Friday, November 17, 2017

The pitfalls of appellate practice under Section 1983

A key difference between appeals in state and federal court is that in state court you can appeal any court ruling, even if the case is not even resolved. In federal court, you have to wait for the case to be resolved in its entirety before you can take an appeal. This reduces the number of federal appeals. There are exceptions to the federal rule, but those exceptions are narrow.

The case is Latreille v. Gross, a summary order decided on November 15. This is a public employee First Amendment retaliation case. Plaintiff worked for Orange County. The decision is not clear on this, but she was evidently disciplined for disclosing certain public assistance information to law enforcement. Public employees do have some speech rights, but they are limited under Garcetti v. Ceballos, 547 U.S. 410 (2006), which says employee speech is not protected under the First Amendment if the employee speaks pursuant to her job duties and does not speak as a citizen. The trial court denied the County's summary judgment motion on this issue.

Normally, when the court denies defendant's summary judgment motion, the case heads to trial or the parties settle. But in Section 1983 cases, individual defendants can invoke qualified immunity, which gets them off the hook if they did not violate clearly-established law. If the trial court denies that motion, the government defendant can take up an immediate appeal (we call it an interlocutory appeal) on the qualified immunity theory, on the basis that government defendants have the right to get out of the case at the earliest possible opportunity. The kicker, though, is that, in taking up the appeal, the government has to assume for purposes of the appeal that the plaintiff's version of events is correct and that, even under the plaintiff's side of the story, the government defendant is entitled to immunity.

This is easier said than done. Government lawyers certainly know that the rule that in order to take an interlocutory appeal, they have to assume for the time being that the plaintiff's account is true. But in writing the brief, government lawyers will still press their side of the story. The Court of Appeals is wise to this tactic, and it notes in this case that it dismisses these appeals all the time without reaching the merits because it often finds that the case is too fact-specific for appellate review at this early stage. That is what happened here. Here is how the Court of Appeals reasons it out:

Gross and Miller profess — as they must — to pursue their interlocutory appeal based on the facts alleged by Plaintiff-Appellee Nicole S. Latreille. However, upon our review of the record and despite Gross and Miller's representations to the contrary, we conclude that Gross and Miller do not proceed on this basis. We thus must dismiss their appeal for lack of appellate jurisdiction.

As one example, Gross and Miller spend considerable time arguing that Latreille's disclosures to law enforcement of public assistance records, insofar as they related to welfare fraud, were within the scope of her professional responsibilities and therefore not constitutionally protected. Based on the record, we lack jurisdiction to review this challenge. The district court determined that "[t]he parties don't dispute that Plaintiff's investigation was outside of her official job responsibilities." S.A. 15-16 (emphasis added). And there is ample record evidence that Latreille's job responsibilities did not include fraud investigation of any sort, whether it be welfare or mortgage fraud. See, e.g., J.A. 120 (noting that it is not "within [Latreille's] job description to conduct investigations into fraud"); id. at 113 (noting that the work "expanded beyond [her] job duties"); id. at 133 (noting that the information was not "pertinent" to Latreille's job); id. at 269 (noting that her "investigations and disclosures were outside the scope of her work responsibilities");id. at 552 (noting at Miller's deposition that "investigating to begin with" is not part of Latreille's duties); id. at 624 (noting in Bradshaw's complaint letter that "[t]his certainly is not part of our job description"). Some of this record evidence is even cited in Gross and Miller's own Rule 56.1(a) statement.

Thursday, November 16, 2017

No false arrest case following workplace fracas

What you need to know about false arrest lawsuits is that the police officers win far more frequently than they lose. Probable cause is a defense to any false arrest case, even if the plaintiff was acquitted at the criminal trial, and even if the police dropped the charges prior to any trial. Nor do the officers have to conduct a thorough investigation prior to making an arrest that is later abandoned by the district attorney. And if all else fails, the police officers are immune from suit if the court finds the arrest was objectively reasonable, even if was a bad arrest in hindsight.

The case is Iocovello v. City of New York, a summary order decided on November 14. Plaintiff, a supervisor at the Department of Sanitation, was arrested for assaulting King, his subordinate, after a verbal dispute. Officer Francis spoke to plaintiff and King. Both men were arrested. Eyewitnesses to the fracas prepared written statements, each of which said King attacked plaintiff. While the parties dispute whether Francis read those statements before making the arrests, that does not matter, the Court of Appeals says, because even if Francis did see the statements, she had arguable probable cause to arrest plaintiff "based on King's statement alone."

You read that right: "arguable probable cause." That is a court-made doctrine that allows police officers to invoke qualified immunity in false arrest cases. The police can arrest you based on someone else's eyewitness account, even if that account is wrong or even a lie. The police cannot make the arrest if they know the statement is unreliable or tainted in some way. But that's tough to prove. Case after case is dismissed because the police do not have to conduct a thorough investigation prior to making the arrest.

How does plaintiff get around this? He says that his injuries were worse than King's injuries, and that King is a much larger man than plaintiff. "However, a reasonable officer responding to this workplace incident may have assumed that a fight involving both Iocovello and the much larger King could logically lead to the smaller person having the greater signs of injury. There was also no need for an in-depth investigation once Officer Francis heard King's version of the events, viewed evidence that a scuffle had occurred between Iovovello and King, and had no reason to doubt the veracity of King's statements." 

Monday, November 13, 2017

Supreme Court upholds death penalty for man who does not remember committing the crime

The Supreme Court resolved this death penalty case without hearing oral argument. It decides the case on the briefs. The Court holds that the State of Alabama can apply the death penalty to a man who no longer remembers killing his victim.

The case is Dunn v. Madison, decided on November 6. The facts are not complex. More than 30 years ago, Madison killed a police officer at close range. As his execution neared, Madison claimed he was not competent to be executed because he suffered a stroke. A court-appointed psychologist said Madison "understands the exact posture of the case at this point" and knows that Alabama is seeking retribution for his criminal act. Madison's expert said that while Madison does not remember the crime, he knows what he was tried for and knows he is in prison for murder even though he believes he "never went around killing folks."

This case arises in the posture of a habeas corpus proceeding. You can get habeas relief if the federal court finds that the state court conviction violated the U.S. Constitution. But a mere constitutional violation is not enough to win the habeas petition. You have to show the state court unreasonably applied clearly-established Supreme Court precedent. In other words, if the Supreme Court has not clearly addressed the issue raised in your habeas petition, you lose, even if, upon reflection and in hindsight, it appears the state court did violate the Constitution. Madison prevailed in the Eleventh Circuit. The Supreme Court reverses the Eleventh Circuit and Madison will be executed.

In Panetti v. Quarterman (2007), the Supreme Court said "the retributive purpose of capital punishment is not well served where the prisoner's mental state is so distorted by a mental illness that his awareness of the crime and punishment has little or no relation to the understanding of those concepts shared by the community as a whole." In 1986, the Court questioned the "retributive value of executing a person who has no comprehension of why he has been singled out." That case was Ford v. Wainwright. These cases are close, but no cigar. These cases did not squarely address the issue raised by Madison's case: whether "a prisoner is incompetent to be executed because of a failure to remember his commission of the crime, as distinct from a failure to rationally comprehend the concepts of crime and punishment as applied in his case."

Justices Ginsburg, Breyer and Sotomayor concur in the Court's ruling. They write that "The issue whether a State may administer the death penalty to a person whose disability leaves him without memory of his commission of a capital offense is a substantial question not yet addressed by the Court." But that is not enough for the Court to hear the case. "Appropriately presented, the issue would warrant full airing." Under the habeas corpus law that Congress enacted in 1996, which talks about clearly-established Supreme Court authority and whether the state court committed a clear constitutional violation, Madison must lose.

Thursday, November 9, 2017

Court finds no legal duty to protect crime victims

One of the real epiphanies in law school is when students learn that the law does not require people, and even the police, to affirmatively protect people. New York does not have a good samaritan law, such that if you see someone lying in the street calling for help, you are not legally required to help him. A related rule governs police conduct. We see that in this case.

The case is Torres v. Graeff, a summary order decided on November 8. In DeShaney v. Winnebago County (1989), the Supreme Court said the family of a young boy who was severely by his father could not sue the Department of Social Services for failing to protect the boy, even though DSS knew or should have known the boy was at risk, particularly since the boy was not in DSS custody.

The reasoning in DeShaney has been applied to the police. The Second Circuit has stated that "a [state actor's] failure to protect an individual against private violence simply does not constitute a violation of the Due Process Clause." However, the Court has also stated that a state actor, such as the police, may be held liable to a victim of private violence under a theory of "state-created danger" if the police engaged in conduct that "affirmatively enhanced the risk of violence." That case is Okin v. Cornwall on Hudson, 577 F.3d 415 (2d Cir. 2009). Under Okin, the police may be found to have enhanced the risk of violence against someone "by providing the aggressor with assurances that he would be permitted to act with impunity." A plaintiff can allege the police had implicitly communicated with the violent actor through a showing of "repeated, sustained inaction by officers in the face of potential acts of violence."

This case does not satisfy that standard. There is no sustained inaction here. Plaintiff alleges that the police responded to a single report that a mentally-ill man was acting violently by placing him under custodial arrest under New York Mental Hygiene Law section 9.41. They also utilized force to handcuff and detain the man in the back of a police car, removing him from the premises and taking to the hospital for a mental health evaluation and instructing hospital staff to contact the police at a specified time before releasing him. The Court (Jacobs, Lynch and Crotty [D.J.]) writes:

The fact that the officers asked to be contacted at the conclusion of the medical evaluation rather than remain physically present during it cannot be read as having transformed their affirmative “interference” with Bumbolo’s violence and their unwaveringly adversarial posture toward him throughout the interdiction into a “plainly transmitted [] message that what he did was permissible and would not cause him problems with authorities.” The complaint therefore fails to state a constitutional claim against the officers. On the facts pled, the tragedy that ensued is simply not
one for which the officers may be held liable under the Due Process Clause.

Tuesday, November 7, 2017

Pro se plaintiff wins due process and Title VII appeal

Due process is enshrined in the Constitution, but the courts have made it difficult to sue over due process violations. In this case, the pro se plaintiff wins her appeal, reinstating her due process claim against the City of New York.

The case is Xu v. City of New York, a summary order decided on November 2. We don't know much about the due process claim, but the Second Circuit notes that if your due process rights are violated, the usual procedure is to bring an Article 78 following the property or liberty deprivation. That rule applies when a relatively low-level government employee shafts you through an "random or unauthorized act[]." In those cases, the Article 78 procedure is the due process. That rule does not apply, however, when the deprivation was perpetrated by "officials with final authority over significant matters, which contravene the requirements of a written municipal code, and can constitute established state procedure."

Since plaintiff "was improperly fired without a postdeprivation hearing because Municipal Defendants wrongly believed her to be a probationary employee who was not entitled to such a hearing," and plaintiff claims a high-level official orchestrated her termination, plaintiff has a due process claim. Plaintiff does not have to worry about the CPLR. She can avail herself of the beauties of the Federal Rules of Civil Procedure.

Plaintiff also has a discrimination claim under Title VII. She says a younger white male was treated more favorably on the basis of race. The disparate treatment included plaintiff receiving negative feedback while the white comparator got positive feedback. These and other allegations of disparate treatment allow plaintiff's case to proceed. Since this was a Rule 12 dismissal, mind you, the parties must pursue discovery. No doubt, the City will move for summary judgment once discovery is complete. Hey, why not? Government lawyers love moving for summary judgment.

Friday, November 3, 2017

Teacher cannot sue superiors in academic speech case

If you handle civil rights cases, you may have litigated free speech cases on behalf of public employees who claim they suffered retaliation for speaking out on the job. Prior to 2006, these cases involved employees who spoke out on matters of public concern, defined as any matter of political, social, or other concern to the community. That changed in 2006, when the Supreme Court decided Garcetti v. Ceballos, which said that, in order to win the case, the plaintiff must also show he spoke as a citizen. This means that public concern speech pursuant to the employee's official job duties is not protected speech. Garcetti changed everything in public employee First Amendment litigation. That impact remains with us.

The case is Lee-Walker v. New York City Board of Education, a summary order decided on October 17. I represented the plaintiff in this case. Plaintiff was a public school teacher who wanted to teach her high school students about the Central Park 5, a well-known rape case from 1989 in which five minority youths confessed to a horrible crime but were later exonerated because of the false confessions and evidence that someone else committed the crime. The complaint alleges that a school administrator objected to the class on political grounds, telling plaintiff that the students among other things might riot. Plaintiff alleges she was fired over the class. The lawsuit alleged that the First Amendment prohibited her termination.

In 2004, the Second Circuit held in Silano v. Sag Harbor School District that teachers had a First Amendment right to classroom speech but that school administrators could regulate that speech provided the restrictions are reasonably related to legitimate pedogogical objectives. In other words, the speech restrictions have to be reasonable. Silano would help Lee-Walker's case, since the administrator's objection to her class on the Central Park 5 was political and therefore unreasonable. At least that's the argument that I advanced. That argument, however, ran into Garcetti.

The Supreme Court in Garcetti did not purport to rewrite First Amendment retaliation law. But it did emphasize that "citizen speech" and not "work speech" is protected. This means that a public comptroller who blows the whistle on missing money can get fired for that speech, as it was the comptroller's job to say this. The janitor would have speech rights to blow the whistle on that issue, assuming he actually knew something about the embezzlement. Still, some judges in the Southern District of New York thought Garcetti simply meant that the plaintiff has no First Amendment retaliation case if he is disciplined for mandated speech, that is, where he speaks up because it is his job to speak on a particular matter. That was a reasonable interpretation, but the Court in Garcetti did not exactly say this because Justice Kennedy, who wrote the majority opinion, did not lay out what the decision really meant. That left it to the Circuit courts to interpret what the Garcetti Court had intended. In 2010, the Second Circuit did that in Weintraub v. Board of Education, which held -- over a vigorous dissent by Judge Calabresi -- that public employee speech is not protected under the First Amendment if it is "part and parcel" of his official duties. Here's the money quote:

under the First Amendment, speech can be “pursuant to” a public employee's official job duties even though it is not required by, or included in, the employee's job description, or in response to a request by the employer. In particular, we conclude that Weintraub's grievance was “pursuant to” his official duties because it was “part-and-parcel of his concerns” about his ability to “properly execute his duties.”
The "part and parcel" language expands the employer's authority to regulate the speech. The standard does not just cover mandated speech but a great deal of work-related speech. As a practical matter, this means that anything of importance that a public employee might say would be unprotected under the First Amendment, precisely because the employee will most likely speak out pursuant to something she learned or observed in the course of her official duties. This could lead to strange results. In 2011, I argued an appeal in the Second Circuit, Moray v. Somers Central School District, in which the maintenance supervisor for a school district spoke out about asbestos flaking off the ceiling and onto the gymnasium floor, potentially harming students. The case was dismissed and we appealed. Hamstrung by Garcetti, but recognizing the importance of the plaintiff's speech, Judge Calabresi asked the school district's lawyer, "isn't this an absurd result?" We lost the appeal in a summary affirmance, another Garcetti casualty.

Garcetti was originally argued when Justice Sandra Day O'Connor was on the Supreme Court. When she retired from the Court in 2006, the Court ordered re-argument, a rare event probably occasioned by the departure of the Court's swing-vote. With a likely 4-4 vote on this issue, the Court wanted a full slate of judges to resolve this issue. That happened when Samuel Alito joined the Court, which then issued the 5-4 ruling in Garcetti. Alito voted with the majority, and Garcetti became the law of the land.

The problem is that Garcetti is not quite clear about what the Court was trying to do. Was the Court  re-writing First Amendment law in this area, deliberately making it more difficult for plaintiffs to win? Or was Garcetti a poorly-written ruling that was subject to interpretation, prompting lower court judges around the country to throw out cases that in years past would have made it to trial? I am going with the latter interpretation.

Two constitutional doctrines now doom most public employee speech cases. First, Garcetti, as I discuss above. The second problem is qualified immunity, which prevents plaintiffs from suing governmental officials for money damages if the law was not clearly established at the time of the incident. If the case law was not crystal clear that the defendant violated some constitutional provision, he gets the benefit of the doubt and the case is dismissed. The theory is that governmental officials are assumed to know the law but are not legal scholars and cannot anticipate how the courts will rule on a given set of facts. The reality is that many governmental officials do not really know the law and rely on their lawyers to make the qualified immunity argument. Nonetheless, qualified immunity is a true barrier to relief for many plaintiffs.

While it was issued in 2006, Garcetti continues to create a qualified immunity problem for plaintiffs. While Lee-Walker's case would probably proceed under the Silano v. Sag Harbor precedent, the Second Circuit in her case said the Silano precedent is no longer clear under Garcetti, as Lee-Walker did speak pursuant to her duties though in an academic context. Silano recognized that classroom speech is entitled to some constitutional protection. Garcetti raises some doubt about this, so Lee-Walker's case is dismissed on qualified immunity grounds. While courts do have authority to clarify the law for future purposes at the same time they find that the plaintiff in the present case does not assert the violation of his clearly-established rights, the courts rarely do this. The law governing academic speech will remain fuzzy and unenforceable for as long as the courts decline to issue a definitive ruling about what speech is protected.

I have had other cases that got lost in the Garcetti graveyard, each of them disregarding prior Second Circuit precedent. In Kiehle v. County of Cortland, the Second Circuit in 2012 held that a DSS social worker could not sue her superiors who fired her because of her courtroom testimony arising from one of her cases. While cases prior to Garcetti held that courtroom speech is sacrosanct and cannot predicate governmental retaliation (including Catletti v. Rampe, a case I argued in 2003), the Second Circuit held that her speech was unprotected under Garcetti. The Second Circuit reasoned:

as the district court concluded based on the indisputable facts, Kiehle did not testify as a private citizen on a matter of public concern at the Family Court hearing; rather, she testified as a government employee — as a DSS caseworker. "[W]hen public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline." Garcetti v. Ceballos, 547 U.S. 410, 421 (2006). Thus, the district court did not err in granting summary judgment to defendants.
We petitioned for certiorari in Kiehle, with help from the Yale Law School constitutional clinic, but the Supreme Court declined to hear the case. The Supreme Court later held in Lane v. Franks (2014) that courtroom testimony is protected under the First Amendment. Too late for Kiehle.

A few years later, I took an appeal on behalf of a public official in Nassau County who was fired after he spoke before the County Legislature. A Second Circuit case, Piesco v. City of New York, held that public workers cannot be fired over this speech, as an informed democracy requires public officials to address legislative bodies without fear of retaliation. Of course, I relied on Piesco in Williams v. County of Nassau. The Court of Appeals saw Williams' case as a clear Garcetti case and disregarded Piesco. We petitioned the Supreme Court to hear the case, enlisting legendary constitutional scholar Erwin Chemerinsky to draft the petition, but the Court declined to hear the case.

What can be done about the diminishing free speech rights of public employees? Forget about a constitutional amendment. The Constitution has been amended only three times in my lifetime, and the last time it happened was 1992 (on a non-civil rights issue having to do with congressional pay). Congress could pass a law, but that is always tricky because I don't see great sympathy among Republican congressmembers and the President for whistleblowers. Even if a law is passed, it might be targeted as unconstitutional, which is what happened when Congress in 1993 tried to overturn a restrictive Supreme Court ruling (Employment Division v. Smith) that scaled back the religious freedom rights under the Establishment Clause. Courts could find ways around Garcetti, but that is rare. The Second Circuit has had many opportunities to carve out exceptions to Garcetti but it rarely does so. The most realistic option is for courts to issue a clear statement of the law for future cases even while granting qualified immunity in a particular case. The Supreme Court says that is an option for the lower courts. So far, the lower courts are not taking the bait.

Wednesday, November 1, 2017

False arrest case proceeds to trial because of faulty identification lineup

The Court of Appeals holds that a false arrest plaintiff can take his case to the jury because the identification lineup that led to his arrest was faulty and the police arguably lacked probable cause from any other source to think the plaintiff played a role in a death at a nightclub in New York City.

The case is Dufort v. City of New York, decided on October 27. The facts are tragic no matter how you slice it. Plaintiff and his teenage friends were a club when an altercation broke out in the middle of the night. Surveillance video showed plaintiff entering the club with a metal pipe hidden in his clothing. Many people were involved in the attack. While the video shows plaintiff leaving the room when the fight began, holding the pipe, the video did not capture the fight. During the criminal investigation, a witness could not recognize plaintiff's face or other distinguishing characteristics, and she could only confirm that she had seen someone wearing a maroon sweatshirt participate in the attack. Plaintiff's sweatshirt was that color. When plaintiff was placed in the lineup (he was the only one in the lineup with the maroon sweatshirt), a witness identified plaintiff as one of the attackers; this was based solely on the color of the sweatshirt. Plaintiff was acquitted at trial.

False arrest cases cannot proceed if there was probable cause for the arrest. Probable cause presents a low threshold for the police. It amounts to less evidence than needed to convict. For this reason, most false arrest cases are thrown out on the motion for summary judgment. Not this one. There was no probable cause because the lineup procedure was defective. The witness could not recognize plaintiff's face, and she could only recognize the color of his sweatshirt as similar to that of one of the assailants. Then, during the lineup, this witness picked out plaintiff, the only one wearing a maroon sweatshirt during that procedure. As the lineup procedure substantially increased the dangers of misidentification, it was not good enough for probable cause. Without other evidence that would reasonably allow the police to think plaintiff played a role in the attack, there was no probable cause, and the case can proceed to trial.

The Court of Appeals (Walker, Livingston and Lynch) also allow the malicious prosecution claim to proceed to trial. While the defendant officers claim they cannot be sued because the prosecutor's decision to go after the plaintiff interrupts the chain of causation -- on the theory that the prosecutor's independent judgment confirms there was reason to prosecute the plaintiff -- that must be determined by the jury. The evidence suggests the DA's office pursued the prosecution after it was deliberately misled by the defendant officers. Plaintiff "has raised a triable issue of fact as to whether either the grand jury's indictment or the prosecutor's participation in his case constituted intervening causes that insulate the Defendants from liability." For these reasons, defendants cannot invoke qualified immunity as a matter of law. The Court says:

We conclude that it would be inappropriate to grant qualified immunity to these Defendants at the summary judgment stage. Dufort has established a dispute of material fact as to whether the Defendants intentionally withheld or manipulated key evidence during his arrest and prosecution. He has introduced sufficient evidence from which a reasonable jury could conclude that the Defendants placed him in a deeply defective lineup, extracted an "identification” from Park that was limited to the color of his clothing, and then withheld the suspect nature of this identification from prosecutors and the grand jury. Such a “knowing” violation of his Fourth and Fifth Amendment rights would, if proven, be enough to overcome the protection of qualified immunity. Although Dufort has not produced any direct evidence of a malicious intent on the part of the Defendants, he is not required to do so. Circumstantial evidence is generally sufficient to prove intent, and Dufort has introduced enough such evidence to survive summary judgment.

Tuesday, October 31, 2017

You can't sue the prosecutor

This case is something out of a movie. In the late 1980's business owner D'Alessandro suspected that his employee was stealing money from him. The employee alleged that D'Alessandro confined him in the basement for over 12 hours. D'Alessandro was arrested and convicted of kidnapping and related offenses. In 2010, the Appellate Division vacated the conviction because D'Alessandro's lawyer had failed to make a proper speedy trial motion prior to trial. D'Alessandro now sues the prosecutors.

The case is D'Alessandro v. City of New York, a summary order decided on October 17. D'Alessandro's case is dismissed. The first thing you need to know is that it is difficult, nearly impossible, to sue the prosecutor. Courts grant them immunity because, let's face it, they would be sued by every person they ever prosecuted. Specifically, if the prosecutor is sued over things he did as an advocate, there is no lawsuit. That includes matters the prosecutor handled while preparing for trial and trial itself. This immunity even applies if the prosecutor makes false statements during proceedings, or when he knowingly uses false testimony, deliberately withholds evidence favorable to the defendant and engages in malicious prosecution.

D'Alessandro says that defendant Morris failed to acquire a signed indictment, withheld exculpatory evidence, manufactured evidence, delayed production of grand jury minutes, etc. But since these acts took place when Morris was engaged in facts "intimately associated with the judicial phase of the criminal process," Morris is immune from suit. The same analysis applies to D'Alessandro's claim against Robert Morganthau, who was the DA at the time, and a legendary one at that.

Probably every civil rights lawyer receives phone calls from people who want to sue the prosecutor, even the judge. I tell potential clients that these cases cannot be filed (with very limited exceptions). People don't want to hear this, as the prosecutor and judge are the symbols of a system that shafted them. Of course, these immunities are judge-made doctrines. That only adds to the cynicism. Like it or not, these immunities will always be with us.

Monday, October 30, 2017

A false arrest case in the white collar world

Many of the false arrest cases in the Second Circuit involve people arrested for street-level crimes. This case is different. It examines false arrest in the context of Wall Street-style insider trading. The Court of Appeals rejects the claim and finds the federal government had probable cause to arrest a man who was wrongfully accused of insider trading.

The case is Ganek v. Liebowitz, decided on October 17. Ganek's office was raided by the FBI after the feds began investigating alleged improprieties at Ganek's investment house, known as LG. A former LG research analyst named Adonkakis cooperated with the FBI. While Adonkakis told the FBI he did not provide insider information to Ganek, the search warrant that a magistrate judge signed incorrectly said that Adondakis told Ganek about the insider information. This is how Ganek got searched. The FBI then issued a report that included this false information. In the end LG had to close down due to the bad publicity. Ganek was never indicted.

Ganek cannot sue anyone under the Fourth Amendment, and his case is dismissed. If you are not familiar with false arrest law, this case would be a no-brainer. That would be incorrect. This case is a brainer. The Court of Appeals (Raggi, Chin and Carney) says the false statement does not entitle Ganek to a false arrest lawsuit because the statement was not necessary to probable cause. The rule is that "probable cause to search exists where circumstances indicate a fair probability that contraband or evidence of a crime will be found in a particular place."

Even accepting that the FBI proceeded despite false information about Ganek, the Court says that while evidence that Ganek had knowingly traded on false information would enhance the probable cause, the absence of such knowledge would not preclude probable cause for the search, because "the warrant affidavit clearly alleges knowing insider trading by various LG employees, as well as Ganek's trading on some of the same inside information." "There was at least a fair probability to think that his office was among the LG premises where evidence of an insider trading scheme would be found."

What it all means for Ganek is that while he lost his business, he also cannot proceed with his case. The trial court denied the government's motion to dismiss on qualified immunity grounds, but since the Court of Appeals says there was probable cause to search Ganek's office, the case is closed and Ganek cannot recover any relief.

Tuesday, October 24, 2017

2d Circuit agrees to decide if courts must approve FLSA settlements under Rule 68

The Second Circuit Court of Appeals has agreed to decide whether the district court must independently review the fairness of a settlement reached under the Fair Labor Standards Act when the parties have resolved the case under Rule 68.

The case is Yu v. Hasaki Rest., decided on October 23. Under Cheeks v. Pancake House, the Second Circuit determined in 2015 that all FLSA settlements must be approved by the trial court. This holding departs from the usual practice under Title VII and other statutes, where parties settle cases on their own and the trial court is usually unaware of the terms of that settlement and simply discontinues the action. But under the FLSA, the Cheeks court held, we have to make sure the wage and hour plaintiff is properly compensated for his work, and the courts will intervene to ensure the settlement is fair, taking into account, among other things, the strength of the case and the plaintiff's potentially monetary entitlement.

But Cheeks does not resolve all questions under the FLSA. What about Rule 68 offers, where the defendant offers money and a judgment to plaintiff? These are different from the usual settlements, where the plaintiff gets money but no judgment. The catch under Rule 68 is that if plaintiff rejects the settlement but gets less money at trial, the plaintiff is penalized by having to pay defendants' post- Rule 68 costs. That means the plaintiff's lawyer does not recover attorneys' fees for all work expended post-Rule 68.

This case was resolved under Rule 68. District Judge Jesse Furman held that judicial review of an FLSA settlement is required before entry of a Rule 68 judgment. Other courts have held differently. So the trial court certified the case for immediate appeal to the Second Circuit under 28 USC 1292(b), which creates an exception to the rule that you can't appeal anything from the district court until the case is over. Section 1292(b) allows the Court of Appeals to conclusively resolve a disputed or contentious legal issue right away, which can "materially advance the ultimate termination of the litigation."

There was a glitch in this process, though. After the district court certifies the case under Section 1292(b), the plaintiff must ask the Court of Appeals to take up the appeal within 10 days of the district court's Section 1292(b) order. Plaintiff did not really do that. Instead, plaintiff filed a notice of appeal within 10 days. Plaintiff's petition to appeal to the Court of Appeals was filed outside the 10-day deadline. Since appellate deadlines are jurisdictional and do not allow for exceptions, this was a problem for plaintiff. The Second Circuit solves the problem by holding that the notice of appeal qualifies as a petition for Section 1292(b) review even without the actual petition being timely filed. That is because the district court's Section 1292(b) written order timely provided the Second Circuit with all the information in needed to determine whether the accept the appeal.

Having determined to entertain the Section1292(b) request for an interlocutory appeal, the Second Circuit (Newman, Walker and Pooler) grants the petition, noting that the Cheeks/Rule 68 dilemma has been festering in the district courts for a few years now and it's time to deal with that question head-on. This ruling does not answer that question. Rather, the parties will comply with the briefing schedule and argue the appeal sometime in 2018.

Friday, October 20, 2017

State Court of Appeals rejects expanded interpretation of New York City Human Rights Law

Every now and then the Second Circuit sends a case to the New York Court of Appeals to untangle a state law question. In this case, the Second Circuit asked the State's highest court to rule on whether the New York City Human Rights Law prohibits disciplining or firing an untreated alcoholic.

The case is Makinen v. City of New York, decided by the New York Court of Appeals on October 17. The two plaintiffs were New York City police officers. They were referred to the police department's internal counseling unit, which is like an EAP for police officers. Plaintiffs were not alcoholics, but the CSU determined that they "suffered from some sort of alcoholism." This lawsuit alleges that they suffered adverse employment actions because the City had wrongly believed they were untreated alcoholics. After the jury awarded them good money at trial, the City appealed, claiming the City Human Rights Law did not cover this form of discrimination. The Second Circuit referred the case to the New York Court of Appeals, which now holds that plaintiffs have no case because the City law does not explicitly prohibit this form of discrimination.

The Americans with Disabilities Act and the New York State Human Rights Law do prohibit discrimination where an employee is perceived to be an untreated alcoholic. The express terms of the City law do not prohibit that form of discrimination. The reason why the case got this far is that the City law was intended to provide for greater rights than federal and state law. On that basis, plaintiffs say, it is reasonable to interpret the City law to also prohibit discrimination against persons perceived as untreated alcoholics. Anyone familiar with the scope of the City law and its legislative history -- which demands that courts interpret it in the most plaintiff-friendly manner possible -- would understand where plaintiffs are coming from on this issue. Unfortunately for them, the State Court of Appeals does not see it that way, setting aside the pro-plaintiff statutory interpretation principles in favor of a plain reading of the statute, which takes priority over legislative intent under state law.

The State Court of Appeals concludes that "the [City law] does not consider a mistaken perception of alcoholism to be a disability covered by the [City law]." While the City law provides greater protections than federal and state law, and the legislative history and even portions of the statute tell courts to liberally construe the City law, the State Court of Appeals says "this is a rare case where through its express language, the City Council has mandated narrower coverage than" state or federal law.

This is not a unanimous decision. Five judges agreed with the City, and two judges dissent. Judge Garcia notes that courts must construe the City law "broadly in favor of discrimination plaintiffs whenever such a construction is reasonably possible." The State Court of Appeals said that in Albunio v. City of New York, 16 N.Y.3d 472 (2011). As Judge Garcia sees it, plaintiff's interpretation of the statute is "reasonably possible," concluding that legislative intent is the primary consideration in reviewing a statute's meaning. Under that interpretative model, plaintiffs are correct, Judge Garcia says, because the City law broadly protects against disability discrimination and the provision at issue in this case does not modify the broad definition of "disability" under the statute. This is a complex argument, but a reasonable one, the dissent says, even if the City also advances a reasonable argument. Under the statutory construction principles advanced by the City law, even if both sides advance a reasonable interpretation, the court must accept the plaintiff's interpretation. But, since the majority disagrees with Judge Garcia's analysis, the case returns to the Second Circuit, which must apply the majority's interpretation to the facts of the case. In all likelihood, the Second Circuit will vacate the jury award on the basis that the City law does not protect plaintiffs from this form of disability discrimination.   

Thursday, October 19, 2017

Retaliation claim fails under Title VII

In this retaliation case under Title VII, we learn once again what constitutes an adverse action under the civil rights laws. We also learn once again what constitutes the "oppositional" activity necessary to claim retaliation. Adverse actions are an easy call if you are fired or denied a promotion. But what about lesser job actions that can aggrieve most employees? Oppositional activity under Title VII is an easy call if you explicitly complain about discrimination. But not every issue is an easy one, which is what the courts are for.

The case is Moy v. Perez, a summary order decided on October 11. If you complain about discrimination and something bad happens to you afterwards, that opens the door to a retaliation case. In this case, plaintiff was denied a promotion in March 2011. In 2010-11, he participated in a "climate survey." The decision does not explain what this climate survey was intended to accomplish, but my guess is that employees were asked to accurately describe the workplace environment. My guess is also that he did not claim in the climate survey that he had to endure a discriminatory work environment. The Court of Appeals (Raggi, Hall and Carney) says that "insofar as Moy contends that his participation in the 2010-2011 'climate survey' constituted a protected activity, his claim fails because no complaint allegations suggest that such activity entailed opposition to a practice prohibited by Title VII."

Plaintiff also loses the case because he did not suffer an adverse employment action. Employees do not refer to bad experiences at work as adverse employment actions. That's a phrase that only lawyers and courts use. In plain English, an adverse action in retaliation claims is some response by management that would prevent the average employee from complaining about discrimination again.

Moy alleges that (1) his supervisors “micromanaged” him and subjected his work to “heightened scrutiny,” (2) he received a less positive performance evaluation than he had in past years; and (3) his supervisors did not follow several DOL protocols in bestowing that evaluation. Such treatment, “considered both separately and in the aggregate,” would not dissuade a reasonable employee from “‘making or supporting a charge of discrimination.’”
Not only did plaintiff have a positive performance evaluation in spite of the hassles he went through, but the alleged close supervision constitutes "trivial harm" that would not prevent a reasonable employee from complaining about discrimination in the future.

Wednesday, October 18, 2017

Hostile work environment claim fails -- not enough offensive comments

Plaintiff in this case says she suffered a hostile work environment because of her disability. The Second Circuit says she has no case even though she claims coworkers "constantly" made derogatory comments about her mental health.

The case is Lawson v. Avis Budget Group, a summary order decided on October 11. Plaintiff apparently does not explicitly allege in her complaint that she suffered a hostile environment. In 2007, the Second Circuit said that a hostile work environment claim can be inferred from a “complaint [that] does not explicitly allege discrimination based on a hostile work environment” but nonetheless “gives the defendant fair notice of [the] claim for hostile work environment and the grounds upon which that claim rests." That case was Kassner v. 2nd Avenue Delicatessen, 496 F.3d 229 (2d Cir. 2007). The Court of Appeals (Raggi, Sack and Carney) wonders if the Supreme Court's plausibility pleading standard under Iqbal (2009) has repudiated the reasoning in Kassner. The Circuit does not resolve that issue, because it finds that plaintiff has not adduced enough evidence of a HWE in any event.

"Although Lawson argues that her coworkers “constantly” made derogatory comments about her mental health, Appellant’s Br. 13, this argument is belied by her deposition testimony, in which she stated that she could recall only one instance of such a remark. This isolated incident is insufficiently severe to permit a rational trier of fact to find a hostile work environment." What you say in the brief is one thing, but briefs are not evidence. While plaintiff points to her summary judgment affidavit stating that she endured insults related to her mental health on a "near daily" basis for almost a year, that affidavit -- which might normally be enough to repel summary judgment -- cannot work here because it contradicts her deposition testimony.

Lawson tries to get around this by arguing that her deposition testimony discusses the one occasion in which she heard subordinates discuss her medical condition, and her affidavit addresses many instances in which she was "insulted" by coworkers. That argument can work, but the Court of Appeals rejects it based on how it reads the deposition and affidavit.

At her deposition, Lawson testified that coworkers discussing her medical condition said “like, oh, she’s unstable, stuff like that,” and were “laughing at” and “mocking” her for being “cuckoo for Cocoa Puffs.” In her affidavit, Lawson similarly stated that coworkers “laugh[ed] at” her and called her, among other derogatory names, “cuckoo for co[]coa puffs.” This belies the distinction she attempts to draw between the deposition and affidavit and supports the district court’s identification of a clear contradiction as to the frequency of harassment. Because Lawson has not provided a plausible explanation for this contradiction, her affidavit cannot create a triable issue of fact as to the existence of a hostile work environment.

Tuesday, October 17, 2017

Speculation is not enough under Title VII

The Court of Appeals sees enough employment discrimination cases to know what cases will succeed and what cases will not. A common basis for the Court to reject a case is to find that plaintiff is urging the Court to infer discriminatory or retaliatory intent based on speculation. Speculation will not cut it.

The case is Meyer v. Shulkin, a summary order issued on October 11. Plaintiff was a psychiatrist for the New Jersey Veterans' Affairs Medical Center, where her performance reviews were mixed to negative, though there was scattered praise. When she sought to work with the Veterans' Affairs Medical Center in Syracuse, she was recommended for a vacant position and they sought her personnel file from the New Jersey VA. Once the Syracuse people reviewed the personnel file, they decided to retract the offer in light of the interpersonal and performance issues described in that file. Plaintiff brought this lawsuit, claiming the real reason was that the Syracuse people learned about the  EEO complaints that she had filed in her New Jersey position. Since the employment offer was retracted, it would seem at first glance that plaintiff has a retaliation lawsuit. She does not.

The reason she does not have a case is that plaintiff cannot prove the decisionmaker, Antinelli, even knew about the EEO complaints. Any such argument is speculation, especially since the EEO complaints are not in the personnel file. The Court reasons it out this way:
no reasonable jury could find for Meyer on this issue. No rational finder of fact could conclude that Antinelli even knew about Meyer’s EEO activity when he decided to terminate her offer. Meyer’s sole pieces of evidence to support this claim are that: (1) she believes that she saw references to her EEO activity when she reviewed her OPF in preparing for litigation, and (2) she speculates that the chief of human resources at the New Jersey VA Center informed Antinelli about her EEO activity. But she offers no evidence to back up either of these claims. Antinelli swore under penalty of perjury that he was not aware of Meyer’s EEO complaints. And the record contains a “true and correct copy” of Meyer’s entire OPF. Meyer does not point to a single page in this copy that references her EEO activity, and after a thorough review we could not find such a reference. In short, Meyer’s evidence consists solely of the “unsubstantiated speculation,” and “conjecture,” that we have held do not suffice to defeat a motion for summary judgment.
Plaintiff tries to get around this reasoning by arguing that Syracuse had already known about the reviews in New Jersey and that nothing in the personnel file could have been a surprise to them, so that the EEO charges must have been the real reason for the job revocation. But not only did the personnel files not include the EEO charges, but plaintiff did not tell Syracuse about the poor marks she received for her interpersonal skills. 

Monday, October 16, 2017

Res ipsa loquitur wins plaintiff her negligence case

One of the great concepts of American tort law is res ipsa loquitur, which is Latin for "the thing speaks for itself." This point is that certain negligent acts are the result of inherent negligence, such that the very fact that a piano fell out of a 82nd floor window, or 80 jars of olive oil splattered in aisle 7 could only mean one thing, and that these unusual circumstances mean the defendant blew it and plaintiff can satisfy his prima facie case (which normally requires evidence that someone breached a duty, causing harm).

The case is Manhattan by Sail, Inc. v. Tagle, decided on October 5. Plaintiff took a ride on a sightseeing boat in New York Harbor. When the crew raises the forestaysail, they have to pull downward on a halyard and the forestaysail goes upward toward a pulley near the top of the mast. But something went wrong that day. When crewman Biggens went to do this, the halyard got unclipped, and "tugged by gravitational force toward the mast, the freed halyard pulled loose from Biggen's grip and swung back towards the mast where Tagle was seated. The clip at the end of the Halyard swung back towards the mast" and struck Tagle in the head. At trial, Biggens could not explain why this had happened. The trial court dismissed Tagle's case because she did not prove negligence.

The Court of Appeals (Leval, Sack and Raggi) reverses. Not only do they reinstate the lawsuit, but the judges order that the trial enter judgment for plaintiff as a matter of law! Here is the standard for res ipsa loquitur:

Under that doctrine, a fact‐finder may infer negligence merely from the happening of the event that caused the harm if: (1) the event is of a type that ordinarily would not occur in the absence of  negligence; (2) it is caused by an agency or instrumentality under the exclusive control of the party charged with negligence; and (3) it is not due to any voluntary action or contribution on the part of injured party. 
The Court says that res ipsa loquitur is not limited to accidents that could occur only because of negligence. Rather, the plaintiff must show the event is the kind that ordinarily does not occur in the absence of negligence. In this case, plaintiff showed that what had happened to her would ordinarily not happen without negligence. The defendant did not rebut her evidence. "While no doubt things can happen at sea that could cause an extended halyard to slip out of a seaman’s grasp without negligence, Tagle’s evidence was sufficient to show that this does not ordinarily happen without negligence." Simply put, if the workers did their job properly, this accident would not have happened. While you can blame it on the wind or some other external factor, there was no evidence of any such external force. The Court reasons:

A deckhand who carefully exercises the skills required for the seaman’s job will not ordinarily lose hold of an extended weighted halyard—all the more so when passengers are seated in the halyard’s swing‐path. Waves and wind, and the consequent shifting and rolling of the deck, are the normal conditions of the sea, in which seamen must work protecting the safety of passengers and crew. While it is no doubt true that sudden unexpected turbulence can be of such force that a seamen’s loss of control of a line could be deemed non‐negligent, there was no evidence in the record of any such abnormal circumstance that caused the halyard to slip from Biggins’s grasp. As Johnson made clear, the mere possibility that “some external force”—here, perhaps an unusual wave or gust—“might conceivably compel” a seamen to let go of a dangerous halyard is not sufficient reason to reject the application of res ipsa loquitur if this would ordinarily not happen in the absence of negligence, and there was no evidence of any such unusual external force.
Even without res ispa loqutur, plaintiff still wins, as she has established negligence without that theory. The Court says there is no other way to view the evidence, which means plaintiff wins the case.

Thursday, October 12, 2017

The inmate wins his appeal

Inmates win their civil rights cases in the Second Circuit more often than you would think. Some win their appeals pro se, which is noteworthy because they are not lawyers and face off against highly skilled state lawyers. Others win their appeal because, after handling the cases pro se in the district court, the Second Circuit assigns them counsel who know what they are doing. In this case, the inmate is represented on appeal by one of the largest law firms in New York City.

The case is Shapard v. Attea, a summary order decided on October 12. Plaintiff says the correction officers punched and kicked him and beat him with a baton, causing serious injuries that required medical treatment. He says this was in retaliation for the grievances that he filed. While the complaint asserts that prison officials found after a hearing that plaintiff had initiated the incident by assaulting an officer, the complaint does not admit nor deny this finding, though the complaint attaches documents produced in connection with the incident in which plaintiff contemporaneously denied any misconduct. He also denied any wrongdoing at his deposition. Eventually, plaintiff pleaded guilty to assault arising from the incident.

Based on that guilty plea, the district court threw plaintiff's case out the window, reasoning that under Heck v. Humphrey, 512 U.S. 477 (1994), "Shapard’s version of the facts 'clearly impl[ies] the invalidity of his assault conviction, which has not been set aside, and consequently [his claims] are
barred by Heck[.]” In other words, the guilty plea means that plaintiff is responsible for his injuries and there is no case because he had assaulted an officer. The district court concluded that plaintiff's civil rights case is undermined by the guilty plea.

The Second Circuit (Jacobs, Cabranes and Wesley) reinstates plaintiff's case. It reasons, "Shapard’s excessive force claims are not Heck‐barred because their favorable adjudication would not 'necessarily imply the invalidity'” of his prior assault conviction." In addition, "the complaint does not deny that Shapard assaulted Officer Attea. Although attachments to the complaint reflect Shapard’s previous denials, the complaint does not necessarily adopt those denials (which were made years earlier, before Shapard pleaded guilty)." Nor do Shapard’s civil rights claims depend on the invalidity of his assault conviction. His lawyer argued in the district court that "nothing in Plaintiff’s guilty plea or allocution precludes him from testifying as to what happened next, including testifying as to force used against him by the Defendants and testifying as to the injuries he sustained."

Wednesday, October 11, 2017

No First Amendment claim for teacher who objected to cheating students

The Court of Appeals holds that a professor cannot sue a public college under the First Amendment even though he suffered retaliation for refusing to allow his students to cheat. This case again illustrates the hurdles faced in presenting public employee speech claims.

The case is Bhattacharya v. SUNY Rockland Community College, a summary order decided on October 10. To prevail in a public employee speech claim, the plaintiff must show (1) he spoke on a matter of public importance and (2) he spoke out as a citizen and not as an employee. The first element (public concern) derives from a Supreme Court ruling, Connick v. Myers (1983). The second element (citizen speech) derives from another Supreme Court ruling, Garcetti v. Ceballos (2006). The idea is that the government cannot operate efficiently if employees are allowed to speak on personal or trivial matters that do not concern the public. These cases also advance the principle --- which courts love to remind us -- that courts are not "super-personnel" departments and that under the "at-will" employment principle, management can treat its employees any way that it wants to so long as it does not violate a specific legal principle.

Plaintiff spoke as an employee and not as a citizen in refusing to permit his students to cheat. This speech was "part and parcel" of his official duties, even a "core duty" as a teacher. In addition, the Court (Lohier, Droney and Rakoff [D.J.]) says, "there is no plausible allegation that the speech at issue was on a matter of public concern rather than 'calculated to redress a personal grievance' between Bhattacharya and his students."

Plaintiff offers the Court an angle that would get around Garcetti: that his speech relates to scholarship or teacher. Garcetti did decline to specifically hold that the citizen/employee speech distinction applied to public schools. The concern was academic freedom. That argument will not work here. Whatever the Supreme Court intended in staking out a possible exception for academic freedom, plaintiff's case does not implicate those concerns. While the Second Circuit has "recognized an academic freedom claim where a restriction on speech implicates the content of a teacher's lessons or restricts a school's ability to determine its curriculum," plaintiff does not allege any of that here.

Friday, October 6, 2017

Unfair treatment is not discrimination

This case drives a point home that many plaintiffs do not want to hear. If you get shafted at work, that is not necessarily a discriminatory action. The Court of Appeals feels bad about how this guy was treated, but it still finds he has no case.

The case is Williams v. New York Hospital Medical Center of Queens, decided on October 6. Williams applied for a job at the Hospital, which stopped considering his employment application after a prospective or recently hired employee racially profiled Williams and wrongly accused him of stealing her cell phone while he was waiting for his second job interview. This accusation was ultimately dropped, but along the way it "led to an escalating series of interrogations in which Williams became increasingly agitated. He ultimately was removed from the Hospital by police officers and not allowed to continue with the interview process."

In reviewing the case, the Court of Appeals (Newman, Walker and Pooler) says that "it does seem that he was badly and unfairly treated. Apparently without any evidence, Williams was accused of theft and interrogated by police. He was thrown out of the Hospital when he protested his treatment, even though he had been cleared of wrongdoing. Unfortunately, it is well known to this court that racism on the part of accuser, investigators, and bystanders may well have affected the course of events." But that is not the end of the story. Williams is suing for discrimination. There is no unfair treatment law in New York.

Even if Williams provides reason to infer that his accuser and the NYPD officers were “motivated by discriminatory intent,” "he does not provide reason to infer that the decision not to hire him derived from the same motives." The Court goes on:

The motives for accusation and unfair treatment during the investigation cannot be equated with the motives not to hire Williams, at least not on the factual allegations that Williams puts forward. Had Williams instead been late to a job interview due to a racially discriminatory police stop, we could simultaneously conclude that he had been mistreated due to his race and that he had no claim against those who decided not to hire him. Similarly here.

Thursday, October 5, 2017

No due process violation for tenured ex-City employee

We are all familiar with the concept of due process, a right embedded in the Constitution. Due process means the government cannot deprive you of a liberty or property interest without "due process," or a fair shake. That right, however, is not always vindicated in court. There are numerous defenses available to the government in these cases, including this case.

The case is Richardson v. New York Board of Education, a summary order decided on October 2. Plaintiff worked for BoE, handling special education matters. After a parent complained about plaintiff, the BoE investigated and reached adverse findings against plaintiff. By then, plaintiff had resigned her position and was placed on the Ineligible List, which means she cannot work for the BoE -- or any related vendors -- again.

Plaintiff says she was denied due process. The Court of Appeals (Livingston, Lynch and Rakoff [D.J.]) says she was not. In 1996, the Court of Appeals held in Finley v. Giacobbe, 79 F.3d 1285 (2d Cir. 1996), that public employees "cannot complain of procedural defects and omissions because she resigned before her employer took all the steps necessary to fire her,"and the resignation "makes it impossible for her to demonstrate that she would not have received the procedural protections prior to her actual firing." In other words, the public employee cannot short-circuit the process by resigning and then turn around and claim she was not given procedural rights to which she was entitled. That reasoning applies to this case.

While plaintiff says Finley is distinguishable because plaintiff was a tenured administrator and the plaintiff in Finely was an at-will employee, "nothing in Finley suggests that its reasoning was cabined to at-will employees." Plaintiff's tenure status does not affect the due process analysis.

The Second Circuit strikes down plaintiff's various other arguments. As a retired employee, plaintiff does not have a protected property interest under the Due Process Clause for purposes of finding other government employment. "Prospective government employment is not a protected property interest," the Second Circuit held in Abramson v. Pataki, 278 F.3d 93 (2d Cir. 2002). She only had an abstract need or desire for a future position. That will not cut it.

Monday, October 2, 2017

Trainspotting plaintiff cannot pursue false arrest claim

The 16 year-old plaintiff was a Westchester County train enthusiast who liked to stand by the tracks and monitor their performance. Someone reported him to the police -- if you see something say something! Upon arrival, the police saw him holding a camera with a backpack on the ground and two electronic devices (one was a scanner) were next to him. The police did not take plaintiff up on his offer to produce a letter from the MTA that allows him to do this, as they thought he might instead activate a sabotage device with his phone. He was arrested for trespass, but that charge was later dropped.

The case is Grice v. McVeigh, decided on September 29. This case represents the clash of two principles: the right to be free from false arrest without probable cause and our present-day fears of terrorism. The Court of Appeals (Jacobs and Walker) holds that the arresting officers are entitled to qualified immunity, which gives public officials the benefit of the doubt in close cases if an objective police officer would have also made the arrest. In what I see as a pattern in recent years, the Second Circuit frequently grants qualified immunity to the officers in a false arrest case, reminding us that the Supreme Court has been generous with this defense, which is "forgiving" and "protects all but the plainly incompetent or those who knowingly violate the law." An officer's bad judgement may not be enough for the plaintiff to win the case.

The Court says the officer had reasonable suspicion to stop and cuff plaintiff, either for lawful interference with a train or for trespass, as this officer had recently been trained on railroad sabotage, and someone in nearby Putnam County had recently been caught with a homemade device wrapped in black tape and a radio-controlled antenna. The officer had never previously heard of what the Court of Appeals calls "trainspotting," and he was not legally required to credit an innocent explanation, a principle that is embedded in Second Circuit case law. "It was not unreasonable for a lone officer to handcuff Grice in order to ensure that Grice could not press a detonator button on any electronic device until the tracks could be searched."

Judge Parker dissents. While he says the officer had the right to initially ask plaintiff questions, that Terry stop ripened into an arrest because plaintiff was cuffed and not free to leave. He then attacks the majority for dropping a footnote summarizing recent cell phone use by terrorists. "If a generalized fear of terrorism coupled with the possession of a cell phone is sufficient to justify an arrest, then our Fourth Amendment is in real jeopardy," as practically every American has a cellphone. Since the officer should have recognized that plaintiff was a train buff and the officers continued plaintiff's detention even after they cleared him of any threat to the railroad.

Friday, September 29, 2017

En banc court takes up Title VII and sexual orientation

The Second Circuit this week heard argument in a rare en banc proceeding, asking whether sexual orientation discrimination is a form of sex discrimination under Title VII of the Civil Rights Act of 1964. Along with Gregory Antollino, I represent the plaintiff.

The case is Zarda v. Altitude Express. The oral argument link is here. The panel decision from April 2017 is at this link. Zarda was a skydiver who was fired after he told a customer that he was gay. The lawsuit asserted claims under Title VII and the state human rights law, which explicitly prohibits discrimination on the basis of sexual orientation. The trial court dismissed the Title VII claim on the basis that the Second Circuit in 2000 held that this form of discrimination is not prohibited under Title VII. That case is Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000). The state law claim went to a jury, which rejected the claim and entered a defense verdict. The reason the Title VII issue survives is the trial court on the state law claim charged the jury under "determining factor" standard, which is more favorable to the defendant than the "motivating factor" test under Title VII.

A 13-judge panel of the Second Circuit -- all active judges plus two senior judges who sat on the panel decision -- heard argument on Sept. 26. Argument lasted two hours, with three lawyers arguing for plaintiff (including to amicus parties) and three lawyers arguing for defendant (including two amicus parties). The federal government argued both sides of the issue, with EEOC arguing for plaintiff and the Department of Justice arguing for defendant. Nearly every judge on the en banc court asked questions, and things got lively when the judges asked the Department of Justice lawyer how exactly it was determined that the federal government would oppose the plaintiff after the EEOC had already filed a brief in favor of the plaintiff.

What are the bases for claiming sexual orientation discrimination is a form of gender discrimination? As the EEOC said in an administrative ruling a few years ago, when a gay male is fired because of his sexual orientation, that's "but-for" discrimination because if the plaintiff were a female, she would not have been fired. In addition, plaintiffs have argued, sexual orientation discrimination derives from the ultimate sex stereotype: men are attracted to women and vice versa. Title VII already rejects gender stereotypes under Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). In addition, when a gay man is fired, he is being punished over his protected gender association. Other cases hold that Title VII prohibits the termination of a white man over his association with a female fiance. Defendants respond to these arguments by claiming, in part, that Congress did not have sexual orientation in mind when it enacted the Civil Rights Act of 1964 and that Congress had declined to extend protections under Title VII to gays and lesbians. We call this the "legislative inaction" argument.

The Seventh Circuit in 2017 reversed one of its prior cases in holding that Title VII prohibits sexual orientation discrimination. That case is Hively v. Ivy Tech., 853 F.3d 339 (7th Cir. 2017). The Eleventh Circuit this year stood by its older precedents that reject the new thinking. Evans v. Georga Regional Hospital, 850 F.3d 1248 (11th Cir. 2017). The Zarda Court will be the third appellate court to take up this issue since the EEOC decided in 2015 to expand Title VII protections. Someday,  this issue will reach the Supreme Court.

The New York Times covered this argument, reprinted below.

Discrimination Based on Sex Is Debated in Case of Gay Sky Diver

About seven years ago, Donald Zarda, a Long Island sky-diving instructor, shared a bit of personal information with a female student as they prepared for a jump. He was, he told the woman, “100 percent gay.”

He made the disclosure, he later explained, because the woman had seemed uncomfortable with the close physical contact. Her boyfriend was watching and a friend had been teasing her about being strapped in so tightly to another man.

After the woman’s boyfriend called the sky-diving school to complain about the encounter, Mr. Zarda was fired. He sued, setting in motion a legal case that has grown more consequential as it has worked its way through the courts over the past several years.

On Tuesday, Mr. Zarda’s firing was dissected before a panel of 13 federal appellate judges in Manhattan, who were wrestling with whether federal discrimination law provided protection for employees facing discrimination on the basis of their sexual orientation.

But the most curious division was not among the judges, but between lawyers for the federal government who, over two hours of arguments, staked out opposing positions on the reach of federal discrimination law.
A lawyer for the federal Equal Employment Opportunity Commission, Jeremy Horowitz, sided with the sky diver, arguing that federal law did prohibit employers from discriminating against employees because they are gay.

But a deputy assistant attorney general with the Justice Department, Hashim M. Mooppan, explained that, under federal law, employers were absolutely free “to regulate employees’ off-the-job sexual behavior,” meaning they could discriminate against employees for adultery, promiscuity or sexual orientation.

Even as the judges were struggling with the underlying legal question, they seemed unsure of what to make of the two government lawyers, each vigorously arguing opposite points.

The divide within the government emerged in July, when the Justice Department filed a brief in the case, breaking with the E.E.O.C. and telling the court that the commission was “not speaking for the United States.” Filed on the same day President Trump announced on Twitter that transgender people would be banned from serving in the military, the brief fueled concerns among civil rights activists that the Trump administration was trying to roll back lesbian, gay, bisexual and transgender rights secured under previous administrations.

“It’s a little awkward for us to have the federal government on both sides of a case,” one judge, Rosemary S. Pooler, noted, while other judges asked questions about how the rift had developed and whether the Justice Department had originally approved the E.E.O.C. brief. Mr. Mooppan refused to answer, saying, “I don’t believe it’s appropriate” to disclose.

Much of the debate on Tuesday afternoon, before the full United States Court of Appeals for the Second Circuit, revolved around a single word in Title VII of the 1964 Civil Rights Act, which generally prohibits employers from discriminating against employees on the basis of “race, color, religion, sex or national origin.” At issue was the word “sex,” which courts had long understood to mean it was illegal to discriminate against employees because they were male or female, or failed to conform to male or female stereotypes.
During the oral arguments on Tuesday, one judge, Reena Raggi, sounded skeptical of the more expansive reading of the law, wondering at one point what would have happened had Mr. Zarda been a lesbian rather than a gay man? If both scenarios would have resulted in a firing, “I’m having trouble understanding how that’s discrimination between men and women,” she said, as opposed to another type of discrimination that was not barred by Title VII protections.

A lawyer for Mr. Zarda, however, said that discrimination on the basis of sexual orientation inherently involved sex distinctions in a way that violated federal law.

“Sexual orientation cannot be extricated from sex, the two are one and the same,” said a lawyer for Mr. Zarda, Gregory Antollino. It was an argument that Mr. Horowitz, the E.E.O.C. lawyer developed further, explaining that “if you change the sex of the individual and the outcome would be different, that’s discrimination.” What he meant, he said, was that if Mr. Zarda had been a heterosexual female sky-diving instructor and had disclosed her sexual orientation, would she have been fired? If the answer was no, then Mr. Zarda had been the victim of sex discrimination.

Mr. Horowitz also argued that gay employees were protected under Title VII because discrimination they faced was for transgressing gender stereotypes, namely that people of one sex should be attracted to members of the opposite sex.

Mr. Mooppan, the Justice Department lawyer, dismissed the notion that sexual orientation was included in the meaning of sex, asking judges to engage in an exercise in name-calling.
If someone opposed interracial marriages, that person would be termed a racist, Mr. Mooppan said. But what about someone opposed to same sex-relationships? “You might call them a lot of things, but you would not call them a sexist,” he said.

New York state law outlaws discrimination on the basis of sexual orientation.

Mr. Zarda died in 2014 on a wingsuit BASE jumping trip in Europe. The lawsuit is being pushed forward by his sister and Bill Moore, a close friend and former partner of Mr. Zarda’s.
In a brief interview before the court hearing on Tuesday, Mr. Moore said that Mr. Zarda had been devastated when Skydive Long Island had fired him and that it led him to lose hope that he would be hired as a commercial pilot, a goal he had long been working toward. “Don always said he felt he had no purpose in the world,” Mr. Moore said. “He now has a major purpose.”

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.