Excessive force against the Rikers inmate, but no case against bystander officer or the City

In this police misconduct lawsuit, the plaintiff says that correction officers beat him in his cell while he was handcuffed after he refused their directive to pull his hands back from the slot in the cell door. Sounds like a good case. After all, this was a team of officers who entered the cell and, assuming the plaintiff had no weapon, they were able to subdue him without excessive force, right? But the case was dismissed on summary judgment and the Court of Appeals affirms. The case is over.

The case is McGrier v. City of New York, a summary order issued on February 24. The Court of Appeals (Walker, Sack and Sullivan) agrees that "there is some evidence to suggest that one or more of the individual officers applied excessive force against McGrier." So plaintiff is off to a good start. Here's the problem: he named as a defendant officer Robles and the City of New York as defendants. They are not liable.

Robles is not liable because there is no evidence to suggest he was involved in the decision to use force. While you can sue officers over their failure to protect you from the use of force effected by other officers, that only works when the officer standing by had a realistic opportunity to intervene to prevent the harm. That's the rule in Anderson v. Branen, 17 F.3d 552 (2d Cir. 1994). It does not look like Robles was in a position to stop the excessive force. That is a common issue in these cases, as the force often proceeds so quickly that the other officers could not have intervened even if they wanted to.

What about the case against New York City? If you sue the City under Section 1983, you have to show the injuries resulted from a policy or practice of excessive force. We call that Monell liability. Plaintiff's best evidence on this point is a report from the Department of Justice in 2014 that suggests there was a custom of excessive force at Rikers prior to July 2013 as to adolescent inmates. Plaintiff's assault took place in 2013. But that report does not address any pattern of excessive force against adult inmates for that time period. The Court of Appeals says that distinction means that plaintiff cannot show such a pattern against inmates like him, and the case against the City is dismissed. 

Year-old racial comment about getting rid of the "Black guy" not enough to win racial discrimination

There's the cocktail party version of a case, and then there's the courtroom version of the case. The cocktail party version makes the case out to be a slam dunk. The courtroom version sees the case dismissed on summary judgment. 

So in this case, imagine that someone tells you he was denied a promotion and that one of the decisionmakers once said that he wanted to get rid of the "Black guy" in the division "because he was making too much money." The "Black guy" the supervisor was referring to was plaintiff. At the cocktail party, the reaction would be one of outrage. But the case did not survive summary judgment, even under the New York City Human Rights Law, which favors plaintiffs.

The case is Pierre v. City of New York, a summary order issued on February 10. Plaintiff applied for two promotions. He was denied those positions; he claims the adverse decisions were motivated by racial and age discrimination. One decisionmaker made the comment about getting rid of  the "Black guy" because he was making  too much money. Even though Pierre was the "Black guy," that comment loses its evidentiary value because the decisionmaker said it one year earlier. That makes it a "stray remark" under employment discrimination jurisprudence. 

The judges at oral argument in this case focused on the "too much money" angle. It's not discriminatory to  fire someone for that reason. Plaintiff's counsel focused on the "Black guy" angle, and his client's extensive experience for the positions. But that comment took place a year earlier, and courts do not like  to second-guess discretionary managerial decisions about whom to promote when all the candidates are qualified for the position. What also hurts plaintiff's case is that management proved the successful candidates had much more experience than plaintiff, and that they were more enthusiastic about the positions than plaintiff was. And, the Court of Appeals (Chin, Calabresi and Raggi) says, plaintiff admitted during his job interview that "he did not view the position of division chief as the 'passion of his life,' instead viewing it as a launching pad for further promotion. This analysis takes care of plaintiff's federal claims.

While the Court of Appeals notes that the City Human Rights Law carries a more favorable burden of proof for plaintiffs, this case fails under the City law as well, and the Court notes that even claims under the City law may be dismissed on summary judgment. Even under the liberal standards guiding the City law, the Court says his claim under that statute fails also.

Threatening a difficult prisoner with a gun is not a clear Fourteenth Amendment violation

The public is not as familiar with qualified immunity as it should be. This immunity means that public officials, including police officers; town, village, county and state employees; and really anyone else working in government, can avoid litigation if they did not violate clearly established case-law. That immunity attaches even if the court says that, in hindsight, the defendant did in fact violate the plaintiff's rights. This gives public employees a layer of protection against lawsuits unless their civil rights violation was clear and obvious. Otherwise, case dismissed. That's what happened in this case.  

The case is Gerard v. City of New York, a summary order issued on February 10. Plaintiff was in pretrial detention when the defendant told him, pursuant to court order, to shave his beard in preparation for a police lineup. Plaintiff had to do this because he had grown the beard since his arrest and it changed his physical appearance. A shouting match followed, with some profanity for good measure. Plaintiff says the officer "took out his gun and threatened to shoot Gerard if he did not cooperate." The district court said there is no clearly-established case law holding that even a disproportionate and unreasonable show of force like this that does not involve physical contact violates the Constitution. The Court of Appeals (Walker, Wesley and Nardini) agrees and the case is over.

The Court of Appeals assumes that Detective Bia "brandished his gun and threatened to shoot Gerard when he volubly refused to comply with the court order." While "The Fourteenth Amendment’s 'Due Process Clause protects a pretrial detainee from the use of excessive force that amounts to punishment,'" and "It is clearly established that the use of deadly  force  against  an  unarmed,  non-dangerous  person  is  unconstitutional," cases also hold that verbal harassment from the police without "any appreciable injury" is not excessive force under the Constitution. Unfortunately for plaintiff, "neither the Supreme Court, nor this Court, has clearly established that a verbal threat combined with a display of a firearm, without any physical contact, constitutes excessive force, much less when it is directed at an uncooperative detainee who is loudly and profanely resisting a court order."

Plaintiff does cite Mills v. Fenger, 216 Fed. Appx. 7 (2d Cir. 2006), which states that "Circuit law could very well support a claim that a gunpoint death threat issued to a restrained and unresisting arrestee represents excessive force." That's good language for plaintiff, but the Second Circuit says it's not enough to save plaintiff's claim, as that language in Mills is non-binding dicta and the case itself is an unpublished summary order, which doesn't count for qualified immunity purposes. The Court of Appeals held in Jackler v. Byrne, 658 F.3d 225 (2d Cir. 2011), that summary orders cannot be cited in support of a qualified immunity argument.

NYC may release police disciplinary records to the public

Up until a few years ago, it was difficult if not impossible to review the disciplinary records of police officers. N.Y. Civil Rights Law section 50-a provided officers that protection. The State Legislature repealed that provision a few years ago in the wake of increased awareness of police misconduct. That legislative amendment has yielded new litigation about the scope and consequences of the Rule 50-a repeal.

The case is Uniformed Fire Officers Association v. DeBlasio, a summary order issued on February 17. The police and firefighters union opposed this legislative repeal. This litigation would scale back the scope of the new law, and, to that end, numerous amicus parties filed briefs in this case, including law enforcement entities and civil rights groups. The police argue that revealing disciplinary records, even in cases where the police were exonerated or where the complaints were deemed unfounded or unsubstantiated, would cause them irreparable harm. They sought a preliminary injunction, which the district court denied. The Court of Appeals (Leval, Lohier and Kearse) agrees with the district court. The records may be released to the public.

The police first argued that the collective bargaining agreement contains a provision that, upon an officer's request, the NYPD "will remove from the Personnel Folder investigative reports which, upon completion of the investigation are classified 'exonerated' and/or 'unfounded.'" While the contract contains that language, the City can still disclose this information to the public under the Freedom of Information Law because removing records from a personnel file does not require eliminating them from the city's records. On the basis of this reasoning, the police are not entitled to enjoin the city's decision to release the records to the public.

The police next argue that releasing unfounded or unsubstantiated complaints will cause them irreparable, or irreversible, harm even if the records will reveal the outcome of the investigation. The police argue that publicizing these records will hurt their future employment prospects. But, the Court of Appeals says, while other states have already released records like this, "the Unions have pointed to no evidence from any jurisdiction that the availability of such records resulted in harm to employment opportunities." In addition, and this may come a shock to non-lawyers, but loss of economic opportunities is not considered "irreparable harm" under preliminary injunction case law. Even financial distress is not considered irreparable harm under the precedents because, in theory, you can recoup the money later and get back on track financially. Irreparable harm usually involves the loss of constitutional freedoms or permanent damage to a historical artifact. 

I am sure the Unions argued in this case that releasing records would cause irreparable harm because it would deprive them of a property right under the Due Process Clause. But the Court of Appeals goes on to hold that the police have no such property right in diminished future employment opportunities. The Court held that in Sadallah v. City of Utica, 383 F.3d 34 (2d Cir. 2004). Continuing with its constitutional analysis, while the Union claims that releasing these records would violate the Equal Protection Clause (because other public workers will not have their disciplinary records publicized), the Court rejects that argument also, holding that "because the public has a stronger legitimate interest in the disciplinary records of law enforcement officers than in those of other public employees, the District Court correctly determined that there was a rational, nondiscriminatory basis for treating the two sets of records differently."

Junkyard in the backyard allows the police to enter the property without a warrant

Another case lost to qualified immunity. The police entered plaintiff's residential property without a warrant because they had a backyard filled with things the plaintiffs had recovered from foreclosed property and were keeping for sale. The district court allowed the case to proceed even though the police argued that qualified immunity must attach because they acted reasonably at the time and they thought the plaintiffs were operating an unsafe junkyard. The Court of Appeals (Livingston, Lynch and Cabranes) reverses, immunity attaches, and the case is over.

The case is Williams v. Galligan, a summary order issued on February 3. I know from experience that people are usually enraged when the police step foot on their property without a warrant. But as the Grateful Dead once said, "If you got a warrant, I guess your gonna come in." That lyric may be true, but what about warrantless property entries? Can't the police take the time to get a warrant in the first instance, especially when they are dealing with a possible junkyard when there is no one on the property who is in imminent danger (for which there is no time for a warrant)? 

 

The district court ruling tells us what the property looked like: "Their alleged personal property included “broken and sharp pieces of metal and wood, a rusted x-ray machine, broken household appliances and tools, various pieces of other appliances and tools, broken pieces of furniture, old car tires, pesticides, flammable oils, a dilapidated camping trailer, and miscellaneous other efuse” that occupied curbside space and space in the front, back, and side yards."

Qualified immunity protects police officers when the civil rights violation was not clearly-established at the time. We know what's clearly-established from the pre-existing case law. Plaintiff has to find a binding case from his jurisdiction that is close to his own case so that the police were on constructive notice that they were violating the Constitution. That is not as easy as it sounds. Courts want a close match in this regard, and the courts have been tightening up that standard over the years. Any plaintiffs' civil rights lawyer will tell you this. 

The police can also get immunity if they are enforcing a law that's already on the books. That's this case. Plaintiff loses this case on appeal because the town's anti-blight law allowed the police to take immediate action if conditions created an immediate danger to the health, safety and welfare of the town. The Court does not opine on the law's constitutionality but it notes the law resembles the well-established exigent exception to the Fourth Amendment that the Supreme Court has already recognized. In addition, the Court said, the warrantless entry was not clearly unlawful since a reasonable police officer could have seen the backyard as a junkyard, as they "kept a variety of unusual objects" there. 

Board of Immigration Appeals must post its unpublished rulings on the Internet

The Freedom of Information Law is more complex than you think. Not all government documents are freely available to the public. This is particularly the case under the federal FOIL law. This case asks whether the Board of Immigration Appeals must make available the many non-precedential, unpublished opinions it issues with respect to the cases that come before it. The Second Circuit says these records are covered by FOIL and they must be produced. 

The case is New York Legal Assistance Group v. Board of Immigration Appeals, issued on February 5. The BIA is like the court of appeals for immigration cases. It issues written opinions in resolving individual disputes, but many of those rulings are impossible to find because they are considered non-precedential and the Board does not make them available on its website. But immigration lawyers want to see these rulings for the same reason that federal practitioners want to see the non-precedential rulings issued by the Circuit courts. While they technically are not precedential, they do give insight into how the courts resolves these issues, and practitioners want to know about decisional patterns that are underneath the radar. Having access to these rulings makes you a better lawyer.

But this is not an easy case. The federal FOIL law has a million exceptions and wiggle room for the government to resist producing records like this. Under the law, the agency must "make available for public inspection in an electronic format final opinions ... and orders, made in the adjudication of cases." Federal courts have authority under the law to prevent the agency "from withholding agency records and to order the production of any agency records improperly withheld from the complainant." Despite this clear language, other federal circuits have ruled in favor of federal agencies with respect to its written rulings. Since the Second Circuit rules in favor of broad access to these materials, we have a circuit split that may have to be resolved by the Supreme Court. Even this case is a split verdict: the Second Circuit rules in plaintiff's favor by a 2-1 vote (Lynch and Jacobs in the majority, Park in dissent).

The critical factor for the majority in this case is that the FOIL's remedial provision requires the agency to make the documents available on the Internet. So we have a dispute about the scope of the relief available to plaintiff. While plaintiff says the documents must be posted in an "electronic reading room," the agency says they only have to be made available to the party requesting the documents. The Second Circuit sides with the plaintiff on this issue. In dissent, Judge Park writes that the remedy of posting the opinions on the BIA website is unprecedented and that the normal remedy is to simply make the documents available to the plaintiff. 

Appellate courts don't like to second-guess trial court attorneys' fees rulings in civil rights cases

Every civil rights lawyer knows about the fee-shifting statutes. Under these laws, 42 U.S.C. 1988 in particular, the prevailing plaintiff recovers his legal fees from the losing defendant. Those fees usually go to the plaintiffs lawyer, the reward that follows years of litigation without any payment on a case that posed a risk that the plaintiff might lose and the lawyer gets nothing. This case shows us how it works, and why it is difficult to challenge the district court's reasoning on an attorney's' fees motion.

The case is Ortiz v. City of New York, a summary order issued on February 1. Ortiz prevailed at trial on his excessive force claim against the police, winning $118,000 in damages. His lawyers then moved for attorneys' fees in the amount of $944,987.25, premised on more than 1,000 hours of legal work at hourly rates of $675 and $575. The trial court slashed and burned that fee application, awarding the attorneys $221,502.98 in fees, based on a uniform hourly rate of $300. Plaintiff appeals, but that effort runs into the settled principle that the trial courts have broad discretion in awarding fees because they and not the Court of Appeals saw the case from the ground floor and presumably knows if the case was efficiently handled. Plus, the appellate judges really don't want to get their hands dirty on a fee motion, with its time logs, hourly rates, and fighting among the lawyers on both sides about money, which is never a pleasant fight in any context. The Supreme Court also says fee awards should reflect "rough justice," meaning "auditing perfection" is not the goal so long as the trial court generally gets it right.

Those discretionary legal standards doom this appeal. The Second Circuit (Cabranes, Lynch, and Marrero [D.J.]) notes that one factor that district courts may consider in awarding fees is whether the case was straightforward or complex. The Second Circuit says the district court "appropriately considered the complexity of a matter because a reasonable paying client would consider the complexity of his or her case when deciding whether an attorney's proposed hourly is fair, reasonable, and commensurate with the proposed action." The appellate court will not second-guess the trial court's judgment on this issue, even if poses a hypothetical question about what a reasonable client might pay his lawyer, a model endorsed by the Court of Appeals over a decade ago in Arbor Hill v. County of Albany, 522 F.3d 182 (2d Cir. 2008). Whether that hypothetical is accurate in the real-world is another story.

What about the district court's ruling that slashed down the hours sought on the fee motion? The district court figured the total hours amounted to 38 weeks of full-time work on what the court also deemed a relatively straightforward case. These hours were excessive, the court said, and the Court of Appeals will not second-guess that judgment, either. Let's face it, that's a lot of hours. 

Plaintiff does get a small victory on this appeal. It turns out that, under the district court's calculation, $221,000 is not the correct number. The right number is $291,000. Somewhere on the trial court phase of this motion, the numbers got confused or something. So plaintiff's attorneys get an additional $70,000 in fees thanks to this appeal. That may be relatively small consolation in light of the overall fees they requested, but, hey, $70,000 is $70,000.

 

Circuit strikes down Vermont restriction against state subsidies for private religious colleges

The state of Vermont has a program that pays tuition for high school students to take courses at private colleges. The Second Circuit has ruled that the Vermont violated the Free Exercise Clause of the First Amendment in refusing to pay tuition for students to take courses at religious colleges.

The case is A.H. v. French, issued on January 15. Under Vermont law, a school district violates the state constitution by reimbursing tuition for sectarian, or religious, schools. That requirement violates the Free Exercise [of religion] Clause, the Court of Appeals (Walker and Menashi) says.

Prior Supreme Court cases have restricted how states may deny financial benefits to religious institutions when comparable secular activities may be subsidized. In Trinity Lutheran Church v Comer (2017), the Court said Missouri violated the Free Exercise Clause when it denied subsidies to religious institutions for playground resurfacing while providing that funding to nonreligious institutions. In Espinoza v. Montana Dept. of Revenue (2020), the Court said the state could not prohibit the use of scholarship funds to support sectarian schools. You can really see the trend in Supreme Court jurisprudence in this area. Forty years ago, these programs would likely have been upheld under the Free Exercise and Establishment Clauses. But the courts have changed and the Supreme Court has grown more conservative in recent times, making it more difficult for the government to restrict public moneys to religious institutions.

These recent Supreme Court cases guide the Second Circuit's reasoning in this case. The Circuit holds that while students get tuition subsidies for secular private schools, that money is denied to students who want to attend schools based on those schools' religious status. That school is thus penalized because of its religious affiliation, and the plaintiffs have the unconstitutional choice between sending their child to a religious school and foregoing the benefits or sending the student instead to a non-religious school. The Court says the state has not identified a compelling reason for this restriction. That means the plaintiffs gets a preliminary injunction that prevents the state from denying tuition benefits for that reason. 

An interesting side-note to this case. The Supreme Court said many moons ago that appellate courts must independently review the evidence in free speech cases to ensure the First Amendment is not compromised by trial courts who normally have discretion to view the facts as they see fit. The Second Circuit extends that unique rule to cases that implicate the religion clauses of the First Amendment, as well. Other Circuits have done this, and the Second Circuit does it as well.

Supreme Court strikes down California restrictions on religious worship

Covid-19 is starting to produce its own body of case law, much like Vietnam and the civil rights movement led to new doctrines in First Amendment cases more than 50 years ago. The Covid cases ask the courts when the government may clamp down on civil liberties in the interests of stopping the spread of this virus. It looks like the Supreme Court is less deferential to governmental thinking than I might have expected. The Court is now routinely striking down public assembly restrictions to the extent they restrict churchgoing and other religious activities. Like this case.

The case is South Bay United Pentecostal Church v. Newsom, issued on February 5. California is now bearing the brunt of this virus. The governor restricted churchgoing in much of the state. But other establishments may still entertain patrons and customers, like grocery stores and movie studios. California said churches are different because they attract many people from different households who sing and worship in close proximity for extended periods. 

The Supreme Court strikes down the California rules by a 6-3 vote. The Court does say the state may impose a 25% capacity at houses of worship. The Court also allows the ban on singing and chanting in church. But overall, this is a victory for the churches.

Justice Gorsuch writes the most extensive opinion in this case, which reaches the Court as an emergency motion, so there is not actual Court opinion, the normal course of action in Supreme Court cases. He agrees that stopping the spread is a compelling reason to restrict civil liberties, but that the restrictions are not narrowly-tailored, or carefully drawn, as required under the First Amendment. He says the factors cited by California are not always present in every church situation, and that there are other ways to protect the public without shutting down the churches entirely, like social distancing requirements, mask-mandates, plexiglass barriers, cleaning, etc. While the state says church brings people together for extended periods of time, the same may hold true for open establishments like shopping malls, salons, or bus terminals, Gorsuch says. What it all means is that since religious establishments are held to stricter standards than other establishments, California has violated the Free Exercise (of religion) Clause of the First Amendment. Gorsuch concludes that while "drafting narrowly tailored regulations can be difficult, . . . if Hollywood may host a studio audience or film a singing competition while not a single soul may enter California churches, synagogues, and mosques, something has gone seriously awry."

In dissent, Justice Kagan, writing for Justices Breyer and Sotomayor, says the majority is ignoring the scientific judgment of those who advised California to adopt these restrictions. She said the restrictions are neutral and not biased against religion because the religious congregation rules are the same as those guiding other large groups of people who gather for extended periods of time, like concerts, plays, movies, restaurants and bars. Since those are secular gatherings, religious activities are not being singled out.

If you are keeping score, the justices in the majority are Republican appointees, including the three justices appointed by Trump. The dissenters are Democratic appointees. 

State cannot clawback inmate's damages award to cover the costs of his incarceration

The State of Connecticut has in place certain laws that allow the state to charge inmates for the cost of incarceration and even the use of its public defenders. This case asks whether the state could recoup those costs from a Connecticut inmate's successful lawsuit against a correction officer for excessive force. The Court of Appeals rules in favor of the inmate.

The case is Williams v. Marinelli, issued on February 4. Williams won his lawsuit against Marinelli, winning $250,000 for physical injuries sustained when prison guards knowingly placed him in a cell with a gang member who beat him senseless. Williams was also awarded $50,000 in punitive damages. After Williams won the trial, the state sent approximately $142,000 of that amount to the state coffers to pay for his incarceration, sending that same amount into Williams' personal account. The state also took $48,000 from the judgment to reimburse the state for Williams' use of the public defender in his criminal case. In response, Williams filed a motion to undo these maneuvers, claiming that these clawbacks were inconsistent with Section 1983, the federal civil rights law that was intended to deter civil rights violations. The state court agreed with Williams, noting that the state law guiding these maneuvers conflicted with the purposes of Section 1983 and that the state's decision to indemnify the defendant meant that state employees had a diminished incentive to respect civil rights.

The Second Circuit (Leval, Carney and Stanceu [D.J.]) affirms, ruling in Williams' favor. The state laws at issue in this case are preempted by Section 1983 under the "conflict preemption" principle that a local law conflicts with Section 1983 when it "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." The Court of Appeals agrees that the state cannot take this money from the plaintiff's civil rights recovery because that would conflicts with the values promoted by Section 1983. The Court reasons:

Upon consideration of all the facts of this unusual case, we conclude that Connecticut's actions conflict irreconcilably with § 1983’s purpose of deterring constitutional violations. The deterrent effect of Williams's § 1983 award is eviscerated if both the constitutional tortfeasor and his employer, the State, are relieved of the bulk of the financial consequences of the violation. We conclude that the State's actions here conflict sufficiently sharply with § 1983’s goals, particularly the goal of deterring state officers from abusing prisoners in their charge in violation of their constitutional rights, to justify the district court's conclusion that the State's attempt to discharge Marinelli's judgment obligations while recouping more than half the judgment through its cost-recovery statutes is preempted by § 1983, and the judgment against Marinelli remains outstanding.

The Court is careful to note this is a fact-specific holding that does not otherwise prevent the normal operation of these clawback statutes. The Court rules in plaintiff's favor because (1) the jury found that defendant acted maliciously and recklessly and awarded punitive damages against him; (2) plaintiff suffered serious injuries; (3) the state agreed to indemnify the defendant for these damages, which means that allowing the state to recoup its incarceration costs against defendant would "substantially undermine the deterrent effect that the risk of personal liability otherwise would have on a state official"; (4) such recoupment would deprive plaintiff of at least 60% of his judgment; (5) plaintiff has a lengthy sentence, which means the cost of his incarceration is high, thus "inform[ing] corrections officers from the day of his imprisonment that the risk of suit against them is diminished by the likelihood that any recovery achieved by the prisoner can be very substantially reduced by the State's cost recovery; and (6) the recoupment for incarceration and public defender debts "apply broadly to a significant portion of the inmate population (or, in the case of the cost of incarceration statutes, apparently all of that population), making it easier for officials to know ex ante that prisoners’ civil recoveries will likely be reduced by operation of the Connecticut cost-recovery statutes."

This is the second ruling from the Court of Appeals in 10 days that favors an inmate at Northern Correctional Facility in Connecticut. On January 27, the Court of Appeals reinstated a jury verdict in favor of an inmate who was awarded $750,000 in damages for the denial of exercise under the Eighth Amendment, a case that I argued. Read all about that case at this link.

Upon consideration of all the facts of this unusual case, we conclude that Connecticut's actions conflict irreconcilably with § 1983’s purpose of deterring constitutional violations. The deterrent effect of Williams's § 1983 award is eviscerated if both the constitutional tortfeasor and his employer, the State, are relieved of the bulk of the financial consequences of the violation. We conclude that the State's actions here conflict sufficiently sharply with § 1983’s goals, particularly the goal of deterring state officers from abusing prisoners in their charge in violation of their constitutional rights, to justify the district court's conclusion that the State's attempt to discharge Marinelli's judgment obligations while recouping more than half the judgment through its cost-recovery statutes is preempted by § 1983, and the judgment against Marinelli remains outstanding.

Williams v. Marinelli, No. 18-1263, 2021 WL 377791, at *9 (2d Cir. Feb. 4, 2021)

Upon consideration of all the facts of this unusual case, we conclude that Connecticut's actions conflict irreconcilably with § 1983’s purpose of deterring constitutional violations. The deterrent effect of Williams's § 1983 award is eviscerated if both the constitutional tortfeasor and his employer, the State, are relieved of the bulk of the financial consequences of the violation. We conclude that the State's actions here conflict sufficiently sharply with § 1983’s goals, particularly the goal of deterring state officers from abusing prisoners in their charge in violation of their constitutional rights, to justify the district court's conclusion that the State's attempt to discharge Marinelli's judgment obligations while recouping more than half the judgment through its cost-recovery statutes is preempted by § 1983, and the judgment against Marinelli remains outstanding.

Williams v. Marinelli, No. 18-1263, 2021 WL 377791, at *9 (2d Cir. Feb. 4, 2021)

 

Appeals Panel, Reversing Major Damages Reductions, Says Ex-Montefiore Employee Entitled to $2.5M

"Under these uniquely abhorrent circumstances, the [damages] awards were reduced to levels that were disproportionately low," the Appellate Division, First Department wrote in a decision that reverses a series of damages-reductions ordered by a Bronx Supreme Court judge.

By Jason Grant | New York Law Journal  February 03, 2021 at 02:48 PM

Montefiore Medical Center/courtesy photo

In an expansive decision reversing a Bronx Supreme Court judge, a state appeals court has reinstated a jury-trial finding that a former Montefiore Medical Center employee was battered on the job with a telephone handset. The panel also has tossed aside the judge’s major reduction of the jury’s $6 million total damages verdict to $523,805, deciding instead that she can take home $2.5 million, if she chooses, and the panel ruled that the employee is due a new trial on her gender discrimination claims and prayer for punitive damages.

The Appellate Division, First Department ruled that plaintiff Blanca Madrigal, who’d alleged she was subjected at Montefiore to years of vulgar ethnic slurs, demeaning assignments, sexual harassment and the battery with handset, can accept $2.5 million in damages for the jury’s awards to her for battery, hostile work environment emotional distress, and mental anguish caused by retaliatory termination of her employment. And she’d receive the trial court judge’s reduced verdict amount of $123,805 for lost wages.

Or Madrigal can have a new damages trial on those various claims, wrote the First Department panel in its decision.

Madrigal has 30 days to decide which route she takes: the $2.5 million or the new trial on the claims, according to the panel. Efforts to reach her lawyer, Stephen Bergstein of Bergstein & Ullrich, to see if an early decision had been made by him and Madrigal regarding the choice, were not successful.

Richard Reice, a Michelman & Robinson partner in Manhattan, who represented Montefiore and other defendants in the appeal, also couldn’t be immediately reached.

According to the directly stated, yet still lengthy, First Department ruling, Madrigal will get a new trial on tossed-out gender discrimination claims and regarding punitive damages, regardless of her decision pertaining to her clams for battery, hostile work environment and retaliatory termination.

After the trial, which ended in December 2019, Bronx Supreme Court Justice Howard Sherman had granted the motion of Montefiore, a major hospital center based in the Bronx, and its co-defendants to set aside the jury’s verdict to the extent it found that an individual defendant had committed the common-law battery against Madrigal, according to the panel’s decision issued Tuesday.

But the unanimous First Department panel, citing Rodriguez v. New York City Tr. Auth., among other cases, wrote in the opinion, “The evidence at trial supports the [jury’s] verdict for plaintiff [Madrigal] on her claim for common-law battery based on an incident in which the jury found that [a] defendant … struck plaintiff with a telephone handset, and that verdict is not against the weight of the evidence.”

The panel, composed of Justices Sallie Manzanet-Daniels, Barbara Kapnick, Angela Mazzarelli and Peter Moulton, also noted that “evidence [in the case] supports the [jury's] verdict that defendants created a hostile work environment in violation of the [New York] State and City HRL [Human Rights Laws] by subjecting [Madrigal] to a years-long onslaught of vulgar ethnic slurs, accompanied by demeaning work assignments not given to others.”

(It was unclear from the opinion what job role Madrigal worked in while at Montefiore, and most defendant names, other than Montefiore’s, were not stated in the opinion. Efforts to locate and obtain underlying lawsuit records were unsuccessful.)

The panel also noted that “trial evidence amply supports” the jury’s verdict on Madrigal’s retaliation claim. It wrote that she “engaged in protected activity by repeatedly complaining to her employer that supervisors were discriminating against her, and, indeed, by commencing the instant action,” and that the “defendants admit, they terminated her because of her repeated complaints.”

In explaining some its numerous reversals—or modifications, in the justices’ language—of Sherman’s reductions of far higher jury damages awards, the panel wrote that Sherman had “erred” in severely cutting the jury’s awards for compensatory damages for pain and suffering tied to Madrigal’s hostile work environment and retaliation claims.

“The jury heard evidence of a years long campaign of physical and emotional abuse against [Madrigal] by her colleagues and supervisors that was willfully ignored by her employer,” wrote the justices. “This environment caused [Madrigal] to suffer panic attacks and anxiety, with physical symptoms including sleeplessness, shortness of breath, and chest pain, necessitating several visits to the emergency room over the course of several years. [Madrigal's] doctor prescribed her sleep and anti-anxiety medicine, the latter of which she still takes. The termination caused her to sink into depression, from which she still had not recovered by the time of the trial years afterward.”

“Under these uniquely abhorrent circumstances,” the panel continued, “the awards were reduced to levels that were disproportionately low.”

The jury had awarded $1.5 million in damages for hostile work environment distress and $2.1 million for her employment-termination anguish, noted the justices. After the verdict, Sherman reduced those awards to $250,000 and $150,000, respectively, though, in regard to all of the damage reductions he made, Sherman gave Madrigal the option of having a new damages trial if she didn’t stipulate to reduced amounts he put forward.

Instead, she and her counsel at Bergstein & Ullrich in New Paltz, appealed Sherman’s post-verdict rulings.

In regard to Madrigal’s claim of gender discrimination and sexual harassment, which Sherman had dismissed using a directed verdict, meaning he’d decided there was no legally sufficient evidentiary basis for the jury to support the claim, the panel disagreed with the directed verdict ordered a new trial for the claim.

Madrigral’s testimony that “defendant Frantz Terlonge lewdly suggested that she sit on his lap, and that a few days later, while [she] was reaching into the breakroom refrigerator, he approached her from behind, wedged himself against her, and rubbed his penis against her backside, amply supported her claim of sexual harassment and gender discrimination,” the justices wrote.

“In addition,” wrote the justices, “the evidence spoke to the presence of a sustained campaign of malicious discrimination, as well as a painful and humiliating battery, which collectively amounted to a ‘conscious disregard of the rights of others or conduct so reckless as to amount to such disregard,’” quoting Chauca v. Abraham.

Accordingly, the justices said, Madrigal “should have had an opportunity to present her claim for punitive damages to the jury.”

Appellate Division awards discrimination plaintiff $2.5 million in damages

The Appellate Division, First, Department has upheld a racial discrimination verdict, determining that the plaintiff is entitled to a total of $2.5 million for pain and suffering resulting from the hostile work environment, retaliatory termination for complaining about the harassment, and a civil battery that took place at work.

The case is Madrigal v. Montefiore Hospital, issued on February 2. I handled the appeal. Ian Wallace, Esq., of New York City, tried the case solo.

Plaintiff worked at Montefiore in the blood bank, where she claims two supervisors subjected her to horrible racial epithets over the course of several years. One supervisor attacked her with a land-line telephone, and she was also sexually harassed. Plaintiff was ultimately fired after complaining about the discrimination and filing a lawsuit over the harassment.

While the case was filed in 2010, the case went to trial in 2017. The defendant fought this case tooth-and-nail. A Bronx jury awarded plaintiff $1.5 million for pain and suffering on the hostile work environment, $2.1 million for pain and suffering for the retaliatory termination, $1.585 million on the battery, and $824,000 in lost wages. During trial, the trial court dismissed the sexual harassment claim on directed verdict and denied plaintiff a punitive damages charge.

On post-trial motions, the trial judge upheld the racial harassment and retaliation verdicts but reduced the damages to $250,000 on the harassment and $150,000 on retaliation. The trial judge vacated the battery verdict in its entirety for lack of sufficient evidence. The judge also reduced the lost wages from $824,000 to $123,000. Both sides appealed from all rulings.

On appeal, the First Department:

(1) upheld the HWE liability verdict, awarding plaintiff $750,000 in pain and suffering;

(2) upheld the retaliation liability verdict, awarding plaintiff $1 million in pain and suffering;

(3) reinstated the battery verdict, awarding plaintiff $750,000 in pain and suffering resulting from being attacked by a supervisor (who had previously taunted her with racial insults) with a telephone, sending her to the emergency room;

(4) reinstated the sexual harassment claim and remanded it for trial, reasoning that a co-worker who sat on her lap and rubbed his penis against her discriminated on the basis of gender; and

(5) reinstated the punitive damages claim on the City HRL and battery claims, remanding that damages claim for trial.

 The $123,000 for lost wages stands.

Plaintiff's pain and suffering was extensive, including hospital treatment and medication, along with corroboration from her family. There was also corroboration on the hostile work environment. On damages, the Appellate Division said plaintiff endured "uniquely abhorrent circumstances." Still, this reasoning is useful for other cases, including mediation and settlement demands. Defendant tried to argue through its expert that Plaintiff was delusional and narcissistic.

Trial judges often reduce large jury awards post-trial. That's what happened here. Few discrimination verdicts produce seven-figure awards, and the trial judge took a narrow view of the permissible damages awards authorized under the civil rights laws. The First Department did not reinstate the original jury award, but it did leave plaintiff with $2.5 million, one of the larger damages awards I've seen in this area. 

Court of Appeals reinstates inmate verdict on exercise-denial claim

Inmates have rights, too. Not the rights that we have, but courts over the years have set forth certain rights for them, including the right to exercise. This case tells us all about it.

The case is Edwards v. Quiros, issued on January 27. I argued this appeal. Christopher Licari, Esq., tried the case pro bono. I first wrote about this case at this link, discussing the Court of Appeals' finding that the defendant prison warden was personally liable for the exercise violation because circumstantial evidence allowed the jury to find that he knew for six months that plaintiff was denied proper exercise when he was placed in the exercise yard in full body restraints and was therefore unable to even walk around. 

The defendant did not just argue that he was personally unaware of the Eighth Amendment violation. He also argued that there was no Eighth Amendment violation. The Court of Appeals disagrees with the warden and finds the trial court improperly took the verdict away from plaintiff, who was awarded $750,000 in damages. 

The Eighth Amendment prohibits cruel and unusual punishment. The courts have held that this amendment requires prison officials to allow inmates to exercise. The analysis asks whether the rights violation was serious enough to deprive the inmate of the "minimal civilized measure of life's necessitates." We then then ask if the defendant subjectively acted with deliberate indifference to the plaintiff's rights. The Supreme Court created this two-part test because the Eighth Amendment provides no guidance in solving individual cases. 

The subjective part of the equation is discussed in this blog post. The warden knew that plaintiff was not getting enough exercise. But what about the objective test? There was no dispute that plaintiff was not able to move around much while in the outside exercise pen. The warden argues there is no case because plaintiff was able to exercise in his cell, and the jail had safety justifications for preventing plaintiff from exercising in more secure outside exercise pens where he could work out without body restraints. But the jury was able to reject that, the Court of Appeals (Walker, Katzmann and Wesley) says.

First, the availability of in-cell exercise is not enough because the under the totality of the circumstances, the cell was too small for real exercise, and the jury was therefore able to find that plaintiff was denied meaningful exercise opportunities. Standing around and breathing fresh air is not exercise under the Eighth Amendment. As for the safety justifications, defendant argued that prison security and plaintiff's disciplinary history made it impossible to transport him to other exercise areas. But the jury was able to reject those justifications because the record shows that, in practice, prison guards did not even use all of their safety measures in taking plaintiff out of his cell. The jury was also able to find that jail officials did not seriously consider ways to make the less secure exercise pens, where plaintiff exercised, more secure. 

Court of Appeals reinstates inmate rights verdict

The jury in this case found that the prison warden had denied an inmate his Eighth Amendment rights in knowingly allowing him to "exercise" in full body restraints for six months such that the inmate was not able to exercise at all. The trial judge had vacated the verdict, the Court of Appeals brings it back, determining the jury had a basis to find the warden was aware of the civil rights violation.

The case is Edwards v. Quiros, issued on January 27. I briefed and argued the appeal. The plaintiff is in a maximum security prison in Connecticut. Case law holds that inmates have the right under the Eighth Amendment (which prohibits cruel and unusual punishment) to exercise, including outdoor exercise. The prison does have exercise yards that allow high-security inmates to exercise outside without restraints, but that part of the prison was overcrowded, so plaintiff was in a different unit, whose exercise yards did not have the infrastructure (trap doors, etc.) that allowed the guards to safely remove the restraints so the inmate could go about his exercise routine, usually walking or jogging.

At trial, the warden said he did not know about plaintiff's restricted exercise for the duration of the six-month period in which plaintiff was standing around the exercise yard without movement. The warden said he only knew for eight days, which is not long enough to hold him liable for a constitutional violation. The warden said once he found out about plaintiff's exercise situation (which happened when plaintiff sent him a written grievance), he took action to permit plaintiff additional exercise. The jury, however, found the warden liable and awarded plaintiff $500,000 for pain and suffering and $250,000 in punitive damages.

The trial judge rejected the verdict post-trial, holding that the warden did not have sufficient personal knowledge of the rights violation to hold him liable. The Court of Appeals (Walker, Wesley and Katzmann) reinstates the verdict, holding that circumstantial evidence supports the jury's finding that the warden must have known all along what was going on. This evidence includes the fact that the warden knew that inmates in the overflow section of the jail were not able to fully exercise because that portion of the jail did not have the high-security infrastructure necessary to make that happen, and that the warden boasted at trial that he was the eyes and ears of the facility and paid close attention to what going on at the jail, in part through surveillance cameras. In sum, the Court of Appeals says,

Quiros  presented  himself  to  the  jury  as  a  hands-on warden who kept close tabs on the inmates on restrictive status under his purview. The jury was entitled to credit Quiros’s testimony in those respects and infer that in fact he did know that Edwards was in Unit Three, exercising in full restraints, until his transfer to AS Phase II status. We therefore respectfully find that the district court erred by drawing inferences against the verdict  and   by  discrediting Quiros’s own testimony when it found that no evidence supported Quiros’s knowledge of Edwards’s recreation status prior to March 8, 2011, the date he received Edwards’s inmate request form.

In a follow-up post, I will talk about the merits of the case and why the Court of Appeals also found that plaintiff's rights were in fact violated. The oral argument is at this link. News coverage on the case is at this link.

 

Female basketball referee was not an "employee" and can't sue under Title VII for sex discrimination

One barrier to winning a Title VII employment discrimination case is proving that you were an actual "employee" of the company that discriminated against you. This may be an easy call for most plaintiffs, but under Title VII, independent contractors are not entitled to any relief under Title VII because they are not employees. That is what happened here.

The case is Girard v. International Association of Approved Basketball Officials, a summary order issued on January 22. Plaintiff was a female middle and high school basketball referee who claims the Association's subjective methods for assessing referees resulted in her assignments to less lucrative sub-varsity games. Most of the referees are men. When plaintiff complained about this gender discrimination, she suffered retaliation in the form of a reduction in the number of games she was assigned to. 

While plaintiff sues the International Association and the School Board in Connecticut where she worked, the problem is that plaintiff was not an employee of either entity. She claims the employers are "employment agencies" and may therefore be sued under Title VII.The Court says that, for plaintiff to prevail, she must "plausibly plead an employer-employee relationship with the schools for defendants to have acted as employment agencies." She cannot prove that, and the Court finds she was instead an independent contractor. Under the multi-part test that court have devised in determining whether an employee is an employee or contractor, we consider the following:

[1] the hiring party's right to control the manner and means by which the product is accomplished . . . . [;] [2] the skill required; [3] the source of the instrumentalities and tools; [4] the location of the work; [5] the duration of the relationship between the parties; [6] whether the hiring party has the right to assign additional projects to the hired party; [7] the extent of the hired party's discretion over when and how long to work; [8] the method of payment; [9] the hired party's role in hiring and paying assistants; [10] whether the work is part of the regular business of the hiring party; [11] whether the hiring party is in business; [12] the provision of employee benefits; and [13] the tax treatment of the hired party.

The Court of Appeals cites Gulino v. N.Y. State Educ. Dept, 460 F.3d 361 (2d Cir,. 2006), for these factors. This may seem too complicated, but the ultimate question in these cases is the degree of control the defendant had over the plaintiff's employment. Normally, the "control" factor makes things a little easier, but this case identifies another wrinkle in the analysis: whether the plaintiff was hired in the first instance. "In determining whether a person has been 'hired,' we look primarily to 'whether [a plaintiff] has received direct or indirect remuneration from the alleged employer.'" The Court cites Gulino for that proposition as well.

While plaintiff on this Rule 12(b)(6) motion "clears the renumeration hurdle with respect to the schools because she alleges that the schools, school districts and league of schools pay her on a per-game basis," she cannot show, even on the face of her complaint, that the Association had the necessary control over her employment, among other things. The Court says:

Girard has not plausibly alleged that she was an employee of the schools in her capacity as a referee. She does not allege that the schools exercised meaningful control over how games are officiated.  She also fails to allege the duration of the relationship between a referee and a school. While the complaint alleges that Girard refereed a total of 37 games in the 2008–2009 season, the complaint does not indicate whether she  did so for the same or different schools or whether she refereed for the same school on more than one occasion or whether she had a relationship with any school that would suggest an employer-employee relationship. And Girard does not allege she received any employment benefits
from the schools other than pay for games she officiated. As the district court observed, these facts do not distinguish Girard's relationship with the schools from that of an independent contractor where the schools otherwise lack the right or ability to control how the services are performed.

No damages claim for inmate who remained in jail after his release date

This case tells us something about qualified immunity. The Court of Appeals finds that an inmates Eighth Amendment rights were violated because he remained incarcerated beyond his release date. But the Court also finds that the defendant cannot be sued because the inmate's rights were not clearly established at the time.

The case is Hurd v. Fredenburgh, issued on January 12. Plaintiff was sentenced for various misdemeanors. A complex formula governs prison sentences, taking into account concurrent sentences and possible early release depending on whether the inmate served time on the charge while awaiting trial. Inmates may also be eligible for "good time," which allows for early release for good behavior. In this case, even after plaintiff got a release date for April 19, 2016, he remained incarcerated for nearly a year. Plaintiff claims that prison officials reduced his jail-time credit to prevent his release. The Court of Appeals notes that plaintiff did not provide a motive for this.

The district court dismissed the case, holding that plaintiff did not identify an Eighth Amendment violation. The Court of Appeals disagrees. "Unauthorized detention of just one day past an inmate's mandatory release date qualifies as a harm of constitutional magnitude under the first prong of the Eighth Amendment analysis. Hurd's unauthorized imprisonment for almost one year certainly qualifies under that standard." This is because Hurd's release was mandatory under New York law. So why doesn't Hurd win the appeal?

Hurd loses on qualified immunity grounds, which lets government defendants off the hook if they do not violate clearly-established case law that specifically held their actions were illegal. The Court begins is analysis by noting that if prolonged detention in jail results from mistakes made in good faith, mistake, or processing or other administrative delays made in good faith, then there is no deliberate indifference under the Eighth Amendment. After pausing to consider (1) the defendant in this case was deliberately indifferent to Hurd's rights or whether she was powerless to do anything about it (since the City made the calculations), or (2) whether there was a due process liberty-interest violation, the Second Circuit holds that she is entitled to qualified immunity"it was not clearly established during the period of Hurd's prolonged detention that an inmate suffers harm of a constitutional magnitude under the Eighth Amendment when they are imprisoned past their mandatory conditional release date, nor was it clearly established that an inmate has a liberty interest in mandatory conditional release protected by the Fourteenth Amendment's substantive due process clause." 

Plaintiff tried to get around the qualified immunity hurdle by arguing that existing cases "confirm a uniform legal principle that no federal, state, or local authority can keep an inmate detained past the expiration of the sentence imposed on them." But those case provide a general rule. "None of the cases upon which Hurd relies addresses a conditional release scheme, let alone one in which an inmate is entitled to mandatory release prior to the expiration of their maximum sentence. More to the point, none of them confirm that prolonging an inmate's detention past their conditional release date might violate the inmate's rights under the Eighth Amendment."

Court of Appeals revives inmate's due process claim

This case has been kicking around forever. The plaintiff-inmate claims that prison officials retaliated against him for speaking out against the prison grievance system. The retaliation took the form of contraband planted in his cell. He also has a due process claim that relates to the retaliation claim. After the district court dismissed the case prior to trial, the Court of Appeals reinstated it, and the plaintiff lost the retaliation claim at trial. The case returns to the Second Circuit, which affirms the jury verdict but remands the case to the district court again, this time in finding the plaintiff has a due process claim that the district court had overlooked.

The case is Kotler v. Jubert, issued on January 19. In this appeal, we have some procedural issues that would mostly be of interest to federal practitioners, but they should also interest anyone who marvels at how slowly the system of justice mete out justice. For the practitioners, though, this case clarifies (1) what the party must do when an opposing party dies during litigation, and (2) when a party has abandoned a claim on appeal such that the district court may ignore that claim on remand. Our plaintiff here wins on the second issue but loses on the first.

Issue 1: when the Jail Superintendent died mid-litigation, plaintiff did not move the district court to name the estate's executor as the defendant. Under the rules, when a party dies, the decedent's attorney lets the other side know about it, and the latter party has 90 days to make that motion. If that motion is not made within 90 days, the case against that "defendant" is dismissed. Plaintiff says that deadline does not really count because the Superintendent's attorney did not let him know who the estate's executor was. Plus plaintiff notes that inmates are sometimes given a break in complying with the procedural rules. Not this case. The Court of Appeals (Pooler, Lohier, and Nardini) says this rule applies across-the-board, even for inmates, and that there is no requirement that the Superintendent's attorney identify the executor. If plaintiff needed more time to make that motion in order to identify the executor, he could have done so, but he did not, the Court observes. While a case from 1969 out of the D.C. Circuit might support plaintiff's position, the Second Circuit declines to follow that case, Rende v. Kay, 415 F.2d 983 (D.C. Cir. 1969).

Issue 2: when the district court originally dismissed plaintiff's case in its entirety, he went to the Court of Appeals, which to get it reinstated. One of plaintiff's claims was a due process action, which was premised in part on his retaliation claim. The Court of Appeals remanded the case back to the district court, specifically addressing the retaliation claim but not affirming the dismissal of the due process claim either. The due process was sort of impliedly revived on appeal. But the district court overlooked that implied ruling and said the due process claim was gone for good because plaintiff had abandoned it on appeal. The Second Circuit, in this second appeal, says the due process claim never actually died and that plaintiff did not actually abandon it. Although plaintiff focused on the retaliation claim during the first appeal, he noted that his due process claim was related to the retaliation claim. And when the Court of Appeals in the first appeal reinstated the retaliation claim, it vacated the entire district court judgment, which necessarily included the due process claim. So while the jury rejected the retaliation claim on remand, it will now take up the due process claim on the second remand.

Circuit forecloses post-trial appeals from summary judgment denials

The Second Circuit has conclusively ruled that you cannot appeal an order denying summary judgment when the case proceeds to trial. This issue may be of no interest to lawyers, but federal practitioners will take note the summary judgment denials are mere interlocutory orders for which a subsequent appeal is improper.

The case is Omega SA v. 375 Canal, LLC, issued on January 6. This a trademark infringement case in which a $1.1 judgment was entered following trial, after the jury found that counterfeit watches were being sold at defendant's property. Prior to trial, defendant moved for summary judgment, claiming the evidence did not support the plaintiff's claim as a matter of law. That motion was denied, and the case proceeded to trial. Post trial, defendant argues in part that the case never should have gone to trial because it was entitled to summary judgment.

This issue would never arise in state court, because under the state system, you can appeal any ruling by a judge at the time she issues the ruling. So you can have multiple appeals at the same time in the same case. This is one reason why the state appellate courts have a huge backlog. But in federal court, there is only one appeal per case, when the judgment is entered. That appeal can encompass issues that the district court resolved prior to entry of judgment, such as when a few claims are dismissed on the summary judgment motion and the case proceeds to trial on the remaining issues. In that scenario, the plaintiff can appeal the summary judgment order that dismissed the claims, even if that order issued a year ago.

Defendant in this case wants to appeal the district court's order denying summary judgment on the case. That procedural tactic was foreclosed by the Supreme Court in Ortiz v. Jordan, 562 U.S. 180 (2011), the Second Circuit (Menashi, Raggi and Lohier) says. In Ortiz, the Court said a party cannot "appeal an order denying summary judgment after a full trial on the merits." Such an order, Ortiz said, "retains its interlocutory character," which in plain English means it cannot be appealed because no final judgment has entered on that order.

The Second Circuit explains that "a motion for summary judgment does not preserve an issue for appellate review of a final judgment entered after trial because 'once the case proceeds to trial, the full record developed in court supersedes the record existing at the time of the summary judgment motion.'" That language derives from Ortiz. An exception to this rule is when the issue decided on the summary judgment is a purely legal issue, but even then, a post-trial appeal is not proper if (1) the party had the opportunity to petition the trial court for permission to take an immediate appeal under 28 U.S.C. 1292(b), or (2) the party can file a motion during trial under Rule 50(a) for judgment as a matter of law and appeal the district court's denial of that motion. Since litigants nearly always file Rule 50(a) motions during trial, this reasoning forecloses most post-trial appeals from the denial of a summary judgment motion.

Judge Lohier dissents from the summary judgment appealability issue, stating that the Second Circuit held in Rothstein v. Carriere, 373 F.3d 275 (2d Cir. 2004), that "where the trial court's denial of a summary judgment motion is not based on the sufficiency of the evidence, but on a question of law, the rationale behind Rule 50 does not apply, and the need for such an objection is absent." Judge Lohier writes, 

Until now, we have never deviated from this easily administered rule: "In general, where summary judgment is denied and the movant subsequently loses after a full trial on the merits, the denial of summary judgment may not be appealed . . . . We have recognized an exception to this rule and permitted appeals from the denial of summary judgment after a full trial on the merits where the district court's error was purely one of law." Period. We have never suggested, as the majority opinion does today, that the "pure issue of law" exception is confined to cases where the "two alternative paths to review"—interlocutory appeal and a Rule 50 motion—"[are not] available."

In fact, in Rothstein, we held the opposite. So even if the majority were right that requiring appellants to appeal a Rule 50 motion is more "desirable" than permitting parties to appeal a denial of summary judgment after trial where the purported error is one of law, "[w]e cannot steer around binding precedent even were we not to agree with it."Only our Court sitting in banc, not a three-judge panel, can do that. By ignoring this important restriction and barreling forward with a decision that contradicts binding precedent, my colleagues in the majority have created an intra-circuit split that will ultimately need to be resolved. See Fed. R. App. P. 35(a)(1).

Oneida County Jail's unequal treatment of female inmates may violate Constitution

This case alleges that the Oneida County Jail is violating the Constitution by placing women in inferior cells that do not compare with the roomier and living conditions enjoyed by male inmates. The district court denied the plaintiffs' motion for a preliminary injunction, but the Court of Appeals reverses and returns the case to the district court to reconsider the case.

The case is Williamson v. Maciol, a summary order issued on January 11. In January 2020, all female inmates were moved to housing units that are smaller than the units they were previously living in. Since plaintiffs claim this new living arrangement denied them access to certain privileges and programs, they argue that this treatment violates the Equal Protection Clause, which applies in the jail context, though courts will defer to the judgment of jail officials in how to manage their inmates. 

But deference is not a rubber-stamp. While the district court said that plaintiffs cannot show these women did not receive substantially equivalent treatment to the man, the Court of Appeals (Kearse, Livingston and Sullivan) is not so sure about this. 

The record is clear that a cell in the linear housing units is half the size of a cell in the pods, lacks a window to the outdoors, and has bars, rather than a door with a small window, at the front of the cell, which arguably diminishes privacy. Moreover, the roomy common areas available in pods likewise contrast sharply with the six-foot-wide corridor where  inmates  can  gather  in  linear  housing  units.  Making  matters  worse,  female  inmates  are provided with only two hours of outside recreation while comparable male inmates receive up to six, depending on the number of men who wish to avail themselves of the outdoor space. Further development of the record may demonstrate that Plaintiffs are indeed treated equally based on a full  assessment  of  the  benefits  and  drawbacks  of  the  different  housing  units.  Absent  more, however, the present record does not support a denial of relief on the ground that Plaintiffs failed to show the required difference in treatment.

To avoid liability, the County has to show that this unequal treatment is justified by a substantial reason. We call that "intermediate scrutiny," giving jail officials some leeway to manage their affairs but also protecting the rights of these inmates, many of whom were probably not yet convicted of anything since this is a county jail. The district court said that a Chief Deputy's affidavit satisfied intermediate scrutiny because he said that it's harder to manage inmates when the housing units are less populated. The Court of Appeals wants to district court to take another look at this issue. It seems counterintuitive to believe that it's harder to manage fewer inmates. The appellate court thinks the Chief Deputy's affidavit is not specific enough about why this unequal treatment is necessary. 

The case heads back to the district court so the County can further develop this record, with a warning from the Court of Appeals that "Defendants must explain to the reviewing court why it would be more difficult to provide Plaintiffs with equal treatment and must assure the district court that these are not post hoc (or after-the-fact) rationalizations."

East Ramapo's at-large school district voting process is struck down under the Voting Rights Act

The Court of Appeals has upheld a trial court ruling that said the at-large voting process in the East Ramapo Central School District dilutes the votes of the minority community in violation of the Voting Rights Act. The Second Circuit holds that plaintiffs in these cases are not required to prove intentional racial discrimination to prove a vote-dilution claim. 

The case is Clerveaux v. East Ramapo Central School District, issued on January 6. At-large voting means the entire community selected the school board, unlike voting mechanisms where people in each voting district select their own representatives. East Ramapo is unique in that it has about 8,800 public school students and nearly 30,000 private school students, mostly going to white Orthodox and Hasidic Jewish private schools. Ninety-two percent of the students in the public schools are black or Latino, and 98 percent of the private school students are white. The problem with East Ramapo's voting system was that influential members of the white private school community chose the candidates for the school board elections, and their candidates usually win election. Candidates were chosen based on who the slating team knew personally. The elected school board seems to favor the private schools over the public schools, based on statistics relating to budget cuts and other acts of favoritism. 

After the district court, following a lengthy bench trial, ruled against the district, the defendants appealed to the Second Circuit, which affirms. The Supreme Court has devised a complicated framework for analyzing these cases, found in Thornburg v. Gingles, 478 U.S. 30 (1986). Here is what the Second Circuit (Pooler, Hall and Chin) did:

1. Evidence of racial animus is not necessary to prove a violation of the Section 2 of the Voting Rights Act. While the absence of racial animus is a factor to be considered under the "totality of the circumstances" of the case, it is not dispositive. It does not appear that Congress required proof of intentional discrimination when it amended the Act in 1982. 

2. One relevant factor guiding these cases is whether the minority community votes as a cohesive unit such that the whites could vote as a block to defeat minority-preferred candidates. Plaintiffs were able to prove that through expert testimony. Another factor is whether the elections in the community are racially-polarized; plaintiff proved that, the Court of Appeals says, rejecting the district's claim that the elections are driven by policy disagreements (like lower taxes), not race. The record shows a "near-perfect correlation between race and school type," and "the circumstances indicate that schooltype [private vs. public] is a proxy for race" and "policies favorable tot the private-school community come at the cost of the public-school community." There is little evidence that candidates campaign on the basis of specific policies and many candidates are not chosen by the slating committee based on their policy positions. It is also difficult for minority candidates to be slated by the committee. And the elected school board members are largely unresponsive to public school concerns (which impact its mostly minority student body).

Time-Warner's investigation into cable-guy demonstration may not have violated labor law

Time Warner has won its challenge to an NLRB ruling that said the cable company violated federal labor law in questioning employees who took part in a strike that the collective bargaining agreement had prohibited. Well, the company kind of won, as the case is remanded to the NLRB.

The case is Time Warner v. NLRB, issued on December 10. The contract said that employees cannot go on strike. That ensures that the cable guy can make it to your house on time when the cable goes out. But employees struck after the company suspended several foreman who violated a company directive regarding when and where employees were allowed to carry tools. The strike led to a disruption that trapped service trucks in the Time Warner facility for an hour-an-a-half, causing a "ripple effect" of delayed or missed service appointments. Time Warner then investigated the strike by questioning employees who were responsible for the demonstration and resulting disruption.

The union challenged Time Warner's post-demonstration investigation, claiming the interrogations were coercive in violation of the National Labor Relations Act and that the suspensions arising from the strike constituted improper punishment for protected union activity. The NLRB agreed with the union in part, finding that while the strike was unprotected activity and the resulting suspensions were unlawful, the company had asked coercive questions, including "who told you about this gathering," "when did you receive notification about the gathering," and "how was this event communicated to you." The Board said there was no reason for the company to ask about pre-demonstration events except to identify people who had participated in the demonstration.

The Second Circuit (Leval, Livingston and Wesley) reverses and finds for Time Warner, remanding the case to the NLRB to reconsider the case. It seems the Board did not apply the right legal standard in assessing these questions. The Second Circuit says the following:

the Board's standard barred Time Warner from seeking information of very high pertinence to its investigation of the unprotected demonstration. By allowing no inquiry into any conduct preceding the demonstration except to identify "actual participants," the Board disallowed highly relevant inquiry into identification of those deserving of discipline and into making appropriate distinctions among them. For example, it prohibited Time Warner from seeking to identify those most responsible for the unauthorized stoppage because they suggested it, argued in its favor, or solicited or directed others to participate in it, regardless of whether those persons also participated in the stoppage. It also barred Time Warner from seeking information that would distinguish between those employees whose presence at the demonstration was less culpable, because they had attended based on a belief that it was a meeting about workplace safety and Weingarten rights, from those who were more culpable, because they attended for the purpose of participating in the unprotected stoppage.

In sum, the company had a legitimate interests in learning more about who exactly were the actual participants in the demonstration.

Employment of a standard that so narrowly constrained Time Warner's inquiry as to bar questions seeking any information other than who were actual participants in the unprotected work stoppage compelled the conclusion that Time Warner's more open-ended questions interfered improperly with Section 7 rights. Because that conclusion was arrived at through use of an unsubstantiated standard, we hereby set aside the Board's conclusion, not because we have reached any determination about the correctness of its result, but because the result was determined through use of an unjustified standard (at least as narrowly interpreted by the Board here). The mere fact that planning of the unprotected work stoppage may have occurred in conjunction with and alongside planning for a protected meeting (or other protected communications) does not necessarily compel the conclusion that the inquiry was an unlawful interference into protected activity.

First Department reinstates sexual orientation discrimination case

Everybody knows the New York City Human Rights Law provides broader protections for employees than federal law. That is why some plaintiffs choose to file their lawsuits in state and not federal court. The drawback is that cases move more slowly in state court. Like this one, though the plaintiff wins his appeal in claiming he was discriminated against because of his sexual orientation. Plaintiff also sues under the state law prohibiting discrimination, though it does not distinguish between the state and city laws in its analysis.

The case is Doe v. New York City Police Dept., issued on January 5. This case was filed in 2009. Back then, courts did not interpret Title VII to prohibit discrimination on the basis of sexual orientation. That changed in 2020, when the Supreme Court in Bostock v. Clayton County said that that form of discrimination is form of sex discrimination. 

Doe is a gay police detective who alleges that other officers ridiculed and harassed him because of his sexual orientation, and that he suffered retaliation for complaining about it. The harassment led to his resignation. The First Department ruling provides little detail about how plaintiff was treated, but the trial court decision says coworkers verbally abused him and made derogatory comments about gay men. As the First Department says, 

beginning within a short time after he joined defendant New York City Police Department (NYPD), it became widely known that he was gay, because, among other factors, homophobic colleagues vindictively published that fact by calling officers wherever plaintiff was stationed and telling them to harass plaintiff because he was gay. When plaintiff began his assignment at NYPD’s Internal Affairs Bureau’s (IAB) Command Center beginning in the summer of 2007, plaintiff was immediately exposed to two sergeants who quickly surmised, based on his responses to their constant homophobic slurs directed at civilians and gay officers, that plaintiff was gay. Other officers joined in, condoned and encouraged by the sergeants, and plaintiff thereafter endured over a year of homophobic derision, harassment, and verbal abuse.

This evidence establishes a claim for hostile work environment on account of Doe's sexual orientation, the First Department says. Similar comments that were directed toward plaintiff when he worked in a different department, the IAB's Vehicle Identification Unit, are also relevant to this claim.

We also have disparate treatment because of sexual orientation. Plaintiff was sent alone to work in holding cells with prisoners still inside; since plaintiff was carrying wooden and metal cleaning implements, he was at risk of assault from inmates. Other officers were not required to do this, and this was normally an assignment for the maintenance crew. This gives plaintiff a discrimination claim. Similarly, plaintiff was singled out in being sent to work the midnight shift by himself. The First Department says "[t]hese midnight solo patrols were dangerous and actionable as adverse employment actions effected under circumstances supporting an inference of discrimination." It also supports his constructive discharge claim. We don't have much analysis on this claim, but I point out that constructive discharge claims are quite difficult to win under federal law, as the plaintiff must show the work environment was so intolerable that the plaintiff was forced to resign. The First Department sees this as an easy call: sending someone to work in a dangerous work environment supports a constructive discharge claim.

Finally, plaintiff has a legitimate retaliation claim. Again, no details in the First Department ruling, but the City argued there is no retaliation because any adverse treatment that followed his complaints about the work environment predated those complaints. While cases hold there is no retaliation under those circumstances, the First Department points out that the complaint "alleges at least some 'new' or escalated conduct after the protected activities took place." That places the employer's motivation in issue, which makes it unripe for summary judgment.

 

 

Plaintiff falls short in trying to prove employment discrimination

In this employment discrimination case, the plaintiff claims her employer fired her because of gender and age. Management, of course, denies that and says plaintiff was fired because she had falsified time and temperature logs for good that she cooked and set out for sale in her role as a food service clerk at a food court owned by defendant. Plaintiff loses the case.

The case is Bjorklund v. Golub, a summary order issued on January 5. Many employment discrimination plaintiffs will argue that their termination must have been discriminatory because they were treated so unfairly that no other explanation makes any sense for their termination. The plaintiff's lawyer has to screen these cases to ensure that the case is worth her time. But if the plaintiff convinces the lawyer that the employer's reason for the termination is false, the lawyer might take the case, only to discover later that the case is not that strong. It's a judgment call at the outset of the case whether to proceed on the plaintiff's behalf. The biggest obstacle is the at-will employment rule in New York and every other state in these United States of America. That rule says the employee can be fired for any reason or even no reason at all unless the plaintiff can prove the termination violates a statutory right, like Title VII of the Civil Rights Act of 1964, which prohibits discrimination on the basis of sex, race, national origin, color, or religion.

Plaintiff says the employer's reason for her termination was pretextual and that the real reason was discrimination because she did not falsify the time and temperature logs. But, the Court of Appeals (Cabranes, Park and Nardini) says the record tells us something else:

Before the District Court, however, Bjorklund conceded that she failed to enter times and temperatures contemporaneously into her official log and that she belatedly entered times and temperatures into her log while off the clock, in violation of Golub’s policy. On appeal, she points to evidence that she wrote down times and temperatures on  “a piece of paper” rather than her official log and that she was unable to update her official log contemporaneously “because she was too busy to do so.” But Bjorklund has never presented any evidence that this non-contemporaneous informal logging approach could satisfy Golub’s well-documented formal food safety policy.

What also kills the case is the principle that it is not enough to show the employer's reason for the termination is false. The plaintiff has to show the employer actually discriminated against her. That's two separate concepts. The evidence simply falls short on proving management's discriminatory intent. The Court says:

Bjorklund does not do enough to show that her firing was based on discrimination. Bjorklund conceded in the District Court that her supervisors, who reported her logging failures to Human Resources, subjectively believed that she had violated Golub’s food safety policy by failing to even check food temperatures. Further, Bjorklund does not contest that the Human Resources department made the decision to fire her, and that Human Resources was not involved in any of the discriminatory conduct she alleges. And, even if she is right that she did not falsify the logs, she has not demonstrated that Human Resources’ decision to fire her for failing to follow Golub policy by not entering times and temperatures in the log book contemporaneously was pretextual.
 

 

2d Circuit issues new rules for supervisory liability under Section 1983

When the Supreme Court issued Ashcroft v. Iqbal in 2009, it drew attention for its new rules guiding motions to dismiss, requiring plaintiffs to make "plausible" claims for relief, a standard that is not found in the Federal Rules of Civil Procedure. That significantly changed the landscape for Rule 12 pleading, which had only required plaintiffs to state a claim. But Iqbal had a lesser-known holding relating to how plaintiffs can hold municipal supervisors liable under Section 1983. The Second Circuit has interpreted Iqbal to make supervisory liability more difficult to prove.

The case is Tangreti v. Bachmann, issued on December 28. Plaintiff was a prison inmate who claimed she was sexually abused and that prison officials were deliberately indifferent to her serious medical needs in violation of the Eighth Amendment. One of these defendants is Bachmann. Plaintiff claimed that Bachmann had reason to know about the sexual abuse but did nothing about it. The district court denied Bachmann's motion for summary judgment, citing Second Circuit authority that holds that public supervisors can be liable for their gross negligence in supervising subordinates. That authority was Colon v. Coughlin, 58 F.3d 865 (2d Cir. 1995). The Court of Appeals (Menashi, Park and Livingston) holds that Colon conflicts with Iqbal and that Iqbal requires Section 1983 plaintiffs to show the supervisor was personally involved in the constitutional violation. Colon is now overruled. This is big news for lawyers who handle Section 1983 cases and probably know the Colon factors by heart. If not by heart, they certainly know about them and have cited Colon many times.

The Second Circuit notes that "Before the Supreme Court decided Iqbal, we identified five categories of evidence that may establish the liability of a supervisory official for a subordinate's conduct under § 1983." Those factors are as follows: 

 

The personal involvement of a supervisory defendant may be shown by evidence that: (1) the defendant participated directly in the alleged constitutional violation, (2) the defendant, after being informed of the violation through a report or appeal, failed to remedy the wrong, (3) the defendant created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom, (4) the defendant was grossly negligent in supervising subordinates who committed the wrongful acts, or (5) the defendant exhibited deliberate indifference to the rights of [the plaintiffs] by failing to act on information indicating that unconstitutional acts were occurring.

Language in Iqbal placed these standards in question. The Second Circuit states that "Iqbal  holds  that  a  plaintiff may  not  rely  on  a  special  test  for  supervisory  liability." Iqbal also said that "the factors necessary to establish a [Section 1983] violation vary with the constitutional provision at issue. When, as in Iqbal, 'the claim is invidious discrimination in contravention of the First and Fifth Amendments ... the plaintiff must plead and prove that the defendant acted with discriminatory purpose,' regardless of whether the defendant is a subordinate or a supervisor." Therefore, Iqbal stated, a supervisor's "mere knowledge of his subordinate's discriminatory purpose" is not sufficient because that knowledge does not "amount[] to the supervisor's violating the Constitution." Despite this language, trial courts in the Second Circuit continued to hold that Colon v. Coughlin was still good law depending on the nature of the plaintiff's claim. Those cases are no longer good law. The Court of Appeals holds:

after Iqbal, there is no special rule for supervisory liability. Instead, a plaintiff must plead and prove "that each Government-official defendant, through the official's own individual actions, has violated the Constitution." "The factors necessary to establish a [§ 1983] violation will vary with the constitutional provision at issue" because the elements of different constitutional violations vary. The violation must be established against the supervisory official directly.

. . . 

Tangreti must therefore establish that Bachmann violated the Eighth Amendment by Bachmann's own conduct, not by reason of Bachmann's supervision of others who committed the violation. She must show that Bachmann herself "acted with `deliberate indifference'"—meaning that Bachmann personally knew of and disregarded an excessive risk to Tangreti's health or safety. 

Since the plaintiff cannot meet the new standard guiding supervisory liability, the Court of Appeals holds that she cannot prevail against Bachmann, and that defendant is dismissed from the case.