Friday, June 28, 2019

Supreme Court will not second-guess partisan gerrymandering

There are two kinds of constitutional cases: those that adjudicate individual rights and those that clarify the ground rules for governance. The first category of cases usually gets more attention than the second, as more people are interested in the rights of flag burners than issues relating to the separation of powers. But the decision handed down yesterday on the constitutionality of legislative districts and gerrymandering is pretty important, because it affects who represents us in Congress.

The case is RUCHO v. Common Cause, issued on June 27. The Court decides 5-4 that the federal courts have no oversight into how state legislatures apportion congressional districts. Here's some background: each state gets a certain number of seats in Congress, depending on population. New York, California, Florida and Texas get many seats, as they are the most populous states. Wyoming, Alaska, etc. get fewer seats. Overall, there are 435 seats in the House of Representatives, and that number remains static. So the number of congressional seats for each state is a zero-sum game. What one party gets in the way of a congressional seat is taken away from the other party.

In Virginia, the state legislators who drew up the congressional district boundaries told their mapmakers they wanted more Republican seats than Democratic seats. This was pure partisanship. The Republicans then manipulated the boundaries to ensure they got more seats than the Democrats even thought he Democrats got more votes statewide than the Republicans. As Jeff Spicoli said in discussing the American Revolution, this may be bogus way to run the government. But Chief Justice Roberts said the constitutional framers did not envision any federal court oversight into this process and that they themselves futzed around with legislative districts. "To hold that legislators cannot take partisan interests into account when drawing district lines would essentially countermand the Framers' decision to entrust districting to political entities." Partisan gerrymandering, therefore, is now considered a "political question" that extends beyond the reach of federal court jurisdiction.

I don't mean to be cynical here, but the five justices who signed onto this ruling are Republicans, the same party that is now benefiting from the partisan gerrymandering. The four dissenters are Democrats, now on the losing side of this issue, even though the Democrats control the House of Representatives at the moment.

Justice Kagan dissents. She says that partisan gerrymanders deprive citizens of their right to participate equally in the political process, and that the lower courts have devised ways for the courts to resolve these issues under constitutional guidelines. She really attacks the majority's reasoning here. She concludes, "of all the times to abandon the Court's duty to declare the law, this was not the one. The practices challenged in these cases imperil our system of government. Part of the Court's role in that system is to defend its foundations. None is more important than free and fair elections. With respect but deep sadness, I dissent."

Thursday, June 27, 2019

Holocaust painting case loses on laches grounds

In 2016, Congress enacted a statute that would allow people to recover artwork and other property lost during the Holocaust era, when Jews fled Germany and the Nazi regime seized their possessions. As the statute seems to mete out justice over events that took place more than 70 years ago, and since it does not eliminate certain equitable defenses, it creates a built-in problem: when is a claim not timely or fair under the statute?

The case is Zuckerman v. Metropolitan Museum of Art, issued on June 26. The plaintiff is the great-grandniece of a German couple who sold off a priceless Picasso painting (The Actor) in order to finance their escape from Germany. The painting is reproduced below. An art dealer loaned the painting to the Museum of Modern Art in 1939, and after it changed hands a few more times, the painting was donated to the Metropolitan Museum of Art in 1952. This lawsuit seeks to have the painting returned to the heirs of the original owner, claiming the 1938 sale of the painting to finance the escape from Germany was made under duress. This case was filed in 2016, six years after the plaintiff demanded that the painting be returned.

The plaintiff loses the case on the laches theory. Laches is similar to a statute of limitations defense, but different. It says you cannot win the case if there was "unreasonable, prejudicial delay in commencing suit," where the plaintiff "has inexcusably slept on his rights so as to make a decree against the defendant unfair."

The Court of Appeals (Katzmann, Livingston and Droney) says the delay in this case was unreasonable. The original owners of the painting did not try to re-acquire the painting after they sold it in 1938. While it may have been reasonable to forego any claim to recover the painting during World War II, "it is simply not plausible that the Leffmans and their heirs would not have been able to seek replevin of the Painting prior to 2010. What is more, the Museum would suffer prejudice should this case proceed, as witnesses are dead, memories have faded and questionable hearsay will not resolve this issue. And there are no first-hand witnesses who can testify about the Museum's affirmative defenses to this case.

Tuesday, June 25, 2019

Court allows vulgar trademark to proceed under the First Amendment

A slow-moving revolution is taking place in First Amendment jurisprudence over the government's right to regulate certain forms of offensive commercial speech. This is taking place in the trademark context, so people are not noticing, but it furthers the Supreme Court's bedrock insistence that the government cannot discriminate among speakers on the basis of viewpoint.

The case is Iancu v. Brunetti, issued on June 24. Some background first: In Matal v. Tam, the Supreme Court a few years ago declared unconstitutional the Lanham Act’s ban on registering marks that “disparage” any“person[ ], living or dead.” The Lanham Act is a federal law that regulates copyrights. In that case, the Court said the government could not deny a trademark to a musical group called The Slants even thought the government believed the name was offensive to Asians. This time around, the case before the Court involves a clothing line that uses the trademark FUCT. Say it out  loud and you'll see why the government did not want to give the company a trademark. Justice Kagan notes that the brand name is “the equivalent of [the] past participle form of a well-known word of profanity.” Is that denial legal?

It is not, the 7-2 majority says. Just as the government could not deny a trademark to The Slants on the ground that the name was too offensive, then it cannot deny a trademark to FUCT on the ground that the name is "immoral or slanderous." What is "immoral or slanderous"? Let's turn to the dictionary. If you read Supreme Court rulings, you know they consult the dictionary all the time to decipher the meaning of ordinary words.  Judge Kagan writes:

The meanings of “immoral” and“scandalous” are not mysterious, but resort to some dictionaries still helps to lay bare the problem. When is expressive material “immoral”? According to a standard definition, when it is “inconsistent with rectitude, purity,or good morals”; “wicked”; or “vicious.” Webster’s New International Dictionary 1246 (2d ed. 1949). Or again, when it is “opposed to or violating morality”; or “morally evil.” Shorter Oxford English Dictionary 961 (3d ed. 1947). So the Lanham Act permits registration of marks that champion society’s sense of rectitude and morality,but not marks that denigrate those concepts. And when is such material “scandalous”? Says a typical definition, when it “giv[es] offense to the conscience or moral feel ings”; “excite[s] reprobation”; or “call[s] out condemnation.” Webster’s New International Dictionary, at 2229. Or again, when it is “shocking to the sense of truth, decency,or propriety”; “disgraceful”; “offensive”; or “disreputable.” Funk & Wagnalls New Standard Dictionary 2186 (1944).

So the Lanham Act allows registration of marks when their messages accord with, but not when their messages defy, society’s sense of decency or propriety. Put the pair of overlapping terms together and the statute, on its face, distinguishes between two opposed sets of ideas: those aligned with conventional moral standards and those hostile to them; those inducing societal nods of approval and those provoking offense and condemnation. The statute favors the former, and disfavors the latter. “Love rules”? “Always be good”? Registration follows. “Hate rules”? “Always be cruel”? Not according to the Lanham Act’s “immoral or scandalous” bar.
That's a good way to determine if the government is discriminating on the basis of viewpoint. Positive, happy trademarks are OK. Not vulgar ones that violate contemporary moral standards. The Court notes a few examples of trademarks that the government denied on the basis of these moral standards, such as those conveying approval for drug use (YOU CAN’T SPELL HEALTHCARE WITHOUT THC for pain-relief medication, MARIJUANA COLA and KO KANE for beverages). But anti-drug messages are usually approved.

Justice Sotomayor dissents in part, along with Justice Breyer. It's the rare case when Justices Kagan and Sotomayor and Breyer are on opposite ends of a Supreme Court opinion. Sotomayor writes:

The Court’s decision today will beget unfortunate results. With the Lanham Act’s scandalous-marks provision, 15 U. S. C. §1052(a), struck down as unconstitutional viewpoint discrimination, the Government will have no statutory basis to refuse (and thus no choice but to begin) registering marks containing the most vulgar, profane, or obscene words and images imaginable.

The coming rush to register such trademarks—and the Government’s immediate powerlessness to say no—is eminently avoidable. Rather than read the relevant text as the majority does, it is equally possible to read that provision’s bar on the registration of “scandalous” marks to address only obscenity, vulgarity, and profanity. Such a narrowing construction would save that duly enacted legislative text by rendering it a reasonable, viewpoint-neutral restriction on speech that is permissible in the context of a beneficial governmental initiative like the trademark-registration system. I would apply that narrowing construction to the term “scandalous” and accordingly reject petitioner Erik Brunetti’s facial challenge.

Monday, June 24, 2019

Supreme Court applies Batson to order a new trial in capital murder case

A lopsided Supreme Court majority has ordered a new trial for a criminal defendant who has already been tried six times for capital murder, ruling that the sixth trial violated the defendant's rights under the Equal Protection Clause because the prosecutor was motivated by discriminatory intent in striking a black woman from the jury. Relevant to this holding was the Court's finding that the prosecutor had a history of racially-discriminatory juror selection practices in this case.

The case is Flowers v. Mississippi, decided on June 21. The vote was 7-2. The same lead prosecutor handled all six trials. The Supreme Court says, "in the six trials combined, the State employed its peremptory challenges to strike 41 of the 42 black prospective jurors that it could have struck[.]"  At the sixth trial, the state "engaged in dramatically disparate questioning of black and white prospective jurors" and it "then struck at least one black prospective juror, . . . who was similarly situated to white prospective jurors who were not struck by the State"

Under Supreme Court precedent, the Equal Protection Clause is violated when prospective black jurors are excluded from sitting on the case because of their race. That's the Batson case, from 1986. Parties raise Batson challenges during jury selection, and when that happens, the other side has to advance a race-neutral reason for excluding the juror. The trial court's ruling on that issue is reviewed for an abuse of discretion on appeal.

The Supreme Court orders a new trial for Flowers because of the significant racial disparity in the potential jurors who were sent home. Another reason for this was the questioning during the sixth trial, when prosecutors struck Carolyn Wright, purportedly because she knew several defense witnesses and had worked at the same store where Flowers' father had worked. But, Justice Kavanaugh writes for the majority, white prospective jurors who also had relationships with members of Flowers' family were not hit with follow-up questions in order to explore the depth of those relationships.

Justice Thomas dissents. After taking apart the majority's reasoning on the Batson challenges of this case, determining that the prosecutor had race-neutral reasons for excluding the black jurors, he restates his objection to the Batson principle and says "the entire line of cases following Batson is a misguided effort to remedy a general societal wrong by using the Constitution to regulate the traditionally discretionary exercise of peremptory challenges." Thomas said this in 1998 and he says again in this case. While some Justices in the past have suggested eliminating peremptory strikes altogether, Thomas does not see it that way, as "the peremptory system has always been held essential to the fairness of trial by jury," and the basic premise for eliminating peremptory challenges, "that a juror's racial prejudices can make a trial less fair, has not become 'obsolete.'" Rather, Thomas says, the racial composition of a jury matters because racial biases, sympathies, and prejudices still exist." Under the peremptory challenge system, "the Court continues to apply a line of cases that prevents, among other things, black defendants from striking potentially hostile white jurors."

Friday, June 21, 2019

Supreme Court upholds constitutionality of war memorial cross on public property

The Supreme Court has held that a huge war memorial in the form of a cross does not violate the Establishment Clause. In the course of its ruling, the 7-2 majority adjusts its jurisprudence in the area of church-state separation.

The case is American Legion v. American Humanist Association, issued on June 20. The memorial was built in 1925 in the aftermath of World War II. This legal challenge came nearly 90 years later. If you've been following Supreme Court cases in this area over the years, you know the Court has devised a variety of tests in assessing whether certain governmental action violates the Establishment Clause. We have the Lemon test from 1971, which asks whether the display (1) has a secular purpose, (2) has a principal or primary effect that neither advances nor inhibits religion, and (3) whether it fosters an excessive governmental entanglement with religion. What the Court has learned over the years is that the Lemon test is difficult to apply in certain cases, and the Court sometimes does not invoke it all in religion cases.

The majority confirms again in this case that Lemon is not an all-purpose test, particularly when someone attacks the constitutionality of an existing memorial that has religious overtones. For starters, it is difficult if not impossible to know what the original purpose of the monument was, as the relevant witnesses died long ago and there may not be records on the issue. Also, the "message" of the monument may change over time, such as with the Statue of Liberty, which began as a monument to our relationship with France and only decades later came to be seen as a "beacon welcoming immigrants to a land of freedom," Justice Alito writes. So, the Court says, when dealing with the constitutionality of established memorials, monuments, symbols and practices, "the passage of time gives rise to a strong presumption of constitutionality." In plain English, older memorials and symbols are more likely to pass constitutional muster than new ones. This is a new concept for the Court.

That presumption can be overcome, but not in this case. The large cross is constitutional because "the image of simple wooden crosses that originally marked the graves of American soldiers killed in the war" became an image of their sacrifice, and over time, monument has acquired historical significance to the community. Finally, "it is surely relevant that the monument commemorates the death of particular individuals. It is natural and appropriate for those seeking to honor the deceased to invoke teh symbols that signify what death meant for those who are memorialized. In some circumstances, the exclusion of any such recognition would make a memorial incomplete," such as a Holocaust memorial that includes the Star of David or other symbols of Judaism.

In the end, while a cross is surely a Christian symbol, under the new standard set forth in this ruling, over the dissents of Justices Ginsburg and Sotomayor, it does not violate the Constitution.

Thursday, June 20, 2019

Supreme Court issues narrow "state action" free speech ruling

The Supreme Court has ruled that a documentary filmmaker cannot sue a community access organization under the First Amendment, determining that the defendant is not a governmental actor and therefore cannot be held liable for any constitutional violation.

The case is Manhattan Community Access Corp. v. Halleck, issued on June 17. Cable television systems regularly feature public access programming, where members of the community can put on their own productions. The State of New York requires that channels be set aside for that purpose. The Manhattan Neighborhood Network was responsible for operating the public access channels in Manhattan. When the defendant suspended Halleck from using the public access channels after people complained about her film about MNN's neglect of the Harlem community, she sued in the Southern District, which ruled against her. The Second Circuit reversed and ruled in Halleck's favor. Halleck's victory is now gone. (Halleck is a former client of mine by the way; we sued the City of Kingston in 2008 over a different free speech violation).

The 5-4 majority notes that the First Amendment only regulates governmental behavior. Private entities cannot be sued under the First Amendment. How do we know when an entity is public or private? The Court notes that private entities are held to constitutional standards when they take on a traditional governmental function. Those functions are few and far between and include running elections. Most private entitles are not "state actors," including running nursing homes, electrical service. In a nutshell, conservatives like limited state action in these cases, and liberals like broad state action. Operating public access channels on a cable system is not a traditional governmental function, Justice Kavanaugh writes for the majority, so Halleck loses the case.

In dissent, Justice Sotomayor views this case from an entirely different angle, stating that the government appointed a private organization to administer a constitutional public forum, which cannot discriminate against speech based on viewpoint. Her is how Sotomayor sums it up:

This is a case about an organization appointed by the government to administer a constitutional public forum. (It is not, as the Court suggests, about a private property owner that simply opened up its property to others.) New York City (the City) secured a property interest in public-access television channels when it granted a cable franchise to a cable company. State regulations require those public-access channels to be made open to the public on terms that render them a public forum. The City contracted out the administration of that forum to a private organization, petitioner Manhattan Community Access Corporation (MNN). By accepting that agency relationship, MNN stepped into the City’s shoes and thus qualifies as a state actor, subject to the First Amendment like any other.

Tuesday, June 18, 2019

Court of Appeals reinstates lawsuit that trial court dismissed as sanction for noncompliance

The Court of Appeals has reinstated a pro se lawsuit that the Eastern District dismissed as a sanction for the plaintiff's failure to meet certain deadlines. The Court of Appeals also lifts a $300 sanction against the plaintiff.

The case is Jefferson v. Garcia, a summary order issued on June 18. Plaintiff sued the county over police misconduct. He did not have a lawyer in the district court, which can lead to problems with pro se litigants are not versed in deadlines and probably don't realize how important it is to satisfy deadlines. The case was delayed for a multitude of reasons, including the County's own failure to meet deadlines. At some point, the County filed a motion to dismiss because plaintiff did not provide his portion of the pre-trial order, which is a complicated filing that I am sure has flummoxed many a pro se plaintiff. The magistrate judge ultimately granted everyone more time to complete the pre-trial order, but she sanctioned plaintiff 300 bucks to cover the County's cost of filing the motion in the first place. In the end, the entire case got dismissed because Jefferson was unable to pay the $300.00.

The Court of Appeals (Calabresi, Droney and Underhill [D.J.]) reinstates the case and vacates the sanction to boot. We have a five-part test in determining whether the trial court properly exercised its discretion in dismissing a case for failure to comply with a court order:

district court must weigh five factors: (1) the duration of the plaintiff’s failure to comply with the court order, (2) whether [the] plaintiff was on notice that failure to comply would result in dismissal, (3) whether the defendants are likely to be prejudiced by further delay in the proceedings, (4) a balancing of the court’s interest in managing its docket with the plaintiff’s interest in receiving a fair chance to be heard, and (5) whether the judge has adequately considered a sanction less drastic than dismissal.
Four of the five factors weigh against dismissal, the Court of Appeals says, in part because plaintiff's delays in serving his pre-trial order materials was not too long (42 days in the face of delays by everyone else, including the trial court), and while the trial court gave plaintiff multiple warnings, "the county's own noncompliance and requests for extensions undermine its claim of prejudice." Plus, the trial court did not consider the adequacy of lesser sanctions, as plaintiff was not even able to afford paying the sanction.

As for the $300.00 sanction, that is also vacated, as the Court of Appeals is not even sure under what legal authority the magistrate judge imposed it. "Instead, the sanction order stated only that the magistrate judge would not 'countenance [Jefferson’s] conduct' of waiting until the day the pretrial order was due to request an extension for filing it. The magistrate judge acted sua sponte in imposing that sanction, so the issue was not briefed or argued. Due process requires that a litigant 'must be forewarned of the authority under which sanctions are being considered, and given a chance to defend himself against specific charges.'” On top of that, "we can discern no legal authority under which the magistrate judge could have imposed the monetary sanction under the circumstances. Jefferson did not violate any rule or court order in filing a motion for extension of the deadline. Rather, the sanction order required him to reimburse the County for preparing a motion that was filed prematurely."

This is a total win for the plaintiff and a total loss for the trial court, which seemed to act without authority, maybe because, as the Second Circuit notes in a footnote, plaintiff is a serial litigant, having brought at least 19 lawsuits in the Eastern District since 1994. In any event, plaintiff will get his day in court.

Monday, June 17, 2019

Second Circuit outlines how to win (and lose) non-employment equal protection claims

In this case, the Court of Appeals tells us all we need to know about how to resolve equal protection cases when the government is accused to singling someone out in the provision of government services.

The case is Hu v. City of New York, issued on June 13. Plaintiffs are an Asian construction worker and Asian-owned companies who perform work in New York City. They claim that an Assistant Chief Inspector, Burkart, selectively enforced the building codes against plaintiffs out of anti-Asian animus, in part through a personal vendetta against Asians in general and Hu in particular. Plaintiffs claim Burkart has harassed and belittled Asian workers while constructive construction websites, and that he has singling them out for code violations, acts which have harmed the plaintiffs financially and cost them prospective customers.

Plaintiffs pursue two avenues for relief: they invoke LeClair v. Saunders, 627 F.2d 606 (2d Cir. 1980), which requires proof of disparate treatment and impermissible motivation (such as race), and Village of Willowbrook v. Olech, 528 U.S. 562 (2000), where the Supreme Court recognized "class of one" claims, which permits equal protection claims where the plaintiff is shafted by the government and others who are nearly identical to the plaintiffs' situation are left alone and not hassled. This case examines the interaction between Olech and LeClair.

These two precedents "offer distinct pathways for proving a non-class based Equal Protection violation," the Second Circuit (Jacobs, Lynch and Hall [D.J.]) says. Unlike a malice-based LeClair claim, an Olech claim does not require proof of the defendant's subjective ill-will toward the plaintiff, who can win under Olech on the basis of similarity alone. But in order to prove an Olech claim, that similarity must be almost identical to the plaintiff's situation, requiring almost a mirror-image.

Plaintiffs have made out a LeClair claim, the Second Circuit rules, reversing the district court on this issue. They argue that Burkart cited them for the same conduct (having a pool of standing water) on a job site without similarly charging a white company at the same job site. The Court says this is a close case, and discovery may show that there were meaningful distinctions among the alleged misconduct by the Asian and white companies. But for now, the plaintiffs have case, as the fact-intensive nature of the "similarly-situated" inquiry cautions against deciding whether two comparators are similarly-situated on a motion to dismiss.

Plaintiffs do not have an Olech claim, however, as none of their proffered comparators satisfy the more stringent similarly standard under that case. It looks like the allegations in the complaint are too sparse to satisfy Olech. "The Amended Complaint is silent as to a whole host of potential factors that could legitimately justify Burkart's behavior, including, inter alia, whether the white workers were engaged in the same type of work as the plaintiffs, the length of time between Burkart's visits to the 34th Avenue Jobsite, and the identity of the white workers' employer." This case reminds us just how difficult it is to win an Olech claim, or to even plead it plausibly.

Finally, plaintiffs had a plausible Section 1981 claim. These claims carry a similar burden of proof to claims under LeClair. Plaintiffs may proceed to discovery in part through allegations that Burkart has enlisted the help of other government employees by searching Department of Buildings databases to find construction firms that employ Hu, and the then inspect those worksites. It also looks like Burkart has bragged about shutting down Hu's worksites throughout the city. The complaint asserts that Burkart has been angry at Hu for years ever since Hu filed a complaint with the Department of Buildings against Hu in 2011, alleging that Burkart was enforcing the building code in a discriminatory manner.

Tuesday, June 11, 2019

Supreme Court to determine causation standard for Section 1981 discrimination cases

The Supreme Court decided on Monday morning that it will determine the scope of Section 1981, the federal statute that prohibits racial discrimination in the making of contracts. Section 1981 governs employment discrimination claims. This will be the third time in a decade the Court will take a look at the causation standard for employment discrimination cases.

The case is Comcast Corp. v. National Association of African American-Owned Media, a case out of the Ninth Circuit, which held that the statute does not require "but for" causation but "motivating factor" causation. This may seem like a meaningless distinction, but if you handle employment discrimination cases, you know exactly what this means. But-for causation means that race was the determining factor in the adverse decision, and that without consideration race, the adverse decision would never have happened. Motivating-factor means that race was one of several motives, even if the racial motive did not by itself make the difference.

The statute provides that “[a]ll persons . . . shall have the same right in every State and Territory to make and enforce contracts . . . as is enjoyed by white citizens . . . .” 42 U.S.C. § 1981(a). It further defines “make and enforce contracts” as including “the making, performance, modification, and dermination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.”

Enacted in the wake of the Civil War, Section 1981 does not articulate a causation standard. Other civil rights statutes do explicitly set forth a standard. Under Title VII's prohibition against racial, gender, national origin and religious discrimination, these characteristics cannot be a "motivating factor" in the adverse decision. We call these "mixed motive" cases. Under Title VII's antiretaliation provision, however, Congress used different language, stating that no one may suffer retaliation "because of" their protected activity under Title VII. In Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338 (2013), the Supreme Court said "because of" means determining factor, not motivating factor. The same analysis governs age discrimination claims under the Age Discrimination in Employment Act, as per the Court's ruling in Gross v. FBL Fin. Servs., Inc., 557 U.S. 167 (2009), as the ADEA also says no one may suffer discrimination "because of" their age.

 In Comcast, the Ninth Circuit went with the "motivating factor" test in Section 1981 cases, reasoning:

Section 1981 guarantees “the same right” to contract “as is enjoyed by white citizens.” 42 U.S.C. § 1981(a). This is distinctive language, quite different from the language of the ADEA and Title VII’s retaliation provision, both of which use the word “because” and therefore explicitly suggest but-for causation. Charter contends that the most natural understanding of the “same right” language is also but-for causation. We disagree and are persuaded by the reasoning of the Third Circuit in Brown v. J. Kaz, Inc., 581 F.3d 175 (3d Cir. 2009). There, albeit in dicta and without formally resolving the issue, the court reasoned that “[i]f race plays any role in a challenged decision by a defendant, the plain terms of the statutory text suggest the plaintiff has made out a prima facie case that section 1981 was violated because the plaintiff has not enjoyed ‘the same right’ as other similarly situated persons.”

If discriminatory intent plays any role in a defendant’s decision not to contract with a plaintiff, even if it is merely one factor and not the sole cause of the decision, then that plaintiff has not enjoyed the same right as a white citizen. This, we conclude, is the most natural reading of § 1981. Therefore, unlike the ADEA or Title VII’s retaliation provision, § 1981’s text permits an exception to the default but-for causation standard by virtue of “an indication to the contrary in the statute itself.”
 The certiorari petition in Comcast argues that the Ninth Circuit got it wrong and that it should have applied the common-law "but-for" test governing causation in torts cases unless Congress intended that another causation standard applies to that particular statute.

You may ask, if employment discrimination plaintiffs can bring their lawsuits under Title VII, which employs the more plaintiff-friendly "motivating-factor" test, why should it matter what the Supreme Court does under Section 1981? The answer is that (1) Section 1981 does not require any EEOC filing/administrative requirements before the plaintiff can bring a lawsuit, which requirements only prolong the case as the EEOC needs at least six months to investigate the claim, (2) the statute of limitations under Title VII is 180 or 300 days, depending on what state you live in, and Section 1981 claims carry a much longer statute of limitations; (3) unlike Title VII, plaintiffs under Section 1981 may sue employers with fewer than 15 employees; and (4) there are no caps under Section 1981 for pain and suffering, unlike Title VII.

If the Supreme Court adopts the "but-for" test for Section 1981 claims, litigants may face an anomaly: in employment discrimination cases brought under Section 1981 and Title VII, the jury may have to resolve both claims under different standards of proof, with the same evidence. How is the jury going to thread the needle? How are attorneys going to discuss this in summation? What will the jury instructions look like? 

Friday, June 7, 2019

Court of Appeals upholds national origin discrimination claim against the State of New York

The Second Circuit has upheld a jury verdict finding that a state agency discriminated against a financial analyst because of his national origin. The Court rejects the argument that the plaintiff did not produce enough evidence to support his discrimination. It also rejects the state's argument that the verdict form demonstrated jury confusion.

The case is Saber v. State of New York, a summary order issued on June 5. I helped defend the verdict on appeal. Doris G. Traub and Margaret McIntyre tried the case before Judge Schofield. I wrote about this case at these links, discussing the trial court's post-trial ruling that reduced the $2.5 million pain and suffering award to $125.000.

The state appealed from Judge Schofield's rulings, claiming plaintiff's Iranian heritage had nothing to do with its refusal to promote him, and that it did not retaliate against plaintiff with a series of adverse actions after he filed a charge of discrimination with the EEOC. The Iranian connection derives in part from the financial agency's mandate to crack down on banks that do business with Iran. Without much discussion, the Second Circuit (Lohier, Calabresi and Donnelly [D.J.]) says the trial court got it right in finding the record contains enough evidence of intentional discrimination. Some of that evidence included slurs about  Plaintiff hiding "yellow cake" in his workspace. We normally associate "yellow cake" with nuclear weapons. Iran's alleged nuclear ambitions were in the news at the time. The jury probably figured that plaintiff is a distinguished financial analyst; why should he put up with this?

The state also argued that the jury was confused because the trial court had it answer a question on the verdict form asking when it was clear plaintiff was first denied the promotion. That was actually an advisory question to help the trial court calculate lost wages. The jury's answer was October 2011, when the agency was first created. While the state said that answer made no sense because the actual decision to deny plaintiff the promotion took place afterwards, the trial court said (and the Second Circuit agreed) that October 2011 was a good answer because the jury was stating plaintiff never had a chance with the agency from the outset. Plus, this was an advisory verdict question; the answer was not binding on the court.

The trial court did award plaintiff lost wages, but the state challenged that on appeal as well, claiming the calculations ran afoul of guidelines in the state's Personnel Management Manual. The Court of Appeals deals with that argument this way: "But DFS failed to make the District Court aware of the Manual and relies on it for the first time only on appeal, and in any event the District Court had some discretion in using the salaries of comparators to determine backpay in this case." The Circuit cites Kirsch v. Fleet Street, Ltd., 148 F.3d 149, 166 (2d Cir. 1998), for the proposition that "salaries of comparators may be used to calculate backpay 'only insofar as the plaintiff lays a sufficient foundation to permit the reasonable inference that his salary would have matched…the salaries of others.”

Wednesday, June 5, 2019

Disability discrimination verdict is upheld

Appellate courts defer to the jury's credibility determinations. Whom do we believe? Whom do we disbelieve? Verdicts get appealed all the time. The Second Circuit will not upset a jury verdict unless it has a very good reason to do so. This verdict got affirmed because the Court of Appeals deferred to the jury.

The case is Presumey v. Board of Education, a summary order issued on May 30. Plaintiff was a schoolteacher. She claims the school district failed to accommodate her disability. She was a professional assistant who worked with disabled students. When she injured her shoulder at work, she requested light duty. The district told her there was no light duty assignment in her job class and it ultimately fired plaintiff on the basis that her medical condition made it impossible to perform the essential functions of her job. This language tracks the Americans with Disabilities Act, which says the employer must accommodate a disabled employee if the accommodation does not eliminate an essential job function.

At trial, the district said that the essential functions of a professional assistant include lifting, toileting and feeding students. True, plaintiff could not perform those functions, but she said they were not essential to her job. While defendant at trial put on witnesses who said these duties were essential to plaintiff's position, and that the the job description and handbook said that assistants like plaintiff have to take on these responsibilities, plaintiff controverted that evidence at trial. She noted that her students had a variety of disabilities, some of whom did not require lifting. Not all assistants had to lift and toilet the students, as "those functions were waived for certain professional assistants." Other assistants got light duty and were assigned to work with students in wheelchairs, which did not require lifting. You get the picture. Even the handbook is not controlling on this issue.

Since the trial evidence did not compel a finding that lifting and toileting students constituted an essential job requirement, the Court of Appeals (Lynch, Lohier and Cogan [D.J.]) allows the verdict to stand. That distinguishes this case from Stevens v. Rite Aid Corp., 851 F.3d 224 (2d Cir. 2017), where the Court of Appeals threw out a huge verdict in favor of a pharmacist who had needle-phobia and was therefore unable to perform an essential job duty: administering vaccines to customers.

What does this case teach us? Even if documents appear to support the defendant's case, the plaintiff can get around that if she finds the right witnesses to show that management did not always follow its light duty policies. 

Another interesting side note about the trial: it looks like plaintiff called a co-worker, Eileen Dailey, to the stand. Dailey had the same job as plaintiff but, plaintiff told the jury, Dailey did not have to do any lifting even though Dailey was disabled. Of course, if true, this argument would help plaintiff's case. Plaintiff called Dailey to the stand to refute the district's position that, despite Dailey's physical infirmities, she was in fact able to lift and toilet students. If Dailey got light duty, why not plaintiff? Plaintiff's counsel challenged the veracity of Dailey's testimony in arguing to the jury that Dailey was unable to perform these functions in light of her disabilities. The court rulings in this case are not clear on what exactly plaintiff's counsel did when Dailey was on the stand, but plaintiff testified that Dailey's left arm and leg were affected by paralysis, and the trial court ruling says Dailey had "an obvious foot drop, clearly walked with difficulty, and did not move her left arm at all." Plaintiff's counsel told the jury, "you saw with your own eyes what the truth is about that lady." It must have been uncomfortable to attack Dailey's testimony that way, but as one trial expert once said during a trial practice CLE, "trial lawyers don't go to heaven."

Monday, June 3, 2019

Title VII filing requirements are not jurisdictional

There are rules, and then there are rules. In litigation, some rules are more rock-solid than others. Some requirements must be satisfied before the case can go any further, and some rules are mandatory but the case can proceed anyway if the opposing party does not object to the oversight. This case involves these rules in the context of Title VII's requirement that the plaintiff must file a charge with the EEOC before she can litigate the case in court.

The case is Fort Bend County v. Davis, issued by the Supreme Court on June 3. If you suffer discrimination on the basis of race, gender, color, religion or national origin, you cannot go to court unless you have exhausted the EEOC filing requirements. In New York, that means you have 300 days to file with the EEOC, which then investigates the case and may try to reach a settlement. If those efforts fail, you can go to court within 90 days after the EEOC closes out the file.

The EEOC filing requirements are not difficult, but you have to set forth the basis for the alleged discrimination. In this case, plaintiff brought an EEOC charge alleging sexual harassment and retaliation for complaining about the harassment. She then tried to amend the charge to allege religious discrimination after she was fired for missing work on a Sunday and going to church instead. On the EEOC "intake questionnaire," she wrote in "religion" as the basis for the discrimination, but she did not formally amend her charge; that oversight was apparently a mistake on plaintiff's part. The employer presumably did not notice this error until late in the game, when it moved to dismiss plaintiff's charge because she did not properly complete the form.

What is the effect of Davis's failure to complete the form properly? Did the employer properly object, or was that objection waived? The courts place errors like Davis's into two piles: jurisdictional errors and claim-processing errors. Jurisdictional requirements are mandatory, and the court can dismiss the case even if the other side does not not object, or if they take forever to object. An example of this is the requirement that federal courts cannot hear claims over which they do not have subject matter jurisdiction. Claim-processing rules are also mandatory, but the objection to a bad filing can be waived.

We know that a court rule or filing requirement is jurisdictional or claim-processing by reviewing the statute. The Court says this:

While not demanding that Congress “incant magic words” to render a prescription jurisdictional, the Court has clarified that it would “leave the ball in Congress’ court”: “If the Legislature clearly states that a [prescription] count[s] as jurisdictional, then courts and litigants will be duly instructed and will not be left to wrestle with the issue[;] [b]ut when Congress does not rank a [prescription] as jurisdictional, courts should treat the restriction as nonjurisdictional in character.”
Under this standard, the EEOC filing requirement is not jurisdictional but a claim-processing rule. "Title VII’s charge-filing provisions 'speak to . . . a party’s procedural obligations.' They require complainants to submit information to the EEOC and to wait a specified period before commencing a civil action. . . . Title VII’s charge-filing requirement is a processing rule, albeit a mandatory one, not a jurisdictional prescription delineating the adjudicatory authority of courts."