Friday, April 29, 2022

Supreme Court scales back the scope of four civil rights statutes

The Supreme Court yesterday said that four federal civil rights statutes do not allow damages for pain and suffering. The rationale is that these statutes do not explicitly authorize such damages, and that a complex series of constitutional rulings from the Court compels the 6-3 majority to find that certain governmental defendants are not on notice they will be on the hook for pain and suffering if they practice discrimination.

The case is Cummings v. Premier Rehab Keller, LLC, issued on April 28. Plaintiff is hearing-impaired and legally blind. She sued under the Rehabilitation Act of 1973 and the Affordable Care Act after she was denied an ASL interpreter. Can she get damages for pain and suffering?

The Supreme Court resolves this case under the Spending Clause of the Constitution, which authorizes Congress to pass civil rights laws that public and private entities must comply with if they want to continue receiving federal money. These statutes affect numerous entitles, including school districts and health care practitioners. The Rehabilitation Act and the ACA are among those laws. Other laws that fall within this equation are Title VI and Title IX of the Civil Rights Act. Title VI prohibits racial discrimination in education. Title IX prohibits sex discrimination in education. Title VI and IX are the statutes people invoke for racial and gender bullying in public schools. 

What it all means is this case is not just about the Rehabilitation Act and the ACA. Chief Justice Roberts brings Titles VI and IX into the analysis. He opens the discussion with this:

Congress has enacted four statutes prohibiting recipients of federal financial assistance from discriminating based on certain protected grounds. Title VI of the Civil Rights Act of 1964 forbids race, color, and national origin discrimination in federally funded programs or activities. Title IX of the Education Amendments of 1972 similarly prohibits sex-based discrimination, while the Rehabilitation Act bars funding recipients from discriminating because of dis- ability. Finally, the Affordable Care Act outlaws discrimination on any of the preceding grounds, in addition to age, by healthcare entities receiving federal funds. 

Spending Clause cases are analyzed under traditional contract law principles: would a recipient of federal money know as a condition of their receipt of this money that they might be liable for certain damages, such as pain and suffering, if they discriminate against someone? Since these statutes do not explicitly cite pain and suffering as possible damages, this is not an easy issue. But in Barnes v. Gorman, 536 U.S. 181 (2002), the Court said punitive damages are not available under these statutes because the statutes say nothing about them and traditional contract law principles generally do not allow pain and suffering damages for contractual disputes. That analysis guides this case, as well. "In order to decide whether emotional distress damages are available under the Spending Clause statutes we consider here, we therefore ask a simple question: Would a prospective funding recipient, at the time it “engaged in the process of deciding whether [to] accept” federal dollars, have been aware that it would face such liability? If yes, then emotional distress dam- ages are available; if no, they are not."

They are not. While pain and suffering are sometimes awarded in contractual cases, they generally are not. That means no such damages are available under these federal statutes. Roberts: "We therefore cannot treat federal funding recipients as having consented to be subject to damages for emotional distress. It follows that such damages are not recoverable under the Spending Clause statutes we consider here."

The three liberals on the Court dissent, joining Justice Breyer's opinion stating that, from his vantage point, pain and suffering can be available in contracts cases because contract litigation aims to make the victim of any contract breach whole, which may include compensation for pain and suffering. Like Roberts, Breyer cites contract law treatises for this proposition. Breyer says, "It is difficult to believe that prospective funding recipients would be unaware that intentional discrimination based on race, sex, age, or disability is particularly likely to cause emotional suffering."

Justices Kavanaugh and Gorsuch concur with Roberts' reasoning, but they would abandon the contract law analysis and focus on separation-of-power principles to determine what Congress intended in enacting the statute. That would make the analysis much easier, and you only have to look at the statutory language to determine what damages are available.

Thursday, April 28, 2022

Court affirms speech restriction at public meetings

You'd be surprised at how many lawsuits arise from free speech disputes at public meetings, like town and school board meetings. You have speech rights at these meetings, but the public officials have some leeway in regulating that speech. This case illustrates that dynamic.

The case is Cipolla-Dennis v. County of Tompkins, a summary order issued on April 27. Plaintiff, a community resident, wanted to speak at the County Legislature's public safety committee meeting about a County personnel matter. The committee denied her the opportunity to do this, as plaintiff refused to sign the "blue card" which requires that speakers agree not to speak about County personnel matters, which are normally matters for the Legislature in executive session. 

Public meetings are limited public forums, which means you have fewer speech rights than full public forums, such as sidewalks and the proverbial town square. In a limited public forum, the government can restrict the content or subject matter of your speech, but it cannot allow some viewpoints over others. Plaintiff says the blue card rule is not viewpoint neutral and is therefore unconstitutional. But the Court of Appeals (Livingston, Lynch and Lohier) disagrees, affirming the district court's summary judgment in favor of the County. The personnel policy does not single out any subset of views for exclusion. Rather, it prohibits discussion of all personnel matters, i.e., the job performance of County employees other than elected officials. Even if you want to praise someone's job performance, you can't do so at these public meetings. That means the rule is viewpoint neutral.

Plaintiffs can also win these cases if the speech restriction is not reasonable in light of the scope and purpose of the limited public forum. Plaintiff loses that argument, the Court says, because that speech policy is reasonably related to the Legislature's interest in confining matters that are addressed during public comment matters that are within the Legislature's purview. In 2003, the Court of Appeals held as such in Prestopnik v. Whelan, 83 Fed. Appx. 363 (2d Cir., 2003), and it reaffirms that reasoning in this case.

Wednesday, April 27, 2022

What happens when a party tries to back out of a mediation settlement agreement?

Statistically speaking, most lawsuits settle. But settlement is not easy. The parties are often sent to mediation and they try to reach an agreement with a neutral mediator. Often, emotions get in the way of settlement. And sometimes, a party agrees to settle but changes their mind the next day. What happens next?

The case is Murphy v. Institute of International Education, issued on April 26. After plaintiff filed this employment discrimination case, the trial judge referred the case to mediation, where the parties reached a settlement and signed a "Mediation Agreement" at the session, which stated an "agreement has been reached on all issues." The agreement stated the settlement would provide plaintiff with a years' worth of salary, two months of COBRA contributions, and regular pay and benefits through a certain date. All parties signed the agreement. This often happens at mediation: the parties reach a settlement and agree on the main terms before writing it down on a legal pad with everyone's signature. The lawyers then begin working on a more comprehensive agreement. That's what happened here, and comprehensive agreement contained the details, including a confidentiality clause, a penalty for violating confidentiality, a non-disparagement clause, and other general provisions that we often see in comprehensive agreements.

But three days after signing the mediation agreement, plaintiff changed her mind and wanted to revoke the agreement. As the Court of Appeals puts it:

Murphy said that she was nervous and confused during the mediation and that  she  told  her attorney  that  she  was  not  comfortable  signing  the  mediation agreement.  She also said that she called her mother, and her mother told her not to sign the mediation agreement.  Murphy wrote that her attorney advised her that mediation “was the nicer portion of [her] lawsuit” and that the mediator told her that if she continued, she “would be stuck in a room filled with white men that would question every aspect of [her] life for hours,” the thought of which Murphy found intimidating.  Murphy said that she then took ten minutes outside the room to clear her head and that when she came back, she asked if she could have until Monday to think over the mediation agreement. According to Murphy, she was told no and that the mediation agreement included the most compensation she would ever receive. Ultimately, Murphy said, she signed the mediation agreement because she “was so sad and felt [she] had no choice but to sign.”
This about-face may surprise non-litigators, but I have seen things like this happen. How does the court deal with this? The Court of Appeals (Sullivan, Carney and Menashi) tackles this issue for the first time, classifying mediation agreements in two ways: Type I and Type II. A Type I agreement “occurs when the parties have reached complete agreement (including the agreement to be bound) on all the issues perceived to require negotiation.”  Type II agreements "expresses mutual commitment to a contract on agreed major terms, while recognizing the existence of open terms that remain to be negotiated.” In the Type II, the parties “bind themselves to a concededly incomplete agreement in the sense that they accept a mutual commitment to negotiate together in good faith in an effort  to reach  final  agreement  within  the  scope  that  has  been  settled  in  the preliminary agreement.” The Second Circuit takes this model from a SDNY case from 1987.

Plaintiff had an enforceable Type I agreement because the parties intended to be bound by it and they were not delaying any agreement on the important settlement terms that can make or break a deal. "This is not a case in which  the  language  of  the  agreement  merely  committed  the  parties  to  work together in accordance with the terms and conditions outlined in the agreement, which would be a Type II agreement to continue negotiating." In addition, "the language of the mediation agreement reflects that the terms included in the agreement were the material  terms." Any open issues in a Type I agreement like would be relatively "trivial" so long as the parties did  not foresee any disputes relating to the boilerplate. In addition to finding there was no evidence that plaintiff signed the agreement under duress, the Court states, "In sum, there can be no doubt that the parties here 'intend[ed] to be bound' by the mediation agreement, and the fact that they may have anticipated 'lawyers’ embellishments' in a final formal agreement, in no way makes the mediation agreement unenforceable."

Tuesday, April 26, 2022

Supreme Court vacates habeas finding in murder case

The last resort for many convicted felons is to file a habeas corpus petition in federal court to overturn the conviction in the basis that the conviction was unconstitutional, usually because there was an unfair trial or the prosecutor did something that violated the Constitution. These petitions are very difficult to win, and Congress made it even more difficult in the 1990s when it passed the Antiterrorism and Effective Death Penalty Act (AEDPA). This guy won his habeas petition in the Sixth Circuit, but the Supreme Court has reversed and the defendant remains in jail.

The case is Brown v. Davenport, issued by the Supreme Court on April 21. This is a first-degree murder case. During his criminal trial, defendant was shackled at a table with a "privacy screen." Davenport said the privacy screen was unnecessary and thus rendered the trial unconstitutional. As the Sixth Circuit saw it, a new trial was warranted because it thought the privacy screen had a substantial and injurious effect on the trial's outcome, drawing from a Supreme Court case, Brecht v. Abrahamson, 507 U.S. 619 (1993). 

Habeas doctrine goes back to the days of the nation's founding. A lot of people have gotten new trials through their federal habeas petitions. The Brecht ruling reflected federal efforts to reign in these petitions to ensure that these petitions are not simply another way of appealing a criminal conviction. The idea was that you can't win the habeas motion unless the trial court error was not harmless and it made a difference at trial. But in 1996, Congress went even further, enacting the AEDPA, which said the habeas petition cannot be granted unless the state court trial error violated clearly-established Supreme Court precedent, was an unreasonable application of Supreme Court precedent, or was based on an unreasonable determination of the facts. The AEDPA made these petitions even harder to win.

The issue posed in this case was the interplay between Brecht and the AEDPA. How does the latter affect the former? The Court says that to win a habeas petition, the defendant must clear both Brecht and the AEDPA tests. It is not enough to show the trial court was not harmless under Brecht. You also have to show the trial court error violated clearly-established Supreme Court precedent, which provides inmates with a narrow body of case law to draw from, as the Court has not resolved every constitutional trial error that might be available to inmates. Since the Sixth Circuit did not factor the AEDPA into resolving Davenport's case, and since the Supreme Court finds that the trial error did not violate clearly-established Supreme Court precedent, the conviction stands.

Friday, April 22, 2022

Court of Appeals rejects religious discrimination case

In this case, the plaintiff alleges that his employer, Delta Air Lines, Inc, terminated his employment because of his religion and national origin. His evidence for this is that the airline's policy allegedly targeted people who fly to Tel Aviv, Israel. The Court of Appeals rejects the case under Rule 12.

The case is Abada v. Delta Air Lines, Inc., a summary order issued on March 28. The employer says plaintiff was fired because he violated its travel companion policy. In discrimination cases, plaintiffs can win through circumstantial evidence, as it's the rare employer that tells an employee he is fired for the reasons prohibited under Title VII, such as religion, race, or sex. Plaintiff's theory is that he was really fired because of his Israel heritage. As the Court of Appeals (Raggi, Carney and Cabranes) puts it:

His amended complaint alleges that Delta distributed a “Talking Points” memorandum from which he quotes three descriptions of individuals Delta was allegedly targeting or investigating for violations of the Policy: individuals with “interest in frequent travel to Tel Aviv”; “certain individuals who live in the New York and Atlanta area who appear to be connected in one or more ways”; and employees “having possible ties to this group of people.”
Plaintiff's theory is that "the individuals described in these excerpts are, in fact, 'Jews and Israelis,' and that the ways these individuals are 'connected' includes, 'of course, connection by ethnicity race, language and religion.'” His association with customers like this, plaintiff says, motivated his termination, as the company was monitoring Tel Aviv-related passengers for the travel companion policy. The Court of Appeals rejects this argument, finding it conclusory even under Rule 12, a pre-discovery mechanism for dismissing cases that do not plead a cause of action.

Tuesday, April 19, 2022

Racial harassment claim fails despite 12 incidents in three years

The Second Circuit has rejected an employment discrimination claim against the New York State Police, holding that 12 racial incidents over the course of three years was not enough to create a hostile work environment. 

The case is Miller v. New York State Police, a summary order issued on April 18. This case reminds us that a Title VII plaintiff claiming racial harassment does not have to be the target of the racial abuse. It can be enough if she is aware of the racial comments. For that proposition, we have Rasmy v. Marriott International, 952 F.3d 379 (2d Cir. 2020). That's what happened here. Except that what happened is not enough for a case. Here is how the Court of Appeals (Walker, Sullivan and Lee) summarizes the harassment:

In support of his claims, Miller pointed to at least twelve incidents over a period of three years wherein Kendall, in Miller’s presence, allegedly repeated the statements of colleagues or witnesses containing racial slurs, called particular African Americans “animals” or "savages,” used a mocking or minstrelsy voice, showed Miller an online video making fun of an African American woman, used the word “nigga” in a Facebook post under a fictitious name as part of an undercover investigation, and remarked that a suspect’s African American sister “had a great body for monkey sex.”

As the district court stated, "Plaintiff concluded that Kendall's asserted ongoing use of the racial slur was humiliating and degrading, negatively affected his employment morale, job performance and, ultimately, Plaintiff's safety, and constituted race-based harassment directed toward Plaintiff." These comments were certainly offensive, but the district court found, and the Court of Appeals agrees, that plaintiff cannot prove a hostile work environment claim. "To be sure, this Court recognizes the special power that a supervisor’s use of a racial epithet has in creating a hostile work environment." The Court of Appeals cites Rivera v. Rochester Genesee Reg’l Transp. Auth., 743 F.3d 11, 24 (2d Cir. 2012), for that proposition. The Court also notes that a single incident of harassment may be severe enough to create a hostile work environment. Fincher v. Depository Tr. & Cleaning Corp., 604 F.3d 712 (2d Cir. 2010), stands for that proposition. But these principles do not overcome summary judgment. The Court concludes, "the standard articulated in Schwapp v. Town of Avon still applies and, viewing the facts in the light most favorable to him, Miller does  not make out a case for hostile work environment under that standard." In support of this holding, the Court cites Albert-Roberts v. GGG Constr., LLC, 542 F. App’x 62, 64 (2d Cir. 2013) (rejecting plaintiff’s argument “that the single use of the word ‘nigger’ is so severe as to make out a prima facie case and survive summary judgment”).

Even if plaintiff made out a hostile work environment claim, the Court holds, the employer cannot be liable. Under the rules, management must have known about the harassment and failed to properly remedy it. The Court holds that the State Police conducted an exhaustive investigation into the allegations, and that plaintiff did not make a formal complaint for three years after the harassment began. Plaintiff responded that the Court in Gorzynski v. JetBlue Airways, 593 F.3d 93 (2d Cir. 2010), said it is enough to complain to the supervisor who is harassing the plaintiff. In that case, the Court said, “In  some  instances, it may be unreasonable for a victim of harassment to complain only to the harasser because, as a realistic and practical matter, there are other channels that are adequately indicated and are accessible and open.” But Gorzynski does not help plaintiff, the Court says, because the State Police's "other avenues were known and accessible to Miller during the three-year period," and Miller did not take advantage of those procedures right away, waiting three years to do so. Once he did, the Court says, the employer conducted an investigation, and the harassment stopped.


Monday, April 18, 2022

Title VII Retaliation claim is reinstated on appeal

The Court of Appeals has revived a retaliation claim under Title VII and Section 1983, holding that the district court got it wrong in dismissing the claim as time-barred.

The case is Connolly v. City of New York, a summary order issued on March 22. Under the rules, you have 300 days from the date of the discriminatory or retaliatory act to file a charge with the Equal Employment Opportunity Commission, or the EEOC. Once the EEOC is done processing the charge, usually within 180 days, you can file a lawsuit under Title VII. That 300 day deadline is sacrosanct, except when it isn't.

The courts have carved out an exception to the 300-day rule when you are suing for retaliation and did not file an EEOC charge for that claim. So long as you filed an original EEOC charge for the underlying discrimination, your failure to file another EEOC charge alleging retaliation for the original EEOC charge is not fatal to the claim. This is true so long as the original EEOC charge is still pending before the agency. One reason for this rule, I am sure, is to prevent multiple EEOC charges for the same series of events. The other reason, most often cited by the courts as the justification, is that the retaliation most likely will come up while the EEOC investigates the charge in any event. That makes the retaliation "reasonably related" to the original EEOC charge. 

The district court overlooked the "reasonably related" doctrine in dismissing the retaliation claim as time-barred. But the "reasonably related" principle is now several decades old. The law is so settled in this area that, the Court of Appeals (Raggi, Lynch and Lohier) notes, the City of New York did not even argue that the case law in this area, including Duplan v. City of New York, 888 F.3d 612 (2d Cir. 2018), are incorrect. The retaliation claim survives and will now proceed to discovery.

Thursday, April 14, 2022

EEOC right-to-sue issue is mooted by plaintiff's second lawsuit

This appeal had potential to clarify the law guiding when you can bring a lawsuit when the EEOC issues an early Right-to-Sue letter. But it ends with the Court of Appeals finding the case is moot, and the Court does not reach the EEOC issue.

The case is Stidhum v. 161-10 Hillside Auto Ave, LLC, a summary order issued on April 12. Under the rules, you cannot bring a Title VII employment discrimination case without first filing with the Equal Employment Opportunity Commission, which is authorized to investigate the charge of discrimination and attempt to settle the case. After six months, the EEOC will issue a Right-to-Sue Letter that allows you to file the lawsuit in court. The question is, what happens when the EEOC issues the Letter prior to the six months. Is the lawsuit legitimate? 

In this case, the EEOC terminated its investigation prior to the six-month deadline because it determined that it was unlikely it could complete the administrative processing. Hence the federal lawsuit, filed less than six-months after the charge was filed.

Within the last 10 years, some courts have said an early RTS letter is illegitimate and the federal lawsuit that follows must be dismissed. The Second Circuit has not addressed this issue. This appeal presented that issue, but the Court of Appeals (Bianco, Lohier and Robinson) does not resolve it because it finds the case is actually moot and that there is no appellate jurisdiction because plaintiff filed the same lawsuit again after the EEOC issued a new RTS letter, based on the same facts as the first lawsuit that yielded the premature RTS letter. She did this to get her Title VII dispute moving once and for all. "However, this appeal is resolved, Stidhum will be left in substantially the same position as she is now with the benefit of the new suit." As such, the Court of Appeals cannot give plaintiff any "effectual relief" from this appeal. As mootness is a jurisdictional issue, the Court of Appeals lacks jurisdiction over this appeal.

What this means is the district court's ruling is vacated. That ruling said the lawsuit was premature because it was filed less than 180 days after the EEOC charge was filed. While the district observed that some courts have allowed such premature lawsuits, the court disagrees, reasoning, "permitting the agency to create an exception to the 180-day rule based on its perceived workload would diminish pressure on the agency to efficiently investigate and conciliate cases. And it would create incentives for the agency 'shift a large part of its workload to federal courts' at plaintiffs’ request. Ultimately, the statutory framework favored by either plaintiff or defendants would be a coherent one, but the statutory language makes clear that it is defendants’ framework that Congress chose." That reasoning is now vacated as per the Second Circuit's ruling in this case.

Friday, April 8, 2022

$475k in damages for excessive force against Nassau County police officer

The Court of Appeals has sustained an excessive force verdict against a Nassau County police officer, finding that the trial court properly found liability and awarded the plaintiff $475,000 for pain and suffering, even without expert testimony.

The case is Thomas v. Wellenreuther, a summary order issued on April 6. The defendant officer shot plaintiff twice. After the defendant police officer went to a gas station following his shift, he saw a holdup inside the store. Plaintiff-robber then ran out of the store with money hanging out of his pocket, and the attendant told the officer (who was outside the store) that plaintiff had robbed him. When defendant identified himself as a police officer, plaintiff turned around to face him, and the officer thought plaintiff had a gun. Actually, it was a BB gun. The officer fired his gun at plaintiff but missed, and plaintiff then ran away and threw his BB gun away from him. Plaintiff then ran through someone's yard and jumped over a fence. Plaintiff then reached into his waistband and spun around toward the officer, who then fired a second shot, hitting plaintiff in the neck 20 feet away. The trial court said plaintiff was running away from the officer when the officer shot him the second time. 

The second shot was excessive force, the trial court said following a bench trial. The deciding factor for the judge was the fact that plaintiff was running away from the officer when the officer fired at him, and the bullet hit the back of his neck. Shooting a fleeing robber who has already discarded his weapon is excessive force. I can see why plaintiff opted for a bench trial. Jurors may not be sympathetic toward a plaintiff who was ultimately convicted of robbery and ran away from the police. 

What about qualified immunity? The officer's lawyer waived that defense for some reason. It was asserted in the Answer to the Complaint but counsel did not litigate that issue afterwards. Perhaps the trial court would have rejected immunity even without waiver, as she might have found the second shot into plaintiff's neck violated clearly-established law, but many cases are dismissed on immunity grounds, and for defendants, asserting that defense is worth a shot. 

The damages are not too high. The trial court ruling, at 2021 WL 2024770 (EDNY May 21, 2021), provides a good summary of where things stand on pain and suffering in police misconduct cases. The Court of Appeals finds the damages award does not shock the conscience, which is the federal standard in assessing the propriety of damages awards. Even without an expert witness, the trial judge was satisfied that plaintiff's award was appropriate. She writes, "the pain of being shot in the neck is impossible for others to imagine[.]" Also, she notes that plaintiff was fortunate to make a complete recovery, as plaintiff is a hemophiliac. He was also in the hospital for a week. And he suffered depression as a result of the incident, requiring medication.

Thursday, April 7, 2022

Supreme Court rewrites the law of malicious prosecution

The Supreme Court has ruled that you can bring a malicious prosecution claim if you are arrested without probable cause and the case does not end in a conviction. This ruling overturns decades of law in the Second Circuit, which had held that these cases cannot proceed unless the plaintiff can show the case ended in a manner that indicated the plaintiff was innocent of the underlying criminal charges.

The case is Thompson v. Clark, issued on April 4. Justice Kavanaugh wrote for the 6-3 majority. Malicious prosecution claims are usually brought in tandem with false arrest claims, but they differ in that damages for false arrest end once the police confine you, and malicious prosecution claims cover the post-arraignment period through the prosecution itself. Many malicious prosecution claims were dismissed over the years because the criminal defendant took an Adjournment in Contemplation of Dismissal (ACD) or the charges were dismissed "in the interests of justice." Most criminal defendants just want to the criminal case to go away, so they often took an ACD without realizing they were waiving their rights to bring a malicious prosecution claim. Since malicious prosecution cases cannot proceed unless the case terminated in the defendant's favor, ACD's and "interest of justice" dismissals usually did not qualify as a favorable termination.

The Court takes a fresh look at this issue and finds that state courts in the 1800s said that a favorable termination for malicious prosecution means the case ended without a conviction. This was the state of American tort law in 1871, when Congress enacted Section 1983, the federal civil rights statute that allows you to enforce the Constitution. Over the years, though, federal courts said there is no "favorable termination" unless the case ended in a manner indicating the defendant was innocent. The influentual Restatement on Torts also took that view in 1976, but the Court rejects that interpretation because it does not purport to describe the consensus in 1871. (The Supreme Court rarely disregards the Restatement's analysis). For the Court, "the status of American law in 1871 is the relevant inquiry for our purposes." Since American tort law allows you to bring a malicious prosecution claim so long as the case ended without a conviction, the Court applies that test to Section 1983 claims also.

The case is thus remanded to the lower courts, and the Second Circuit ruling in this case is overturned. The Court notes that the officers in this case may still assert the defense of qualified immunity. Immunity is a possibility for the officer. Qualified immunity attaches when the state of the law is not clearly established. Since most malicious prosecution plaintiffs sue for damages, officers often receive immunity in damages claims when the case law was not clear on this issue. Since the Supreme Court is making new law on this issue, at least in the Second Circuit, and governmental defendants are not expected to anticipate future changes in the law, the lower courts might grant the defendant immunity from suit.

Tuesday, April 5, 2022

Trial court awards sexual harassment plaintiff $75,000 for pain and suffering

The plaintiff worked as a correction officer for the Ulster County Jail in Kingston, N.Y., where she was exposed to sexual harassment in the form of officers and supervisors walking around and openly reading pornographic magazines and utilizing pornographic screen savers on their computers. Plus she had to deal with a male coworker and his "vibrating chair." The jury found the County was liable under Title VII and also 42 U.S.C. 1983 because the pornography was so widespread that it amounted to an unofficial county policy. The jury awarded the plaintiff $200,000 in damages. That amount has been reduced to $75,000.

The case is Legg v. Ulster County, 2022 WL 909045, issued by the Northern District of New York on March 29. The plaintiff for our purposes is Watson. This case was filed in 2009, and the events giving rise to the case began in 2007. The trial was in 2014. Joe Ranni, Esq., and Brendan Klaproth, Esq., tried the case. I got involved following the verdict and handled the post-trial motions and appellate work.

Since Watson prevailed on her Title VII and Section 1983 claims, the jury awarded her $200,000 on each claim. Post-trial, the trial court sustained the Title VII verdict but reduced the $200,000 award to $75,000. The trial court also vacated the Section 1983 verdict entirely, holding there was no evidence the harassment was so widespread that the County could be held liable under the "policy or practice" element of a municipal liability claim. 

The case went to the Court of Appeals twice, first in 2014 and again in 2017. Two years after the oral argument on the second appeal, all appellate issues were resolved in 2020, when the Second Circuit reinstated the Section 1983 verdict that the trial court had vacated in 2017, the case returned to the trial court to resolve the outstanding new trial motions, one of which claimed the $200,000 pain and suffering award. With me so far? It's complicated.

On remand, the trial court had two issues: can defendant get a new trial on the Section 1983 claim on the ground that the verdict was against the weight of the evidence, and is the $200,000 pain and suffering award on the Section 1983 verdict too high? On the first issue, the trial court says a new trial is not in order because the Court of Appeals already said the County is not entitled to judgment as a matter of law on this claim. While a JMOL motion carries a different standard than new trial motions, there really is no point in ordering a new trial if the Court of Appeals has already held the evidence sufficed to support the verdict under Rule 50. 

That brings us to the pain and suffering award. Jurors don't know this, but once they render the verdict and head home, the lawyers will spend the next few years fighting about whether the verdict represents true justice, and whether the jury awarded too much money. Trial judges will defer to the jury's judgment, but only to a point. In the Second Circuit, we have a matrix that allows the judges to assess the propriety of a pain and suffering award in employment discrimination cases. As Judge Scullin noted in this case:
“In the Second Circuit, non-economic damages can fall into one of three categories—garden-variety, significant, or egregious.” “Awards compensating garden-variety emotional distress or mental anguish in the Second Circuit range from $30,000 to $125,000.” Courts in this District have recently found awards of $40,000 or $50,000 to be appropriate for garden variety emotional distress claims resulting from a hostile work environment where the plaintiff's emotional distress did not require medical treatment or result in physical manifestation.
I argued that these numbers are outdated, as the $30,000-$150,000 calculation stems from court rulings in the 1990s, and that we should increase these numbers to keep up with inflation. The Court disagreed. Since it deemed Watson's pain and suffering "garden variety," it rejected the County's argument that she can only recover $30,000, but it also found that $200,000 is too high. The Court ruled Watson can recover $75,000. Here is the reasoning on the pain and suffering in this case:
At trial, Plaintiff Watson testified that, after she started working with [sexual harasser] Divorl five nights per week, she “began to withdraw from [her] life” and from her children. She testified that she began having “marital issues” because she “couldn't talk to [her] husband.” Plaintiff Watson further explained that she “became very depressed, very anxious,” had a hard time with “day-to-day life,” and hated going to work. On cross-examination, Plaintiff Watson testified that she had “emotional problems” unrelated to her work as well. She was prescribed Pristiq and Xanax because of her emotional distress related to work, and she stated that she received those medications “in relation to what was going on with [her] husband and [her] as a result of what was going on with [her].” Notably, Plaintiff Watson did not submit any medical evidence to support these claims nor did any family members or friends testify to her condition. 
This evidence, and the fact that Watson recovered $75,000 in pain and suffering for the Title VII claim, results in a $75,000 award on the Section 1983 claim.

Monday, April 4, 2022

Supreme Court stays death sentence so inmate's pastor can be present at execution

The Supreme Court has ruled that a Texas inmate is likely to prevail on his claim that prison officials violated his religious rights in denying his request to have a pastor present during his execution.

The case is Ramirez v. Collier, issued on March 24. The Court notes that Ramirez viciously murdered someone, stabbing him 29 times and making off with $1.25. After fleeing to Mexico for three years, Ramirez was convicted of murder and received the death penalty. 

This case does not challenge Ramirez's conviction or his death sentence. He sues under the Religious Land Use and Institutionalized Persons Act of 2000 and the Free Exercise Clause because he wanted his pastor present during the execution. The pastor would lay hands on him and pray over him. Texas said no, because that would interfere with the necessary silence for these procedures. But the Court says that argument is not good enough because a categorical ban on audible prayer is not the least restrictive means to monitor the inmate's medical condition before they flip the switch. There are other ways to monitor the inmate's health without prohibiting a religious figure from the process. Other states allow pastors to play this role, so Texas can also achieve its objectives with the pastor present, as well. The other reason Texas said no was that allowing a spiritual advisor to pray during the procedure could result in the pastor making a statement to the execution witnesses or prison officials that would disrupt the solemnity and decorum of the procedure. The Court says this kind of speculative concern is not enough to interfere with an inmate's religious rights. 

Remember, this is a religious freedom case, and Congress has said that even inmates have rights in jail to exercise their religious rights. The law under which Ramirez brings this challenge was enacted after the Supreme Court in the 1990s scaled back the scope of the Free Exercise Clause. The government therefore needs a compelling reason for restricting religious freedoms. That's a tough hurdle. The Court says the state has not advanced compelling reasons to keep the pastor out of the room. While the state says doing so would interfere with security in the execution chamber, prevent the prisoner's unnecessary suffering, and traumatize the victim's family members (who will be reminded that the murder victim received no such solace), there are obvious alternative means to prevent these harms from taking place without kicking the pastor out of the room.

Chief Justice Roberts wrote the 8-1 majority opinion, joined by the others except for Justice Thomas, who opens his dissent with a detailed discussion of the stabbing. Thomas argues that in preliminary injunction cases like this, courts should consider equitable factors, such as whether the condemned criminal has made an "attempt at manipulation" that would prevent the requested equitable relief, such as the relief in this case. As Thomas sees it, Ramirez has manipulated the legal system through shifting positions to simply delay the execution. Not to mention the fact that Ramirez disappeared to Mexico after the murder, delaying justice. After several frivolous litigation tactics that followed his conviction, Thomas says, Ramirez ultimately delayed the execution for years. The equities also include the crime victims' families' right to the timely execution of a lawful death sentence.