Winning the battle, losing the war

A bad jury instruction is not always enough to win the appeal. That is the lesson learned from a ruling by the Court of Appeals in an employment discrimination case.

The case is Mobasher v. Bronx Community College, decided on March 13. At trial, the judge instructed the jury on the elements of a prima facie case under Title VII. The prima facie case is the first step in determining if the plaintiff has a case, and it asks, i.e., whether the plaintiff suffered an "adverse employment action" (such as significant demotion or termination or pay cut) and whether he was fired or demoted under circumstances creating an inference of employment discrimination. If the plaintiff makes out a prima facie case, then under the so-called McDonnell-Douglas burden-shifting scheme, the employer can defend itself by articulating the reason for the discharge or demotion. The plaintiff's duty at trial is to show that that reason is false and that the real reason was discrimination. We call this the "pretext inquiry."

This complicated burden-shifting test is so complicated that the Court of Appeals has over the years ruled that the jury should not untangle the prima facie inquiry, only the pretext inquiry. This is partly because the pretext inquiry is really where the action is, and the prima facie inquiry is preliminary. Important, but still preliminary. The judge makes the determination whether the plaintiff has a prima facie case.

What do you do if the judge ignores Second Circuit authority and instructs the jury to decide the prima facie inquiry, and then you lose the trial? You appeal. But the Court of Appeals will probably handle the appeal the way it did in the Mobasher case. It will remind us that the trial judge should not instruct the jury to answer the prima facie inquiry. But it will also find that the error was harmless and that there was enough evidence for the plaintiff to lose the trial on other grounds. Here is the crux of the Second Circuit's analysis:

The District Court’s instructions were indeed erroneous. First, those instructions took the jury through each step of the McDonnell Douglas burden-shifting framework, which we have said “undoubtedly constitutes error.” Sanders v. N.Y. City Human Res. Admin., 361 F.3d 749, 758 (2d Cir. 2004). The language used in the traditional McDonnell Douglas formulation, “developed by appellate courts for use by judges,” “is at best irrelevant, and at worst misleading to a jury.” Gordon v. N.Y. City Bd. of Educ., 232 F.3d 111, 118 (2d Cir. 2000)

It's difficult to win an appeal after you lose the trial in a case alleging employment discrimination as the jury is allowed to believe whatever witnesses it wants, including witnesses testifying that the plaintiff was a bad worker and that discrimination had nothing to do with his termination. So in an appeal like this, the plaintiff wins the battle by getting a ruling from the Court of Appeals that the jury instructions were incorrect. But he loses the war, because it's not enough for another trial.

The plaintiff in this case had a separate objection on appeal. The Court of Appeals rejected that objection also. The employer tried to prove that it did not discriminate against the plaintiff because it has hired other black employees. This is a common defense argument at trial, but you don't see it reflected in too many court rulings. Without citing any case law to support this well-known defense, the Court of Appeals held that the trial court did not abuse its discretion in allowing this evidence at trial, as it tended to prove that the employer did not discriminate against the plaintiff.

The First Amendment still applies in City of Yonkers

The Westchester Guardian is a community newspaper distributed around Westchester County, providing political coverage and commentary about public officials. I see its newsracks every time I go to the White Plains courthouse. In 2007, the newspaper and its distribution boxes began mysteriously disappearing at Yonkers City Hall and throughout the City after the Guardian ran highly critical articles about City officials. Eventually, the Guardian's owner was given a summons while distributing the paper at City Hall, and the City acknowledged seizing 35 Guardian news racks. These and other tactics by the City end up in Federal court, where Judge Brieant in White Plains entered an injunction in favor of the Guardian.

The case is Guardian News v. Amicone, 2008 U.S. Dist. LEXIS 16965 (S.D.N.Y. March 3, 2008). The court found that the local ordinance governing the placement of newsracks may apply even-handedly to all newspaper distributors. But the evidence adduced at the preliminary injunction hearing confirmed that City officials had unduly focused on the Guardian's recognizable blue newsracks and did not remove newsracks maintained by other publications in 2007. In violation of the Constitution, the City was selectively enforcing its laws to punish the Guardian.

Judge Brieant further concluded that City officials had expressed hostility towards the Guardian and did not even believe it was a real newspaper, deeming it "propaganda" not worthy of the privileges accorded other publications. After noting that the newspaper had run articles critical of the City administration, the court concluded, "it is a fair inference that the response of the City was motivated largely by the abusive content of the Guardian. Under familiar First Amendment principles, this is simply not permitted." Under Judge Brieant's order, the newsboxes are permitted anywhere in the City so long as this placement does not violate the City code. That includes City Hall.

Finally, Judge Brieant struck down Yonkers' prohibition against distributing handbills or other printed matter within any park or any public place. In light of landmarks like Marsh v. Alabama, 326 U.S. 501 (1946) and Hague v. C.I.O., 307 U.S. 496 (1939), this provision is so unconstitutional that Judge Brieant observed, "after 80 years of First Amendment case precedent, this Court would be astonished to find that Defendants do not believe that in-hand distribution of printed materials on public City sidewalks is a Constitutionally protected activity." That part of the ordinance is stricken and the Guardian may be distributed by hand on sidewalks and anywhere else where this activity would not obstruct traffic.

Habeas case takes a tricky turn

A long-running habeas corpus proceeding took another turn in the Second Circuit as the Court of Appeals ruled that a trial judge went too far in preventing the State from re-trying a criminal defendant who had already prevailed in his Habeas petitition.

The case is DiSimone v. Phillips, decided on March 4. In 2005, a Federal judge ruled that a criminal defendant who was acquitted for intentional murder cannot be convicted for depraved indifference murder. This ruling was significant because these two different murder theories were not always deemed mutually exclusive. But the courts have since held that, since depraved indifference murder does not require an intent to kill, it cannot serve as a backup charge to intentional murder. This was good news for DiSimone, who was acquitted in State court on his intentional murder charge but convicted of depraved indifference murder stemming from an knifing incident.

In 2006, the Court of Appeals vacated the Habeas grant because it was not clear whether DiSimone had fully exhausted, or preserved, these issues in the State court system. Habeas law requires that the criminal defendant fully appeal his constitutional issues in the State appeals courts before seeking a Habeas ruling in Federal court. On remand, the trial judge determined that, in fact, the State had violated its obligation to disclose to DiSimone evidence that someone else may have caused the killing. We call that a "Brady" violation based on the U.S. Supreme Court case that requires prosecutors to turn over that evidence. The State therefore agreed that the conviction for depraved indifference murder should be vacated.

But that did not end the story. The trial judge, Charles L. Brieant, decided that the State cannot re-try DiSimone at all in connection with this incident, reasoning that there was no point to any re-trial since he cannot be convicted for depraved indifference murder. This time around, the Court of Appeals disagrees, reasoning that "the district court was correcting state errors which had not yet been made. As yet, no state court had even considered the question whether DiSimone could be retried."

This means that DiSimone has to wait for the State to determine whether to try him again for depraved indifference murder. If the State so proceeds, DiSimone has to exhaust the appellate process in State court. The Second Circuit does note that, in the end, DiSimone may prevail in State court, either by arguing that the evidence does not support a depraved indifference murder charge or that double jeopardy would prohibit another prosecution.

"Libel tourism" case alleging terror funding fails in Second Circuit

Guy sues gal in England for defamation because gal says in her book that guy funds terrorism. Guy wins defamation case in England (stopping gal from speaking ill of guy) which does not have the First Amendment protections that make it much more difficult to win defamation cases in the United States. Gal then files lawsuit in New York federal court for a declaration that (1) guy cannot win any defamation case against her in the United States, and (2) the English defamation judgment cannot be enforced here in light of our superior free speech values. Guy wins in the Second Circuit.

The case is Ehrenfeld v. Mahfouz, decided on March 3, 2008. The case has a complicated history. Mahfouz first prevailed against Ehrenfeld in England, taking advantage of England's notorious pro-plaintiff libel laws. Ehrenfeld then sued in the Southern District of New York in a pre-emptive strike, seeking a court order that she cannot be sued for defamation in this country. The problem is that Mahfouz's only connection to New York is that Ehrenfeld lives in New York and her obligation to stop disparaging Mahfouz in England is carried out in New York.

Ehrenfeld is a sympathetic party here. She describes the case as "libel tourism," where libel plaintiffs sue writers in jurisdictions that are hostile to freedom of speech, in this case, England. They then use those judgments elsewhere. But the laws in New York, binding on the Federal courts, do not allow New Yorkers to sue outsiders with little if any connection to New York. When the Second Circuit got the case a few years ago, it asked the New York Court of Appeals to rule on this matter which truly requires an expert in New York law to resolve the issue. While defamation judgments are difficult to win in New York, the judges on the New York Court of Appeals would probably win a defamation lawsuit if someone accused them of faulty knowledge of New York law. They advised the Second Circuit that New York law cannot allow a suit like this to go forward since Mahfouz has little, if any, connection to New York. On the basis of that ruling from the New York Court of Appeals, the Second Circuit dismisses the case.

Any law student will tell you that nothing is more boring than New York civil practice, particularly the rules governing "long-arm jurisdiction," which addresses when a New Yorker can sue an out-of-stater in New York courts. But the broader implications of this case have raised enough concern about liability for provocative New York writers that several media bigwigs filed advisory briefs with the Second Circuit on this issue (favoring Ehrenfeld) and the New York Legislature is considering amending the long-arm statute to authorize lawsuits like this. That pending legislation is no reason for the Second Circuit to delay ruling on this case, and the Court points out that if the law is eventually changed, Ehrenfeld can sue Mahfouz again, or re-open this judgment.

Supreme Court clarifies the meaning of an employment discrimination charge

In order to bring an lawsuit for employment discrimination, you have to first file an administrative charge of discrimination with the Equal Employment Opportunity Commission, which has authority to investigate and resolve the charge. The question is, What is an EEOC charge? Since the Age Discrimination in Employment Act does not define "charge," the Supreme Court was asked to determine if the EEOC's guidelines defining a "charge" are reasonable and whether an intake form could be treated as a charge. The employees win in the Supreme Court.

The case is Federal Express v. Holowecki, decided on February 27. This case affirms a ruling from the Second Circuit Court of Appeals. The EEOC's regulations state that, among other things, the discrimination charge must include the complainant's name and contact information, the name of the employer, and a narrative describing the discrimination. A "catch-all" provision in the regulations says that the charge need only name the employer and contain the narrative. In this case, Federal Express challenged the EEOC's regulations in an attempt to dismiss the case which did not have a proper EEOC charge. The Supreme Court, however, deferred to the EEOC's regulations and policy statements on this issue, concluding:

In addition to the information required by the regulations, i.e., an allegation and the name of the charged party, if afiling is to be deemed a charge it must be reasonably construed as a request for the agency to take remedial action to protect the employee’s rights or otherwise settle a dispute between the employer and the employee.

However, the Supreme Court rejects the argument that a filing with the EEOC is only a charge when the complainant intends to have the EEOC investigate and resolve the claim. The focus should not be on the discrimination victim's intent but how a reasonable person would interpret the charge. "The filing must be examined from the standpoint of an objective observer to determine whether, by a reasonable construction of its terms, the filer requests the agency to activate its machinery andremedial processes."

It is true, the Supreme Court says, that this generous interpretation of the word "charge" means that many informal complaints with the EEOC must be treated as charges and therefore investigated by the agency. But that's not a bad way to proceed, the Court suggests, since many of these charges are filed by non-lawyers who don't know all the rules. "The system must be accessible to individuals who have no detailed knowledge of the relevant statutory mechanisms and agency processes. It thus is consistent with the purposes of the Act that a charge can be a form, easy to complete, or an informal document, easy to draft."

In this case, the intake form filed with the EEOC qualifies as a "filing" under the Supreme Court's test, as the complaining employees described the discrimination and provided contact information. While the EEOC is not required to treat every intake form as a charge, the employees did include a statement to the EEOC requesting that the agency stop the age discrimination at Federal Express.

One other thing: the employer argued that the paperwork filed with the EEOC cannot be a charge unless the EEOC notified the employer of the claim. That usually happens in discrimination cases, but it did not happen here. The Supreme Court does not want the aggrieved employee to suffer the consequences of the EEOC's failure to do its job.

Immunity granted to those bearing false witness at arbitration

If your employment dispute goes to an arbitration hearing and your boss lies and slanders you under oath, can you sue him under 42 U.S.C. sec. 1983? The Court of Appeals today said No.

The case is Rolon v. Henneman, decided on February 25. This case arose from the long-standing dispute between police officers and their supervisors in Town of Wallkill, Orange County. Rolon was the police officer, Henneman the police chief. When Henneman served Rolon with disciplinary charges, the case was heard by an arbitrator. Henneman and another police officer, Moskowitz, testified against Rolon. So far, nothing out of the ordinary about this case.

Then things got extraordinary. When Moskowitz testified at the hearing, he was asked to produce his personal notebooks. Moskowitz left the hearing, telling everyone that the notebooks were at home. He never returned to the hearing. The arbitrator ended up striking all of Moskowitz's testimony. While Henneman stuck around for his testimony, the arbitrator for the most part ruled in Rolon's favor, finding that Henneman and Moskowitz both testified untruthfully and that Henneman's personal hostility towards Rolon motivated him to bring the disciplinary charges against him.

Rolon's section 1983 case against Henneman and Moskowitz fails, however. The problem for Rolon is that the Second Circuit in 1990 ruled that arbitrators, like judges, enjoy immunity from suit for their actions in resolving these disputes. In addition, in Briscoe v. LaHue, 460 U.S. 325 (1983), the Supreme Court held that witnesses in court proceedings cannot be sued over their testimony. The reasoning in Briscoe applies with equal force to arbitrations, since both proceedings rely on sworn testimony and endeavor to find the truth. Testimony is less reliable if the witness tailors his testimony to avoid a lawsuit. Since the arbitration in this case was comparable to a judicial proceeding, Henneman cannot be sued over his allegedly false testimony.

Moskowitz wins the case for a different reason: the Court of Appeals ruled in 2004 that you can't sue someone for malicious prosecution arising from a civil proceeding, only a criminal proceeding. While Rolon also sued Moskowitz for fabricating evidence against him, his claim for humiliation and emotional distress is more properly brought as a state-law defamation claim. The "fabrication of evidence" claim under the Due Process Clause also fails because Rolon does not allege a necessary predicate: the deprivation of a property interest. According to the court, Rolon only alleged in conclusory fashion that he suffered economic losses as a result of Moskowitz's false testimony.

Nassau County's "lag payroll" does not violate the Due Process Clause

To deal with budgetary problems, Nassau County decided to institute a lag payroll for its corrections officers "with the effect of deferring a percentage of each [union] member’s pay until he or she stopped working for the County." The union challenged this procedure under the Due Process Clause on the theory that the County was denying (or delaying) a property interest (salary) without prior notice or hearing. The district court granted plaintiffs summary judgment. The Court of Appeals reversed, and the County wins.

The case is Adams v. Suozzi, decided on February 22. The Second Circuit (Straub, Hall and Haight) assumed that the deferred salaries were a property interest and jumped straight to whether the County satisfied due process. The formula for resolving due process claims is two-fold: (1) is the deprivation a property or liberty interest and (2) did the government provide sufficient pre-deprivation process in the context of denying that liberty or property interest. The interesting thing about due process claims is that the government can provide sufficient pre-deprivation notice and still institute an unfair decision. The idea is that by allowing sufficient due process before taking away the liberty or property interest, the "victim" can persuade the government to change its mind before the decision takes effect.

The County wins the case becasue it did provide sufficient process, according to the Court of Appeals. That's because the County gave the union notice of the lag payroll procedure, telling the union about it more than week before the program went into place, and three weeks before the lag would have been reflected in the paychecks. "That gave [the union] sufficient time to file a grievance under the provisions of the [Collective Bargaining Agreement] challenging the lag procedure as a violation of the CBA’s terms setting wage rates and pay schedules."

As the Court of Appeals reminds us, "We have held on several occasions that there is no due process violation where, as here, pre-deprivation notice is provided and the deprivation at issue can be fully remedied through the grievance procedures provided for in a collective bargaining agreement. . . . The Due Process Clause is implicated only when plaintiffs can establish that the grievance procedures in a collective bargaining agreement are an inadequate remedy." Since a grievance under the union contract was adequate here, there is no due process violation.