Friday, September 30, 2022

Divided court grants qualified immunity in canine police case

In a divided ruling, the Court of Appeals holds that police officers who used a baton, a police canine, and a taser to subdue a resisting inmate are entitled to qualified immunity on claims that they committed excessive force in violation of the Constitution. The dissenting judge says the courts or Congress should do away with qualified immunity altogether.

The case is McKinney v. City of Middletown, issued on September 26. Plaintiff was arrested for allegedly trying to rob a fast food restaurant and brought to the police station where they tried to transfer him from one cell to a padded cell because of his "concerning behavior." Plaintiff resisted the transfer. According to the majority, this is what happened next (bear in mind that Hunter is the canine):

McKinney picked up the foam mattress pad in his cell and pressed against the cell door. Officer Sebold entered and pushed McKinney to the back of the cell with his expandable baton. McKinney grabbed Officer Sebold’s baton and attempted to wrest it from Officer Sebold’s hands. McKinney then became “extremely combative” and “charged towards the [officers].” At that point, Officer  D’Aresta  deployed  Hunter,  directing  him  onto McKinney’s lower right leg. Upon being bitten by Hunter, McKinney dropped to the floor, falling partially on top of Officer D’Aresta. As McKinney tussled with the officers, Officer Sebold struck McKinney’s leg with his baton, urging McKinney to stop resisting. McKinney continued to fight and struggle with the officers despite the dog bite and baton strikes.

Officer Ward deployed his taser via drive stun to McKinney’s left shoulder, ordering that McKinney put out his hands so that he could be handcuffed. McKinney complied following the application of the taser and offered his left hand. The officers rolled McKinney onto his stomach, but he refused to expose his right arm. McKinney then ceased fighting the officers and yelled for the officers to get the canine off of him. Once McKinney was secured in handcuffs, Officer Aresta removed Hunter from McKinney’s leg. The officers arranged for McKinney to be taken to the hospital for treatment of his injuries.

While the Court of Appeals four years ago said during the first appeal in this case that a jury might find that the officers used excessive force, this time around, the Court (Raggi and Menashi) says that the officers are entitled to qualified immunity because, based on clearly-established law, reasonable officers would disagree about whether the force was excessive. This immunity is available when prior case law did not put the officers on notice they were violating the Constitution. The majority writes:

The undisputed facts of this case establish that McKinney threatened, attacked, and resisted the defendant officers as they tried to subdue him so that he could be transferred to a different cell. The undisputed facts further establish that the officers’ incremental and combined uses of a baton, a canine, and a taser were undertaken in response to McKinney’s resistance and that once McKinney"'finally gave up fighting" and was "handcuffed and secured," the officers withdrew their force.

The majority says there is no case from any court that clearly states that, under these circumstances, the officers violated clearly-established law. For one thing, the Court says, "McKinney has not shown that police officers violate clearly established law by allowing a canine bite to continue until a previously violent suspect can be secured." Nor do the cases clearly prohibit officers from using a puppy-wuppy for a purpose for which it was not trained. As well, while plaintiff says the case law prohibits using a canine without warning, the record shows that the officer deployed the doggie "in the midst of [plaintiff's] violent struggle with the police." And, while clearly-established law prohibits the police from initiating significant force against a suspect who is only passively resisting, "McKinney has not shown that it is a violation of clearly established law for the police to ensure that a violent suspect has been secured before withdrawing the significant force required to subdue the suspect. In light of the possibility that McKinney would resume his active resistance once force was withdrawn, we cannot say that it was 'objectively unreasonable for the officers to believe that their conduct was lawful' under the circumstances."

Judge Calabresi in dissent sees the evidence differently and says plaintiff can win at trial and that qualified immunity cannot attach this early in the case because the facts are disputed about what really happened. He further says that qualified immunity has no place in Section 1983 litigation and that scholars and judges have come to recognize over time that this judge-made doctrine (created by the Supreme Court in 1967) makes no sense and has no basis in the common law. While qualified immunity prevents plaintiffs from recovering damages against individual officers if they did not violate clear precedent, the dissent says that most officers are indemnified anyway, and the better solution is to have municipalities on the hook for all damages like other cases involving torts and statutory civil rights.

A side note: the late Judge Katzmann helped decide the first appeal in this case in the plaintiff's favor, and he participated in oral argument for this appeal before he passed away. Judge Calabresi notes that his views on this case were influenced by Katzmann's questioning at the second oral argument, and he repeatedly cites Judge Katzmann's opinions from other cases in fleshing out the dissenting opinion. It is clear that Judge Calabresi held Judge Katzmann in high regard. He writes in a footnote: "Of course, I cannot say how Judge Katzmann might have decided this appeal had he lived long enough to remain a member of the panel deciding it, though the decision of the earlier panel, of which he was a member, may offer some indication. So, I write just for myself. As to Judge Katzmann, I can do no more than express my sorrow that we’re left only (if one can say only of something so precious) with memories and his great contributions to the law."


Thursday, September 29, 2022

Title IX sexual harassment case is dismissed against SUNY

This Title IX and First Amendment case was filed against SUNY Stony Brook after a female graduate student was removed from the student teaching program once she complained about a male supervisor whom, plaintiff asserts, had a sexual interest in her. The case is dismissed. 

The case is Sutton v. SUNY Stony Brook, a summary order issued on September 27. I argued the appeal on Sutton's behalf and will try to be unbiased. Plaintiff says that her supervisor, Mangano, frequently texted and called her on her cell phone, met with her in poorly-lit rooms, said he'd like to see her "in action" off campus, commented on her feminine "gait," complained she was brushing him off, entered her physical space, said she should make herself "available" to him, and and did a sexual gesture with a pen in her presence. She asserts that Mangano said that while she was poised to pass her licensing exam, he had control over her future in the program and "threatened [her] with a contract to force her to communicate with him outside of class." Plaintiff complained about Mangano in writing to another supervisor without providing all of these details, but noted that Mangano was supervising her improperly. Shortly afterward, plaintiff was kicked out of the program after she lodged her complaint and declined to sign a performance contract that she claims had no basis in SUNY procedure. She had been student teaching only about a month.

The Title IX claim fails, the Court of Appeals (Parker, Livingston and Lee) holds, in part because plaintiff's written complaints against Mangano did not sufficiently detail the nature of the sexual harassment and only objected to his overbearing management style. That means the retaliation that followed cannot be Title IX retaliation. As for the Title IX quid pro quo claim (which I thought was the strongest argument), the Court summarizes the allegations in the complaint, but not all of them, stating that her "allegations related to Mangano's alleged sexual advances were only conclusory allegations of implied sexual advances." That's not the way I argued it, but that's how the Court sees it. 

What about the First Amendment claim? That's gone also. The state did not dispute that plaintiff engaged in protected speech in complaining about Mangano, but the Court says we have a causation problem because she admits she did not comply with SUNY's measures to improve her performance in refusing to sign the teaching contract and a disinterested internal appeals committee ratified her expulsion. Plaintiff argued that the contract was an unauthorized remedial measure and the committee was not neutral as she was denied due process and never had a chance to really defend herself from the allegation that she was not a good student teacher.

Monday, September 26, 2022

Court cuts inmate a break over his failure to grieve prison beating

If an inmate wants to bring a lawsuit over the conditions of his confinement, even when he is the victim of excessive force by correction officers, he has to file an internal grievance with the jail and wait for the jail to resolve the grievance. Once he loses the grievance, he can file his lawsuit in federal court. That's the mandate of the Prisoners Litigation Reform Act, intended to reduce inmate litigation and allow the jails to resolve these disputes without judicial interference. So what happens when the inmate cannot file an internal grievance because he was sent to a mental health facility before could file the internal grievance? 

The case is Romano v. Ulrich, issued on September 15. The inmate says he was beaten up by the guards, causing some pretty serious physical injuries The district court said the inmate had time within the 21-day window to file his grievance because he was not sent to the mental health facility after 13 days without advance notice, giving him 13 days to file the grievance. 

The Court of Appeals (Livingston, Pooler and Sack) reverses and says the inmate did not waive his rights. The Court surveys the state of the law in the area of when an inmate waives his rights under the PLRA. It holds that Romano did not have an opportunity to file his grievance despite the 13-day window. As the Court of Appeals sees it, transferring him out of the prison created a "dead end" for him to file a grievance.  One he was in custody of the mental health facility, he could not file the grievance any longer, even if he was well within the 21-day window. 

Couldn't he have filed the grievance within that 13 days? The Second Circuit says that it is not clear that Romano even had 13 days, as he spent 5 days in the infirmary and eight days in an Office of Mental Heath observation cell, when he was recovering from serious physical injuries, as well as serious emotional difficulties from the beating. Moreover, the Court finds, he cannot be penalized for not filing the grievance at the earliest possible moment. Twenty-one days is 21 days, not 13 days. He still had time to file the grievance when prison officials sent him to the mental health facility.

Friday, September 23, 2022

Habeas petition is revived on appeal after district court dismissed case sua sponte

After this criminal defendant was convicted in state court on a gun possession charge, he filed a habeas corpus petition in federal court, claiming the gun was the product of an unlawful search. The district court dismissed the case sua sponte, finding that the defendant cannot possibly win the habeas petition. That was wrong, the Court of Appeals says, and the case returns tot the district court for a ruling on the merits.

The case is Ethridge v. Bell, issued on September 20. The police found the gun following a high-speed chase that began when they wanted to stop the driver for using a cell phone while driving. The district court threw out the habeas petition, determining that under Stone v. Powell, a 1976 Supreme Court case, the defendant had a full and fair opportunity to deal with these constitutional issues in state court. Defendant then filed a motion for reconsideration, citing Byrd v. United States, a 2018 Supreme Court case holding that "the mere fact that a driver in lawful possession or control of a rental car is not listed on the rental agreement will not defeat his or her otherwise reasonable expectation of privacy." The district court sua sponte dismissed that motion as well before the state could even respond to it, finding that the case was still unwindable under the Stone precedent.

The case reaches the Court of Appeals (Lynch, Bianco and Nardini), which finds that the Stone dismissal cannot happen without giving the petitioner notice and an opportunity to be heard. That is the general rule in other cases, and now that rule has been applied to habeas cases that may be vulnerable under Stone. Yes, the district court can dismiss the case on its own if it thinks the case is completely meritless. But the party still needs notice of this potential dismissal so it can be heard. One problem with a sua sponte dismissal like this is that the petitioner's arguments that he did not have a full and fair opportunity to be heard on the constitutional issue in state court may not be apparent from the cold record. Due process says you have to be able to present your arguments fully in federal court.

The state says the motion for reconsideration was the petitioner's opportunity to be heard on this issue, and that would get around the Second Circuit's holding in this case. No, the Court of Appeals says, because such a motion is not an opportunity for a petitioner to relitigate an issue decided or present arguments that could have been made before judgment was entered. Those motions can only prevail in narrow circumstances, such as an intervening change in the law or the availability of new evidence, or the need to prevent a manifest injustice. That is not quite the same as have real opportunity to be heard before the federal judge dismisses the case without notice and an opportunity to be heard. 

Thursday, September 22, 2022

Title VII retaliation case fails in the Court of Appeals

This case highlights an unpleasant truth about employment discrimination cases. Sometimes the plaintiff's history of poor job performance undermines the case on the merits, even if there might be an argument that the plaintiff suffered retaliation for her protected activity in the workplace.

The case is Gonzalez v. NYU Langone Hospitals, a summary order issued on September 22. Plaintiff says she was fired in February 2017 because she helped a coworker with her lawsuit by providing translation services starting in October 2016. That four-month gap might permit an inference of retaliation. Here is the law on this issue:

An adverse employment action is “ ‘more disruptive than a mere inconvenience or an alteration of job responsibilities' and can include ‘termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices ... unique to a particular situation.’ ” Leibowitz v. Cornell Univ., 584 F.3d 487, 499 (2d Cir.2009) (quoting Galabya v. N.Y. City Bd. of Educ., 202 F.3d 636, 640 (2d Cir.2000)).

Chukwueze v. NYCERS, 891 F. Supp. 2d 443, 454 (S.D.N.Y. 2012)

Although “[t]he temporal proximity of events may give rise to an inference of retaliation for the purposes of establishing a prima facie case of retaliation under Title VII,” El Sayed v. Hilton Hotels Corp., 627 F.3d 931, 933 (2d Cir. 2010), “[w]here timing is the only basis for a claim of retaliation, and gradual adverse job actions began well before the plaintiff had ever engaged in any protected activity, an inference of retaliation does not arise,” Slattery v. Swiss Reinsurance Am. Corp., 248 F.3d 87, 95 (2d Cir. 2001).
This rule of law opens up the plaintiff's prior employment history for purposes of determining whether a jury can find that she was retaliated against for her protected activity. In this case, plaintiff loses because "Gonzalez’s extensive history of performance issues and ongoing discipline dating back to 2010—long before her protected activity in 2016—prevent her from establishing an indirect causal connection." Defendant says plaintiff was really fired because she was a no-call no-show, and she received a final warning in October 2016 for another no-call no-show. The Court (Pooler, Parker and Sack) writes, "Gonzalez no call no showed and was disciplined a week before she began assisting Troche with her lawsuit, and she no call no showed again a week before Troche filed her lawsuit and two weeks before NYULH was served with the complaint. Given Gonzalez’s history of performance issues and discipline, temporal proximity, without more, is insufficient to raise an inference of discrimination."

We have another problem: plaintiff cannot show that decisionmakers knew that she had helped a coworker with the lawsuit. Retaliation does not exist if the decisionmaker does not know that you had asserted your rights in the At best, plaintiff speculated that her supervisor, Ortiz, knew about this, but all plaintiff has on this point is her sworn statement that another employee, Perez, told Ortiz about plaintiff's assistance on that lawsuit, and that Ortiz had Perez on "speed dial." That will not cut it without additional evidence about Ortiz's knowledge.


Wednesday, September 21, 2022

Did the banking customer sign away her rights under an arbitration agreement?

This case holds that the trial court did not have enough information to determine whether the plaintiff in this potential class action suit against a credit union signed away her rights in an arbitration agreement that would also waive any class action. The issue is whether the crafty consent document was sufficiently visible to plaintiff when she opened her account with Hudson Valley Credit Union.

The case is Zachman v. Hudson Valley Credit Union, issued on September 14. Plaintiff says the credit union wrongly assessed and collected overdraft fees and insufficient funds fees on checking accounts that were not actually overdrawn. She filed this lawsuit, but HVCU filed a motion to compel arbitration, which would take the case away from the jury and provide the parties limited discovery and other rights. The credit union said that plaintiff was on "inquiry notice" about the arbitration agreement when she opened the account. As the Court of Appeals puts it, HVCU says "she agreed to an Internet Banking Agreement that incorporated by reference the revised Account Agreement containing the arbitration and class action waiver provisions, and that HVCU published the modified Account Agreement on the HVCU website which Zachman used for online banking."

That "inquiry notice" arrangement may seem unfair, as it's not the same as a customer signing an arbitration agreement with a pen and paper. But that's arbitration these days. You can consent by signing onto a banking arrangement online. While the credit union's senior compliance officer said the arbitration agreement can be accessed on the bank's website by either running a search on the webpage or clicking on the Resources tab on the website, plaintiff said she never got any such agreement in the mail and the agreement was obscured on the website and therefore not readily visible such that she was on notice that any disputes with the bank would go to arbitration.

While the district court sided with plaintiff on this issue, the Court of Appeals remands for more factfinding. The trial court has to decide whether an Internet-based contract like this put plaintiff on "inquiry notice" of the arbitration agreement. You can actually "agree" to such a provision by clicking "I agree" or similar language while processing your application for the banking services online. We all do this; we click here and there until we get the services we want, and God knows what we just consented to. But it's legal under the case law. The problem here is that the "agreement" may or may not have been readily visible to plaintiff. The district court will have to look at screenshots of the bank's website to make that determination.

Thursday, September 15, 2022

Court requires Yeshiva University to recognize LGBT student group, for now

A new religious freedom case is coming around the bend. This one will ask whether a private university can, on religious grounds, prohibit an LGBT student organization from organizing on campus. The Supreme Court for now has said it's too early for this case to reach the Court, which means the university has to proceed through the state appellate courts in New York. But yesterday's ruling denying the stay is a temporary measure. This case will likely return to the Court someday and provide the Justices with its first opportunity to interpret the New York City Human Rights Law, amended in 2005 to provide greater civil rights protections than federal law.

The case is Yeshiva University v. YU Pride Alliance, issued on September 14. The case was initially resolved in the New York State trial court, which ruled against the university, holding that the New York City Human Rights Law prohibits this kind of sexual orientation discrimination. Yeshiva unsuccessfully sought emergency relief from the New York appellate courts before filing in the Supreme Court. The 5-4 Court majority says Yeshiva has to follow through on its state appeals through an expedited process. Yeshiva will do that, I am sure, and if the New York appellate courts rule in favor of the student group, the case will return to the Supreme Court, which is in the process of revitalizing the Free Exercise Clause to expand the religious rights of institutions and individuals.

State Supreme Court (the trial-level court in New York) ruled against Yeshiva in June 2022, holding that while the university is an educational institution with a rich Jewish heritage and a mission to combine"the spirit of the Torah" with strong secular studies, while Yeshiva believes the LGBT student group's mission conflicts with that of the university, Yeshiva is a place of "public accommodation" and not an exempt religious corporation under the City Human Rights Law, one of the most expansive civil rights laws in the country. 

The Supreme Court's three liberals voted with Chief Justice Roberts and Justice Kavanaugh to deny the stay. Justice Alito writes the dissent from yesterday's ruling, joined by Justices Gorsuch, Barrett and Thomas. Alito opens his dissent as follows:

Does the First Amendment permit a State to force a Jewish school to instruct its students in accordance with an interpretation of Torah that the school, after careful study, has concluded is incorrect? The answer to that question is surely “no.” The First Amendment guarantees the right to the free exercise of religion, and if that provision means anything, it prohibits a State from enforcing its own preferred interpretation of Holy Scripture. Yet that is exactly what New York has done in this case, and it is disappointing that a majority of this Court refuses to provide relief.

Ultimately, Alito writes, "A State’s imposition of its own mandatory interpretation of scripture is a shocking development that calls out for review. The Free Exercise Clause protects the ability of religious schools to educate in accordance with their faith." In forcing Yeshiva to recognize this student group, the university "would force Yeshiva to make a 'statement' in support of an in interpretation with
which the University disagrees."

Tuesday, September 13, 2022

Covid-19 shutdown lawsuit against every school district in the country is dismissed

Another Covid-19 shutdown case has reached the Second Circuit. This one alleges that the remote-learning thing that kids went through in 2020-2021 violated the students' right to a free and appropriate public education. The case raises a novel theory, but novel theories don't really fly in the Court of Appeals. The case is dismissed.

The case is KM v. Every School District in the United States, a summary order issued on August 31. That caption is no joke. The real defendants are dozens of school districts and state governments around the country. Plaintiffs brought this putative class action on behalf of all students and parents against New York officials "as well as all 13,821 public school districts in the United States and the state departments of education in all fifty States," Washington DC and Puerto Rico. (The real caption is KM v. Adams). 

The putative class would consist of all public school students with a disability. The Court of Appeals (Chin, Sullivan and Menashi) writes, "Alleging principally that the shift from in-person to remote instruction constituted a per se deprivation of the 'free appropriate public education' guaranteed to disabled students under the [Individuals with Disabilities in Education Act], the Students and Parents brought claims – as relevant to this appeal – under the IDEA and RICO." RICO is the federal conspiracy law that the government used to take down the Mafia. The idea is that the Individualized Education Programs (IEP) for disabled students cannot all be complied with through remote learning, as some services can only be provided in-person.

The problem for plaintiffs is procedural: to bring a claim under the IDEA and related laws, you have to exhaust administrative remedies, which means prior to the lawsuit, you have to seek your remedies through state educational agencies. No such exhaustion is needed if such a route is futile or the agency has no authority to grant the relief you are looking for. The courts rarely find futility under the IDEA, and it does not do so here, holding that plaintiffs cannot show the State Education Department would have taken forever to resolve this claim. Nor have plaintiffs preserved the argument that the agency had no power to grant them the relief they want, as plaintiffs did not advance that argument in the district court. What it all means is the district court lacked subject matter jurisdiction to hear the case in the first instance. 

Monday, September 12, 2022

Circuit reverses ALJ on social security benefits

The Court of Appeals has reversed the findings of the Social Security Administration and found that a woman is entitled to Supplemental Security Income because she is in fact disabled and cannot work a full range of jobs.

The case is Rucker v. Kijakazi, issued on September 6. People who apply for SSI benefits have to proceed to a hearing, where an administrative law judge hears medical evidence from both sides before determining whether the applicant can recover these benefits because of their inability to work as a result of their disability. Courts will defer to the ALJ's findings, a process consistent with the general rule that courts give these experts the benefit of their experience; the applicants for these benefits prevail on appeal only when the ALJ blows it.

As the Second Circuit (Leval and Parker) sees it, the ALJ got it wrong in finding that Rucker can perform the full range of work at all exertional levels and has the basic capacity to read spell or perform mathematical functions. The ALJ did say Rucker cannot work with others and should avoid work that involves joint effort. In fact, the Court of Appeals says, the medical evidence shows that plaintiff is moderately limited in her ability to accept instructions, respond appropriately to criticism from supervisors, get along with coworkers and peers, and suffers from borderline personality disorder and schizoaffective disorder. Rucker gets her benefits and the ALJ's findings on this point are overturned.

The Court does uphold the ALJ's findings that Rucker's physical impairments do not render her physically disabled. The test is whether she had a severe impairment that could be expected to result in death or that could last for a continuous period of 12 months. While Rucker is obese, there is no evidence that that condition imposes any limitations on her functional capacity. 

Judge Menashi dissents from the first holding, stating that the "substantial evidence" standard applicable in administrative law cases like this supports the ALJ's findings. He writes that while the ALJ limited the amount of time Rucker should spend with coworkers, the ALJ also said Rucker can work alone and can perform simple tasks and follow simple instructions.

Sunday, September 11, 2022

Jury verdict in inmate's favor is reversed on appeal

A federal jury in Albany awarded this inmate-plaintiff $20,000 in damages for pain and suffering resulting from bad jail conditions that included cell overcrowding and threats of violence/lack of safe living conditions. That verdict is now gone, the victim of both the Prison Litigation Reform Act and qualified immunity.

The case is Walker v. Schult, issued on August 16. We have a series of holdings to explain why the jury's findings are not enough to support the verdict. This case is complex, which explains why it took the Second Circuit (Kearse, Lynch and Chin) over a year to resolve the appeal following oral argument.

1. While the Eighth Amendment prohibits cruel and unusual punishment, overcrowded cells by themselves are not enough to violate the Constitution unless the overcrowding is accompanied by some treatment that deprives the inmates of the minimal civilized measure of life's necessities. That rule derives from a Supreme Court case, Rhodes v. Chapman (1981). The idea is that the Constitution does not mandate comfortable prisons. 

2. Further complicating things for plaintiff is the Prison Litigation Reform Act of 1996, when Congress decided to scale back inmate lawsuits by imposing certain procedural and substantive conditions for victory. One such limitation is that inmates cannot recover damages for pain and suffering without some showing of physical injury resulting from those conditions. The jury in this case was not instructed about that legal principle, as the trial court apparently thought the federal defendants had waived that defense; in fact, the Second Circuit says, plaintiff and his lawyers should've seen this defense coming in light of the procedural history of this case, and the "limitation on recovery" defense is not the kind of affirmative defense that a party can waive. This means the jury should have been instructed on the principle that the inmate plaintiff cannot win without a showing of physical injury. And since there was no such showing, the verdict is vacated and the inmate loses.

3. What is more, the federal defendants are entitled to qualified immunity, which preludes any liability when the plaintiff proceeds on a legal claim that is not clearly-established under prior Second Circuit and Supreme Court case law. You may have come across commentary over the last few years on this kind of immunity, which makes it difficult for civil rights plaintiffs to win their cases. There was hope that the Supreme Court or even Congress might do something about qualified immunity, but for now this immunity is here to stay, a mainstay of federal civil rights law since the 1960s. On the factual findings reached by the jury, particularly that all plaintiff was able to prove was overcrowding and threats of violence, the federal defendants are immune from suit. The trial judge should have recognized that once the verdict came in with the jury's factual findings, but it failed to do so. Since there is no case that says the inmate can win an Eighth Amendment case solely on the basis of overcrowding, qualified immunity attaches, and plaintiff loses. 

Friday, September 9, 2022

Circuit affirms large attorneys' fees award in FLSA case

In this ruling, the Court of Appeals says the plaintiffs' attorneys were able to secure a huge attorneys' fees award for their work on a wage-and-hour claim even though some of their claims failed in the district court. The Court of Appeals also finds that the district court was able to reduce their attorneys' fees award by 40 percent, still resulting in a large fee award for the plaintiffs' lawyers. This case provides a good summary of how attorneys' fees work when the plaintiff achieves a partial victory in the district court.

The case is Holick v. Cellular Sales of New York, issued on September 7. Plaintiffs were owners of companies that sold cellular service plans and devices to the general public through contracts with Cellular, an authorized Verizon Wireless dealer. The arrangement provided plaintiffs with a commission for selling cell service plans, but if the customers cancelled their cell service plan within 6 months, Cellular deducted the sale from its checks to plaintiffs, who claim in turn that the defendants misclassified them as independent contractors when they were actually employees who should not have been subjected to those deductions. While the district court denied plaintiffs' motion for class certification, it said plaintiffs were Cellular employees, granting them about $11,000 for unpaid minimum wages and overtime. This is a partial victory for plaintiffs, as the class certification motion was far more lucrative (they sought $4 million in damages and $700,000 in damages for the name plaintiffs) than the claims upon which they prevailed.

The district court held that the successful and unsuccessful claims were intertwined such that their attorneys' could recover fees expended on all claims, even those that failed. We all know that this can happen if the claims bear a close relationship with each other such that discovery on the bad claims would have been intertwined with the good claims. The district court has discretion to make that determination, and the Court of Appeals will not second guess it. The general rule is that it's not an abuse of discretion if the district court had a variety of options to resolve the motion and was not required to issue one ruling in particular. That rule, deriving from Zervos v. Verizon N.Y., Inc., 252 F.3d 163 (2d Cir. 2001), helps plaintiffs, as the district court said, and the Court of Appeals (Pooler, Wesley and Carney) agrees, stating that "Plaintiffs' claims were all based upon the terms of the contracts between Plaintiffs and Defendants, the circumstances under which the commissions were earned, and the formula by which Plaintiffs were paid. These claims would largely require similar discovery and proof and would be difficult to sever in billing records."

What about the 40 percent reduction? Defendants wanted a greater reduction, but the Court of Appeals says that percentage also falls within the range of permissible decisions by the district court. The Second Circuit does not like to second-guess attorneys' fees rulings like this, as the trial court knows the case better than anyone and these are essentially findings of fact, which are better suited for the trial court than the appellate judges on cold, boring paper record. The Court notes that while the fees in this case amounted to $576,000 and the plaintiffs won a fraction of that amount in damages, FLSA cases often do not yield large damages awards and the law wants good lawyers to take on these cases to ensure that "everyday workers" are adequately paid for their work.

Friday, September 2, 2022

Court holds that speech on bus safety issues does not address a matter of public concern

Over a strong dissent, the Court of Appeals holds that a school bus driver who argued with his employer about the frequency with which bus defects should reported did not speak on a matter of public concern. This means the plaintiff did not engage in protected speech under the First Amendment, and he cannot redress what he calls his retaliatory termination.

The case is Shara v. Maine-Endwell Central School District, issued on August 18. Plaintiff told a transportation mechanic for the district that it was not enough that bus defects were being reported on a single occasion. Plaintiff wanted these defects to be reported on a daily basis until the defect is corrected. The district's Director of Auxiliary Services disagreed with plaintiff about the reporting protocol. Plaintiff was terminated shortly thereafter, and this lawsuit claims he was fired because of his speech. (My write-up about a related holding in this case is at this link).

Public employees cannot be fired if they speak on matters of public concern, defined as any matter of interest to the community. This prevents employees from filing retaliation lawsuits because they complained about matters that were strictly personal to them ("I was unfairly denied a promotion") or matters that the public would not care about ("the air conditioning around here is not working"). While plaintiff spoke up about school bus safety issues, that is not a matter of public concern, the Court of Appeals (Sullivan and Park) says, because plaintiff was not really a whistleblower. Rather, "the allegations in his Complaint were more pedestrian and involved little more than an intramural dispute about the best way to report maintenance issues involving the School District's buses. Nowhere in his Complaint did Shara allege that the School District's reporting practice permitted unsafe buses to be out on the road or that [the district was] attempting to sweep needed bus repairs under the rug."

Judge Pooler dissents, stating that the majority's interpretation of the Complaint is far too narrow. Noting that the Court has previously held that "the safety of public employees is, indeed, a matter of public concern," as she sees it, "Shara’s comments were clearly on a matter of public concern. Shara was concerned with the frequency of reporting safety issues regarding the School District’s buses used to transport schoolchildren." Moreover, "Common sense dictates that Shara’s speech concerned the safety of the workplace, the safety of the Maine-Endwell community’s schoolchildren, and the safety of other motorists whose lives might be at risk of colliding with a school bus with faulty brakes or other mechanical issues, such as the two buses that had already failed inspection. Surely speech on such a topic is the paradigmatic example of speech on a matter of public concern."

Wednesday, August 31, 2022

Circuit rules against bus driver who objected to infrequent school bus safety reporting

This is the most important public employee free speech retaliation case in years, at least from the Second Circuit. The Court holds that a school bus driver cannot sue for retaliation after he spoke out about the school district's protocol for dealing with defective school buses. The Court says that plaintiff did not speak out as a citizen and that, even if he did, his speech was not on a matter of public concern.

The case is Shara v. Maine-Endicott Central School District, issued on August 18. Plaintiff was a bus driver who also vice president of the union. On behalf of other union members, plaintiff began arguing with a transportation mechanic over the frequency with which bus safety issues should be reported. Plaintiff said these safety issues should be reported daily until the safety issue is corrected. The mechanic said it's enough to raise the issue once. While another district official agreed that the issue only needs to be reported once, plaintiff continued to press this issue in his capacity as union vice president. Plaintiff was ultimately fired over his insistence that the district handle bus safety issues his way.

We have several issues here. In this blog post, I will cover the citizen-speech angle. In 2006, the Supreme Court said in the Garcetti decision if your speech is among your job duties. The Second Circuit interpreted Garcetti in 2010 to mean that the speech is unprotected if it is part and parcel of your ability to perform your duties. That's the Weintraub decision. The "part and parcel" language is a broad test, but it remains the law in the Second Circuit, which has frequently rejected public employee speech cases ever since. However, in the Second Circuit's Montero ruling (2018), the Court said that certain union speech is protected under the First Amendment. 

What it means for plaintiff is that the 2-1 Second Circuit majority (Sullivan and Park) says that plaintiff's speech was not citizen speech but unprotected work speech because it falls within the scope of plaintiff's duties as a bus driver and "constituted an indispensable prerequisite to the successful completion of his role as a bus driver." The Court finds in this Rule 12 posture that the Complaint does not allege that plaintiff 's discussions with school officials "concerned policy decisions that affected the School District's mission or the local community." Rather, plaintiff "merely asserted that he spoke in his union capacity. But his position as an officer of the union does not transform his employment-related conversations into speech as a citizen." And, the Court says, "the discussions detailed in Shara's Complaint simply reflected workplace disagreements about technical protocols for reporting bus inspection results." Put another way, this case simply highlights an "intermural dispute among school employees about the best way to report maintenance issues involving the School District's buses. Nowhere in his Complaint did Shara allege that the School District's reporting practice permitted unsafe buses to be out on the road" or that district officials "were attempting to sweep needed bus repairs under the rug."

Judge Pooler dissents, stating that plaintiff engaged in citizen speech "because [his comments] went beyond the scope of his job duties as a bus driver" as he "believed that the frequency of reporting school bus mechanical issues was too low and that such issues should have been reported more often." While plaintiff's duties included reporting whether his bus had a safety issue, "his comments went to the frequency of reporting by all bus drivers," thereby criticizing a district-wide policy regarding how often mechanical issues are reported. Since plaintiff's job was as a bus driver and complaining about the frequency of bus safety reporting was "not what he was employed to do" nor "was it part and parcel of his regular job," this is citizen speech, not unprotected work speech.

In the next blog post, I will cover the Circuit's holding in this case that plaintiff's speech did not address a matter of public concern, another requirement for a successful public employee speech case. In her dissent, Judge Pooler characterizes that holding as "the majority's gravest error."

Thursday, August 25, 2022

Split ruling rejects habeas argument where criminal defendant was denied thousands of pages of rape victim's mental health records

Here we have a habeas corpus case, in which a man convicted of rape claims he was denied a fair trial in his state court criminal case because the trial judge did not allow him to review all of the victim's mental health records. The Court of Appeals says no habeas relief is warranted, and plaintiff remains incarcerated.

The case is McCray v. Capra, issued on August 17. McCray and the victim went out on a date in Albany, and she claims he violently raped her that night. As it happens, the victim has multiple mental health issues, and the criminal court reviewed 5,000 pages of her mental health documents, providing McCray's lawyer with 28 representative pages. The jury convicted McCray of rape following a credibility fight at trial. McCray argues that he was denied a fair trial because he was unable to review all of the victim's mental health records, a due process violation. The state appellate courts disagreed with that argument, and the Court of Appeals says those state court rulings did not violate clearly-established constitutional law, as determined by the Supreme Court.

The clearly-established test is the product of a 1996 law enacted by Congress that makes it harder to win habeas petitions. It is not enough for the federal habeas judges to find that the state courts violated the Constitution. To win the habeas petition, you have to show the state court rulings contravened clearly-established Supreme Court authority. This standard gives state judges some authority to interpret the Constitution on their own, and federal judges have to defer to that judgment unless the state court rulings are completely out of bounds. This is not such a case, the Second Circuit (Sullivan and Lynch) says.

Under the Brady rule, the prosecutor has to give the defense team evidence that helps the defendant. But the prosecutor is not required to turn over his entire file. Only material, or relevant, evidence has to be produced. The question is whether the withheld evidence would have changed the result at trial. Nothing in the Supreme Court's caselaw suggests that providing only a sample of the victim's mental health records violates due process under the Brady rule. It was not objectively unreasonable for the state courts to find that many of the withheld documents were irrelevant or redundant. Fair-minded jurists could agree with the state court's finding that there was relevant information in the file that defendant never saw, and the Second Circuit finds that the records that defendant did see included a remarkable amount of information about the victim's mental health issues, including her memory issues, her hypersexuaity, her sexually risky behaviors, and other personality issues that defendant probably used at trial against her in attacking her credibility. That is enough to lose the habeas petition.

Judge Jacobs dissents. Bear in mind that Judge Jacobs is a conservative judge. Still, he says that more documents could've been provided to McCray beyond the 28 pages, and he notes that six appellate judges, including himself, believe that the trial judge got it wrong. (Of course, those appellate judges were outvoted by other appellate judges; still, an interesting point in a case for which McCray will spend many years in jail). He says those withheld documents included a treasure trove of significant mental health issues that McCray could have used against the victim in challenging her credibility and highlighting her memory issues. Judge Jacobs wraps it up this way:

On this present appeal, the majority has rigorously applied principles of finality and deference. But those principles and constraints in no way bind a prosecutor. A prosecutor who continues to enjoy a misbegotten victory is as much a menace as one who contrives it. Here, the Attorney General knows from successive appellate opinions that McCray, who is still in prison, was wholly denied the right to defend himself. Yet the Attorney General labors hard to maintain the advantage. The result here is that a person is more than halfway through a 22-year prison sentence, without a trial that anyone can now deem fair, and he is still without the opportunity to see the documents that could have acquitted him. I don’t know what happened in that abandoned house; but it is clear what is happening here. This is a sinister abuse. The last-ditch defense of such a conviction by the Attorney General is disreputable. Were I a lawyer for the State, I would not have been able to sign the brief it filed on this appeal.

Wednesday, August 24, 2022

Transit Authority employee loses reasonable-accommodation appeal

This disability discrimination case was tried before a judge in what we call a bench-trial. The judge ruled against plaintiff, determining that this hearing-impaired individual was not qualified to work as a train operator, track worker, or bus operator for the New York City Transit Authority. As such, plaintiff was not eligible for the position. The Court of Appeals affirms and plaintiff loses the case for good.

The case is Frilando v. New York City Transit Authority, a summary order issued on August 19. In this failure-to-accommodate claim, the Court of Appeals (Cabranes, Lynch and Chin) says that plaintiff is not qualified to work for these positions because he cannot understand spoken English. The district court said this is an essential job function for a track worker, and the Court of Appeals will not second-guess that factual finding. (Trial court factual conclusions are almost impossible to overturn on appeal, as the appellate judges defer to the trial judge's assessment of the evidence). 

While plaintiff argues that the evidence shows that some workers may not have worked on tracks and may have performed administrative or other tasks instead, which would not require clear communication of the English language, the Court of Appeals says that evidence is not enough to override the trial court's factual conclusions on what constitutes an essential job function, which in this instance is the ability to communicate in English. "This is not a case where, for example, the record shows that all or even most track workers did not have to communicate in English or hear sounds in order to perform the essential function of their jobs." The case that the Second Circuit cites in support of that proposition is Stone v. City of Mt. Vernon, 118 F.3d 92 (2d Cir. 1997).

Tuesday, August 23, 2022

Disability discrimination plaintiff wins appeal

The Americans with Disabilities Act was amended in 2008 to make it easier for plaintiffs to win their discrimination cases, as Congress decided that the Supreme Court had narrowly interpreted the statute (initially passed in 1990) to increase the burden of proving that your ailment was a "disability," defined as a condition that substantially impairs a major life activity. That legislative amendment helps the plaintiff in this case, as the Second Circuit reverses summary judgment because the plaintiff's tendonitis is a disability under the Act.

The case is Greenbaum v. New York City Transit Authority, a summary order issued on August 15. Plaintiff got tendonitis in his wrist as a result of working at the computer. As I mentioned, a disability is defined as a condition that impairs a major life activity, such as the inability to work a class or broad range of jobs. For plaintiff, that class of jobs includes computer programing or any job that requires extensive computer use. While the district court said plaintiff does not qualify as a disabled individual under the ADA, the Court of Appeals (Lynch, Bianco and Nardini) disagrees, and this case will go to trial.

Plaintiff wins the appeal on this point because his bad wrist prevented him from working the broad class of jobs relating to working the computer. Under the rules, it is not enough to show you cannot work any job in particular; you have to show you cannot work a class of jobs. Plaintiff has enough evidence to prevail on this point. Plaintiff's doctor restricted him to using the computer for 30 minutes at a time, for a total of four hours a day. And, when he has a tendonitis flare-up, plaintiff's pain is magnified and he can't do any mouse-clicking at all. This allows the jury to find that plaintiff is disabled.

To win the case, plaintiff also has to show he was denied a reasonable accommodation under the ADA. He wanted the NYCTA to allow him to use voice-dictation software, and he submitted evidence that some of these programs actually work, including the Dragon Naturally Speaking program, on his laptop at home and the office computer. Based on her experience in other cases, plaintiff's expert said these programs are reasonable accommodations, and they are not expensive. Unless this proposed accommodation is an undue hardship on the agency, plaintiff is entitled to it under the ADA. That is how the statute works. 

Summary judgment was granted against plaintiff on this issue, but the Court of Appeals reinstates the accommodation claim because the evidence on undue hardship is contested on this summary judgment record. While the agency says the voice-dictation software is not compatible with agency computers and there may be issues with tech support, which plaintiff's department is unable to provide, the Court says that plaintiff's expert report rebuts the agency's defense, and plaintiff successfully tested the programs at home, and the agency's lawyer conceded at oral argument that there is no evidence that a system-wide computer breakdown will occur if the agency tests these programs on plaintiff's work computer. This issue simply cannot be resolved on a cold record. We'll have to empanel a jury to decide if plaintiff was denied a reasonable accommodation.

Monday, August 22, 2022

Important ruling on disability discrimination and test-taking

This disability discrimination case asks whether the plaintiff, who is hearing-impaired, may sue the MTA for denying him American Sign Language assistance for an examination that tested him on the Assistant Stockworker position. While the MTA gave him written instructions on how to take the test, plaintiff was denied the ASL accommodation. Plaintiff failed the test but claims that the ASL accommodation would have interpreted the test and its instructions in a manner that would have allowed him to pass. Plaintiff loses the case.

The case is Williams v. MTA, issued on August 12. This case was brought under the Rehabilitation Act of 1973, which offers similar protections to the Americans with Disabilities Act, which prohibits employment discrimination against qualified disabled individuals, and which requires a reasonable accommodation that allows employees to perform an essential function of the job. We have a series of holdings in this case, which took more than a year for the Court to decide following oral argument, as this case raises a few issues of first impression. 

First, the Court (Raggi, Carney and Cabranes) holds that a disability discrimination plaintiff must show he was qualified for the desired position. Plaintiff argues that job applicants raising failure-to-accommodate claims under the ADA and the Rehabilitation Act do not have to show they can perform the essential job function, and that he only has to prove that he was eligible to take the pre-employment test. Not so, says the Court of Appeals, which holds that since the ADA says that only "qualified individuals" who can perform the essential functions of the job can win their disability discrimination claims, that requirement guides the statute as a whole, even if other portions of the ADA do not use that phrase. Bottom line: Congress wanted qualified individuals to be eligible for relief under the statute. The ADA and Rehabilitation Act are both structured to reflect that legislative intent. Under this ruling, "qualified individual" is now incorporated into all subparts of 42 U.S.C. 12112(b).

Second, a job applicant must meet the requirements for the job. It is not enough to argue that, in the context of the testing accommodations, the applicant is able to perform the essential functions of test-taking. While plaintiff argues that allowing the MTA to refuse to provide reasonable accommodations during the test would greenlight discrimination for deeming a candidate not qualified for the position under some post-hoc justification, the relevant inquiry is whether the plaintiff was qualified for the position. Summarizing its holdings up until this point in the ruling, the Court says that pre-employment test-taking is not an "employment position" for which plaintiff was a "qualified individual."

Third, plaintiff was not qualified for the position. Under the ADA, you are qualified for the job if you can perform the essential job functions with or without a reasonable accommodation. The job position listed certain professional and educational qualifications. It also said that applicants can get around this by showing they have the "satisfactory equivalent of education and experience." Plaintiff does not meet the list requirements, and he provided no evidence that he had the satisfactory equivalents.

What about the City law claim? We all know the New York City HRL provides greater protections than federal law. Plaintiff interprets the statute to mean that, for MTA to win the case, it must show he was not only unable to satisfy the essential job functions but that he could not enjoy the right of taking the pre-employment test with a reasonable accommodation. The Court rejects this interpretation and finds that even under the City law, plaintiffs must show they are qualified for the position. Since the Court finds that plaintiff was not qualified for the position, he loses under the City law. 

Thursday, August 11, 2022

How hard is it to back out of a settlement agreement?

This case demonstrates how difficult it is to walk back a settlement agreement. Plaintiff agreed to settle her age discrimination case but wanted that agreement revoked after she determined her employer was not being straight with her about the terms of her transfer to a new job location.

The case is Smith v. CVS Albany, LLC, a summary order issued on August 1. Plaintiff worked in a CVS location in Queens. As part of the settlement, plaintiff agreed to relocate to a CVS in Brooklyn. But now she wants out of the settlement, claiming that CVS misrepresented the hours she would have to work in Brooklyn. She said that during mediation, she thought the store was open 24 hours. It turns out that the store was in the process of converting to non-24 hours' operation. Is this enough to set aside the settlement?

It is not. The cases make it clear how difficult it is to back of a settlement that you've already agreed to. "A settlement agreement is a contract that is.... binding and conclusive,” and “a court cannot relieve [a party] of [her] choice [to settle] simply because h[er] assessment of the consequences was incorrect.” A motion to set aside a settlement agreement under Federal Rule of Civil Procedure 60(b)(3) “cannot be granted absent clear and convincing evidence of material misrepresentations.” That is a high bar. Clients need to recognize this when they enter into settlement negotiations. 

The district court denied that motion, and plaintiff filed a motion for reconsideration. Such motions are difficult to win, as well. That motion failed in the district court, and the Court of Appeals (Chin, Menashi and Sullivan) affirms. Plaintiff will have to live with the Brooklyn arrangement.

Smith v. CVS Albany, LLC, No. 20-4000, 2022 WL 3022526, at *1 (2d Cir. Aug. 1, 2022)
because “[a] settlement agreement is a contract that is.... binding and conclusive,” and “a court cannot relieve [a party] of [her] choice [to settle] simply because h[er] assessment of the consequences was incorrect,” Powell v. Omnicom, 497 F.3d 124, 128 (2d Cir. 2007) (internal citation omitted), a motion to set aside a settlement agreement under Federal Rule of Civil Procedure 60(b)(3) “cannot be granted absent clear and convincing evidence of material misrepresentations,”

Smith v. CVS Albany, LLC, No. 20-4000, 2022 WL 3022526, at *1 (2d Cir. Aug. 1, 2022)

Tuesday, August 9, 2022

Long Island housing proposal is ripe for federal court after Town Board for all intents and purposes rejected the proposal following community objections

 The developers wanted to building a housing complex called Village Green in Islip, Long Island. The community objected and the Town Board dilly-dallied on the application until the developers gave up and went to court, arguing that the "denial" violated the civil rights laws because it was motivated by the community's race-based opposition to the project. But the Town never formally denied the application. Is the case ripe for adjudication by the federal courts?

The case is Village Green at Sayville v. Town of Islip, issued on August 5. After the property was rezoned in 2006 to allow for residential buildings, it took years for the developers to raise money for the project and to comply with certain sewer requirements. In 2014, the Village Green asked the Town Board to allow an apartment complex of 64 rental units, with 20% set aside as affordable units. After members of the community objected, strongly implying racial objections in claiming the project would among other things attract crime, drugs and prostitution, Village Green modified its application to build only 59 units, with half set aside for senior citizens. This attracted more community opposition, and if you want your faith in humanity to diminish even further, take a look at some of the public comments in the opinion at pages 7-8; I have seen this before in other cases involving the construction of rental and low-income properties, as the comments imply that local residents are worried that Black residents will move in.

The Town took its time on the application, taking a vote in December 2016. But no one seconded the town supervisor's motion to approve the application, which meant the resolution failed for lack of a second. (I wonder what Robert's Rules of Order says about this). The Town Board has not acted on the application since that time, producing this lawsuit which the EDNY dismissed because the claim is not ripe for adjudication since there was no final decision on the application.

The Court of Appeals (Pooler, Chin and Carney) reverses and the case is revived. The Court does not rule on whether the Town acquiesced to race-based community opposition to the project. (Had that been the case, the Town Board's denial would have violated the Fair Housing Act and the Constitution). Instead it asks whether the case is ripe for adjudication by the EDNY. The case is ripe. While the Town did not publicly vote No on the application, the motion to approve failed for lack of a second, and it chose to treat the failed motion to approve as a denial of the application. The town also did not schedule any further proceedings on the application in nearly six years. So the Court of Appeals takes that as a No from the Town Board. Sometimes inaction is the same as No. The case reruns to the EDNY for discovery on the merits of the case.

Monday, August 8, 2022

SOX retaliation claim is thrown out over a bad jury charge

The plaintiff in this retaliation case brought under the Sarbanes-Oxley Act (SOX) prevailed at trial on his claim that the financial services firm that he worked for terminated his employment because he had reported an unethical practice in the workplace. That verdict is now gone because the district court did not properly charge the jury on the elements of a SOX retaliation claim. The Court uses this case to clarify the correct legal standard guiding these claims.

The case is Murray v. UBS Securities, LLC, issued on August 5. Plaintiff was responsible for performing research and creating reports that went to UBS's clients about the company's products and services. He testified that two company officials told him to skew his reports in a manner that would support the company's business strategies. Plaintiff worried this would compromise his integrity as a researcher and would make him "a shill for the market." After complaining about this, Plaintiff was fired. Defendant said Plaintiff was instead fired in a reduction-in-force, but the jury found in plaintiffs favor and awarded him $653,000 in lost wages and $250,000 in pain and suffering. The judge awarded plaintiff over $1.7 million in attorneys' fees. 

The Court of Appeals orders a new trial because the trial court charged the jury improperly. The jury was charged that plaintiff had to prove in part that his "protected activity was a contributing factor in the termination of his employment." The trial court further told the jury that this means the protected activity (plaintiff's complaints to management about having the skew the reports) "must have either alone or in combination with other factors tended to affect in any way UBS's decision to terminate plaintiff's employment." In addition, the jury was instructed, "Plaintiff is not required to prove that his protected activity was the primary motivating factor in his termination, or that UBS's articulated reasons for his termination ... was a pretext." 

This looks like a motivating factor charge, which does not require the plaintiff to prove his protected activity was the determining, or but-for, cause of his termination. (We see charges like this under Title VII disparate treatment claims). A motivating factor charge asks if the unlawful factor (retaliation, etc.) played any role in the termination. The problem, says the Court of Appeals (Park, Menashi and Perez) is that the SOX statute says the employer cannot "discriminate against an employee . . . because of" whistleblowing. Under the common definition of "discriminate" and "because of," the Court says, the statute "prohibits discriminatory actions cause by -- or 'because of' -- whistleblowing, and actions are 'discriminatory' when they are based on the employer's conscious disfavor of an employee for whistleblowing." This means the plaintiff has to prove retaliatory intent "that the employer's adverse action was motivated by the employee's whistleblowing." SOX does not permit a motivating factor charge but a "but-for" or determining factor charge.

Other statutes that use nearly identical language have been interpreted to require the but-for causation, and that retaliatory intent is an element of the claim, including the Federal Railroad Safety Act. The Second Circuit notes that the Fifth and Ninth Circuits have interpreted the SOX law to hold that retaliatory intent is not an element of a SOX claim. So we have a circuit-split that may reach the Supreme Court at some point. We have seen a steady trend by the courts to interpret most employment statutes to require "but-for" causation and not motivating factor causation, a more plaintiff-friendly test. This case furthers that trend. My guess is that if the Supreme Court takes on this issue, it will agree with the Second Circuit in this case.

What it means for plaintiff is that the bad jury charge is not harmless error. The best way to win an appeal when you lost the trial is to challenge the jury charge, because a bad charge will mislead the jury about the elements of the case, and the Court of Appeals holds this was a close case in any event, which means with the right charge, the employer can win the trial.

Friday, August 5, 2022

Court of Appeals vacates 40% reduction in fee award for successful plaintiff

We all know that attorneys' fees are available to prevailing plaintiffs in a civil rights case. The courts have said they don't want the fees portion of the case to turn into a second major litigation, but fee petitions are often hotly contested by the losing party, requiring extensive motion practice and sometimes even appellate work. The problem for plaintiffs is that a bad fee ruling is very difficult to challenge on appeal, as the appellate judges will defer to the trial court's judgment on how much money the plaintiff is entitled, based on the trial court's familiarity with the case. So most of these appeals are unsuccessful. But not all. This appeal succeeds.

The case is Raja v. Burns, issued on August 1. I would say this case is a must-read for civil rights practitioners, as it provides the most guidance I've seen in a published attorneys' fees case in years. 

After litigating this procedural due process case, the parties settled and plaintiff was allowed to move for attorneys' fees. The trial court reduced plaintiff's fee entitlement by 40%, reasoning that plaintiff did not succeed on certain claims, and that plaintiff's attorney had used "block billing" in his fee records, making it difficult for the district court to know precisely what kind of work the attorney was performing. Forty percent is a mighty large reduction. I have seen this before, as some judges will even reduce by 50% depending on the circumstances. Are these decisions worth appealing? The consensus is they are not always worth an appeal since the appellate courts, as I mentioned, are instructed by the Supreme Court to defer to the trial court's judgment on these issues.

Plaintiff appealed from the 40% reduction. The Court of Appeals (Carney, Calabresi and Robinson) says the 40% reduction was an abuse of discretion. Starting with the block-billing issue, the Court says it was not so bad. Bear in mind that courts frown on block-billing, which can look something like this: "10.50 hours -- reviewing Defendant's brief, conducting legal research, organizing the file, and phone call with client." That time entry does not itemize the work, making it difficult for the court to know if you reasonably billed for the work. On the other hand, courts don't need such precision in billing that you spend half your time organizing your time entries. District courts have said that block-billing for a few hours at a time is generally not objectionable, and in noting that plaintiff's block-billing was not too voluminous, this case recognizes for the first time at the appellate level that short block-billing entries are not enough to reduce the fee award. The entries in this case do not justify a 40% reduction, though some smaller reduction may be in order. The Second Circuit also deems it relevant that plaintiff only had one lawyer on the case, making it less likely that the block-billing might obscure redundant or unreasonable billing practices.

What about the reduction for plaintiff's lack of success on all his claims? That does not justify the reduction, either. Plaintiff's primary claim was that his due process rights were violated in the way the City of New York adversely affected his employment. The claims that plaintiff lost were secondary to his primary claim, and it shared a common core of facts with the successful claims. It also does not appear that plaintiff's lawyer spent much time on one unsuccessful claim in particular, devoting only three pages of his summary judgment brief to that issue. Simply put, the unsuccessful claims do not justify the steep 40% reduction in the overall fee award.

Wednesday, August 3, 2022

Some interesting evidence issues at the Second Circuit

I am not seeing a lot of Second Circuit rulings on trial-related issues, like evidence, hearsay, and jury issues. This case raises those issues, but as expected, the plaintiff loses because trial courts have broad discretion in managing their affairs, and you'll need a catastrophic error at trial in order to get a retrial.

The case is Askew v. Lindsay, a summary order issued on August 1. This police misconduct case went to trial in White Plains. The plaintiff lost. His attorneys have identified trial errors that might lead to a new trial. The Court of Appeals does not see it that way. Here are the issues.

1. Plaintiff's romantic partner saw the whole thing but she did not testify at trial. But she did testify at a preliminary hearing in Monticello Village Justice Court. Plaintiff wanted to read that testimony to the jury. The trial court said no to this. While this is sworn testimony, but there might not have been any cross-examination. This is hearsay, but we have exceptions to the hearsay rule, including former testimony from an unavailable witness. The problem for plaintiff, the district court held, was there is no legal authority for the proposition that the District Attorney, who handled the Village Justice Court proceeding, is a "predecessor-in-interest" to the police officers such that that the DA had an incentive to ensure the criminal court testimony was fair to the officers. The Second Circuit has never defined who is a predecessor-in-interest. But that issue will await another case because plaintiff cannot satisfy a more fundamental problem: there was no proof that the female witness was unavailable for trial. Yes, plaintiff tried to contact her through Facebook and six old phone numbers, but plaintiff "did not call [her] at the phone number she had used during their relationship" and did not hire a process server to serve her with a trial subpoena at her old address. Nor did he seek court intervention to ensure that she would testify in court. 

2. What about the residual exception to the hearsay rule? I don't see too many cases invoking this exception, but Rule 807 permits hearsay in special circumstances provided it is trustworthy. That exception does not apply here, the district court held, because the female witness was plaintiff's romantic partner. Courts have held that witnesses like this might not have trustworthy testimony. Moreover, the Court of Appeals (Pooler, Perez, Rakoff [D.J.]) says, the witness had a pending misdemeanor charge relating to plaintiff's arrest incident, so she would have had an incentive to give testimony at the criminal court hearing that was unfavorable to the police. And her testimony is not corroborated by the 911 call relating to the incident. Her testimony was properly excluded.

3. Final issue: the jury wanted the court to read back certain trial testimony during their deliberations. Juries do this from time-to-time, requiring the court and the parties to figure out the best way to comply with the jury's request. Sometimes the court asks the jury to specify exactly what it wants to hear. That's what happened here. The jury then changed its mind and said it did not want any read-backs. I guess plaintiff says the read-back would have helped his case but that the jury's inquiry about what the jurors really wanted caused them to change their mind involuntarily. The Court of Appeals, however, says the trial court's inquiry was proper in order to clarify what the jurors wanted. No new trial on this basis, either.