Court of Appeals, which hates to get its fingers dirty in discovery disputes and will normally defer to the district court's judgment on these issues. Not this case.

 5. The case is sent back to the district court with additional instructions on how to give the plaintiff a fair shake on the next summary judgment motion. It notes that negative performance evaluations may in fact constitute adverse employment actions in certain circumstances. The Circuit also notes that there may be evidence of discriminatory motive because the Principal told plaintiff that white teachers, including the Principal himself, were intimidated by her because she is a "tall, Black, well-spoken, educated professional woman" and that this was happening to her because she is a "well-educated Black woman." You do not see blatant allegations like this very often in employment discrimination cases. Other teachers also made racist statements in plaintiff's presence; one said black students were fighting with each other because it was "cultural." I am sure the defendants deny making any such comments, but that is what trials are for, and that is why these cases go to mediation. Comments like this turn the case into a crapshoot. If the jury believes plaintiff, she wins the case.

Monday, July 18, 2016

Court reinstates ADA claim in student suicide case

Student suicide cases are making their way through the courts, as lawyers are finding ways to argue that the schools should have done more to prevent them, usually caused by incessant peer-on-peer bullying. The Court of Appeals has yet to issue a definitive ruling on when the school is responsible for a student suicide, but this case tells us when a student has a disability under the Americans with Disability Act. It was that disability, the family claims, that caused the bullying.

The case is Spring v. Allegheny-Limestone Sch. Dist., a summary order decided on July14. According to the district court,

This action follows the tragic suicide of high school student Gregory Spring on June 17, 2013. As described in the Amended Complaint, Gregory was a special education student who suffered from disabilities including, but not limited to, Tourette’s Syndrome, ADHD, and Callosum Dysgensis. Plaintiffs allege that for an extended period of time during middle school and high school, Gregory “was subjected to numerous acts of fear and intimidation including, but not limited to, teasing, taunting, bullying, name calling, violence, offensive touching, hitting, interference with relationships, and public and private humiliation – conduct motivated in whole or part by his disabilities.” This conduct was “minimized, dismissed and ignored by the school district’s staff and officials, including the named Defendants.”
The constitutional claims were dismissed against the district, but the family also asserted a claim under the ADA. The district court said the student did not have a disability under federal law, but the Court of Appeals (Wesley, Livingston and Lynch) disagrees, noting that the ADA Amendments Act -- enacted in 2008 -- broadens the definition of "disability." Plaintiffs adequately alleged that the student's condition "susbtantially limited him in a major life activity."

We conclude that in holding that the proposed amendments did not allege a qualifying disability through specific facts about Gregory, the District Court clearly misconstrued the amended pleadings and misapplied the law. The proposed second amended complaint explicitly identified the effects of Gregory’s conditions on his major life activities of, inter alia, “speaking,” “learning,” “concentrating,” and “communicating,” identifying “a long‐standing record of suffering with a variety of motor and vocal tics” with a specific list of examples including “outbursts,” “involuntary knee slapping and eye blinking tics,” “repetitive utterance of foul language,” and “repetitive questioning.” It further alleged that the effects intensified “during periods of stress or unfamiliar settings or situations” and that his disabilities "substantially limited his ability to communicate” because “he was unable to recognize emotions communicated by tone of voice and misunderstanding of social cues.”

Taken together, the proposed amendments alleged sufficient facts to make plausible that the impact on Gregory’s learning ability, which also prompted a need for special education services, constituted a substantial limitation. On the facts alleged, therefore, we conclude that these proposed amendments would have sufficed to meet the requirements of a qualifying disability, particularly given the ADA Amendments Act of 2008’s significant relaxation of the standard for substantial limits on major life activities. 

Friday, July 15, 2016

Does Rule 68 apply when defendant takes up the appeal?

If you litigate in federal court, then you are familiar with Rule 68. This rule says that if defendant serves the plaintiff with an Offer of Judgment and the plaintiff prevails at trial but recovers less money than set out in the Offer of Judgment, then plaintiff has to pay the defendant's costs incurred after the Offer was served. Costs include attorneys fees under Rule 68, which means the plaintiff's lawyer does not recover any fees for work that transpired after the Rule 68 offer was served. Rule 68, then, forces plaintiff to think hard about whether to proceed with the litigation or whether to take the money and run. Rule 68 is not always so simple, however.

The case is Luo v. L & S Acupuncture, a case out of the Eastern District of New York. This unpublished attorney's fees ruling was issued on July 8. This FLSA case went to trial, and plaintiff recovered about $4,000. Plaintiff's counsel was John Troy, Esq. FLSA cases often do not yield large damages awards, so the district court had no problem awarding the Troy firm over $60,000 in attorneys fees. The problem was that defendant had previously served a Rule 68 offer on plaintiff in the amount of $18,000. Since plaintiff's damages award and attorneys fees accrued through the time of the Rule 68 offer fell below $18,000, in theory, the attorneys fees should have been cut off from the time the offer was served. Except that, in opposing the attorneys' fees motion in the district court, defendant neglected to tell the court about the Rule 68 offer.

After the district court issued the fees ruling, defendant took up an appeal. I handled the appeal. The Court of Appeals upheld the attorneys' fees ruling. I then moved for attorneys fees for the time I spent handling the appeal. Defendant opposed that motion, arguing that the Rule 68 offer was still in effect and that plaintiff should not recover any attorneys fees for the successful appellate work. Interesting argument for which there is no case law that addresses this issue one way or the other. On one hand, Rule 68 punishes the plaintiff for continuing the litigation even after defendant makes a fair offer to settle. Appeals arguable qualify as continued litigation. But defendant did not present the Rule 68 offer to the district court during the first round of fee litigation. And it was defendant and not plaintiff who took up the appeal, which means defendant prolonged the litigation at that point, not plaintiff.

While no case law addresses the issue of whether a Rule 68 offer prevents the prevailing plaintiff from recovering any fees in fighting off an appeal initiated by the defendant, the Judge Cogan saw this as a simple issue. The court wrote, "the Rule 68 offer, made prior to this Court’s award of attorneys’ fees, has nothing to do with the right to recover attorneys’ fees incurred on appeal. Rather, the Rule 68 offer was the issue (or at least the major issue) on appeal. It was defendants that chose to take that appeal. Obviously, plaintiff had to oppose the appeal, and she won. I reject defendants’ effort to convert the Second Circuit’s affirmance into a pyrrhic victory."

Thursday, July 14, 2016

Cross-examination tips from the New York Court of Appeals

This case from the New York Court of Appeals asks when lawyers can cross-examine police officers about allegations made against them in other lawsuits. The Court says allegations of prior misconduct may qualify as as legitimate impeachment material.

The case is People v. Smith, decided on June 28. It is settled law that prosecution witnesses in a criminal case can be cross-examined about prior specific criminal, vicious or immoral conduct if it relates logically to credibility. Think Mark Fuhrman at the OJ Simpson trial. The trial court has broad discretion to control cross-examination, however, to ensure things do not spiral out of control in the courtroom. Again, think OJ trial. Civil allegations of misconduct against a police officer from a different lawsuit constitute legitimate impeachment material which can impact the officer's credibility, the Court of Appeals says. Even if the prior bad allegations were not proven at trial or any other court proceeding. This includes prior federal lawsuits, where police officers are often accused of constitutional violations like false arrest and excessive force.

This appeal is actually three consolidated cases that raise the same cross-examination issue. In one case, People v. Smith, defendant was charged with a drug sale. The trial court said defendant's lawyer could not cross-examine the officers about allegations in a prior federal lawsuit that alleged they made narcotics arrests before the charges were dropped and the case settled. The trial judge said we don't know the specifics of that federal case, i.e, why the charges were dropped or why the case settled. This was error. The Court of Appeals says Smith's lawyer was allowed to ask the officers if they had falsely arrested the plaintiff in one of the lawsuits. But this holding does not help Smith. The Court of Appeals says his guilt was overwhelming and the cross-examination error was harmless.

For the other defendants in this appeal, the trial courts made similar rulings. For defendant Ingram, the Court says "specific allegations of prior bad acts in a federal lawsuit against a particular witness do establish a good faith basis for cross-examining that witness about the misconduct." Ingram was arrested on a gun charge, but the proof was not overwhelming, so the cross-examination ruling at trial was not harmless. In case number three, People v. McGhee, the guy was charged with drug-dealing. His lawyer also wanted to ask the arresting officer about false arrest allegations in prior lawsuits, and the trial court said No. But the Court of Appeals says Yes, because "defense counsel had a good faith basis to ask Detective Rivera about the prior false arrests based upon the specific allegations of the federal lawsuit. And, participation in a false arrest was relevant to the jury's assessment of the witness's credibility." But this was harmless error, as the defendant was apparently guilty as hell.

These cases do not answer the obvious follow-up question. If you can ask the police about allegations from a prior federal lawsuit filed by someone else, and presumably the officer denies ever committing any misconduct, what then? Does the defendant then get to prove that the allegations in the federal lawsuit were actually true? Unlikely. That would would create a trial within a trial and totally distract the jury. But the very fact that the officer was sued in the past might lead the jury to think the officer is a bad cop and cannot be trusted. Except that we all know that sometimes police misconduct lawsuits are filed by kooks. And that some cases settle because the City does not want to be bothered with the case and it just throws money at the plaintiff. The trial courts in New York will have to deal with these realities.

Tuesday, July 12, 2016

Vacation spoiled by legal police interrogation in white collar fraud case

File this case under "Total Bummer." The defendant and her husband were loading the car early in the morning and about to start their vacation when the police came to the house with a search warrant in connection with an insurance fraud scheme allegedly committed by the defendant, who owned a physical therapy business. The vacation obviously did not happen as planned, and defendant was arrested.

The case is United States v. Faux, decided on July 8. When 10-15 agents entered the house, they told defendant she was not going anywhere. Really, the law does not give a damn about anyone's vacation. During the two-hour interview, the armed officers took defendant's cell phone and she and her husband were not free to move around the house. No one read her any Miranda warnings, but no one told her she was under arrest, either. In granting the motion to suppress the fruits of the interrogation, the district court said, in part, "'[i]t is impossible to believe that Faux voluntarily chose to answer questions for two hours rather than choosing to go on a vacation with relatives.' This inference was reinforced for the district court by the seizure of her cell phone, which left her with 'no means to tell the others traveling that the vacation had been interrupted.'”

The Court of Appeals (Jacobs, Hall and Restani [visiting]) says defendant's rights were not violated, and the criminal charge is reinstated. If defendant was in "custody" as the law defines it, then her statements must be suppressed and cannot be used against her. "In determining whether a suspect was in custody, a court
looks at all the surrounding circumstances. The relevant inquiry is 'how a reasonable man in the suspect’s position would have understood his situation.' The test for determining custody is an objective inquiry that asks (1) 'whether a reasonable person would have thought he was free to leave the police encounter at issue' and (2) whether 'a reasonable person would have understood his freedom of action to have been curtailed to a degree associated with formal arrest.'”

Defendant was not in custody, the Court of Appeals says. Although the questioning took place at defendant's home and she was not really free to go anywhere, and even though many agents were in the house (on a paperwork fraud scheme and not murder) and they followed her as she went to the bathroom and her bedroom, "A reasonable person would understand that being accompanied in one’s home by agents who are legally present to execute a search warrant is a sensible precaution and that (absent other hallmarks of custody) freedom of action is not being curtailed to a degree associated with formal arrest. Although she was not permitted to go from room to room without being accompanied, she was not “completely at the mercy of the police.” While she was not told she was free to leave, she was also not told she was under arrest. The Circuit also says it does not matter that defendants had to cancel their vacation in order to remain at the house during the search. Instead, she was questioned in familiar surroundings, her home, and no one pulled a weapon on her or handcuffed her. In the end, no Miranda warnings were necessary, and her incriminating statements can be used against her.

Thursday, July 7, 2016

Summary judgment reversed in gender-based failure to hire case under Title VII

The Second Circuit has reversed the grant of summary judgment in a Title VII case, holding in a split decision that the totality of the evidence permits the inference that female job applicant was denied a bricklayer position because of her gender.

The case is Walsh v. New York City Housing Authority, decided on July 7. The job interviewers met with five candidates, including Walsh, the only female candidate. They asked Walsh about her experience working with brick and block. She said he had once constructed a glass block shower at a Home Depot Expo, and had done "little things on her own." The interviewers testified that they were surprised that Walsh had limited experience with brick and block, but she testified that the interviewers did not ask about her extensive experience with tile. No one asked about physical strength. After the interview, the man who oversaw the interview process told Walsh that the interviewers wanted somebody stronger. No woman had ever been hired for the position. Defendants said she was not hired because she lacked experience with brick and block.

Summary judgment was granted for the Housing Authority, but the Court of Appeals (Hall and Calabresi) reverses, ruling that the jury could find that Walsh was denied the job because of her gender. The Court emphasizes that discrimination cases must be examined as a whole, and that "no one piece of evidence need be sufficient, standing alone, to permit a rational finder of fact to infer that defendant's employment decision was more likely than not motivated in part by discrimination." Drawing from the movie My Cousin Vinnie, the Second Circuit says that "plaintiff may satisfy her burden by building a wall out of individual evidentiary bricks."

The following evidence brings this case to a jury: (1) no woman has ever worked for the NYCHA as a bricklayer. The Court reaches this holding for the first time, citing a district court ruling in another case for the proposition that something funny's going on when an agency as large as the Housing Authority never had a woman performing certain tasks, and that "zero is not just another number"; (2) although in failure-to-hire cases the plaintiff must show her credentials were far superior to the selectees (a legal standard that is rarely satisfied in the Second Circuit), even if the discrepancy is not enough by itself to avoid summary judgment, it still has probative value in the context of other evidence of discrimination. The jury could find Walsh had superior qualifications than at least two of the men, as she had more experience as a tile-setter, one of the main tasks of a bricklayer. While the qualifications disparity in this case is not enough by itself to prove discriminatory motive, it's a piece of the puzzle in this "totality" case; (3) the supervisor -- who "was tasked with facilitating the interview process" and was present when the hiring decisions were made -- told Walsh that the interviewers wanted a stronger person for the position, betraying the stereotype that men are stronger than women. The fact that this party-opponent admission arrives through plaintiff's own testimony does not mean the jury need not believe it. This so-called "self-serving" testimony can suffice at trial.

One side note is that the majority makes passing reference to pretext, even though most disparate treatment cases require proof that the employer's reason for the adverse decision was a knowingly false one. The majority instead looks at the big picture and asks if the jury can find that plaintiff has proven an intent to discriminate. Another side note is that this is the second major case in a year in which the Court of Appeals has emphasized the "totality of the circumstances" approach to discrimination cases. The other was Vega v. Hempstead Sch. Dist., 801 F.3d 72 (2d Cir. 2015), which said plaintiffs can win through "bits and pieces" of evidence that may form a "mosaic" of discrimination.

It occurs to me that federal judges, most of whom did not handle discrimination cases when they were practicing law, have to master the complex burden-shifting scheme governing Title VII and other discrimination statutes without ever having briefed or argued these issues in their prior lives, and without counseling or representing plaintiffs or defendants in this area. Eventually, each judge figures this out quickly, as the federal docket is loaded with these cases. But even under settled legal standards, these cases are often judgment calls. What is discrimination? What inferences can we draw from the evidence? What do we allow jurors to conclude based on the evidence? When do we take the case away from the jury and dismiss the case outright?

I raise this because Judge Livingston turns in a lengthy dissent that says Walsh probably does not even have a prima facie case (as she had no bricklaying experience), and that the majority "comes close to eviscerating the plaintiff's burden at step three of the McDonnell Douglas test" (which asks whether the employer's reason for the adverse action was a pretext). In suggesting Judges Hall and Calabresi have stretched the evidence past the breaking point, Judge Livingston further says, "one is left wondering what the majority means by 'reasonable' and 'inference.'" She even interprets the significance of "My Cousin Vinny" differently. In response, Judge Hall defensively says the Court has not changed the rules governing these cases, writing:

What the dissent perceives as weak evidence or mere scintillae, comprise a set of facts from which, if proven, a reasonable jury could conclude that NYCHA’s proffered reason for not hiring Walsh was a pretext for discrimination. That two members of a panel of this Court view a particular factual record as sufficient to pass muster at the summary judgment stage while the third member views the same record as insufficient does not amount to a change in the substantive underlying law. It is the job of judges to “apply their best judgment, guided by the statutory standard governing review and the holdings of our precedents, to the [decision below] and the record” supporting it. It is inevitable that, some of the time, reasonable judges conducting this process will reach conclusions different from those of their colleagues on the same set of facts.

Tuesday, July 5, 2016

2d Circuit vacates summary judgment in FLSA overtime case

This fellow worked in the auto parts industry. He was denied overtime, so he sues under the Fair Labor Standards Act, which gives you time-and-a-half if you work more than 40 hours per week. But the FLSA is like swiss cheese: tons of exceptions. Is this guy covered?

The case is Domenech v. Parts Authority, a summary order decided on June 17. Under the FLSA, the overtime rules don't apply to "any employee employed ... in the capacity of outside salesman." The regulations say an "outside salesman" is someone whose "primary duty" is "making sales" and who is "customarily and regularly engaged away from the employer's place or places of business in performing such primary duty." If that is not confusing enough, we also consider the following factors:

“the relative importance of the exempt duties as compared with other types of duties; the amount of time spent performing exempt work; the employee’s relative freedom from direct supervision; and the relationship between the employee’s salary and the wages paid to other employees for the kind of nonexempt work performed by the employee.” The regulations further instruct that “work performed incidental to and in conjunction with the employee’s own outside sales or solicitations, including incidental deliveries and collections, shall be regarded as exempt outside sales work,” and that “[o]ther work that furthers the employee’s sales efforts also shall be regarded as exempt work including, for example, writing sales reports, updating or revising the employee’s sales or display catalogue, planning itineraries and attending sales conferences.”
The Court of Appeals (Pooler, Lohier and Carney) says plaintiff might fit into the outside salesman exception. But he might not, based on his deposition testimony that his primary duty was to service, install and inspect equipment and that any sales were incidental to this work." That testimony creates a classic credibility dispute for the jury. "The district court erred in picking between competing plausible inferences that could have been drawn from the evidence submitted." Let the jury figure it out.