New trial granted where defendant was prevented from cross-examining racist complaining witness

Habeas corpus petitions are hard to win these days, ever since Congress revised the procedures in 1996 to require that the petitions be denied unless the state criminal court unreasonably applied settled constitutional law in denying the defendant a fair trial. That strict requirement did not prevent the Court of Appeals from affirming a habeas award where the criminal court did not allow a defendant to cross-examine the complaining witness about his alleged racist beliefs.

The case is Brinson v. Walker, decided on November 13. The black defendant was charged with robbing a white victim on the street. The defendant denied committing any crime and wanted to prove that the complaining witness hated blacks and used racial epithets. The defendant would prove this through testimony from the complaining witness's co-workers and associates.

The trial judge said no, that this evidence was not relevant because the racial statements were made after the robbery. The Court of Appeals said yes, that the trial judge's ruling violated the Confrontation Clause of the Sixth Amendment, which the courts have interpreted to mean that you can challenge the witness's bias. According to the Second Circuit, "It is hard to conceive of a more 'prototypical form of bias' than racial bias." Since the criminal court prevented the defendant from proving that the complaining witness is a racist, that evidentiary ruling violated the Constitution.

The question, then, is whether that evidentiary ruling represented an unreasonable application of settled Supreme Court case law. The Court of Appeals said that it was. The extreme bias that the complaining witness allegedly harbored toward blacks makes it clear that the defendant had the right to bring this all before a jury to test the witness's credibility, and that this evidence could have made a difference at trial in exonerating the defendant. The Second Circuit reasons, "Brinson had a constitutional right under the Confrontation Clause to cross-examine Gavin on such extreme racial bias so that the jury could make its judgment whether Gavin’s testimony was affected by bias, and in the circumstances it was an 'unreasonable application of clearly established Federal law, as determined by the Supreme Court' to bar his exercise of that right on the ground that a racial bias is general rather than personally directed."

First Circuit excuses the failure to e-file through ECF

The legal profession is slowly becoming a paperless profession, as courts are requiring lawyers to e-file their legal documents. We call this ECF filing. The point is that the Courthouse should not be clogged with voluminous filing cabinets which are bursting at the seams. But some courts and judges still want the hard copy of your legal filings. What happens if you forget to e-file, or you do it too late? Can the case be dismissed over this? Don't laugh. It actually happened.

This case is out of the First Circuit. The case is Velazquez-Linares v. United States, decided on November 10. The plaintiff filed her "paper complaint", but she did not electronically file it fast enough. The judge dismissed the complaint because of this! The court also sanctioned the lawyer in the amount of $150.00. Under the court's local rules, "Standing Order No. 1" states that "parties shall promptly provide the Clerk with electronic copies of all documents previously provided in paper form." The lawyer objected to dismissal, explaining that his computer had malfunctioned. The judge said the lawyer waited too long to fix this problem.

The First Circuit reinstated the lawsuit. The Court of Appeals noted that the rules required "prompt" electronic filing, but it was unclear what "prompt" means, and the trial court could have set a firm deadline. In addition, the government-defendant did not suffer any harm by the late e-filing. The First Circuit reasoned: "In the peculiar circumstances of this case, we hold that the district court read the standing order too inflexibly and acted outside the realm of its discretion in dismissing the action and imposing a monetary sanction without first affording the plaintiff notice and a brief opportunity to cure."

No catalyst fees under the Equal Access to Justice Act

In the old days, when the plaintiff brought a civil rights case against the government or a private entity, he was considered the "prevailing party" if the defendant changed the very policy or rule that gave rise to the lawsuit. While the policy change may have mooted out the suit, if the policy change gave the plaintiff what he wanted in the first place, then the plaintiff was considered to have won the case and was therefore allowed to recover his legal fees from the defendant. We called that the "catalyst theory" of attorneys' fee liability.

The catalyst theory died in 2001, when the Supreme Court issued Buckhannon v. West Virginia, 532 U.S. 598 (2001), a sea change in attorneys' fees case law since most of the federal courts had adopted the catalyst theory. On the basis of its reasoning, courts have applied Buckhannon to every statute that allows for fee-shifting. One by one, these statutes are being narrowly interpreted under Buckhannon. You can now include the Equal Access to Justice Act in that category.

The case is Ma v. Chertoff, decided on November 4. This case involved the government's failure to allow the plaintiff to become a lawful permanent resident. Under the catalyst theory, if the plaintiff won, then his attorney recovered all legal fees expended in handling the case, which can be quite substantial. But the government gave in and granted Ma's application mid-litigation and gave him a green card. His lawyer moved for legal fees. Motion denied. Following the lead of other appeals courts which have ruled on this issue, the Court of Appeals holds that Buckhannon's reasoning applies to the fee statute governing these cases, the Equal Access to Justice Act. So the plaintiff wins the case, but his lawyer does not get paid.

False arrest claim reinstated

The Court of Appeals has reinstated a false arrest and malicious prosecution claim which the district court dismissed on summary judgment. The Second Circuit issued this ruling as an unpublished summary order, but since the Court reversed the district court, it's always newsworthy.

The case is Ramos v. City of New York, decided on November 4. Ramos claimed he was falsely arrested and maliciously prosecuted in connection with his arrest for second degree harassment and resisting arrest. Of course, Ramos has to prove the arrest lacked probable cause to prevail in this lawsuit. The resisting arrest claim boostraps on the harassment arrest. If the harassment arrest lacked probable cause, then there is no resisting arrest.

Ramos gets a trial because in order to arrest for second degree harassment, the arresting officer had to personally witness the violation. You can look it up: Criminal Procedure Law section 140.10(1)(a). In this case, that did not happen. The officer did not witness the event, and no one apparently looked up the harassment law. "It is uncontested that the offense did not occur in the officer's presence," the Second Circuit tells us. Therefore, the jury can find Ramos was arrested without probable cause. As the district court gave short shrift to the malicious prosecution claim, the Second Circuit tells it to re-consider that claim on remand.

Being smacked around by a supervisor is not an "adverse employment action"

A guy working in a post office was assaulted by a supervisor. Plaintiff alleges the assault was an act of discrimination on account of his race, color and national origin. But he can't sue the post office because this assault is not an "adverse employment action."

The case is Mathirampuzha v. Potter, decided on November 3. (My write-up on another aspect of the opinion is here). The plaintiff alleged that a supervisor, Sacco, "grabbed the plaintiff's arm, punched him in the shoulder and the chest, spit in his face, and poked him in the eye. Sacco also shouted, 'Joe, I'll never let you go the Hartford plant.'" When plaintiff complained to a higher-ranking supervisor, she laughed it off. However, Sacco was issued a warning letter and transferred to another work assignment for at least a year.

Under Title VII of the Civil Rights Act of 1964, you need an "adverse employment action" to bring a lawsuit. In other words, your negative treatment must be worth suing over. At one end of the equation is job termination, clearly an adverse action. At the other end of the picture is being given a lousy photocopier, not an adverse action. The courts apply a sliding-scale analysis in this area.

The Court of Appeals says, "Only in limited circumstance does a single, acute incident of abuse qualify as an adverse employment action." So, in hostile work environment claims, a single act of sexual harassment may qualify if it's "extraordinarily severe," such as rape. The question is whether the single act of non-sexual abuse represents an "intolerable alteration of the plaintiff's working conditions." No dice for plaintiff.

Since the plaintiff continued to work at the plant, he was not denied salary or responsibilities, and the assault did not bring lasting harm to his ability to do his job, it's not an adverse action. The Second Circuit explains,

The physical encounter itself, while understandably upsetting, was not so severe as to alter materially the plaintiff's working conditions -- unlike, for example, a rape, or an obscene and humiliating verbal tirade that undermines the victim's authority in the workplace. The Postal Service's response to the incident, moreover, while not immediate, ultimately ameliorated the plaintiff's working conditions, as Sacco was eventually disciplined and transferred to another work assignment for at least one year. Although a more severe incident of harassment or abuse could constitute an adverse employment action, the brief incident in this case, however regrettable, does not meet the "extraordinarily severe" standard.

One final ruling by the Court of Appeals in this case. Plaintiff alleged that he was denied a transfer for discriminatory reasons. But that claim fails because he cannot show that anyone with a discriminatory motive was responsible for this. While Sacco assaulted plaintiff, Sacco had nothing to do with the transfer denials. The Court of Appeals does note that its precedents support the position that some transfer denials constitute adverse employment actions if they objectively create a significant change in working conditions. But that gray area is not fleshed out here since plaintiff cannot show that anyone with discriminatory animus denied him the transfers.

Administrative exhaustion requirements strictly enforced in Title VII claim

Some cases do not get out of the starting gate. That's because an administrative filing requirement has to be satisfied. This is the case in employment discrimination lawsuits under Title VII of the Civil Rights Act of 1964. It's the reason why a Title VII case arising from a post office dispute was dismissed.

The case is Mathirampuzha v. Potter, decided on November 3. Plaintiff worked at the post office. His boss assaulted him on the job. Plaintiff claims the assault was for discriminatory reasons, so he brings an internal EEO complaint with his employer, as required when you work for the Federal government and want to pursue a discrimination claim. But the problem is that the internal EEO complaint does not raise a slew of other allegedly discriminatory actions against plaintiff. So when he brings his lawsuit in Federal court, the question is whether the court has authority to hear these other claims.

The general rule is that your administrative EEO complaint has to raise all your issues. The same rule applies if you work in the private sector and have to file an administrative charge of discrimination with the Equal Employment Opportunity Commission. If you leave out certain claims in the administrative filing, however, the Federal court can still consider them if those omitted claims are reasonably related to the claims that you did raise in the EEO/EEOC filing. The reason for this is that the omitted claims might fall within the scope of the administrative investigation into the claim that you expressly filed. A thorough investigation might necessarily include an investigation into the omitted claims which the investigator stumbles upon.

This exception to the requirement that plaintiffs fully exhaust all their claims in the administrative process before filing suit in Federal court has its limits. Those limits are explored in this case. The plaintiff's claim that a manager went postal against him in the post office for discriminatory reasons is not reasonably related to his other claims (not alleged in the EEO charge) that the assault was retaliatory or that his manager had verbally harassed him, denied him lunch breaks and other privileges and subjected him to a hostile work environment. In dismissing the plaintiff's claims other than the assault charge, the Court of Appeals reasons, "We do not think that the plaintiff's allegation of a single incident of aggression by Sacco could reasonably be expected to blossom into an investigation covering allegations of unrelated misconduct by Sacco dating back several years."

In other words, plaintiff's claim that he was assaulted for discriminatory reasons is too discrete from the other, omitted claims relating to longstanding harassment and discriminatory job actions. In order to pursue the other claims in court, he had to raise them in his EEO charge. In making its point, the Court of Appeals cites a recent Supreme Court case on the issue of statutes of limitation and sexual harassment, Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002), for the proposition that hostile work environment claims are different from discrete acts like promotion denials and job terminations.

Court strikes down prohibition against political leafleting in teacher mailboxes

In Weingarten v. Board of Education, 08 Civ. 8702 (LAK), 2008 WL 4620573 (S.D.N.Y. Oct. 17, 2008), Judge Kaplan upheld the City's prohibition against teachers wearing political buttons to class. I wrote about that part of the case here. While that ruling generated news coverage, another part of the opinion was ignored, even though the teachers won that battle.

The Board of Education enforced a rule that allowed the union to distribute literature in teachers' mailboxes, but political literature could not be similarly distributed. The same rule applied to teacher bulletin boards. While courts have held that teacher mailboxes are not traditional public forums in that they do not have to accommodate unbridled free speech, even nonpublic forums cannot discriminate without any rational basis at all. Judge Kaplan cannot discern any rational basis for allowing union speech but disallowing political speech in teacher mailboxes and bulletin boards. This is especially the case where students have no opportunity to view the bulletin boards, which only service the teachers. So unlike the rule prohibiting teachers from wearing political buttons to class, there can be no argument that the bulletin board rule would confuse or unduly influence young student minds.

Judge Kaplan therefore enjoins enforcement of these speech restrictive rules. This is one of the rare cases where the plaintiff in a First Amendment case prevails in challenging speech restrictions in nonpublic forums. Even in this context, where the government has significant leeway in regulating speech, it must articulate a reasonable basis for the speech distinctions. In failing to do so, the Board of Education loses.