Monday, September 25, 2017

"On the cover of the Rolling Stone" -- sometimes a bad thing

Rolling Stone used to be the leading pop culture magazine in the country, so much that someone wrote a song about making it to the cover. Times have changed. Now the magazine is facing a libel suit over a false campus rape article. The Court of Appeals finds the lawsuit plausibly claims Rolling Stone libeled two students whom the article implied had raped a female classmate.

The case is Elias v. Rolling Stone, LLC, decided on September 22. The article quoted a female student who said that university fraternity brothers had gang raped her in a frat house. The article did not identify the students by name, but the students claim the article was "of and concerning" them because it described the layout of the frat house and quoted a frat brother as suggesting the rape was part of a fraternity initiation process. The article also claimed that one of the rapists was a guy who rode his bike around on campus. Rolling Stone later retracted the story, stating that the female student was untrustworthy in light of discrepancies in her account. Hence, the defamation case.

A quick flip through any defamation treatise will show that libel and slander doctrine has nooks and crannies that can doom any case. One problem is when the defamation victim is not named in the article. He can still sue for libel if the article was "of and concerning" him. That alone has yielded volumes of case law. Count this case among those cases. The Court of Appeals (Cabranes and Forrest [D.J.]) says two of the three male plaintiffs have plausibly alleged in the complaint that the Rolling Stone article was about them. One, Elias, notes that he lived in the frat house and his bedroom where the incident arose was sufficiently described in the article. You and I would not know the article was about Elias, but anyone familiar with the frat house would identify the room as Elias's room. A similar analysis applies to a second plaintiff, Fowler, who was the rush chair during that academic year and was presumably the one who egged on the other "rapists." Drew also used the campus pool regularly, which is where the female "victim" was said to have met him prior to the incident.

The third plaintiff, Hadford, cannot proceed with his claim, however, even though the article said one of the rapists was an alum who rode his bike around campus. That does describe Hadford. But while it is "possible" the article referred to Hadford, it is not "plausible." That distinction arises from the Iqbal pleading case that the Supreme Court issued in 2009, making it more difficult to survive motions to dismiss under Rule 12. There is no allegation that it was unusual for an alum to bike through campus "such that a reasonable reader familiar with Hadford's biking habits would conclude that the Article plausibly referred to him."

We also have a "small group" defamation claim, which exists if the statement defames members of a small group. "An individual belonging to a small group may maintain an action for individual injury resulting from a defamatory comment about the group, by showing he is a member of the group." This fraternity -- with 53 members -- is not too large that it cannot bring this claim. The complaint plausibly asserts that "many or all fraternity members participated in alleged gang rape as an initiation ritual and all members knowingly turned a blind eye to the brutal crimes." The plaintiffs may proceed with this claim.

Judge Lohier dissents in part, stating that "publishers should beware" now that the Second Circuit has resolved the small group defamation claim against Rolling Stone. He says the article does not allege that all fraternity members were complicit in the rape. "To the extent that the article implicates 'some' or even 'many' rather than 'all' of the members as rapists, we suggested in Algarin v. Town of Wallkill, 421 F.3d 137 (2d Cir. 2005) [a case I argued and lost], that it not actionable under the small group defamation doctrine." Were it up to Judge Lohier, this case would be certified to the New York Court of Appeals to clarify this issue.

Friday, September 22, 2017

Another Garcetti case bites the dust

It's been a while since I've seen a Second Circuit ruling on a First Amendment Garectti issue. Garcetti issues raise public employee speech retaliation issues. The plaintiff usually loses these cases because only a narrow band of public employee speech is protected under the First Amendment. This case is a good example of that.

The case is Cohn v. Department of Education of the City of New York, a summary order decided on September 20. Under the First Amendment, public employees cannot suffer retaliation for speaking out as citizens on matters of public concern. The Supreme Court's Garcetti decision (2006) holds that public employee speech is not protected if the plaintiff uttered the speech pursuant to his job duties. This means the comptroller of a municipality has no First Amendment protection if he blows the whistle on embezzlement, as that whistleblowing is his job.

Cohn was an Earth Science teacher in the New York City school system. He was required to set up the laboratory portion of the Regents Examination and help grade it. After discovering that about a dozen students in another teacher's class had received perfect scores, and suspecting that the teacher had coached the kids prior to the test, Cohn raised his concerns to the principal and to the New York Department of Education. Afterward, Cohn got shafted at work.

To the uninitiated, Cohn has a case, right? He spoke on a matter of public concern -- a corrupt Regents process -- and was retaliated against for that speech. In the real world, Cohn has no  case. He did not speak out as a citizen. Speaking up about the corrupt testing process in his school was part and parcel of his job duties, that is, "ensuring the fair and proper administration of a test for which he he had some responsibility. The alert to school officials that another teacher may have helped students cheat was therefore 'pursuant to his official duties."

Tuesday, September 19, 2017

Plaintiff unlawfully fired for signing unlawful confidentiality document

In this case brought under the National Labor Relations Act, the employee wins his grievance because he was fired over his refusal to sign an unlawful employment document that prohibited him from discussing his salary with other employees.

The case is NLRB v. Acosta, decided on August 31. Early in his employment at Long Island Association for AIDS Care, Acosta had time management problems, and he even objected to completing a remedial time log, expressing his displeasure by "enter[ing] the ingredients of his lunch into his time log '80 percent to help himself'' with an eating disorder and '20 percent' to be 'snippy with his supervisor.'" I am not sure why the Court of Appeals emphasizes this incident in the opinion, but it sure is memorable. Anyway, Acosta's performance later improved. At some point, the local newspaper reported that the company's CEO had misappropriated public funds intended for employees. At some point, the company had everyone sign a confidentiality statement that precluded them from discussing wages. They also could not talk with the media. When Acosta signed it "under duress," he was fired on the spot.

Acosta filed his charge with the National Labor Relations Board, which found in his favor "because 'an employer unlawfully intrudes into its employees’ Section 7 rights when it prohibits employees, without justification, from discussing among themselves their wages and other terms and conditions of employment.'” Not only had Acosta discussed wages with co-workers, but his comments were protected because the confidentiality statement was facially invalid. The ALJ ordered management to reinstate and compensate Acosta.

The Court of Appeals (Newman, Leval and Pooler) affirms the NLRB. Here is the reasoning:

We hold that the NLRB was correct in deciding that an employer violates Section 8(a)(1) of the NLRA, 29 U.S.C. § 158(a)(1), when an employer terminates an employee for refusing to agree to an unlawful confidentiality agreement. An employer may not require even one individual employee to agree to abide by unlawful restrictions as a condition of employment. That the employees have not  yet organized in order to protest the unlawful nature of the restriction at issue does not make it any less unlawful. The contrary rule urged by LIAAC, that an employee can be required to comply with an unlawful policy and the employee is only protected from the unlawful policy if he or she actively organizes with other employees against it, is illogical and untenable. An unchallenged unlawful document can cause the chilling effect that Section 8(a)(1) seeks to prevent just as much as one that has been challenged by concerted action.
Since the confidentiality statement was illegal and Acosta was fired for protesting it, his termination was unlawful. While the employer said the real reason for Acosta's termination was his poor job performance, the NLRB found -- and the Second Circuit affirms -- that job performance was not the real reason. Here, the Court of Appeals provides some useful pretext analysis for plaintiffs' lawyers handling Title VII cases. Acosta's job performance had improved over time, and on the day of his termination, he met with a supervisor to discuss "future events that Acosta would be participating in at LIAAC, "thus suggesting that [the supervisor] did not believe Acosta would be fired later that day based on his performance." And, at the final meeting, the supervisor told Acosta "that he had improved." On this evidence, the NLRB had an evidentiary basis to find that Acosta's job performance was not the real reason for his termination.

Monday, September 18, 2017

Drug search legal as probable cause did not dissipate

If you do not handle Fourth Amendment cases, you are probably unfamiliar with the notion that probable cause can "dissipate" over time. It can. This case -- a drug case out of Vermont -- raises that issue.

The case is United States v. Pabon, decided on September 11. The police had information that Pabon was smuggling drugs from Vermont to Connecticut by using rental cars at certain times of day. When they stopped him on the road for a traffic violation (after having trailed him), Pabon would not identify himself, and he gave vague answers as to his travel itinerary. The police searched the car and found nothing, and at the barracks, Pabon would not give a clear answer on whether he would consent to a search. The police then got a search warrant to more closely search the rental vehicle and to search Pabon's clothing and to x-ray his lower abdomen. The drug-sniffing dog got suspicious when it went into Pabon's cell and his vehicle. Meanwhile, at the hospital, where Pabon would be x-rayed, he went to use the bathroom, but was told he could not flush as the police suspected he had swallowed drug packets for later distribution. He tried to flush the toilet anyway, but the officers would not allow him to, though they found nothing incriminating in the toilet. The x-ray showed no drug packets. Later on, when Pabon returned to the hospital after hurting himself at the holding cell, the police got a warrant for a CT scan, which revealed materials in Pabon's body that suggested he was in fact packing drugs.After taking oral laxatives, Pabon passed all the drugs, nearly 100 grams of cocaine and heroin.

So what's it all about? Pabon does not really contest the police had probable cause to initially detain him. He does argue that the probable cause dissipated over time and that the search that produced the drugs was illegal. The Court of Appeals (Livingston, Cabranes and Pauly [D.J.]) disagrees and upholds Pabon's conviction. The police may not disregard facts tending to dissipate probable cause when confronted with such facts before the arrest is made. In this case, the Court considers for the first time "dissipation in the context of new information emerging after a warrantless arrest based on probable cause." Without squarely addressing that issue, however, the Court holds that "it is clear from an assessment of the record that police at all times possessed a reasonable basis for concluding that Pabon had committed -- indeed, was committing -- a crime."

The Court says things had remained suspicious even after Pabon was taken to the police station. While the police initially saw nothing in his body during the initial x-rays, doctors did note that x-rays provided limited insight into what's really going on.

In such circumstances, the probable cause to believe that Pabon was transporting narcotics had not dissipated, even taking into account the x‐ray examination results. By the time Pabon was discharged from the hospital, the state police not only had the information they had collected prior to Pabon’s arrest, but they were also privy to Pabon’s objectively suspicious behavior, canine alerts to places where Pabon was either sitting or had been held, and Dr. Rademacher’s explanation of the import of the x‐ray images and the relative effectiveness of that search method. The officers continued to have a reasonable basis for detaining Pabon, such that, even assuming arguendo that an obligation to release a suspect could, in some circumstances, arise, it did not do so here. Properly framed, the central question in this case is thus the one Gerstein and further elaborated on this view in his written assessment, Dr. Rademacher explained that he felt it was unnecessary because he had already conveyed the relevant information to Hatch. probable cause to detain.

Wednesday, September 13, 2017

Defamation case involving extortion allegations can proceed

Defamation cases are a way to reclaim your reputation. The problem is that the court system is an unwieldy way to accomplish that, and defamation cases are often met with motion practice that will prolong the agony and cost you money and even more anguish.

The case is Friedman v. Bloomberg LP, decided on September 13. Friedman was recruited to work as "head of risk" for a purported hedge fund and moved to the Netherlands, where the company was based. He then came to believe the company had fraudulently induced him to work there and that the company was actually a "kickback and money laundering operation" for Libyan dictator, Ghaddafi. Friedman says he was inexplicably fired shortly after he voiced concerns about the company's practices. He then sued the company for fraudulent inducement, seeking $499,401,000 in damages, back pay and bonuses. Bloomberg, LP, then published a story about the lawsuit, and Friedman next sued Bloomberg for defamation because (1) the article said he was suing for $500 million and (2) the article quoted his former employer stating that Friedman had repeatedly tried to extort money from the company and that he was fired for gross misconduct.

Here are the issues. First, Connecticut allows plaintiffs to sue nonresidents and foreign companies in Connecticut if the lawsuit has some connection to that state, except for defamation cases. This means plaintiff cannot sue the foreign company in this case. Friedman says the defamation exception violates the First Amendment's right to petition the government for grievances. The Court of Appeals (Walker, Hall and Chin) says:

A plaintiff’s right of access to courts is not violated when, as here, a state’s long‐arm statute does not provide for jurisdiction over certain out‐of‐state defendants. Indeed, “[t]here is nothing to compel a state to exercise jurisdiction over a foreign [defendant] unless it chooses to do so, and the extent to which it so chooses is a matter for the law of the state as made by its legislature.”
Nor is there an equal protection violation. New York has a similar law. The Second Circuit has already blessed that law. "One rational basis for excluding defamation actions against out‐of‐state defendants is “to avoid unnecessary inhibitions on freedom of speech” and that '[t]hese important civil liberties are entitled to special protections lest procedural burdens shackle them.'” In addition, the New York exception for defamation actions was initially intended, at least in part, to ensure that “newspapers published in other states [would not be forced] to defend themselves in states where they had no substantial interests.”

The Court does have authority to decide the case against Bloomberg, however. Friedman does not state a claim that Bloomberg had defamed him in stating he was suing his former employer for "as much as $500 million," as the lawsuit pretty much seeks that amount in damages/relief. As for the statement in the article that plaintiff had repeatedly tried to extort money from his former employer, that statement is actionable because it suggests plaintiff had committed a crime. This is not rhetorical hyperbole. A reasonable reader could also think that Friedman's "gross misconduct" consisted of those multiple extortion attempts.

Friday, September 8, 2017

Lethal police shooting case met with qualified immunity

The facts here do no bode well for the wrongful death claim brought by the decedent's family. The decedent (Jaquez), came after the police with a knife even after they Tased him upon showing up at a domestic dispute at his home. More Tasers ensured, to no avail. Jaquez continued to attack the officers until they shot and him with rubber bullets, which did not stop Jaquez. Eventually, they killed him with live bullets, knife still in hand.

The case is Estate of Jaquez v. City of New York, a summary order issued on September 8. So, on these facts, what case is available to the Jaquez estate? He sues under Section 1983, which prohibits the unlawful use of excessive force. Plaintiff's expert says "Jaquez was in a psychotic state and that when the officers entered the apartment with weapons and body armor, this escalated Jaquez’s reactions." The assistant medical examiner contradicted the officers' version of events, stating that "because the autopsy report indicated that the bullets entered Jaquez’s body from above, the bullets’ trajectory indicated that the officers were above Jaquez when he was shot, which Appellants contend would contradict the officers’ claim that Jaquez was standing and attacking them at the time they deployed live ammunition." The examiner also "proposed to testify that it would have been impossible, based on the injuries suffered, for Jaquez to push himself off the floor and continue attacking the officers after the first gunshot wounds."

The trial court dismissed some of the claims on qualified immunity grounds. On appeal, the Second Circuit (Hall, Lynch and Droney) affirms the grant of qualified immunity, which shields officers from suit when they did not violate clearly-established law. Even if Jaquez did not have a knife in his hand, the officers said they did not see his hand at that time and could not determine if he was unarmed when they shot the Taser. "Thus, in the moments that Jaquez was walking down the hallway 'officers of reasonable competence could disagree' as to whether Jaquez was a threat because the officers knew Jaquez had easy access to a fillet knife, was acting erratically, and was refusing to obey the officers’ commands."

As for Jaquez's other claims, again, qualified immunity. While the estate says there was an issue for the jury as to whether he was attacking the officers when they later used lethal and non-lethal force following the first deployment of the Taser, the Court says there is no real dispute whether he was attacking the officers with a knife. "Moreover, because of Jaquez’s refusal to follow commands, his close proximity to a lethal weapon, and his behavior up to that point, the arresting officers reasonably could have believed that Jaquez posed a threat." A similar analysis follows on the estate's claim that the initial use of force was a jury-worthy incident. Any disputes about the trajectory of the bullets and whether Jaquez was physically able to reach for a knife are not trialworthy because "the limited circumstantial evidence indicating the possible positions of the officers and Jaquez at the time that they initially fired live ammunition is insufficient to defeat summary judgment on qualified immunity. There is no dispute that immediately prior to the officers’ use of lethal force Jaquez
threatened the officers with a knife—thus engaging in the use of lethal force himself."

Other claims went to trial but were met with a defendants' verdict. The trial court did not abuse its discretion on the evidentiary rulings that the estate challenges on appeal. For example, as for expert testimony about Jaquez's psychological state and the propriety of the police officers' actions, that was properly excluded because the doctor was not shown to have expertise in psychiatric diagnosis or in police practices.

Thursday, September 7, 2017

West Point rape case is dismissed

This case teaches us two lessons: first, courts are loathe to impose Bivens liability against federal defendants, and second, courts are loathe to impose any liability against military institutions. This case arises from a rape and sexual harassment at the U.S. Military Academy at West Point.

The case is Doe v. Hagenbeck, decided on August 30. The plaintiff was a West Point cadet, training to become a military officer. That means she was enrolled at West Point, which is also a college, albeit one with a military emphasis. If you go to West Point, you are a member of the army. She claims the culture at West Point was misogynistic and male-oriented, with constant sexism not only among the male students but its faculty. The examples of this sexism as set forth in the opinion are not pleasant. One night, Doe was raped by a male student. The health clinic on campus did not properly respond to the sexual assault. She claims that West Point leadership mishandled the incident as well. She sues them under Bivens over the equal protection violations.

Two constitutional principles are at stake here. First, you can sue federal defendants under Bivens (named after a Supreme Court case from 1971), but -- as courts repeatedly tell us -- Bivens claims are far and few in between and almost non-existent these days, though Bivens is not dead yet. The other principle, which we call the Feres doctrine -- named after a Supreme Court case from many years ago -- says the courts should not entertain lawsuits that would challenge military discipline. Constitutional claims, in other words, are quite difficult to bring against places like West Point, which I learned 10 years ago when I represented anti-war protesters who wanted to assemble on the campus. What it all means is that Doe cannot bring this lawsuit. The majority (Livingston and Wesley) states:

This Supreme Court precedent frames our inquiry and leads ineluctably to the conclusion that Doe cannot maintain her Bivens claim. Doe was a member of the military at the time the events giving rise to her claim occurred, and the claim concerns superior officers. Further, her claim calls into question "basic choices about the discipline, supervision, and control" of service personnel and would "require[ ] the civilian court to second-guess military decisions," thus triggering the incident-to-service rule. United States v. Shearer, 473 U.S. 52, 57-58 (1985) (noting that allegations "go[ing] directly to the `management' of the military" that "might impair essential military discipline" lie at the "core" of rule's concerns). In such circumstances, her Bivens claim must be dismissed.
In dissent, Judge Chin provides further detail into the sexist culture at West Point. He notes that while West Point is a military facility, "it is quintessentially an educational institution." There are two sides to the Feres and Bivens doctrine, Judge Chin suggests, summarizing his analysis this way:

In my view, the Feres doctrine does not bar Doe's Bivens claim that she was denied her constitutional right to equal access to education, for her injuries did not arise "incident to service." First, as to the activities immediately preceding Doe's rape, her ultimate injury, she was engaged in purely recreational activity: she was out for an evening walk on a college campus, after curfew, with another student who was a friend. Second, as to her broader activities at West Point, she was a student attending college: she was taking classes, participating in extracurricular activities, and learning to grow up and to be a self-sufficient and healthy individual. She was not a soldier on a battlefield or military base. She was not traveling in a military car or boat or plane or pursuant to military orders. She was not being treated by military doctors. She was not on duty or in active service or on active status, and she was not yet obliged to enter into military service. There was "nothing characteristically military" about what she was doing, and her injuries did not arise out of military employment.

Wednesday, September 6, 2017

We all love baseball

The Sherman Antitrust Act makes it illegal for businesses to conspire with each other to fix prices and to otherwise control the market. But in 1922, the Supreme Court ruled that the Act does not apply to Major League Baseball. I believe that MLB is the only major industry that is exempt from the antitrust laws. This case asks the Second Circuit to get around that exemption, but the Circuit will not do so.

The case is Wyckoff v. Office of the Commissioner of Baseball, a summary order issued on August 31. When the Supreme Court in 1922 said MLB was exempt from the antitrust laws, it supported that reasoning with some hackneyed analysis having to do with baseball as entertainment and not really an industry. Of course, MLB is in fact an industry, so the Supreme Court's reasoning has been criticized ever since. My sense is the Court did this because we all love baseball and it's a way of life and not merely an money-making enterprise. Anyone who ever played catch with his dad or remembers seeing a major league baseball field for the first time can relate to this.

In 1972, the Court reaffirmed the principle that MLB is exempt from the Sherman Antitrust Act, in a case brought by Curt Flood, an outfielder who did not want to be traded from St. Louis to Philadelphia and claimed the trade was against his will and allowed to happen because the teams were able to make unreviewable decisions among themselves about the players that no other industry could ever get away with. Think about it. Could IBM "trade" one of its employees to Microsoft and blackball the employee from the industry if he does not want to relocate to the State of Washington? What make the Curt Flood case even worse was Justice Blackman's opening paragraph, in which he extolled the beauty of baseball by listing his favorite all-time players. This stunt only further confirmed that emotions were getting in the way of rational legal analysis.

This case is brought by major league scouts who claim that MLB conspired to decrease competition in the labor market for professional baseball scouts. As it happens, in 1998, Congress passed the Curt Flood Act, which created an exception to baseball's antitrust exemption for MLB players. But that Act does not apply to scouts.

Friday, September 1, 2017

This one is pretty nasty

I am sure this would change were this ever put up for a popular vote, but inmates -- even those convicted of felonies -- have rights to a dignified existence. The Constitution says so in the Eighth Amendment,which prohibits cruel and inhumane treatment. This case tells us how it all works.

The case is Garraway v. Griffin, a summary order decided on August 31. Garraway is in the care, custody and control of the New York State Department of Correctional Services, housed in its facility in Malone, New York. In July 2011, he complained in writing that his mattress was soiled with human feces. Nobody did anything about it until he filed a formal grievance in October 2011. The Court of Appeals (Raggi, Leval and Lohier) says plaintiff has a case.

As with all provisions of the Bill of Rights, we have multi-part balancing tests governing these disputes. To win a conditions-of-confinement case under the Eighth Amendment, the inmate must show his living conditions were "sufficiently serious that he was denied the minimal civilized measure of life's necessities" and that the defendants "acted with a sufficiently culpable state of mind, such as deliberate indifference to inmate health or safety." In other words, the inmate has to show his living conditions were completely uncivilized and that no one at the jail gave a damn. These cases are not easy to win. Oftentimes the inmate's objections are not serious enough or he cannot prove deliberate indifference.

The Court says the feces-soiled mattress is disgusting enough to show that plaintiff's living conditions violated the Constitution. He was also able to show that jail officials looked the other way when he complained. Not only was the cell's previous occupant disciplined for throwing feces the day before plaintiff was moved into the cell, but, as set forth below, plaintiff's complaints fell on deaf ears:

Garraway asserts that he verbally informed each of defendants Shumaker, Edger, Brink, Erway, Belz, and Pulsifer about the condition of his mattress at least once and that he informed defendant Smith of the problem several times, both in writing and verbally. Shumaker and Edger, who initially placed Garraway in the cell with the obviously soiled mattress, allegedly mockingly told him “good luck,” and then failed to follow the protocol for having the cell cleaned. Other defendants told Garraway that they would look into his complaint but failed to do so. Still others told Garraway to direct his
request elsewhere.1 In short, no defendant advised of the mattress condition took any action until October 2011, when Garraway filed his formal grievance.
In the end, summary judgment in favor of the state is reversed and this case is remanded. Plaintiff, for now, does not have a lawyer. He handled this appeal pro se. 

Tuesday, August 29, 2017

Another false arrest case bites the dust

The police arrested this guy because he was standing near police activity and ignored police directives to move away from the scene. He was arrested for obstructing governmental administration and later took an ACD, a probationary dismissal. Plaintiff next sued the police for false arrest. The Court of Appeals says there is no case.

The case is Basinski v. City of New York, a summary order decided on August 24. The Second Circuit is the place where false arrest claims go to die. It's not that people don't have a case. It's that qualified immunity draws the case into a gray area that allows the Court to hold that a reasonable police officer would have made the arrest under the circumstances, even if the arrest is found to be unlawful through the benefit of 20/20 hindsight.

Plaintiff came upon a food vendor who had set up shop outside a police station, an unusual situation. Plaintiff waited for the police to exit the station to see what they would do upon seeing the vendor. As the police went about their business upon approaching the vendor, they told plaintiff to move away. Plaintiff moved away a few feet but the police asked him to move away even further. This back and forth went on for a few minutes, as plaintiff told the police he was not doing anything wrong. All the while, the police had directed other passersby to move away as well. The police eventually arrested plaintiff for obstructing governmental administration, which prohibits people from obstructing police activity by means of intimidation, physical force or interference. Was there probable cause to nail plaintiff for this? And was it objectively reasonable for the police to think there was probable cause? That's what qualified immunity is all about.

The Court of Appeals (Jacobs, Livingston and Daniels [D.J.]) notes that New York courts have interpreted the "physical interference" element of the obstructing law broadly. You don't have to make physical contact with the police to obstruct.

Here, a reasonable officer could conclude that Basinski engaged in disruptive conduct at the scene of the performance of an official function. Browne put Basinski on “specific, direct” notice multiple times, telling him that he was “standing in an area that [he was] not allowed to be standing in.” In addition, the police activity area was arguably “confined and defined.” For instance, when Browne asked another individual standing nearby to move, Basinski acknowledged that Browne wanted him to move to the same place where that individual moved. Basinski intentionally remained in the specific area of police activity despite Browne’s repeated requests for him to move away, as Kass did before his arrest. Finally, Basinski verbally interjected and reengaged with Browne once Browne had turned his back to Basinski and was speaking to other individuals.
To the uninitiated, plaintiff was not doing anything wrong. The police told him to move away, but there is no indication that he was actually interfering with the police officer's job. It appears the police needed some space to interact with the food vendor. In ordering plaintiff to move away, the police created the opportunity for plaintiff to "obstruct" in refusing to do so and in moving away just a bit. It may be that, had the police proceeded with the criminal case against plaintiff, no jury would have convicted plaintiff for obstructing. But that's not the issue in this civil case. The Court of Appeals holds the the police could have reasonably thought plaintiff was obstructing governmental administration, and that is enough to make the case disappear.

Monday, August 28, 2017

A lesson in how to provide a reasonable accommodation

This reasonable accommodation case brought under the Americans with Disabilities Act holds that a schoolteacher does not state a claim in arguing that the school district violated the ADA in failing timely to grant his accommodation request to teach sixth grade rather than first grade.

The case is Wenc v. New London Board of Education, a summary order decided on August 21. Disabled employees are entitled to a reasonable accommodation if that accommodation allows them to perform the essential functions of their job. This case covers two separate school years.

For the 2011-12 school year, plaintiff's doctor wrote a note stating that it was in plaintiff's "best interest" not to return to work that year because of his medical condition. While the doctor stated that a sixth grade classroom would "be more suitable" for him, that same note stated that it remained in plaintiff's "best interest to be out of work." The Court of Appeals (Raggi, Pooler and Hall) holds that the district did not have a legal responsibility to be more proactive in opening a dialogue with plaintiff over his return to work. This is because an employer is not liable for failing to engage in the interactive process when the employee cannot perform the essential duties of his position.

For the 2012-13 school year, a neutral doctor said plaintiff could work with the assistance of two classroom aides. Since the district gave plaintiff a second classroom aide, it reasonably accommodated his disability in helping him to attend to the "higher physical demands of the first grade students" who, I am sure, were difficult if not completely out of control and possibly even out of their minds. Plaintiff argues that the doctor's opinion means the district should have given him two additional classroom aides rather than the two aides that he received. The Court of Appeals rejects this nuanced argument. "The assigned additional aide was intended to substitute for the physical efforts of only one person, and Wenc himself agreed that the aide was satisfactory."

This holding reminds us that the ADA does not require the defendant to provide plaintiff with the best possible accommodation. It is enough for the accommodation to be good enough for the plaintiff to perform the essential job functions.

Friday, August 25, 2017

Circuit strikes down day-laborer sidewalk speech law

The Court of Appeals holds that a Long Island ordinance that prohibited people from soliciting work on the side of the road violates the First Amendment. The Town of Oyster Bay enacted this law to restrict immigrants from seeking work as day laborers.

The case is Centro De La Comunidad v. Town of Oyster Bay, decided on August 22. In 2009, the Town passed a law that said:

It shall be unlawful for any person standing within or adjacent to any public right-of-way within the Town of Oyster Bay to stop or attempt to stop any motor vehicle utilizing said public right-of-way for the purpose of soliciting employment of any kind from the occupants of said motor vehicle.
The law does not explicitly reference immigrants, but the law was enacted to regulate day laborers seeking employment in the town. Plaintiffs challenged this law under the First Amendment, which provides the government some leeway in regulating commercial speech. But even the commercial speech doctrine will not allow localities to regulate speech if the laws are not drafted properly. As this law was not drafted properly, the Court strikes it down.

The government can regulate commercial speech if (1) the law regulates lawful activity; (2) the town asserts substantial reasons for enacting the law; (3) the law directly advances that interest; and (4) the law is not more extensive than necessary to advance that interest. We call this the Central Hudson doctrine.

The Second Circuit (Parker, Restani [sitting by designation] and Jacobs [who dissents]) starts off by holding the law does in fact regulate speech-related conduct, as day-laborers looking for work are soliciting employment; that expresses a message. The majority goes on to say that the ordinance regulates lawful activity, since not all persons seeking work on the side of the road are illegal workers who don't pay their taxes and are otherwise unauthorized to work in the U.S. "The solicitation of employment ... is not in and of itself illegal," the Court says. After reviewing comparable cases from around the country, the Court concludes, "the First Amendment offers no protection to speech that proposes a commercial transaction if consummation of that transaction would necessarily constitute an illegal act. However, if, as here, there are plausible ways to complete a proposed transaction lawfully, speech proposing that transaction “concerns lawful activity and is therefore protected commercial speech." Since the law extends to U.S. citizens who are looking for work, it regulates legal activity and is subject to First Amendment standards.

After concluding that the law advances a substantial government interest in protecting the health, safety and welfare of motorists and pedestrians using public roads, the Court proceeds to a more complicated analysis: does the law restrict more speech than necessary to achieve its aims? The answer is yes. This is a far-reaching ordinance, the Court says, because it prohibits speech that poses no threat to safety in the town's streets and parks. In addition, the town had less burdensome ways to address public safety than to restrict speech; it could have simply enforced state and local public safety laws. As Judge Parker writes, "there are numerous ways in which an individual, adjacent to any public right-of-way, might attempt to stop a motor vehicle utilizing said public right-of-way for the purpose of soliciting employment that would cause no threat whatever to public safety." Noting that people can stand on the side of the road soliciting employment without stopping the car or simply holding a sign that reads, "Will Work for Food," the Court notes that in the "great majority of situations, stopping a vehicle on a public right-of-way creates no inherent safety issue. Entirely prohibiting one speech-based subset of an activity that is not inherently disruptive raises the question whether the Town's actual motivation was to prevent speech having a particular content, rather than address an actual traffic and pedestrian congestion issue."

Thursday, August 24, 2017

Firing female employee because she is "too cute" violates state and city law

A debate is slowly emerging in the federal courts about what constitutes gender discrimination. Language in Title VII prohibiting discrimination "because of sex" is subject to different interpretations. In September 2017, the Second Circuit will hear oral argument on whether discrimination against gay and lesbian employees constitutes discrimination because of sex. In the meantime, the courts are working through less celebrated cases, like this one decided by the Appellate Division First Department.

The case is Edwards v. Nicolai, decided on August 22. This case is brought under the New York State and New York City Human Rights Laws. Plaintiff worked as a yoga and massage therapist for the Wall Street Chiropractic and Wellness office. Nicolai is the head chiropractor. His wife is the chief operating officer. While plaintiff had a professional relationship with Nicolai, his wife did not like plaintiff. Here are the facts set forth in the complaint:

In June 2013, . . . Nicolai allegedly "informed Plaintiff that his wife might become jealous of Plaintiff, because Plaintiff was too cute.'" Approximately four months later, on October 29, 2013, at 1:31 a.m., Adams sent Edwards a text message stating, "You are NOT welcome any longer at Wall Street Chiropractic, DO NOT ever step foot in there again, and stay the [expletive] away from my husband and family!!!!!!! And remember I warned you." A few hours later, at 8:53 a.m., plaintiff allegedly received an email from Nicolai stating, " You are fired and no longer welcome in our office. If you call or try to come back, we will call the police.'" The complaint further alleges that, on October 30, 2013, Adams filed a complaint with the New York City Police Department (NYPD) alleging - falsely - that Adams had received "threatening" phone calls from plaintiff that so frightened her as to cause her to change the locks at her home and business.
Does plaintiff's termination count as sex discrimination? Yes, says the Appellate Division. "It is well established that adverse employment actions motivated by sexual attraction are gender-based and, therefore, constitute unlawful gender discrimination." But plaintiff does not allege any sexual harassment. No matter. "While plaintiff does not allege that she was ever subjected to sexual harassment at WSCW, she alleges facts from which it can be inferred that Nicolai was motivated to discharge her by his desire to appease his wife's unjustified jealousy, and that Adams was motivated to discharge plaintiff by that same jealousy. Thus, each defendant's motivation to terminate plaintiff's employment was sexual in nature."

Friday, August 18, 2017

2d Circuit upholds arbitration agreement in Uber cellphone app

This is a case for the modern age. Does the Uber cellphone app trick users into agreeing to arbitrate their disputes? The Court of Appeals says it does not.

The case is Meyer v. Uber Technologies, decided on August 17. Uber is a private taxi service that allows you to hail a ride through a cellphone app. When you download the app that brings you into Uber-land, you have to agree to the terms of service. One of those terms of service is that if you have a dispute with Uber, you have take it to arbitration, not court. Corporate America likes arbitration, in part, because they are streamlined lawsuits largely held outside the public view. Most people, in downloading an app, click "I agree" to the terms and conditions without reading them. Even if they did read them, most people could not care less about mandatory arbitration. They have no plans to sue the entity.

But these plaintiffs did sue Uber, asserting price-fixing allegations. The district court said the process leading to the app download did not properly place unsuspecting people on notice that they were agreeing to arbitrate their disputes. This is how the Court of Appeals (Chin, Raggi and Carney) describes the process:

Below the input fields and buttons on the Payment Screen is black text advising users that ʺ[b]y creating an Uber account, you agree to the TERMS OF SERVICE & PRIVACY POLICY.ʺ See Addendum B. The capitalized phrase, which is bright blue and underlined, was a hyperlink that, when clicked, took the user to a third screen containing a button that, in turn, when clicked, would then display the current version of both Uberʹs Terms of Service and Privacy Policy. Meyer recalls entering his contact information and credit card details before registering, but does not recall seeing or following the hyperlink to the Terms and Conditions. He declares that he did not read the Terms and Conditions, including the arbitration provision.
Does this process give reasonable conspicuous notice or an unambiguous manifestation of assent to the arbitration provision? Web-based contracts have spawned a new strand of case law, but fundamental contract principles still guide the inquiry. ʺCourts around the country have recognized that [an] electronic ʹclickʹ can suffice to signify the acceptance of a contract,ʺ and that ʺ[t]here is nothing automatically offensive about such agreements, as long as the layout and language of the site give the user reasonable notice that a click will manifest assent to an agreement.ʺ The question here is whether the plaintiff "was on inquiry notice of the arbitration provision by virtue of the hyperlink to the Terms of Service on the Payment Screen and, thus, manifested his assent to the agreement by clicking 'Register.'ʺ Plaintiff loses, and the case goes to arbitration.

Turning to the interface at issue in this case, we conclude that the design of the screen and language used render the notice provided reasonable as a matter of California law. The Payment Screen is uncluttered, with only fields for the user to enter his or her credit card details, buttons to register for a user account or to connect the userʹs pre‐existing PayPal account or Google Wallet to the Uber account, and the warning that ʺBy creating an Uber account, you agree to the TERMS OF SERVICE & PRIVACY POLICY.ʺ The text, including the hyperlinks to the Terms and Conditions and Privacy Policy, appears directly below the buttons for registration. The entire screen is visible at once, and the user does not need to scroll beyond what is immediately visible to find notice of the Terms of Service. Although the sentence is in a small font, the dark print contrasts with the bright white background, and the hyperlinks are in blue and underlined.

Monday, August 14, 2017

Circuit rejects constructive discharge claim

It's been a while since the Second Circuit last issued a published opinion on constructive discharge. The Court this time around reminds us how difficult it is to prove that an employee was justified in quitting her job.

The case is Shultz v. Congregation Shearth Israel of the City of New York, decided on August 10. The Court of Appeals held that the plaintiff did have a pregnancy discrimination and FMLA interference claim even though management rescinded her termination two weeks after it showed her the door. That ruling found that plaintiff suffered an adverse employment action even though she did not spend a day unemployed and defendant changed its mind after she hired a lawyer.

But plaintiff also wants damages for back pay and a hostile work environment. This is important for plaintiff because, as the Court of Appeals (Lynch, Cabranes and Matsumoto D.J.] points out, plaintiff may have a claim arising from her brief pregnancy-related termination, but the damages arising from that claim may be slight.

Plaintiff claims constructive discharge in violation of Title VII because management made her working conditions so horrible that she had no choice but to resign. Here is the evidence of constructive discharge:

After [defendants rescinded the termination letter]. Shultz was subject to a “pattern and practice of repeat discrimination” by Reiss, Soloveichik, and Lustig, consisting of at least the following events: (1) speaking loudly enough to be overheard by Shultz, Reiss told Lustig in a telephone conversation that the Congregation “had a right” to disapprove of Shultz’s pre-marital pregnancy and disparaged Shultz and her lawyers; (2) Shultz’s name was removed from the Congregation’s newsletters to the membership and from the employee list that was displayed on a wall outside the synagogue; (3) Reiss continued to demand that she complete her assigned tasks before the date of her previously scheduled termination, and to transition her responsibilities to other employees; and (4) Soloveichik and Lustig refused to speak with her.
Courts do not like constructive discharge claims. “The constructive-discharge doctrine contemplates a
situation in which an employer discriminates against an employee to the point such that his working conditions become so intolerable that a reasonable person in the employee’s position would have felt compelled to resign.” The working conditions have to be horrendous for an employee to claim that management effectively pushed her out the door. This case does not satisfy that test. The Court writes:

These acts alone, occurring over a period of a few weeks, are insufficient to raise an issue of fact with respect to whether Shultz can meet “the high standard to establish that [s]he was constructively discharged.” “Such a claim requires the employee to show both (1) that there is evidence of the employer’s intent to create an intolerable environment that forces the employee to resign, and (2) that the evidence shows that a reasonable person would have found the work conditions so intolerable that he would have felt compelled to resign.” Id. (internal quotation marks omitted). Shultz has not pled sufficient facts arising after the notice of termination to establish that a reasonable person would have been compelled to resign in these circumstances.
For these reasons, plaintiff also does not have a hostile work environment claim. In order to make out a hostile work environment claim, "a plaintiff must . . . show that the workplace is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” Management may have been been rude to plaintiff, but it is not against the law to be rude.

Friday, August 11, 2017

Fired then rehired two weeks later creates an adverse employment action

I would say this is the most pro-plaintiff Title VII decision issued by the Court of Appeals this year. The Court holds for the first time that a plaintiff suffers an adverse employment action where the employer fires her (allegedly because of her pregnancy) but then rescinds the termination two weeks later. The Court also holds the plaintiff has made out an FMLA interference claim.

The case is Shultz v. Schearith, decided on August 10.  When plaintiff returned from her honeymoon on July 20, 2015, she was visibly pregnant. Management fired her the next day, stating her position was eliminated. The termination was effective August 14, 2015. After plaintiff's lawyer got involved, defendant sent plaintiff a letter on August 5, 2015 stating defendant had reinstated her position and she would not be terminated on August 14, 2015.

Here's the question: was plaintiff's limited termination an adverse employment action? The courts hold that not everything bad that happens at work is worth a lawsuit. Plaintiff has to allege an adverse action, which is part of the prima facie case of employment discrimination. What follows is the definition of adverse action:

A plaintiff sustains an adverse employment action if he or she endures a materially adverse change in the terms and conditions of employment. To be materially adverse a change in working conditions must be more disruptive than a mere inconvenience or an alteration of job responsibilities. A materially adverse change might be indicated by a termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices . . . unique to a particular situation.
Both sides have decent arguments on appeal. The Court of Appeals summarizes them:

Shultz argues that informing an employee that she has been fired is the quintessential adverse employment action, in that it terminates (even if prospectively) her employment, occasioning both the psychological anxiety of unemployment and the costs associated with beginning a search for employment (and, where the employee believes she has been fired for discriminatory reasons, the costs of finding and retaining counsel to pursue appropriate legal action). Defendants argue in response that the tangible adverse consequences of firing are imposed only when the job is actually lost; during the interim period before the firing becomes effective, the employee continues to work in the same position and receive the same pay and benefits. Each of those arguments has some intuitive appeal.

As Judge Lynch writes, "Our Court ... has not yet decided whether a notice of termination, which is rescinded before the termination is implemented, qualifies as an adverse employment action." So the Court of Appeals (Lynch, Cabranes and Matsumoto D.J.] draws from Supreme Court authority on when to calculate the statute of limitations in wrongful discharge claims. In Delaware State College v. Ricks, 449 US 250 (1980), the Court said the SOL starts to run when the plaintiff learns about his termination, i.e., when management notifies him about it, even if the termination actually takes effect down the road. Judge Lynch writes, "The Supreme Court’s conclusion that a discrimination claim accrues upon notice of termination, rather than upon the implementation of that decision, necessarily implies that the notification of termination qualifies as an adverse employment action."

The Court tells how this decision works in practice. The short termination period does give plaintiff a case, but it may result in limited damages, especially if she did not lose any money. Also, since plaintiffs must mitigate their damages, the Court of Appeals has held in the past that “[a]n employer may toll the running of back pay damages by making an unconditional offer to the plaintiff of a job substantially equivalent to the one he or she was denied, even without an offer of retroactive seniority.” Pierce v. F.R. Tripler & Co., 955 F.2d 820, 830 (2d Cir. 1992). The Court adds that, in some cases, a rescinded termination decision may not be an adverse action if the employer does it quickly, like the next day, rendering the termination a de minimus event. But for plaintiff in this case, it could be an adverse action because she "had ample time to experience the dislocation of losing her employment at a particularly vulnerable time, undertake the effort of retaining counsel, and inform the Congregation that she was going to file suit."

This reasoning also supports plaintiff's FMLA interference suit, which stems from the same facts. Employers cannot interfere with employee rights under that statute. "We see no reason to construe the FMLA differently from Title VII with respect to whether the rescission of a notice of termination given to a pregnant employee establishes as a matter of law that the notice may not constitute an adverse employment action sufficient to deter or interfere with the employee’s exercise of FMLA rights."

Tuesday, August 8, 2017

State anti-discrimination law does not conflict with National Labor Relations Act

This case asks whether union members who want to challenge the union's discriminatory actions may do so pursuant to the New York State Human Rights Law, which prohibits discrimination in employment and in union membership. The question is whether the National Labor Relations Act, which covers the union's duty of fair representation, preempts the state anti-discrimination laws. The Court of Appeals holds there is no preemption, and union members can sue their unions under state law.

The case is Figueroa v. Foster, decided on July 25. We assume that federal law preempts state law, but, as always, there are many exceptions. In this case, there would appear to be some overlap between the State Human Rights Law and the NLRA. We solve this problem under a three-part test:

“Under the Supremacy Clause of the Constitution, state and local laws that conflict with federal law are without effect.” N.Y. SMSA Ltd. P’ship v. Town of Clarkstown, 612 F.3d 97, 103‐04 (2d Cir. 2010). “In general, three types of preemption exist: (1) express preemption, where Congress has expressly preempted local law; (2) field preemption, where Congress has legislated so comprehensively that federal law occupies an entire field of regulation and leaves no room for state law; and (3) conflict preemption, where local law conflicts with federal law such that it is impossible for a party to comply with both or the local law is an 1 obstacle to the achievement of federal objectives.”

As Judge Pooler frames the issue:

If the NLRA’s duty of fair representation preempts the NYSHRL, then Title VII as administered by the Equal Employment Opportunity Commission will serve as the primary force protecting union  members from invidious discrimination by their labor organizations. If, on the other hand, the NLRA’s duty of fair representation does not preempt the NYSHRL, then the NYSHRL as administered by the New York State Division of Human Rights will provide union members with additional protections against invidious discrimination by their labor organizations.
There is no preemption. Under the field preemption theory, where the federal law is so comprehensive that it forecloses any relief under state law, not every provision of the NLRA automatically occupies the field which its proscriptions function. "There is no evidence that the NLRA’s duty of fair representation was designed or intended to preempt state laws focused on combatting invidious discrimination, such as the NYSHRL. Instead, our independent review of the  evidence leads us to the opposite conclusion based on the textual and structural relationships between the NLRA, Title VII, and the NYSHRL." Congress has manifested an intent that the NLRA not preempt Title VII and other federal antidiscrimination laws. The state antidiscrimination law is a precursor to Title VII, enacted long before the Civil Rights Act of 1964 because New Yorkers are more enlightened than the rest of the country. Title VII explicitly states that it does not preempt comparable state antidiscrimination laws, and the Second Circuit (Calabresi, Pooler and Wesley) find that Congress considered and sought to preserve the states' coordinate role in fighting discrimination in employment. The text of Title VII further recognizes the continued vitality of its state-law counterparts, and it is not impossible for a private party to comply with the NLRA's duty of fair representation and the NYSHRL's prohibition against employment discrimination.

Monday, August 7, 2017

Was he seized? The majority says yes. The dissent says no.

Here are the facts in this criminal case where the police obtained evidence that the defendant claims was unlawfully seized:

In May 2014, a woman pulled her car alongside a police cruiser in Bridgeport, Connecticut to ask about the process for amending a police report.

After Officer Thomas Lattanzio responded, the woman drove away for a few feet, then reversed toward the police car and told Officer Lattanzio that a man named Branden was nearby with a gun. She pointed down the street, but Officer Lattanzio did not see anyone. Without giving her name, the woman drove away.

Officer Lattanzio then drove in the direction the woman pointed, searching for an armed man. He soon saw Huertas standing on a street corner holding a black bag. Officer Lattanzio drove toward Huertas, going the wrong way on the one-way street. As the cruiser approached, Officer Lattanzio turned on the cruiser’s spotlight and illuminated Huertas. Through the car’s window, Officer Lattanzio asked Huertas a few questions, such as “What’s going on?” and “What happened with the girl?” During Officer Lattanzio’s approach and questioning, Huertas stayed in a fixed position and began answering the questions. The encounter lasted between thirty seconds and one minute. As soon as Officer Lattanzio got out of the cruiser, Huertas ran away. Other police officers later found and arrested Huertas. A search of Huertas’s route turned up a bag similar to the one Huertas had been holding. The bag contained a firearm.
The case is US v. Huertas, decided on July 24. If the police "seized" defendant, then the search was illegal and the police cannot use the gun against him. Defendant says he "submitted" to police authority, the equivalent of a seizure under the Fourth Amendment. The Court of Appeals (Jacobs and Winter) disagrees, holding that defendant was evasive, having run away when the police approached him. Had he stayed still, defendant would have quieted suspicion and hoped the officers would have driven away after being satisfied with his answers to their questions. Instead, he ran. The police were not within defendant's reach, and could not have physically restrained him. The totality of the circumstances says defendant was evading police authority, not submitting to it. There was no seizure.

Judge Pooler dissents. She says the majority extends the meaning of "evasion" beyond activity intended to slow down pursuing officers, and that the Court further "embraces the wrong side of a deepening split between the circuits regarding whether a suspect must do more than simply pause briefly in order to be seized within the meaning of the Fourth Amendment.

The majority states that Huertas’s conduct was undertaken to “quiet suspicion and hope that Officer Lattanzio would drive away after being satisfied with answers to his questions,” and that Huertas thereby intended to “evade” the police. The majority thus adopts the view that answering questions to clear one’s name counts as “evasion” just as much as does pretending to submit so that officers put themselves in a worse position for an impending chase.
The consequences of eliding this distinction are far‐reaching. Suppose, for example, that a suspect speaks with the police not for one or two minutes, but for an hour or two, because he thinks he can talk his way out of going to jail. Would we say he had not submitted, since his only hope was that the interview would “quiet suspicion” and that the officer would let him go “after being satisfied with answers to his questions”? I am comfortable asserting that the vast majority of criminal suspects engage with the police only when they think they will avoid incarceration by doing so. Under that assumption, the majority’s position suggests that stopping to speak with the police, even at length, is unlikely to constitute a seizure because it instead will constitute evasion.

Friday, August 4, 2017

Mistakenly locked up for three years, US citizen cannot bring lawsuit

This case involves an American citizen who was locked up for three years because the authorities thought he was a deportable immigrant. He was not. After he left custody, the plaintiff sued his captors, and he prevailed in the district court, which awarded him $82,500 in damages. The Court of Appeals reverses, and the plaintiff has no case.

The case is Watson v. United States, decided on July 31. In locking up Watson, "ICE agents were presented with information strongly suggesting that Watson was a citizen based on his father’s naturalization, but the agents did not competently pursue the leads. For example, during Watson’s first interview with ICE, he claimed U.S. citizenship, told the ICE agents the names of his father and step-mother, and gave their telephone number to assist the investigation. The ICE agents did not call the telephone number, despite writing a note to do so in order 'to verify status.'" The Second Circuit highlights other blunders that led to Watson's incarceration.

Watson loses because the statute of limitations under the Federal Tort Claims Act is two years. The Court (Jacobs, Livingston and Katzmann [partially dissenting]) states that "a false imprisonment claim starts to run when a detainee begins to be held pursuant to legal process." The Court holds that Watson was held pursuant to such process by the time an immigration judge ordered Watson's removal from the U.S., which occurred on November 13, 2008. By that date, an immigration judge had ruled that the government had the right to detail Watson Since Watson's claim for false imprisonment was filed on October 20, 2013, his claim was untimely.

What about equitable tolling? Under that theory, the statute of limitations is put on hold (extending the time to bring the lawsuit) if the plaintiff "has been pursuing his rights diligently and some extraordinary circumstance stood in this way. Surely this helps Watson, right? The Second Circuit notes that "Watson's case is certainly extraordinary in a number of unfortunate ways." But we define "extraordinary" based on "the severity of the obstacle impeding compliance with a limitations period." Plaintiff must also show these extraordinary circumstances caused him to miss the deadline. The Court writes:

The district court’s grant of equitable tolling was based on Watson’s lack of education and legal training, his unawareness that he could bring an FTCA claim until being advised by appointed counsel, his depression, and “most significantly,” the fact that government officials told Watson that he was not a U.S. citizen. None of those reasons justifies equitable tolling.
 The Court explains it this way: (1) Watson "mounted a vigorous case in the immigration court" in trying to stop his deportation; (2) his depression did not stop him from contesting his citizenship before the immigration judge, so he could have pursued his damages claim and (3) equitable tolling does not usually help the plaintiff simply because of his lack of education or ignorance of his right to bring the claim.

Watson also has no claim for malicious prosecution and negligence, the Court says, because he cannot show malice on the part of the people who locked him up; it was more likely negligence, which is not malicious. However, under NY law, there is no claim for "negligent investigation,"
and state law did not require ICE officials to follow their own directives.

Wednesday, August 2, 2017

Occupy Wall Street protest watcher loses false arrest case

This case tells us how hard it is to sue the police for false arrest. The plaintiff -- a 73 year old lawyer who talked on the street with some Occupy Wall Street protesters -- is quite sympathetic and appears to have been in the wrong place and the wrong time, or perhaps he was in the right place at the right time. No matter. He loses the case under the broad standards governing probable cause.

The case is Kass v. City of New York, decided on July 24. Here is what happened: on the anniversary of the Occupy movement in 2013, the police placed barricades around the perimeter of the park to cordon off the area where the protestors were gathered and to separate the protestors from pedestrians who were on the adjacent sidewalk. Kass was a spectator who decided to speak quietly with the protesters. Kass did not impede pedestrian or vehicular traffic. The police approached Kass and told him to "keep walking." Kass said he wanted to hear the protestors’ views, he was not blocking pedestrian traffic, and he had a right to remain on the sidewalk. The police repeated the directive but Kass refused to comply, but Kass repeated he had a right to speak with the protesters. An officer grabbed Kass by the elbow, but Kass pulled away.When the officer suggested that Kass go inside the park to continue his conversation with the protestors, Kass refused to comply, so the officer grabbed Kass’s right arm and pulled him toward the middle of the sidewalk, away from the barricade and protestors. Kass objected, saying “get your hands off of me, how dare you, get your hands off me.” Kass was then arrested. That charge was dismissed for failure to prosecute.

Did plaintiff do anything wrong? Even if he did not, the police could still have probable cause, or at least qualified immunity. That's how Kass loses the case. On the Obstructing Governmental Administration charge, the police were performing an official function because they were trying to regulate pedestrian traffic in the heart of downtown shortly before 5:00 pm. While Kass was on the sidewalk, a traditional public forum, that is not enough for him to win the case, as the government has an interest in keeping public spaces free of congestion and the officers told him he could continue speaking with the protesters inside the park. Since Kass refused the officers' repeated officers to move along, he interfered with an official function, and the officers could reasonably believe that Kass intended to interfere with their lawful efforts. So that takes care of the Obstructing claim.

Kass also loses on the false arrest claim arising from the disorderly conduct charge. The officers reasonably thought he was congregating with others in a public space, he refused a lawful order to disperse and officers could reasonably disagree about whether his behavior recklessly created a risk of causing public inconvenience, annoyance or alarm.

What does it all mean? What looks like relatively innocent behavior by Kass was enough to justify his arrest. We do not have free speech/association absolutism under the First Amendment. The police have many defenses in these cases, including qualified immunity, which gives them the benefit of the doubt. If Kass was just an establishment lawyer strolling along to see what the protesters were up to, it is likely this case has turned him into an antiestablishment guy as well. No one likes to be arrested without a good reason.

Tuesday, August 1, 2017

Summary judgment granted to plaintiff due process/firearms case against Nassau County

This is a guns rights case, sort of. The Court of Appeals holds that a plaintiff was entitled to summary judgment in a procedural due process case involving Nassau County's refusal to return a woman's shotguns.

The case is Panzella v. Sposato, decided on July 19. Plaintiff's ex-husband got an ex parte order of protection against her. It said she could not possess any firearms. But since ex parte orders cannot prohibit you from possessing guns without a hearing, the gun prohibition could not really apply to her. But the police confiscated her guns anyway and would not give them back under County policy that says the Sheriff cannot return guns without a court order. The district court granted plaintiff summary judgment in this case on her due process case, and the Court of Appeals (Calabresi, Pooler and Vilardo [D.J.]) affirms.

Judge Calabresi tees up the analysis like this:

The facts relevant to this appeal are largely undisputed. Both parties agree that Defendants confiscated Panzella’s longarms, and that the County, through the Sheriff’s Department, has a policy of doing so even when an order of protection issued by the Family Court does not explicitly order the Defendants to confiscate firearms pursuant to § 842-a. The parties also agree that Defendants have a policy of retaining confiscated firearms, even after an order of protection expires or is dismissed, until the Sheriff’s Department is presented with an order from a court of competent jurisdiction directing the return of the longarms. And all agree that the Family Court believes it cannot issue such an order in circumstances like those before us. 
When the plaintiff wins summary judgment, it means she has a great case. Usually, it's defendants who win summary judgment motions. Not this case. Under the well-known due process standards, the court weighs the following factors in determining if the plaintiff got the process that was due when the government deprived her of a liberty or property interest:

(1) “the private interest that will be affected by the official action;” (2) “the risk of erroneous deprivation of such interest through the procedures used;” and (3) “the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.”
We call this the Matthews factors, named after a Supreme Court case from the 1970s. The first factor tilts in plaintiff's favor because she has a property interest in her guns. She meets the second factor because, while she can (as the County argues) bring an Article 78 petition, that takes a substantial amount of time and that procedure places the burden on plaintiff. In light of the burdens an Article 78 petition places on the plaintiff, "there is a significant risk of erroneous deprivation of that person's interest in her longarms." While she would probably win the Article 78, the Court says, that would not prevent a lengthy deprivation, as per Supreme Court authority, Fusari v. Steinberg, 419 U.S. 379 (1975), a principle of which I was unaware until now. As for the third factor, the government's interest in this equation -- public safety -- is limited since plaintiff could buy new guns given the lack of licensing requirement for such weapons in Nassau County. Finally, since a post-deprivation due process hearing would not be particularly burdensome for the County, all the due process factors tilt in plaintiff's favor, and she wins the case.

Monday, July 31, 2017

Sexual harassment case returns to the district court

Here's a li'l sexual harassment decision that you probably missed because it's a summary order that flies under the radar. The Court of Appeals says the plaintiff may have a case and sends it back to the district court for further review.

The case is McLeod v. Jewish Guild for the Blind, a summary order issued on July 19. A plaintiff makes out a sexual harassment case when a co-worker or supervisor creates a hostile work environment based on gender. A series of vulgar statements in a short period of time may satisfy that test. At a minimum, that evidence may entitle you to a trial, and then a jury decides if the work environment was offensive enough to violate Title VII.

The Court of Appeals (Hall, Lynch and Droney) says the district court did not view the summary judgment evidence in the light most favorable to the pro se plaintiff. The Court writes:

On appeal, the Plaintiff points to evidence in the record tending to show that Donald Dettmer repeatedly entered the men’s bathroom while he knew that she was in the room assisting a client, and urinated in her presence while she was unable to leave. The Plaintiff also points to evidence in the record tending to show that Dettmer repeatedly made comments about her attire suggesting that she was a sex worker. It appears the district court only considered two of these instances in granting summary judgment in favor of the Defendant. The district court characterized the Plaintiff’s case as “premised entirely on . . . five comments made by Dettmer over a period of approximately six years[.]”
The Second Circuit says other evidence was overlooked. Rather than make an initial determination whether plaintiff has a Title VII harassment case, the Court sends it back to the district court to resolve the motion again, in the hopes that the trial court is a little more careful this time around.

Wednesday, July 26, 2017

Cutting pro se discrimination plaintiffs a break

In this case, the Court of Appeals cuts the pro se discrimination litigants a break, holding they may proceed with their cases even if they do not comply with the technical requirements in filing the lawsuit.

The case is McLeod v. Jewish Guild for the Blind, decided on July 19. Using a form complaint provided by the federal court's pro se office, plaintiff checked off some but not all of the boxes to signify what claims she wanted to pursue. She checked off the Title VII box but not the ones for the New York City and New York State Human Rights Laws. The district court therefore disallowed her from proceeding with any claim other than Title VII. The Court of Appeals (Hall, Lynch and Droney) reverses.

The Second Circuit notes that it has traditionally cut pro se litigants a break when it comes to technical pleading deficiencies. Pro se litigants do not know the complexities associated with filing a lawsuit. We do not want form over substance for non-lawyers. The Court also notes that it has held in the past that even counseled litigants do not have to cite the correct law in pleading their cases and that it's the factual allegations that matter. The cite for that is Albert v. Caravello, 851 F.2d 561, 571 n.3 (2d Cir. 1988).

On these bases, the Court of Appeals reinstates plaintiff's City and State law claims. You may ask, what's the point? The point is that the City and State laws offer certain protections that Title VII does not, even if the plaintiff is claiming sex discrimination (as in this case) under all statutes. The City law is construed more liberally than Title VII, particularly with respect to hostile work environment claims. The State law provides a longer statute of limitations and allows you to sue individual defendants, unlike Title VII. If you practice in these areas, you know about these distinctions. But, the Court of Appeals says, pro se litigants are probably unaware of these distinctions, and they may inadvertently forfeit those rights in filling out the complaint forms provided by the courts.

Tuesday, July 25, 2017

2d Circuit upholds million dollar labor arbitration award

The Court of Appeals clarifies what it takes for an aggrieved party to challenge an labor arbitration award, ruling that the arbitration in this case was fair and the employee is entitled to keep his million dollar wrongful discharge award.

The case is Odeon Capital Group v. Ackerman, decided on July 21. Ackerman was a bond trader. When he was fired, Ackerman challenged his termination in arbitration, alleging breach of contract, disability discrimination and retaliation arising from an investigation into one of his bond trades. While it rejected the bulk of Ackerman's claims, an arbitration panel found in Ackerman's favor on the unpaid wages claim, awarding him $1.1 million.

The employer sought to vacate the arbitration in federal court. This is always an uphill battle. The purpose of arbitrations is the keep the case away from the courts. But there are exceptions: You can vacate the arbitration upon a finding of fraud. In this case, the employer said Ackerman perjured himself at the arbitration hearing in connection with one o' his bond trades. The Court of Appeals (Calabresi, Pooler and Wesley) says that fraud cannot predicate a federal challenge to an arbitration ruling unless the fraud was material to the arbitration award. The standard is that "the petitioner must demonstrate a nexus between the alleged fraud and the decision made by the arbitrators, although petitioner need not demonstrate that the arbitrators would have reached a different result."  The Court of Appeals cites cases from other circuits on this point, which means the Court is probably saying this for the first time in our circuit.

What does it all mean for Ackerman? He keeps the arbitration award. Even if he did perjure himself about a bond trade, the arbitrators granted him relief only on his unpaid wages/breach of contract claim, not the claim arising from the bond trade claim. Any possible fraud was immaterial to Ackerman's award.

Ackerman brings his own cross-appeal. The district court said he was not entitled to attorneys' fees expended in defending his successful arbitration award in federal court. The district court thought you only get fees in that circumstance if the party challenging the arbitration does so in bad faith. On that rationale, no fees for Ackerman, the district court said, because the employer's arbitration challenge was not a bad faith endeavor. But the Court of Appeals nixes that analysis, noting that New York Labor Law entitles you to attorneys' fees "in any action instituted in the courts upon a wage claim by an employee ... in which the employee prevails." That statute applies to "special proceedings" under the CPLR. Since applications to confirm, vacate or modify arbitration awards are special proceedings, Ackerman gets his attorneys' fees for the work his lawyer did in the district court, and presumably on appeal as well.

Monday, July 24, 2017

New trial in deadly excessive force case

This excessive force case tells us once again that the best way to appeal from an adverse jury verdict is to find a way to challenge the jury instructions. If something is wrong with the jury charge, then the trial may be fatally infected.

The case is Callahan v. County of Suffolk, decided on July 12, Callahan was shot during a confrontation with the police. What happened was the police were called to a single-family house; someone reported a situation involving a gun. Officer Wilson came upon a room with the door ajar. He saw that someone was inside the room. That person tried to shut the door. When the door partially shut, Wilson was holding his gun in his left hand. His hand holding the gun was on the other side of the door, inside the room. The officer was pinned on the door frame. The person inside the room made "some type of growl" that was "scary." Wilson thought he could be shot through the door or that the guy inside the room might take his gun. He saw a shadow coming around the door and "a hand thrusting toward him with an object." Wilson then fired his weapon, as he was unable to free himself. Those shots hit Callahan, who later died from the gunshot injuries. Callahan had no weapon.

Calllahan's family sued for wrongful death, but the jury found in favor of the police. This was a tough case for Callahan's estate. Callahan was unable to testify on his own behalf, and the officer was caught in a difficult position. It's easy to imagine a jury finding that the officer had no choice but to fire his gun in self-defense.

The problem was the jury charge. In 2013, the Second Circuit held in Rasamen v. Doe, 723 F.3d 333 (2d Cir. 2013), that the instruction in cases like this "must" convey "that the use of force highly likely to have deadly effects is unreasonable unless the officer had probable cause to believe that the suspect posed a significant threat of death or serious physical injury to the officer or to others." The charge in Callahan's case did use this language. But while Rasamen says the jury "must" be instructed that the use of deadly force is "unreasonable unless the officer had probable cause to believe that the suspect posed a significant threat of death or serious physical injury," in this case the charge said the officer "may use deadly force ... if" the officer has the requisite probable cause." The instructions were further tainted because they suggested the jury could find the officer's shooting "complied with constitutional standards for reasons other than the fact that Wilson had probable cause to believe that Callahan posed a significant threat of death or serious injury to Wilson or others." But Rasanen makes clear that deadly force is unreasonable unless the officer had probable cause to think the individual posed a significant threat of death or serious physical injury."

These errors may seem subtle, but the Second Circuit (Droney and Parker) thinks they warrant a new trial. Judge Raggi dissents, finding that that the jury charge complied with the directive in Rasamen as well as recent Supreme Court rulings that provide additional guidance on what it takes to win a deadly excessive force case.

Friday, July 21, 2017

When can the jury know the plaintiff invoked the Fifth Amendment at deposition?

The jury trial is the name of the game. If you lose, you are entitled to file a notice of appeal, but few appeals from adverse jury verdicts are successful. The jury is allowed to view the facts any way it wants (within reason), and the judge enjoys broad discretion in making evidentiary rulings at trial. In this case, however, the appeal was successful. The Court of Appeals provides some guidance on when you can impeach the plaintiff's credibility at trial.

The case is Woods v. START Treatment, decided on July 19. The plaintiff sued her former employer for FMLA retaliation. The jury found for the employer. Plaintiff wins the appeal for two reasons: first, the trial court improperly charged the jury, telling them the plaintiff had to prove "but for" causation instead of "motivating factor." As I write in this blog post, this case represents the first time the Court of Appeals holds that the motivating factor test governs FMLA retaliation cases.

The other holding in this case is that the trial court got it wrong in allowing the employer's attorney to exploit how the plaintiff in pre-trial deposition invoked the Fifth Amendment on unrelated issues that could have affected her credibility.While evidentiary rulings are difficult to challenge on appeal, in this case, the trial court crossed the line, and the Second Circuit (Kearse, Hall and Chin) says the plaintiff gets a new trial because the evidentiary error denied plaintiff a fair trial.

In deposition, defense counsel asked plaintiff if she had ever been investigated by the City of New York. She took the fifth. She also took the fifth when counsel asked if she was accused of "some kind of immoral conduct" and whether she was accused of lying or fabricating events or submitting false documentation. She further took the fifth when asked if she was accused of misrepresenting the facts to the government. The jury knew about all of this, and defendants used plaintiff's refusal to self-incriminate against her at trial, attacking her credibility.

This was unduly prejudicial to plaintiff, the Court of Appeals held, for a number of reasons. "Most of the questions in Woods’s deposition were merely whether Woods had been accused of something. Even assuming her answers would have been 'yes,' accusations have little, if any, probative value because the innocent and guilty alike can be accused of wrongdoing. Without more, accusations do not 'impeach the integrity or impair the credibility of a witness.'' Second, plaintiff "suffered even harsher prejudice from the admission of an adverse inference based on her invocation of the Fifth Amendment in response to being asked whether she was ever convicted of any immoral or unethical conduct. Federal Rule of Evidence 609(a)(2) permits the admission of a conviction only when the crime is a felony or the court 'can readily determine that establishing the elements of the crime' required proving a 'dishonest act or false statement.' The district court here failed to consider whether the requirements of Rule 609(a) were met." Third, the jury may have thought plaintiff had something to hide when she took the fifth. The Court of Appeals explains:

the danger of unfair prejudice is high when a jury is told that a witness declined to answer a question by invoking the Fifth Amendment; the implication is, at best, that the witness refused to answer because she had something to hide. We tolerate some danger of prejudice from such inferences in civil cases, unless it substantially outweighs the probative value of those inferences. Here, the way in which Woods’s Fifth Amendment invocation was raised and later argued at closing elevated the prejudice to an intolerable level. Woods’s Fifth Amendment invocation was repeatedly emphasized—defense counsel raised it during Woods’s cross examination, the district court instructed the jury on it, and defense counsel argued it during his summation. Although defense counsel attempted to moderate this line of argument, see J. App’x 632 (“I am not hanging my hat on [the] Fifth Amendment invocation.”), he did so only after forcefully highlighting the inferences that the jury was permitted to draw. In arguing that the entire case hinged on Woods’s credibility, defense counsel told the jury “you are permitted in this case to infer that Ms. Woods was the subject of a government grand jury investigation, was accused of fraud, lying, fabricating events, and misrepresenting facts to the government and was then convicted of a crime.” Id. Defense counsel’s statement was consistent with the district court’s instruction, but the inferences that the jury was permitted to draw did not necessarily mean anything with respect to Woods’s credibility or character
for truthfulness.

Thursday, July 20, 2017

2d Circuit rejects "but for"causation test for FMLA retaliation claims

The Court of Appeals holds for the first time that FMLA plaintiffs only have to show their family/medical leave was a motivating factor in their retaliatory dismissal. The Court rejects the more defendant-friendly "but for" causation test.

The case is Woods v. START Treatment, decided on July 19. (In addition to the causation standard, the Court also says plaintiff got an unfair trial because the jury knew she had taken the Fifth on certain deposition questions. I address that in a separate blog post). This case went to trial in the EDNY; the jury returned a verdict in favor of the employer. Plaintiff appealed, arguing that the trial was fatally tainted because the judge charged the jury under the "but for" test and not the "motivating factor" test. Finding that the jury was in fact wrongly charged and the bad charge could have made a difference at trial, the Court of Appeals (Hall, Kearse and Chin) remands the case for a new trial.

Woods worked for a drug rehabilitation facility. In summarizing the evidence at trial, the Second Circuit notes that management had repeatedly criticized plaintiff's job performance. However, plaintiff was fired shortly after taking FMLA leave. Disputes about what motivated plaintiff's termination entitled her to a jury trial.

The FMLA authorizes interference claims and retaliation claims. The interference claim arises when the employer prevents or impedes the employee's ability to exercise rights under FMLA. Retaliation claims "involve an employee actually exercising her rights or opposing perceived unlawful conduct under the FMLA and then being subjected to some adverse employment action." The Court of Appeals holds that retaliation claims fall under 29 U.S.C. § 2615(a)(1), which provides: "It shall be unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under this subchapter." (A related provision, § 2615(a)(2), provides: "It shall be unlawful for any employer to discharge or in any other manner discriminate against any individual for opposing any practice made unlawful by this subchapter").

Under Section 2615(a)(1), employers cannot fire staff in retaliation for taking FMLA leave. If the case goes to trial, the jury must be charged that plaintiff need only show that retaliatory intent was a motivating factor in the decision to terminate. That means there may be other factors that motivated the termination, as well, but so long as there was some retaliatory intent in the equation, the plaintiff wins. Under the more restrictive "but for" test, which applies to claims brought under the Age Discrimination in Employment Act and retaliation claims under Title VII, retaliatory intent must have been the determining factor, that is, that intent (as opposed to some other motivation) made the difference. The Second Circuit has held the "motivating factor"/"but for" distinction generally cannot be resolved on a summary judgment motion. But it can make a difference at trial. The Court sums it up like this:

We now hold that FMLA retaliation claims like Woods’s, i.e. terminations for exercising FMLA rights by, for example, taking legitimate FMLA leave, are actionable under § 2615(a)(1). The plain language of § 2615(a)(1) supports this conclusion. Firing an employee for having exercised her rights under the FMLA is certainly “interfere[nce]” with or “restrain[t]” of those rights. Indeed, FMLA rights have two parts—the right to take leave and the right to reinstatement, so terminating an employee who has taken leave is itself an outright denial of FMLA rights.
The Department of Labor's regulations support this analysis. The Second Circuit defers to the DOL's regulations under Chevron deference, owing to the DOL's expertise in the area. While the Second Circuit hinted in Millea v. Metro-North Railroad, 658 F.3d 154 (2d Cir. 2011), that "but for" causation governs FMLA retaliation claims, the Court of Appeals now says the reasoning in Millea did not squarely address the issue in Woods' case.

Since the record contains evidence both that management took issue with plaintiff's job performance and that she was fired shortly after taking FMLA leave, the bad jury instruction could have made a difference at trial.