The word of the day is "deference"

If you practice administrative law, the only word you need to know is "deference." That is, deference to administrative law judges, deference to agency decisions. You can challenge an agency decision in court, but courts will for the most part defer to that agency's expertise.

The case is Wasser v. New York City Office of Vocational and Educational Services, decided on April 28. Michael Wasser is a disabled attorney who received services from VESID, a government entity that provides vocational assistance and services to disabled people. As a law student, Wasser received services including computers and transportation, and VESID also paid a portion of his law school tuition. When he graduated law school and joined the New York City Department of Law, VESID stopped providing services, and an impartial hearing officer upheld that determination over Wasser's objections.

Wasser is allowed to challenge VESID's adverse decision in federal court, but the factual conclusions reached by the administrative hearing officer are entitled to deference in federal court. Remember what I said about deference? Aggrieved persons who lose hearings under the Individuals with Disabilities in Education Act (IDEA) -- which applies to public school students who want certain services -- can also challenge those decisions in federal court, but the courts will defer for the most part to the findings reached by the impartial agency hearing officers, who are deemed experts.

Borrowing from IDEA cases that defer to agency determinations for disabled public students, the Court of Appeals (Walker, Straub and Livingston) now holds that the same deference applies to VESID determinations. Here is the governing standard:

“While federal courts do not simply rubber stamp administrative decisions, they are expected to give ‘due weight’ to these proceedings, mindful that the judiciary generally ‘lacks the specialized knowledge and experience necessary to resolve persistent and difficult questions of educational policy.’”

Wasser is not only the plaintiff, he is his own lawyer. He knows enough to try to distinguish the IDEA cases. He argues that while courts may defer to the educational judgments of experts under the IDEA, the standard of review in VESID cases is "de novo" (or no deference at all) because "courts are uniquely positioned to evaluate the vocational rehabilitation services necessary for an individual to become a lawyer, which was plaintiff’s employment goal." The Court of Appeals is not buying this. VESID does not just provide services to people who want to become lawyers; it "provides services to individuals so that they 'can improve their ability to become gainfully employed' without regard to the type of employment sought by the individual. Thus, the only fair and workable standard to be applied is one that is the same regardless of the aggrieved party’s employment goal."

Rare Commerce Clause decision reverses trial court verdict

Everyone in law school learns about the Dormant Commerce Clause, a portion of the Constitution that sets forth governmental authority to regulate commerce. This is one of the most important provisions in our national charter, but relatively few cases actually address this issue, especially at trial.

The case is Francarl Realty v. Town of East Hampton, a summary order decided on May 3. The trial court sided with defendant in this case after a bench trial. The Court of Appeals reverses the judgment and sends it back to the trial judge. It is unusual to see a verdict overturned on summary order, by the way.

Town law regulating ferry service banned "fast" (or high speed) and "vehicle" ferries. The plaintiffs want to operate these ferry services, but Town law prohibits it. The plaintiffs argued that these limitations violated the Commerce Clause because they shifted the burden of traffic from local drivers onto interstate drivers, because local drivers benefit from reduced traffic volume on the local roads while interstate travelers are denied the most direct route to Town through the ferry. If you know the Town of East Hampton, you know that traffic is no picnic, and I guess non-locals were being denied the best way to travel through Town, and ferries from Connecticut to East Hampton are probably a Godsend to motorists who want to reach this resort Town without spending half the weekend driving through New York City and Long Island.

After a bench trial, the district court said that these ferry limitations did not have an incidental burden on interstate commerce and were therefore constitutional. The Court of Appeals (Miner, Cabranes and Wesley) sees it differently, finding that it would be inconsistent for the district court to say that (1) the bans reduce interstate travel in the Town and (2) the bans were effective in mitigating traffic congestion by reducing interstate travel in the Town.

For the Town to win the case, it would have to show that the ferry limitations mitigate traffic congestion. But the Court of Appeals says the evidence shows no real link between the Fast Ferry Ban and the claimed benefit of mitigating traffic congestion, primarily because it would not create a traffic burden on the Town if plaintiff lives up to its promise to limit transportation to 1,342 passengers per day. What this all means is that the Fast Ferry Ban might not actually prevent additional traffic in Town, and any incidental burden on interstate commerce might clearly exceed the benefits under a traditional Commerce Clause analysis.

"We don't need no stinkin' badges!"

New York City makes it illegal to walk into certain federal buildings with bogus police badges. The police effort to crack down on these lawbreakers is called Operation Stinking Badges. The Court of Appeals rejects a constitutional challenge to the program.

The case is Dickerson v. Napolitano, decided on May 14. As this case involves First Amendment principles, Judge Sack (a free speech lawyer in his practice days) gives us a workout in this area (along with a footnote YouTube link to the movie clip from The Treasure of the Sierre Madre which contains the famous outcry, "We don't need no stinkin' badges").

Plaintiff were arrested for bringing fake badges into certain federal buildings, including 26 Federal Plaza. They did not intend to convey any message, and their criminal cases were dismissed, an outcome that gives the plaintiffs a ticket to the federal courthouse. That doesn't mean they win the case, and they don't.

For very technical reasons that only a First Amendment lawyer can love, the Court of Appeals (Sack, Jacobs and Hall) decides that plaintiffs are limited to an as-applied challenge to Operation Stinking Badges. For some reason, plaintiffs waived a facial challenge to the law, which is too bad since the Court of Appeals suggests they could have won that challenge since the law's prohibition against the possession of certain items "in any way resembling" a police uniform, insignia or shield could reach as far as kids playing cops and robbers or the souvenirs sold in the police department gift shop.

Plaintiffs can only win the "as-applied" challenge if the statute as applied to the things they were bringing into the buildings violated First Amendment principles. They lose the case. Judge Sack finds, "even if there is ambiguity as to the margins of what conduct is prohibited under the statute, we are of the view that an ordinary person would understand the statute to prohibit the possession of items that could be used by an adult to impersonate a police officer." In other words, the law gives fair notice that fake badges that look like police shields are prohibited.

The plaintiffs come close to winning the case in a different argument, i.e., that language in the statute prohibiting items that "in any way resemble" legitimate police badges gives the police too much discretion to enforce the statute without clear guidelines to prevent arbitrary arrests. This legal theory is grounded in settled Supreme Court authority. The Court of Appeals likes this argument, but it cannot pull the trigger because the rule against plaintiff's bogus badges falls within the statute's "core concerns," that is, to prevent impostors from trying to impersonate police officers in order to commit crimes. No case law is cited in support of the "core concerns" exception to the rule against standardless speech restrictions, and I am wondering if this is the first time the Court of Appeals is applying it.

In loco parentis comes to the Second Circuit

Remember college administrators telling you that they were not "in loco parentis"? That's Latin for "we are not your parents." In loco parentis found its way to the Second Circuit in a tragic case involving young students who died from an accident on a lake at Paul Smith College in upstate New York.

The case is Guest v. Hansen, decided on April 20. While visiting the college, Kristine Guest and a friend were snow-mobiling on a lake situated on campus but owned by the state. They crashed into a peninsula, a piece of land owned by the campus, causing their deaths. College officials knew that students partied at this lake all the time and that these get-togethers included a lot of drinking and other ill-advised activity, like snowmobiling along the frozen lake. State police told campus officials to call them if they saw any dangerous or illegal activity, but a college official ignored that directive, in part, because she did not want to "cause a riot."

So are college officials liable for these deaths? Had they called the police, the wild parties might have stopped that night and no one would have died on the lake. But here is what we learn in law school: the law does not always require the fairest outcome. The Court of Appeals (Parker, Raggi and Calabresi) rules in favor of the college. The college owed the students no duty. Citing decisions from the New York Court of Appeals, the Second Circuit says:

Under New York law, colleges have no legal duty to shield students or their guests from the harmful off-campus activity of other students. They do not act in loco parentis. Similarly, a defendant has no duty to control the conduct of third persons so as to prevent them from harming others, even where as a practical matter defendant can exercise such control. Nor does a defendant assume such a duty by observing, but failing to stop dangerous activity.

These principles cut against the family. Maybe the college could have saved the victims, but it had no legal duty to do so. Interesting footnote at the end of the decision: Judge Calabresi, who wrote the majority opinion (including a section that allows the victim's non-lawyer father to handle the case pro se), actually does not agree with the liability analysis and would certify the case to the New York Court of Appeals to clarify the legal rules governing this case.

Scintilla of evidence not enough to save discrimination case

What does it take to win an employment discrimination claim? Is it enough for a supervisor to admit that you were the victim of discrimination? Your instincts may tell you "Yes," but the Court of Appeals says "No," at least in this case, which actually defines the phrase that we see in summary judgment decisions all the time: "scintilla of evidence."

The case Fincher v. Depository Trust, decided on May 14. Fincher believed her employer was discriminating against her because of her race. A supervisor, Hudson, told Fincher that she was in fact the victim of discrimination. The district court chose not to credit Fincher's testimony because Hudson denied saying it and Fincher had no other evidence to support that admission. This was wrong, the Second Circuit (Sack, Livingston and Lynch) holds, because "as a general rule, a district court may not discredit a witness's deposition testimony on a motion for summary judgment, because the assessment of a witness's credibility is a function reserved for the jury." This ruling is not enough for Fincher to win the appeal, but it does provide an interesting diversion.

Judge Sack then provides a useful summary of why the district court should have credited Fincher's testimony about Hudson's admission. Discrimination cases often rely on "he-said she-said" evidence, and on a summary judgment motion, we have to take the plaintiff at her word. If she said that Hudson told her she was the victim of discrimination, at this stage of the case, since plaintiff's testimony about this conversation is not facially implausible, we presume that Hudson made that admission even if he swears otherwise on a stack of bibles.

Fincher's discrimination case is dismissed even though the Court of Appeals credits her testimony that Hudson admitted there was discrimination. That is because she has no other evidence of discrimination. By itself, an off-hand and conclusory managerial admission that the plaintiff was discriminated against is not enough to win the case. "Summary judgment cannot be defeated by the presentation by the plaintiff of but a 'scintilla of evidence' supporting her claim. Moreover, even as a purported concession the disputed remarks were indirect, with Hudson referring vaguely to the discriminatory motives of others at the company, not his own, as compelling his actions toward Fincher."

Importantly, Hudson's comment was not itself discriminatory in that, for example, he did not make a racist comment to her in the context of her ill-treatment at work. The Court of Appeals reasons, "the disputed remarks were, moreover, a purported concession that Fincher was discriminated against; they were not themselves discriminatory. Summary judgment might not have been justified were Hudson's alleged remarks themselves imbued with discriminatory animus, rather than a report of purportedly discriminatory action."

Does the City Human Rights Law provide broader retaliation protections than Title VII?

If you handle employment discrimination cases in New York City, you know that the New York City Human Rights Law extends far greater protections to employees than Title VII or the New York State Human Rights Law. The City law is not co-terminus or redundant. The Court of Appeals suggests that a plaintiff's failure to raise a City claim in a retaliation case could have been deadly.

The case is Fincher v. Depository Trust, decided on May 14. As I outlined in this post, the Court of Appeals held that management's failure to investigate an in-house discrimination complaint does not constitute an adverse employment action sufficient to predicate a lawsuit. The failure to investigate is not serious or "material" enough and is not deemed sufficiently punishing to allow the Title VII case go move forward.

But that does not mean that Fincher has no case under the City law. Over the last few years, State appellate courts have issued a series of rulings faithful to the New York City Council's intent to broadly interpret the City law such that, for example, hostile work environments do not require "severe or pervasive" sexual harassment, and, also unlike Title VII, management is strictly liable for supervisory harassment. The below excerpt from Fincher v. Depository Trust provides a good overiew of what's going on these days:

New York State courts and district courts in this Circuit have concluded, to the contrary, that the retaliation inquiry under the CHRL is "broader" than its federal counterpart. See Williams v. N.Y. City Hous. Auth., 61 A.D.3d 62, 71, 872 N.Y.S.2d 27, 34 (1st Dep't 2009). Under the CHRL, retaliation "in any manner" is prohibited, and "[t]he retaliation ... need not result in an ultimate action with respect to employment ... or in a materially adverse change in the terms and conditions of employment." N.Y.C. Admin. Code § 8-107(7); see also Williams, 61 A.D.3d at 69-72, 872 N.Y.S.2d at 33-35; Sorrenti v. City of New York, 17 Misc. 3d 1102(A), 851 N.Y.S.2d 61 (Table) (N.Y. Sup. Ct., N.Y. Cty. 2007) (unreported decision) ("[T]he City Council enacted a less restrictive standard [than the federal and state standard] to trigger a [CHRL] violation in that it is now illegal to retaliate in any manner."); Pilgrim v. McGraw-Hill Cos., Inc., 599 F. Supp. 2d 462, 469 (S.D.N.Y. 2009) ("The prima facie standard for retaliation claims under the CHRL is different [from the federal and state standard], in that there is no requirement that the employee suffer a materially adverse action. Instead, the CHRL makes clear that it is illegal for an employer to retaliate in 'any manner.'").

The State courts are still working out any functional differences between State and Federal retaliation law, however. The Appellate Division in Manhattan "rejects a materiality requirement," while under the Supreme Court's interpretation of Title VII, federal retaliation claims must involve an action by the employer that is "materially adverse." In a case like this, "the proper inquiry under the CHRL is whether a jury could 'reasonably conclude from the evidence that [the complained-of] conduct [by the employer] was, in the words of the [CHRL], reasonably likely to deter a person from engaging in protected activity,' without taking account of whether the employer's conduct was sufficiently deterrent so as to be "material[]."

This is all very interesting, to be sure, and the Second Circuit is surely enjoying the intellectual feast raised by this issue, so much so that it cites an unpublished State trial court decision to outline the possible scope of the City law. But the Court of Appeals does not decide whether Fincher has a retaliation claim under the City law because she did not pursue that issue on appeal, for whatever reason. Waiver in the Second Circuit carries the same definition in everyday life. You snooze, you lose.

Failure to investigate in-house discrimination claim is not "adverse employment action" under Title VII

The Court of Appeals holds that management's failure to investigate the plaintiff's in-house racial discrimination complaint is not an "adverse employment action" under the civil rights laws.

The case is Fincher v. Depository Trust, decided on May 14. For the uninitiated, you cannot win a discrimination case without an adverse action. This is a term of art that ensures that not every negative decision at work predicates a lawsuit. Here is the standard in retaliation cases:

The anti-retaliation law "protects an individual not from all retaliation, but from retaliation that produces an injury or harm." Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 67 (2006). [A] plaintiff must show that a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination. We speak of material adversity because we believe it is important to separate significant from trivial harms.

Fincher told personnel that black workers did not receive the same training as white employees. Management did not investigate the complaint. Adopting the reasoning from district courts in our jurisdiction, the Court of Appeals holds, "at least in a run-of-the-mine case such as this one, an employer's failure to investigate a complaint of discrimination cannot be considered an adverse employment action taken in retaliation for the filing of the same discrimination complaint."

Here is how the Court of Appeals sees it: adverse employment actions typically involve affirmative efforts to punish the worker for engaging in protected activity. But in failing to investigate plaintiff's in-house discrimination complaint, she is no worse off than if she had not made the complaint at all, or if management had investigated the complaint and rejected it. "Put another way, an employee's knowledge that her employer has declined to investigate her complaint will not ordinarily constitute a threat of further harm, recognizing, of course, that it would hardly provide a positive incentive to lodge such a further challenge."

The Court does say that management's failure to investigate a complaint may constitute an adverse action in other contexts, i.e., the Court cites a case from the D.C. Circuit Court of Appeals where the employer did not investigate a death threat against the employee in retaliation for the employee's prior, unrelated complaint of discrimination. What distinguishes that case from this case is that the failure to investigate in the D.C. case was once removed from the plaintiff's discrimination complaint. Here is how Judge Sack makes the distinction:

in Rochon v. Gonzalez, 438 F.3d 1211 (D.C. Cir. 2006), the refusal to respond to the employee's complaint of a death threat was allegedly in retaliation for his separate and earlier complaint of discrimination. The employee contended that if he had never complained of discrimination, his complaint of a death threat against him would have been investigated. Making the initial complaint allegedly resulted in the separate retaliatory failure to investigate a subsequent complaint.

Title VII practitioners know that nearly all employment discrimination law is judge-made. The judges have to balance their view of Title VII with the consequences of a contrary interpretation. Judge Sack suggests that an opposite result might encourage mediocre employees to lodge frivolous discrimination complaints and then pursue litigation when management does not investigate.