Defendant's outburst allowed trial court to remove him from courtroom as jury announced its verdict

In this case, the criminal defendant in state court was removed from the courtroom while the jury was issuing its verdict because the trial court decided that a prior warning was not practicable. This is the rare case where the conviction is affirmed even though the defendant was not present in the courtroom during all proceedings.

The case is People v. Dunton, issued by the New York Court of Appeals on April. The defendant, standing trial in a shooting case, had a violent record while in custody at Riker's Island, requiring the court take additional security precautions during trial. As the majority states in this case, the defendant had known "explosive tendencies." During trial, the prosecution told the court that one of its witnesses complained that defendant had stared her down while she was testifying against him, signaling that she should keep her mouth shut. 

When the jury began reading its verdict in court, after finding him guilty on the sixth count, and with one count to go, defendant yelled at the jury in open court and told them to "suck my d***." The judge then removed defendant from the courtroom and the jury proceeded to find him guilty on the seventh charge. 

While criminal convictions can be overturned for a new trial when the defendant is improperly removed from the courtroom during all proceedings, there are exceptions to that rule, and this case creates an exception. The Court of Appeals holds that removal was proper in the unique circumstances of this case. The majority reasons:

In disregard of his professed assurances, and demonstrating his contempt for the proceedings and the court, defendant disrupted the announcement of the verdict three times. First, he laughed after the foreperson announced guilty on five counts, including the top count of attempted murder. Second, moments later, after the foreperson announced guilty on the sixth count, defendant directed a verbal outburst at the jury. Third, after the court instructed counsel to control defendant, defendant continued his tirade, using profanity directed specifically at the jury. It was only after defendant could not be controlled and the jurors had become visibly upset by defendant's verbal abuse that the court directed the officers to take charge and defendant was removed from the courtroom.

 

Contrary to the dissent's view, the totality of defendant's misconduct in and out of the courthouse rendered a warning to defendant immediately preceding his removal impracticable. Any delay in defendant's removal would have permitted further disruption of the proceedings and risked physical danger to the public, jurors, judge, court officers and staff and the lawyers. As the court had earlier observed, “things get ugly very fast in a [quite small] courtroom.” The fact that defendant was handcuffed did not eliminate the possibility that he could physically move about and further disrupt the proceedings and injure those in attendance. Indeed, defendant had previously displayed violent sudden outbursts and there was no certainty that handcuffs would prevent him from reacting in the same manner.

 

In disregard of his professed assurances, and demonstrating his contempt for the proceedings and the court, defendant disrupted the announcement of the verdict three times. First, he laughed after the foreperson announced guilty on five counts, including the top count of attempted murder.⁵ Second, moments later, after the foreperson announced guilty on the sixth count, defendant directed a verbal outburst at the jury. Third, after the court instructed counsel to control defendant, defendant continued his tirade, using profanity directed specifically at the jury. It was only after defendant could not be controlled and the jurors had become visibly upset by defendant's verbal abuse that the court directed the officers to take charge and defendant was removed from the courtroom.⁶

Contrary to the dissent's view, the totality of defendant's misconduct in and out of the courthouse rendered a warning to defendant immediately preceding his removal impracticable (see dissenting op. at ––––, ––– N.Y.S.3d at ––––, ––– N.E.3d at ––––). Any delay in defendant's removal would have permitted further disruption of the proceedings and risked physical danger to the public, jurors, judge, court officers and staff and the lawyers. As the court had earlier observed, “things get ugly very fast in a [quite small] courtroom.” The fact that defendant was handcuffed did not eliminate the possibility that he could physically move about and further disrupt the proceedings and injure those in attendance. Indeed, defendant had previously displayed violent sudden outbursts and there was no certainty that handcuffs would prevent him from reacting in the same manner.

People v. Dunton, No. 42, 2024 WL 1723124, at *5 (N.Y. Apr. 23, 2024)

In disregard of his professed assurances, and demonstrating his contempt for the proceedings and the court, defendant disrupted the announcement of the verdict three times. First, he laughed after the foreperson announced guilty on five counts, including the top count of attempted murder.⁵ Second, moments later, after the foreperson announced guilty on the sixth count, defendant directed a verbal outburst at the jury. Third, after the court instructed counsel to control defendant, defendant continued his tirade, using profanity directed specifically at the jury. It was only after defendant could not be controlled and the jurors had become visibly upset by defendant's verbal abuse that the court directed the officers to take charge and defendant was removed from the courtroom.⁶

Contrary to the dissent's view, the totality of defendant's misconduct in and out of the courthouse rendered a warning to defendant immediately preceding his removal impracticable (see dissenting op. at ––––, ––– N.Y.S.3d at ––––, ––– N.E.3d at ––––). Any delay in defendant's removal would have permitted further disruption of the proceedings and risked physical danger to the public, jurors, judge, court officers and staff and the lawyers. As the court had earlier observed, “things get ugly very fast in a [quite small] courtroom.” The fact that defendant was handcuffed did not eliminate the possibility that he could physically move about and further disrupt the proceedings and injure those in attendance. Indeed, defendant had previously displayed violent sudden outbursts and there was no certainty that handcuffs would prevent him from reacting in the same manner.

People v. Dunton, No. 42, 2024 WL 1723124, at *5 (N.Y. Apr. 23, 2024)

Bedroom invite does not give rise to quid pro quo sexual harassment case

The Court of Appeals has rejected a sexual harassment claim, holding that the plaintiff has not sufficiently alleged quid pro quo harassment in trying to assert that the company president was trying to initiate a sexual relationship.

The case is Reed v. Fortive Corp., a summary order issued on April 24. To win a quid pro quo harassment claim you have to show that the supervisor conditions job-related benefits on your decision to have sex with him. In this case, the Court of Appeals (Calabresi, Park and Merriam) holds, plaintiff does not plead such a claim and that her allegations are too conclusory and speculative. Here are the allegations, bearing in mind that McCauley is head of the company:

Reed’s claim is based on a single incident in which McCauley allegedly invited her to see a corporate apartment on their way to lunch, asked her repeatedly to join him in the apartment’s bedroom, and then inquired over lunch whether she was married or had a boyfriend.

The bedroom was MCauley's bedroom. What the complaint does not assert, the Court notes, is that McCauley made sexual comments or made physical contact, and plaintiff does not allege that he engaged in any other sexual conduct toward plaintiff or anyone else. Without actually stating this, the Court appears to believe that McCauley's bedroom maneuvers are not, by themselves, enough that he was trying to initiate a sexual relationship with plaintiff.

What he have is an Iqbal holding, named after the Supreme Court from 2009 that made it more difficult for plaintiffs to survive a motion to dismiss. Iqbal emphasized that plaintiffs must assert "plausible" and nonconclusory claims. Court also cite Iqbal for the proposition that speculative claims are not enough. I am sure plaintiff's counsel emphasized that the bedroom references were inherently sexual. The bedroom is not the kitchen. At oral argument counsel noted that in Oncale v. Sundowner (1997), the Supreme Court wanted the courts to examine the offending conduct in the appropriate "social context."

Justices clarify "transportation exception" to compelled arbitrationm law

Arbitration can be described as a private justice system that resolves legal disputes if the parties agree to that arrangement. In the employment context, the worker usually signs the arbitration agreement at the start of her employment, and if she wants to sue her employer later on, the case will be routed to JAMS or AAA, the primary arbitration services. But all kinds of non-employment disputes are also arbitrated. Anything can be arbitrated. Courts do not like it when litigants try to get around the arbitration agreement, and they will strictly enforce the Federal Arbitration Act, which provides that arbitration agreements will be upheld absent some compelling reason (such as if someone was coerced into signing the agreement). There is a major exception to the FAA, and that arose on April 12, when the Supreme Court examined the transportation exception.

The case is Bissonnette v. Le Page Bakeries. The plaintiffs distributed baked goods to retailers in Connecticut. They got into a dispute with Flowers Foods, who make the baked goods for delivery. But plaintiffs signed an arbitration agreement, which Flowers wanted to enforce so the case could proceed in arbitration, which is generally viewed as more favorable to employers than the courts. Plaintiffs wanted the case in court. After several rounds of appellate practice in the Second Circuit, which sided with Flowers and ordered the case to arbitration, the case reached the Supreme Court, which unanimously agrees with the plaintiffs that the case is not arbitrable.

The FAA has a curious exception that we call the "transportation exception." The issue is whether a transportation worker must work for a company in the transportation industry to invoke the transportation exception under the FAA. Or whether the plaintiff engages in transportation as part of his work, even if he is working for an entity that is not part of the transportation industry. The Second Circuit held the plaintiffs must work in the transportation industry, such as the airlines or a trucking company. As the Circuit saw it, the "entity would be considered within that industry if it pegs its charges chiefly to the movement of goods or passengers and its predominant source of commercial revenue is generated by that movement." The Supreme Court rejects that interpretation of the FAA.

Since the FAA does not actually define what constitutes the "transportation industry," it reviews the statute with a fresh eye, determining that the Second Circuit's interpretation needlessly complicates the statute and would require mini-trials to determine whether an entity really falls within the exception. "Extensive discovery may be necessary to explore the internal structure and revenue models of a company before deciding a simple motion to compel arbitration." The better rule, the Supreme Court says, is that in determining whether the transportation exception applies, the plaintiff need not work for a company in the transportation industry. Rather, "a transportation worker is one who is actively engaged in transportation of goods across borders via the channels of foreign or interstate commerce. In other words, any exempt worker must at least play a direct and necessary role in the free flow of goods across borders."

Supreme Court makes it easier for Title VII plaintiffs to win discriminatory transfer cases

In a major ruling under Title VII (the primary federal employment discrimination statute), the Supreme Court holds that plaintiffs challenging a discriminatory job transfer need only prove the transfer brought about some "disadvantageous" change in an employment term and condition. This ruling rejects the test applied in the Second Circuit and elsewhere, which required that the plaintiff prove a "significant" change in the terms and conditions of employment. Instead, the plaintiff need only prove "some harm respecting an identifiable term or condition of employment."

The case is Muldrow v. City of St. Louis, issued on April 17. For decades, at least in the Second Circuit (and most of the other Circuits), courts have required Title VII plaintiffs to prove a "material" change in the terms and conditions of employment in order to win the case. A termination or demotion is certainly material, but transfers were less clear. A few Circuits in recent years took a fresh look at the materiality test and determined that it finds no basis under Title VII's plain language, and they instead held that any discrimination is actionable under Title. VII. The Supreme Court does not go that far, but it does reduce the plaintiff's burden in proving a discriminatory transfer case.

Plaintiff was a female law enforcement professional who was transferred to a less-prestigious unit, where her rank and pay remained the same but she no longer worked with high-ranking officials on departmental priorities in the Intelligence Division and instead supervised day-to-day activities of neighborhood patrol officers. The transfer also cost her an unmarked take-home vehicle, and she had to work some weekends. The evidence suggests a supervisor wanted a man to hold plaintiff's position, which occasioned the transfer. Is this an adverse action under Title VII?

This case is the first time the Supreme Court really explains what constitutes an adverse action under Title VII, enacted in 1964. Circuit courts have had to define that phrase and over the years the consensus was that a "material" change in the terms and conditions of employment is necessary to win the case. This led to the dismissal of countless cases where courts thought the plaintiff could not prove an adverse action, and many of these dismissals were transfer cases. The Second Circuit held firm on the materiality standard, as the Supreme Court notes in listing the cases creating the Circuit split that led the Court to grant certiorari.

Writing for a unanimous Court, Justice Kagan writes that the "materiality" or "significant" test in transfer cases finds no support in the language of Title VII. In other words, that high burden was judge-made and not authorized by Congress. The high burden has led to conflicting results in the various Courts of Appeals over the years, Justice Kagan notes. After summarizing cases in which the plaintiff lost under the heightened standard, she writes: "All those employees suffered some injury in employment terms or conditions (allegedly because of race or sex). Their claims were rejected solely because courts rewrote Title VII, compelling workers to make a showing that the statutory text does not require."

Muldrow's case, which was dismissed under the now-rejected materiality standard, is revived. If she can prove her allegations, then she has an adverse action, the Court holds. 

Muldrow need show only some injury respecting her employment terms or conditions. The transfer must have left her worse off, but need not have left her significantly so. And Muldrow’s allegations, if properly preserved and supported, meet that test with room to spare. Recall her principal allegations. She was moved from a plainclothes job in a prestigious specialized division giving her substantial responsibility over priority investigations and frequent opportunity to work with police commanders. She was moved to a uniformed job supervising one district’s patrol officers, in which she was less involved in high-visibility matters and primarily per- formed administrative work. Her schedule became less reg- ular, often requiring her to work weekends; and she lost her take-home car. If those allegations are proved, she was left worse off several times over. It does not matter, as the courts below thought . . . that her rank and pay remained the same, or that she still could advance to other jobs. Title VII prohibits making a transfer, based on sex, with the consequences Muldrow described.

The case returns to the district court to apply the correct standard. 

We have a few concurrences, including one from Justice Alito, who says the ruling is "unhelpful" and that he has "no idea what [the new standard] means, and I can just imagine how this guidance will be greeted by lower court judges." He adds:

I see little if any substantive difference between the terminology the Court approves and the terminology it doesn’t like. The predictable result of today’s decision is that careful lower court judges will mind the words they use but will continue to do pretty much what they have done for years.

Justice Kavanaugh would take the standard even further and allow plaintiffs to win if they can prove any transfer was discriminatory. He writes:

No court has adopted a some-harm requirement. No  court  has  adopted  a  some-harm requirement, and no party or amicus advocated that requirement to this Court. More to the point, the text of Title VII does not require a separate showing of some harm. The discrimination is harm. The only question then is whether the relevant employment action changes the compensation,  terms, conditions, or  privileges  of employment. A transfer does so. Therefore, as the D. C. Circuit explained, a transfer on the basis of race, color, religion, or national origin is actionable under Title VII.

Justice Kavanaugh recognizes that Justice Kagan's new test presents "a relatively low bar" for plaintiffs and that, in his view, "anyone who has been transferred because of race, color, religion, sex, or national origin should easily be able to show some  additional  harm—whether  in  money,  time, satisfaction, schedule, convenience, commuting costs or time, prestige, status, career prospects, interest level, perks, professional   relationships, networking opportunities, effects on family obligations, or the like."

How will this holding affect other Title VII cases that do not involve discriminatory transfers but job-actions that do not result in terminations or demotions? The Court does not say. The next few years will yield new cases in the lower courts that grapple with the new test in different factual settings.
 




 

This is why it is hard to win false arrest cases

As if this actually bears repeating, and it does not, probable cause is a defense to any false arrest claim, and probable cause is a low bar for the police to satisfy. This means many false arrest claims never see the light of day, even if the criminal defendant was found innocent in criminal court, and even if the charges against the criminal defendant were dropped prior to trial. This case is a good example of how all of this works.

The case is Dorsey v. Gannon, a summary order issued on March 29. Plaintiff was arrested and the charges were dismissed, but that does not give plaintiff a trial. What would give her a trial is proof that no reasonable officer would have arrested plaintiff under the circumstances. Again, that's a low bar for the police. When I say "no reasonable officer," I mean "no reasonable officer." The courts do not want the police to avoid arresting someone in fear that there might be a lawsuit if the arrest turned out to be wrong. You can only sue if the arrest was totally unreasonable. Qualified immunity has been expanded over the years, making it difficult for plaintiffs to overcome that defense. There was talk a few years ago of eliminating this immunity, but that movement has stalled.

What happened here is that the police reviewed surveillance video of a woman with a fake Pennsylvania driver's license trying to cash forged checks at banks in the metropolitan area. A Pennsylvania detective told the NYPD that the video appeared to depict plaintiff, and he provided a photograph of plaintiff and her criminal history. Plaintiff's probation officer also agreed the photo depicted plaintiff. Solid case, right?

But wait! After plaintiff provided alibis proving she was someplace else when the surveillance footage was taken, the charges were dismissed. Plaintiff was innocent!

If you know false arrest law, you know where this is going. Yes, plaintiff spent two days in jail before posting bail, which is a serious hardship and an injustice. But the officers did reasonably think it was plaintiff in the video footage, based on corroborating evidence. The arrest, in hindsight, was bad. But the Court of Appeals (Jacobs, Sullivan and Leval) finds the police acted reasonably in taking her into custody. Since the police dropped the charges after the alibis exonerated her, there is no reason to sue the police under 42 U.S.C. 1983, the national civil rights law.

Excessive force claim will proceed to trial

The plaintiff claims a police officer in Greenwich, Connecticut subjected him to excessive force after someone called the police following plaintiff's anxiety attack in his partner's residence, when he threw things around and destroyed property. The district court denied summary judgment for the officer, which would normally send this case directly to trial. But the officer appeals, claiming entitlement to qualified immunity. There can be no appeal, however, without first resolving disputed facts surrounding the use of force. There will be a trial.

The case is Moran v. Greco, a summary order issued on April 12. When Officer Greco arrived on the scene, he told plaintiff to lie on the ground outside after the officers decided to place him under arrest. But plaintiff instead stood up and began to walk way, at which time Greco and another officer brought him to the ground and turned him onto his stomach, but plaintiff resisted handcuffing. A series of officers then used force to effectuate the handcuffs. At some point, this force caused plaintiff to suffer a broken arm, causing "an audible popping sound." This happened after Greco threatened to break plaintiff's "fucking arm," to which plaintiff responded, "Why would you do that? It's already locked."

Excessive force claims are not always amenable to summary judgment, because the parties often dispute the relevant facts: the police claim they had to use force to bring the suspect under control, and the suspect claims the officer used too much force. These claims can prevail even if the plaintiff resisted to some extent. "Excessive" force is often an issue for the jury. That does not mean the plaintiffs often win at trial, but courts do not want to take that decision away from the jury. There is a fine line between excessive and reasonable.

For police officers, one way to win is to assert qualified immunity, which means the officers acted reasonably under the circumstances, even if 20/20 hindsight proves the officers went too far. If immunity is denied, the officer can take an immediate appeal. But that immediate appeal (which is otherwise disfavored in the federal system) cannot proceed unless the undisputed facts show the officer acted reasonably. In a swearing contest like this, it is difficult to agree on the facts, and since the plaintiff often argues that the force was gratuitous, the officers' motion for qualified immunity will often be denied. That is what happened here. As the Court writes:

Here, the facts viewed in the light most favorable to Moran are that Officer Greco torqued Moran’s arm forward causing it to fracture, and that, at the time Officer Greco shifted Moran’s arm, Moran was lying face down on the ground, surrounded by six officers who were either pinning Moran to the ground or, in the case of Officers Tornga and Greco, holding Moran’s wrists. On those facts, a rational jury could find that, at the time of Officer Greco’s use of force on Moran’s left arm, Moran was no longer actively resisting arrest and that the use of force on that arm— which caused it to break—was gratuitous and objectively unreasonable under the totality of the circumstances.

While the officers point to evidence suggesting they acted reasonably, the Court of Appeals (Sack, Chin and Bianco) holds it does not even have jurisdiction to resolve the appeal. Off to trial we go.

 

No taxpayer standing to challenge Rockland County zoning law favoring Orthodox Jews

A citizen's group and three named plaintiffs sued this community in Rockland County, claiming that a new zoning law for places of religious worship violates the Establishment Clause of the First Amendment, which mandates church-state separation. The plaintiffs lose. Why? They lack standing to sue.

The case is Citizens United to Protect our Neighborhoods v. Village of Chestnut Ridge, New York, issued on April 5, eleven months after oral argument. Accommodating the Orthodox Jewish community, following contentious public hearings, the Village amended its zoning laws so that religious organizations can more easily build places of worship, causing plaintiffs to worry that the new zoning laws would "radically transmogrify the character of the Village." They sued in 2019. Five years later, we have a definitive resolution from the Second Circuit (Jacobs, Kearse and Sullivan), though not on the merits of the appeal. The Court instead says plaintiffs lack standing to bring this lawsuit.

Plaintiffs assert municipal taxpayer standing, which applies in certain cases alleging Establishment Clause violations if the taxpayer can show "a measurable appropriation or loss of revenue attributable to the challenged activity." But to gain standing this way, the plaintiff has to show the government made the appropriation "solely for the activities that the plaintiff challenges." In applying this test, however, courts will ensure that standing does not attach merely because the municipality's paid employees spent time on the challenged activities. Plaintiffs lose under this theory because, while they pay municipal taxes, those taxes are not spent or lost on the enforcement of the new zoning law. Nor does it matter that the village spent money in passing the new zoning law. Plaintiffs' taxpayer standing arguments are simply too generalized to allow them to bring this lawsuit.

Nor can plaintiffs assert "direct harm," or "direct exposure" standing, as they are not directly affected by the new zoning laws. They cannot show the new laws would cause them to be personally constrained or subject to control, such as if they were denied a liquor license simply because their establishment was situated near a church. Nor would the new zoning law affect plaintiff's religious practices. Since they cannot show the new laws would harm them personally, as opposed to the community as a while, there is no direct-harm standing.

How about "denial of benefits" standing? No dice, the Court says, as plaintiffs cannot show the new zoning law will cost them any benefits on account of their religion. The organizational standing argument also fails, as the new law does not directly regulate the organization and will not require the organization to expend or lose any resources. 

In the end, perhaps the only real way to challenge a zoning law like this is though the political process, the way you might challenge any other zoning law. Not all local laws can be challenged in court. 

Connecticut man may bring pre-enforcement challenge to anti-gun law

This case involves a man who wants to carry a gun in the state parks of Connecticut. He says he needs the gun for self-defense. The state has not yet arrested plaintiff over this, and it does not appear he actually entered any state parks with his gun. For that reason, the case was dismissed because the district court said plaintiff lacks standing to to bring this pre-enforcement lawsuit. The Court of Appeals reverses.

The case is Nastri v. Dykes, a summary order issued on March 29. Standing rules emanate from the Constitution. You need a concrete dispute before the courts can issue a ruling. So if plaintiff were actually arrested for carrying a gun into a state park, then proving standing is easy. But what about when the anti-carry law is on the books and plaintiff anticipates an arrest, even when no one specifically threatens him with enforcement?

To establish standing, plaintiff has to establish a "credible threat of enforcement." That is a "quite forgiving standard" for plaintiffs. The Court of Appeals (Jacobs, Leval and Sullivan) lays out the test:

we do “not place[] the burden on the plaintiff to show an intent by the government to enforce the law against [him] but rather presume[] such intent in the absence of a disavowal by the government.” In other words, we presume that a credible threat of enforcement exists, and require the government to “rebut” that inference by “disavowing” its intent to enforce the statute, or by pointing to “another reason to conclude that no such intent exist[s].”

Nor must plaintiff identify a threat of future enforcement to demonstrate a credible threat. Rather, "when it is apparent that the plaintiff's conduct is subject to the statute, we presume that there exists a credible threat of enforcement -- whether or not a plaintiff points to additional evidence -- and require the government to show otherwise."

Since the anti-carry law on the books prevents plaintiff from bringing a handgun into the state park, and Connecticut's Environmental Conservation Police has stated that his department would take enforcement action if its officers found a person inside the parks with an unauthorized firearm, plaintiff has standing to bring this case challenging the anti-gun law. And while the state claims the law is "moribund" and "not likely to be enforced because it has origins to 1918, the current statute was enacted in 1993 and amended in 2017, so it is not as outdated as Connecticut claims.

 

Railroad employee may proceed with disparate treatment claim against Metro North

The plaintiff in this case was an engineer for Metro North Railroad who was fired after his train collided with another train. At the time, plaintiff was on a "last chance waiver" that Metro North invoked at the time of his termination. Despite that alleged performance problem, plaintiff may sue for racial discrimination on a selective enforcement theory under Title VII.

The case is Davis v. Metro North, a summary order issued on April 3. One way to win your discrimination claim is to show you were disciplined or even fired for an alleged infraction for which a white coworker suffered no discipline. When that happens, you do not have to identify direct evidence of discrimination, such as racial comments or stereotyping. Plaintiff's case proceeds to discovery, and the Rule 12 dismissal is vacated, because a white comparator was not similiarly disciplined.

The complaint alleges that a white employee, who held the same position as plaintiff, also "received a last chance waiver and later was working on a train that collided with a passenger train," yet the railroad authorities did not terminate the white coworker "but instead gave her another last chance waiver." Plaintiff and the coworker were similarly-situated under Title VII because the coworker "was on a last chance waiver before her involvement in a train collision." 

Under the minimal pleading standards in the Second Circuit, most recently outlined in Buon v. Spindler, 65 F.4th 64 (2d Cir. 2023), plaintiff asserts a claim through these allegations. Discovery will focus on why plaintiff and not his white colleague was fired following the train collision. 

Plaintiff also alleges selective enforcement under the equal protection clause. The analysis is a little different from the Title VII disparate treatment claim. The Court of Appeals (Sack, Nardini and Perez) holds that this claim survives the motion to dismiss because the complaint "contains sufficient allegations of irregularities in Defendants' treatment of Davis after the collision that nudge his selective enforcement claim across the line from conceivable to plausible," the pleading test under Ashcroft v. Iqbal, 556 U.S. 662 (2009). The Court writes:

The SAC alleges that (1) Defendants did not provide a pre-investigation meeting or a settlement offer to Davis, in violation of the MNR’s collective bargaining agreement with the union; (2) Defendants indicated prior to the investigation that they intended to terminate Davis for the collision; and (3) Defendants delayed the investigation of Davis. Generously construed, these allegations suggest that Defendants acted with malice towards Davis.

Low damages, high fees in FLSA case -- no reversible error

The Court of Appeals affirms a large attorneys' fees award in a wage-and-hour claim that did not produce a large damages award for the plaintiff.

The case is Caltenco v. G.H. Food, a summary order issued on March 29. After a three-day bench trial, plaintiff won the case and was awarded $7,682.20. Plaintiff's counsel then moved for attorneys' fees. The district court awarded $113,225.88 in attorneys’ fees and $10,869.34 in costs pursuant to 29 U.S.C. § 216(b) [the Fair Labor Standards Act] and N.Y. Lab. L. §§198(1-a), (1-d). Defendant appeals, claiming that's just too much money for a case like this. 

 

Employers are probably not aware of this, but when one of their employees successfully sues for wage-and-hour violations, they will recover attorneys' fees. The lawyer who took the case may have done so on contingency, as the plaintiff may be short on cash since management stole their tips or denied their overtime. So the lawyers will only take good cases that have a chance for recovery of their attorneys' fees. Sometimes those fees greatly exceed the value of the case.

The Court of Appeals (Kearse, Parker and Perez) affirms the attorneys' fees award. "The district court acted within its discretion in determining that the fee award should not be reduced to the extent requested by G.H. Food and Singh because of the limited damages Caltenco ultimately obtained. Our precedent is clear that '[f]ee awards in wage and hour cases should encourage members of the bar to provide legal services to those whose wage claims might otherwise be too small to justify the retention of able, legal counsel.' In order to 'advanc[e] Congress’s goals under the FLSA to ensure a ‘fair day’s pay for a fair day’s work,’ the law cannot be read to impose a proportional limitation based on the perceived complexities of the litigation.'” An attorneys' fees award that is disproportionate to the damages is not per se excessive.

The Court of Appeals notes that "there are procedural tools available to defendants like G.H. Food and Singh to reduce their financial exposure to potential attorneys’ fees in run-of-the-mill FLSA cases." The Court does not identify those procedural tools, but I would be that one such tool is a Rule 68 offer, where the employer makes an "offer of judgment" for a certain amount of money, and if the plaintiff rejects that offer and wins less money at trial, the attorneys' fees are cutoff from the date of the offer of settlement. I guess there was not offer of settlement in this case. I would guess the next such case against this employer will yield such an offer.

Second Circuit clarifies how to win a mixed-motive case under Title VII

For now, this is the most significant employment discrimination case of the year from the Second Circuit, which clarifies what it takes for Title VII plaintiffs to win their cases. The Court holds that the district court improperly granted summary judgment for the employer where (1) the record revealed some performance deficiencies but (2) a manager who played an important role in plaintiff's termination said that women were not suited to hold her position.

The case is Bart v. Golub Corp., issued on March 26. Plaintiff was a supermarket manager who worked in the deli and was admonished for failure to maintain food logs, for which she admitted responsibility in August 2016. In summer 2017, plaintiff was transferred to a new location, where her manager, Pappas, called one of her female coworkers a "ding dong," said another woman "shouldn't have a job," and called yet another female employee an "idiot." Apart from these rude comments, Pappas said "he didn't think women should be managers" and that being a manager was too "stressful" for women and that women were "too sensitive to be managers." That comments was made in June 2018. That year, plaintiff was frequently disciplined for poor performance. Plaintiff admitted some of the performance criticisms were true. She was ultimately fired.

What do we do with a case like this? On one hand, Pappas made some blatantly sexist comments about plaintiff's ability to perform her duties as manager. But we also have job performance issues. The district court granted defendant's motion for summary judgment on the basis of plaintiff's admissions "that the reason provided for her termination are factually accurate and valid under Defendant's policies and procedures." As the district court held these admissions were "dispositive of the pretext issue," her case was dismissed.

The Court of Appeals reverses and the case returns to the docket for trial. The Court reviews its precedents since the 1990's on pretext and direct evidence, noting that the cases are not always clear about when cases like this should go to trial. Normally, without direct evidence, plaintiffs use the McDonnell Douglas burden-shifting model, requiring them to prove the defendant's articulated reason for the adverse action is a pretext, or bad faith excuse. But the Second Circuit has also said, notably in Henry v. Wyeth Pharmaceuticals, Inc., 616 F.3d 134 (2d Cir. 2010), that a plaintiff is not required to prove the employer's articulated reason is false, and that the the plaintiff can prevail by showing that an unlawful factor (like sex, race, etc.) was a motivating factor, even "without proving that the employer's proffered explanation was not some part of the employer's motivation." 

Another puzzle followed the 1991 amendments to Title VII, which incorporated a motivating-factor causation standard, abandoning the "but-for" test that the Supreme Court had adopted a few years earlier. Even after 1991, "it became unclear whether mixed-motive cases should be analyzed under McDonnell Douglas. "The chasm between mixed-motives and single-motive cases persisted.," and the Second Circuit responded to the 1991 amendments by "applying different standards in mixed-motive and single-motive cases," though that distinction seemed to fall away over time, especially following the Supreme Court's ruling in Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003), which said direct evidence is not required to win a mixed-motive case.

What it all means is as follows: "a Title VII plaintiff need not prove that the employer's stated reason was false. A plaintiff instead need only show that the employer's stated reason -- even if true or factually accurate -- was not the 'real reason,' in the sense that it was not the entire reason due to a coexisting impermissible consideration." (Emphasis in original). In the end, the plaintiff must show that "the defendant's employment decision was more likely than not based in whole or in part on discrimination." A strong prima facie case may be enough to win the case, the Second Circuit (Nardini, Kearse and Lynch) adds. In sum, the Court says:

To satisfy the third-stage burden under McDonnell Douglas and survive summary judgment in a Title VII disparate treatment case, a plaintiff may, but need not, show that the employer’s stated reason was false, and merely a pretext for discrimination; a plaintiff may also satisfy this burden by producing other evidence indicating that the employer’s adverse action was motivated at least in part by the plaintiff’s membership in a protected class.

The plaintiff in this case benefits from this clarification. While the employer may have told the truth about plaintiff's performance deficiencies, there is also direct evidence of discriminatory intent -- Pappas's sexist comments about plaintiff's ability to perform as a manager. As the actor most involved her termination, Pappas's gender-based bias cannot be ignored. The Court reminds us in a footnote that, even if the ultimate decisionmaker did not harbor any discriminatory intent, the plaintiff can win if a sexist manager played a meaningful role in her termination. Summary judgment is therefore reversed for the following reason:

Bart testified that Pappas made several remarks to her, including close in time to the firing insinuating that he believed that a man would perform better in Bart’s role than a woman would. Pappas’s comments are therefore not “stray remarks” insufficiently tied to the adverse action as to lack probative value. Instead, “[t]he comments alleged were (1) made repeatedly, (2) drew a direct link between gender stereotypes and the conclusion that [Bart is ill-suited for her position as a manager], and (3) were made by [a] supervisor[] who played a substantial role in the decision to terminate [Bart]. As such, they are sufficient to support a finding of discriminatory motive.”

 

Supreme Court takes on Facebook censorship and political speech

One of the anomalies in our constitutional system is that the courts have to solve modern-day problems by applying language that the constitutional framers adopted in 1791. In this case, the Supreme Court had to decide when the First Amendment bars a public official from censoring his private Facebook page. The Court provides an answer by creating a multi-part test drawn from state-action cases that the Court has issued over the decades.

The case is Lindke v. Freed, issued by the Court on March 15. Freed was city manager for the City of Port Huron, Michigan, who created a Facebook page for himself more than 15 years ago. That page includes personal postings about family, friends, his dog, bible verses, etc. But since he was also a public official, he posted stuff about the City, and constituents wrote comments that he sometimes deleted because they were "derogatory" or "stupid." One constituent was Lindke, who criticized how the City dealt with the COVID pandemic. Freed blocked Lindke, who in turn sued Freed, and the case winds up in the Supreme Court because the Supreme Court has to issue guidance on new issue. The framers never could have anticipated an issue like this, but there is a speech component to a case like this so the Court tries to bring this case within its existing standards in comparable speech cases.

What makes this a potential constitutional claim is that Freed is a public official. Normally, public officials cannot silence their critics; that would invite a First Amendment challenge. The problem here is that Freed silenced Lindke on his private Facebook page that also addresses public matters. 

The Supreme Court devises the following test, drawing from prior state action cases. The first thing the censored plaintiff must show is that the public official had actual authority rooted in written law or longstanding custom to speak for the government. "That authority must extend to speech of the sort that caused the alleged rights deprivation." But if the public employee does not use his speech in furtherance of his official responsibilities, he is speaking in his own voice" and cannot be sued under the First Amendment. The Court gives a few examples of his this might play out:

Take a mayor who makes the following announcement exclusively on his Facebook page: “Pursuant to Municipal Ordinance 22.1, I am temporarily suspending enforcement of alternate-side parking rules.” The post’s express invocation of state authority, its immediate legal effect, and the fact that the order is not available elsewhere make clear that the mayor is purporting to discharge an official duty. 

If, by contrast, the mayor merely repeats or shares otherwise available information—for example, by linking to the parking announcement on the city’s webpage—it is far less likely that he is purporting to exercise the power of his office. Instead, it is much more likely that he is engaging in private speech “relate[d] to his public employment” or “con- cern[ing] information learned during that employment.”

But these are hypotheticals. The Court makes clear that this is a face-specific inquiry that will depend on the case. Cases involving problems that no one anticipated 20 years ago are not easy to resolve, and I am sure this case is just the beginning of social media censorship rulings from the Supreme Court.

 

Trial court granted summary judgment to defendant after 2d Circuit remanded case for trial

In this excessive force case against the Suffolk County Police Department, the Court of Appeals held in 2017 that the plaintiff had enough evidence to prove that one of the officers shot and killed the decedent in violation of constitutional standards. On remand, however, rather than empanel a jury, the trial court gave the case additional thought and granted summary judgment to the officer, dismissing the case. Can the trial court do that?

The case is Callahan v. Suffolk County Police Dept., issued on March 19. This case was originally filed in 2012. It arose after officer Wilson went to the Callahan's home, and their 26 year-old son, who had substance abuse problems, was shot by the officer. The parties sharply dispute what happened prior to the shooting, as the officer maintained that Kevin had a gun and he shot Kevin in self-defense. The family denies that account. The case went to trial and the jury returned a verdict in Wilson's favor, but the Court of Appeals ruled in 2017, 863 F.3d 144, that the jury was improperly charged on the standards guiding excessive force claims. The Second Circuit thus remanded the case to the Eastern District of New York for a new trial.

On remand, the judge placed the case on the trial-ready calendar but the defendants then moved for summary judgment, arguing that Wilson was entitled to qualified immunity on the wrongful death claim. The district court granted that motion, and the case returned to the Second Circuit (Parker, Lee and Merriam), which teaches the trial court a lesson on appellate mandates.

When the Court of Appeals issues a ruling, it issues a "mandate" that requires the trial court to faithfully comply with its order. The trial court does not have any discretionary authority to second-guess the Second Circuit's ruling or its judgment. When the Second Circuit ordered a new trial in this case, the trial court did not have authority to decide on its own that there were no factual issues for trial. While there are some exceptions to this rule, none apply here, as the factual record was not further developed on remand and the record upon which the district court granted summary judgment was essentially the same as the record that was before the Court of Appeals in remanding this case for trial.

Racial harassment claim under the City HRL will proceed to trial

This is an unpleasant racial harassment case against Fashion Institute of Technology, where the plaintiff complained about such harassment arising from a supervisor's allegedly racially-insensitive comment toward a white student aide. Plaintiff says she suffered retaliation from that supervisor, Barton, in the form of a death threat. The Court of Appeals holds that plaintiff has a case against Barton under the New York City Human Rights Law.

The case is Phillips v. FIT, a summary order issued on March 8. After Barton learned about plaintiff's complaint to the Affirmative Action Office, Barton screamed at plaintiff, saying, "I'm tired of your bullshit" and "If you don't shut the fuck up, I'm going to fucking kill you." Plaintiff says Barton was "foaming at the mouth" and put her hands on plaintiff's chest as if to push her. Plaintiff complained to HR, which suspended Barton, sent her to a racial empathy seminar, and began investigating the allegation about three weeks later.

The hostile work environment claim was properly dismissed, the Court of Appeals (Lohier, Calabresi and Cabranes) holds, because there is no evidence that Barton's threats were racially-motivated. It was not enough for plaintiff to assert otherwise on the basis that Barton had never acted that way toward a white employee. Such an argument is speculative, the Court holds. 

But we do have a viable retaliation claim for a retaliatory hostile work environment, because the jury may find that Barton's threats were materially adverse and would have deterred a reasonable employee from complaining about racial discrimination in the future. The Court notes that "[a] single incident may constitute a hostile work environment, and thus a materially adverse action, if it is 'extraordinarily severe.'” Under that test, plaintiff could have reasonably been dissuaded from complaining about discrimination again. The Court of Appeals writes that "Phillips testified that Barton threatened to kill her, cursed repeatedly at her, and physically intimidated her. Indeed, Barton testified at her deposition that she repeatedly threatened 'to kill' Phillips because saying it once 'evidently . . . didn’t scare [Phillips] enough; because she kept talking and so [Barton] said it again.'” 

The Court thus holds that "[a] reasonable juror could find that this type of threatening behavior by a coworker with whom Phillips shared an office might well dissuade a reasonable employee from filing a complaint." In addition, Phillips provided admissible evidence that Barton’s threats were motivated by retaliatory animus. During her interview with Human Resources, Barton acknowledged that Phillips’s disapproval was the 'last straw' after Phillips had 'complained about [Barton], it went up to Affirmative Action and there is still no resolution.'” 

While plaintiff may sue Barton for the retaliatory hostile work environment under the City HRL, there is no racial harassment case against FIT. The Court holds that FIT's delay in initiating the investigation into Barton's racially-motivated threats is not enough to impute liability to the school. The standard for this issue is whether FIT knew about the harassment but "did nothing about" it. Plaintiff's complaint did not suggest that Barton posed a physical threat to her. I am not sure how the record deals with this, as plaintiff asserts that Barton said, "I'll fucking kill you." The district court ruling does not shed light on this, either. Maybe the internal complaint did not affirmatively say that plaintiff feared that Barton would carry out this threat. The Court writes, "Phillips does not point to any evidence in the record to suggest that FIT was warned that Barton might pose a physical threat to Phillips or anyone else." Cases hold that (“[L]ess grave conduct, such as . . . flirtation, sexual innuendo, or crude talk, . . . might . . . not reasonably give notice of a likelihood that the person will represent a danger to co-employees”). Under that standard, the nearly three-week delay was not so long as to hold FIT liable for the retaliatory harassment.

Procedural glitch prevents the 2d Circuit from hearing appeal from jury verdict

This wage and hour case went to trial. The plaintiffs sued under federal and state law, but the trial court asked the parties if they were OK with submitting only the state law claims to the jury, as that tactic would simplify the jury instructions. The jury ruled in favor of the plaintiffs on the state law claims. 

After the district court resolved post-trial motions and the district court certified this case for immediate appeal under Rule 54(b), defendants appealed to the Second Circuit, claiming the trial court should not have exercised supplemental jurisdiction over the state-law claims. The appeal is dismissed and resolution of this case will be delayed.

The case is Zivkovic v. Laura Christy LLC, issued on March 5. The appeal is dismissed because the federal claims were never resolved in this case. The Fair Labor Standards Act claims are still pending. They were neither dismissed nor resolved by the district court. The lack of clarity about the status of the FLSA claims complicates the appeal because "it leads to questions about the validity of the district court's judgment certifying this appeal" for immediate review in the Second Circuit. Second, "the status of the FLSA claims may be relevant to our analysis of Defendants' challenge to the district court's exercise of jurisdiction" under 28 USC 1367, the supplemental jurisdiction statute that allows the trial courts to hear related state law claims. 

The case returns to the district court to clarify the status of the FLSA claims. When that happens, the parties may return to the Court of Appeals (Kearse, Park and Robinson) to resolve these issues on the merits. 

Arbitration agreement does not compel the parties to arbitration

The federal courts maintain strict allegiance to the Federal Arbitration Act, which compels the parties to arbitrate their claims when the parties agree to arbitrate their disputes. Motions to compel arbitration are routinely granted, but that is not always the case. This is one of those exceptions. 

The case is Staley v. Hotel 57 Services, a summary order issued on March 13. Bear in mind that many plaintiffs do not like arbitration, which offers less discovery than litigation, no jury, and the success rate is not comparable to state and federal court. But if the employee signs an arbitration agreement (usually at the start of their employment, when the employee has no real incentive to make things difficult in this regard and may have no bargaining power in any event), the court will uphold that agreement.

 

The district court denied the motion to compel in this case brought under the WARN Act  (which requires the employer to give employees sufficient notice of a plant closing), but the employer wanted arbitration based on the arbitration agreement. 

Issue number 1: while the courts prefer to determine who has authority to refer the case to arbitration, the arbitration agreement can delegate that issue to the arbitrator. The employer said the parties agreed to place this issue before the arbitrator, but the arbitration agreement is vague on this point as it does not clearly state who would make this decision, and it was not enough for the agreement to incorporate rules from the American Arbitration Agreement, which says the arbitrator makes this decision. This issue was therefore best left to the district court, not the arbitrator. 

Issue number 2: while the arbitration agreement says the employees will submit their complaints to an arbitrator, including issues surrounding the termination of employment bu not a permanent layoff, "a claim  regarding a permanent layoff is not subject to arbitration" in this case. Another provision of the agreement says the employee "may not seek . . . arbitration of a permanent lay-off." Since plaintiffs' claims relate to a permanent layoff in that they were placed on an indefinite furlough in March 2020 and the Hotel did not bring them back to work since then, the Court of Appeals (Lohier, Sack and Perez) presumes this is a permanent layoff case. 

Another primer on premature qualified immunity appeals in police misconduct cases

This case alleges that a Vermont police officer beat up a bar-goer, prompting an excessive force lawsuit under Section 1983. The district court rejected the officer's motion for summary judgment, holding that factual disputes prevented the grant of qualified immunity and that the jury would have to decide what really happened before the court could determine whether the officer acted reasonably under the circumstances, a prerequisite to immunity. The officer appealed, and the Court of Appeals sends the case back to trial on this issue.

The issue is Jok v. City of Burlington, issued on March 15, nearly a year after the case was argued. I don't know why it took so long for this decision to issue, as it applies settled rules governing the appealability of qualified immunity denials in cases like this, and the decision does not appear to resolve any difficult legal issues. Still, the ruling provides good guidance for lawyers who handle these cases. If you have a Section 1983 case and someone wants to appeal from the denial of qualified immunity, you need to read this case.

Generally, you cannot appeal the denial of summary judgment right away. The party that sought summary judgment, usually the defendant, has to go through a trial first before the case can reach the Court of Appeals. An exception to that rule is qualified immunity denials, as immunity protects public officials (including police officers) from litigation, and we want immunity to attach as early as possible. Immunity attaches when the defendant acts reasonably under the circumstances. But an appeal from the denial of qualified immunity is only permissible when the defendant adopts the plaintiff's facts and argues that those facts prove he acted reasonably, or the case involves some issue of law that can be resolved right away.

While this case alleges excessive force and we have various factual disputes about what happened and whether the officer acted reasonably, the officer appealed from the denial of qualified immunity without accepting the plaintiff's version of events for purposes of the appeal. Instead, the Court of Appeals (Lee, Perez and Merriam) notes that the officer argues from his own version of events in seeking qualified immunity. That is a rookie (but common) mistake, and counsel tried to modify the appellate argument in the reply brief, but even the reply brief argues the defendant officer's version of events. Let's face it: it is hard to accept the opposing party's version of events for any purpose, even when you are trying to have the case dismissed. What it all means is the appeal is not appropriate, and the Court of Appeals does not determine if the officer deserves qualified immunity. The case returns to the district court for the jury to worry about it. 

Plaintiff may relitigate similar issue on federal court despite unsuccessful Article 78 petition in state court

This case clarifies when you can bring a lawsuit after losing one of your issues in an Article 78 proceeding in the New York State courts. Specifically, the Court of Appeals determines when the Article 78 loss has res judicata effect in subsequent litigation, even in federal court. The Court finds the plaintiff may proceed with his case even through his Article 78 was not successful.

The case is Whitfield v. City of New York, issued on March 15. Judge Carney gives a thorough review of Article 78's in New York. For the uninitiated, Article 78 petitions are a quick way to resolve certain disputes against the government, as they have a short statute of limitations and usually do not require a trial or live testimony and can be resolved on the paperwork, such as documents, affidavits, and statutory or case law. Normally, people don't get damages in Article 78 petitions; they get an injunction or a definitive court ruling on some issue involving public administration.

At the same time, under res judicata principles, you cannot relitigate the same issues over and over in different courts. This case asks when you can litigate an issue in federal court that you lost in the Article 78 petition. What makes this case unique is that the Article 78 court in the state system did not decide whether plaintiff could recover any damages because the Article 78 court ruled against the plaintiff in that proceeding. Plaintiff brings a similar claim in federal court, but this time he seeks damages. Can he proceed in federal court?

Plaintiff is a former inmate in the New York system who claims he was denied a position working with youths for a state agency because of his criminal record and a book he wrote about the unfairness of his criminal conviction. The Article 78 court ruled against Whitfield and said he did not have any case under the First Amendment and that he did not suffer discrimination because of his criminal record. He then sued in federal court, prompting a motion to dismiss on res judicata grounds on the theory that he was improperly trying to relitigate these issues in a different court.

The Court of Appeals (Carney and Liman [D.J.]) holds that plaintiff can bring this lawsuit despite the Article 78 loss. Why? Because the Article 78 judge did not determine if plaintiff could recover any damages from the Article 78, and the Article 78 ruling was not quite the constitutional ruling that plaintiff seeks in the federal case. The Court holds that, for claim preclusion purposes, a "pure" Article 78 proceeding, which did not result in the award of any damages or squarely resolve the issue now raised in federal court, does not prevent the plaintiff from pursuing a similar claim in federal court under constitutional or other federal provisions. 

Bottom line: we presume that an Article 78 proceeding will be a "pure" proceeding, without the availability of damages. In this case, while Whitfield sought damages in his Article 78, his primary purpose in filing that petition was to vacate the state agency's decision not to hire him and to win a court order entitling him to the position. The state court did not treat the Article 78 petition as a "hybrid" proceeding that might have involved other damages or relief. Nor did the state court resolve plaintiff's claim under the First Amendment - it instead ruled against plaintiff in finding that adverse employment was arbitrary and capricious as a matter of law, a much different test than the First Amendment analysis.

For an issue as complex as this one, you can count on a dissent. Judge Sullivan dissents, stating that this was really a hybrid Article 78 proceeding that has res judicata effect on plaintiff's federal lawsuit because plaintiff did seek damages in the Article 78 that were not incidental to the primary relief that he sought. He notes further that, separate and apart from determining the adverse personnel decision was arbitrary and capricious, the Appellate Division in plaintiff's case rejected plaintiff's argument that the state agency violated the First Amendment in denying him the position.

The lengthy nature of the majority and dissent opinions highlights to complexity of this issue: how to balance the expedited Article 78 process with the more drawn-out Section 1983 litigation available to parties in federal courts and the overriding res judicata principles that would normally apply anytime someone tries to re-litigate issues in two different courts. 

Inmate servives PLRA three-strikes-you're-out rule

In the mid-1990's, Congress decided to strike back against what it deemed frivolous prisoner lawsuits. It enacted the Prison Litigation Reform Act, which says among other things that three frivolous lawsuits will bar the inmate from seeking in forma pauperis status in future lawsuits. In plain English, the "three strikes-you're-out rule" means that indigent inmates have to pay the filing fees for any future cases. The PLRA is almost 25 years old and the courts are still figuring out how to apply it.

The case is Cotton v. Noeth, issued on March 14. In this case, the issue is what is a PLRA strike? The issue is not always easy to answer. Plaintiff brought three prior lawsuits. The Court of Appeals finds that none of them are strikes even though he lost each of them. Cotton wins this appeal and can proceed with his case, which alleges he was wrongfully denied a transfer to Sing Sing Correctional Facility, which offered a master's degree program. 

The first lawsuit, referred to as the McCarthy litigation, asserted Section 1983 and state law claims against the City of Buffalo but was dismissed for failure to state a claim under Rule 12(b)(6). That could be a strike, but it is not because it was a "mixed dismissal": the federal claim was dismissed but the district court declined to exercise jurisdiction over the state law claims. Without the entire case being dismissed on the merits, the dismissal is not a real strike. I wonder if Congress even thought about this when it enacted the three-strikes rule.

The second lawsuit, referred to as the Titone litigation, was dismissed because plaintiff did not comply with Rule 8's pleading requirements, and plaintiff was given the opportunity to re-plead the case. Such a dismissal is not a real strike. The kicker here is that plaintiff did not try to re-plead the case and walked away from the case. In that circumstance, there was not "dismissal" under the PLRA. 

The third lawsuit, known as the Lema case, sued the City of New York under Section 1983, was dismissed without prejudice as premature. He was unable to really bring the case until any challenges to his conviction were resolved. We call that a Heck dismissal, based on Heck v. Humphrey, a complex Supreme Court ruling that says you cannot bring a civil lawsuit that would have the effect of challenging your criminal conviction outside the normal process of appealing from a criminal conviction. Some Circuits hold that Heck dismissals are strikes. Other Circuits see this issue differently.

 

The Second Circuit holds that Heck dismissals are not strikes unless the dismissal turns on the merits and not timing. The Lema dismissal is not a strike, says the Second Circuit majority (Chin and Nathan), because that case was dismissed as premature. Judge Walker dissents from that reasoning and writes that a Heck dismissal like this counts as a strike.

Challenge to race-based corporate fellowship program fails for lack of standing

Another potentially impactful lawsuit doomed over the lack of standing. If an organization brings a lawsuit to challenge what it believes is an unlawful policy, it must show it has standing to sue. The organization will say it has standing because its members have an interest in the case, but there are strict rules for that process. In this case, a conservative organization that claims Pfizer's fellowship program has racially-discriminatory cannot proceed with the case because we don't know who the aggrieved members are.

The case is Do No Harm v. Pfizer, Inc., issued on March 6. Pfizer, the pharmaceutical company, has a fellowship program that seeks to advance students and "early career colleagues of Black/American, Latino/Hispanic and Native American descent." The organization claims this program discriminates against white and Asian candidates. But the case does not get off the ground because the organization cannot prove standing. It fails to identify any of its injured members by name. 

Organizations can assert organizational standing to sue as the representative of its members. But at least one member of that organization must have standing to sue in their own right, i.e., that they suffered an actual injury and the lawsuit can redress that injury. In Summers v. Earth Island Institute, 555 U.S. 488 (2009), the Supreme Court has said that, in associational standing cases, the organization must identify members who suffered harm from the challenged policy. 

But the Supreme Court has not exactly stated that the organization must identify these members by name. The Second Circuit (Jacobs, Wesley and Robinson) has to therefore decide if you have to name names. The Court of Appeals determines that you do have to identify the aggrieved members, reasoning that such a requirement aligns with Summers. Under this interpretation, naming the members proves the case is not a hypothetical exercise; we want lawsuits to have real parties with real disputes. The First Circuit has already ruled as such, in a decision written by retired Supreme Court Justice David Souter, making the Second Circuit the second circuit to rule this way.

New York Court of Appeals expands the scope of the City and State antidiscrimination laws

The New York Court of Appeals has issued a definitive ruling on the scope of the New York State and City Human Rights Laws. Answering a certified question from the Second Circuit, the State Court of Appeals holds that a New York City-based company may be held liable under the remedial City and State Human Rights Laws if it denies an out-of-state job applicant a position for discriminatory reasons.

The case is Syeed v. Bloomberg, L.P., issued on March 14. Plaintiff worked in defendant's Washington, D.C. bureau and applied to work for its bureau in New York City. Bloomberg instead hired a less-qualified male applicant. She sued Bloomberg under the State and City laws, but the case was dismissed because she was not a New York resident when defendant denied her the promotions. A prior New York Court of Appeals ruling, Hoffman v. Parade Publications, 15 N.Y.3d 285 (2010), held that the City law only applies when the discriminatory personnel decision "impacts" New York City. The trial court in this case relied on Hoffman in dismissing Syeed's case. As the Court of Appeals in Syeed summarizes the Hoffman holding:

"the impact requirement does not exclude all nonresidents from [the] protection" of the Human Rights Laws. Instead, the impact test "expands" the protections of the Human Rights Laws "to nonresidents who work in the" state or city and to those who "state a claim that the alleged discriminatory conduct had any impact in either of those locations." Hoffman therefore sets forth two ways in which a nonresident may satisfy the impact requirement: (1) working in New York or (2) establishing that the challenged conduct had some impact on the plaintiff within the respective New York geographic boundaries.

How do we apply Hoffman in Syeed's case, where she claims she was denied promotions for New York City-based jobs, but she was not living in New York City when the promotion denials took place? The Second Circuit was presented with this issue in Syeed's case because her case is pending in Southern District of New York, and she appealed to the Second Circuit. The Circuit, in turn, forwarded this issue to the New York Court of Appeals, a common practice when the Circuit has an open issue of state law and wants the State Court of Appeals to issue a definitive ruling on the issue.

The State Court of Appeals unanimously holds that the City and State Human Rights Laws govern Sayeed's case. 

a nonresident who has been discriminatorily denied a job in New York City or State loses the chance to work, and perhaps live, within those geographic areas. The prospective employee personally feels the impact of a discriminatory refusal to promote or hire in New York City or State, because that is where the person wished to work (and perhaps relocate) and where they were denied the chance to do so. When applying the required liberal construction of "inhabitants" and "individual within this state" (Executive Law § 290 [3]; Administrative Code § 8-101), a prospective inhabitant or employee, who was denied a job opportunity because of discriminatory conduct, fits comfortably within the Human Rights Laws' protection.

Policy reasons also support this holding. The State and City have robust antidiscrimination laws. 

the Human Rights Laws contemplate that discrimination harms the state and city as governmental institutions, in addition to the targeted individual. The state and the city are deprived of economic and civic contributions from individuals discriminatorily denied the opportunity to work in New York, along with the more diverse workforces and communities that the individuals would advance. Our resolution of the certified question has the beneficial effect of protecting New York institutions and the general welfare of the state and city—as the legislature and city council intended.

The case now returns to the Second Circuit, which will apply the State Court of Appeals' holding. Since this holding favors plaintiff, I assume this case will be revived and proceed to discovery in the Southern District of New York