Summary judgment reversed in FMLA retaliation case

There are not too many Family Medical Leave Act cases in the Second Circuit. This case clarifies an important issue under FMLA as well as the standards governing tenure denial cases under the employment discrimination laws.

The case is Donnelly v. Greenburgh Central School District, decided on August 10. Donnelly was denied tenure after he took time off under the FMLA. His performance reviews were fine until he took FMLA leave. Afterward, his reviews went south, and they actually criticized him for that time off, even though he did so for legitimate medical reasons and was allowed to do so under the law.

This case raises two issues of importance. First, to sue under the FMLA, you have to work 1,250 hours over a one-year period. Donnelly claims he was denied tenure because he took FMLA leave. But the district court dismissed that claim in holding that Donnelly ahd only worked 1,247 hours, falling three hours short. The trial court arrived at this number by calculating plaintiff's hours under the union contract, which says that “[t]he regular working day for all K-12 teachers shall be the equivalent of up to one (1) hour in excess of the pupil’s regular school day . . . but in no case . . . shall the working day exceed seven (7) hours and fifteen (15) minutes.” The contract notes, however, that teachers have responsibilities that extend beyond the normal school day. Donnelly says that he worked far more than 1,250 hours in light of after-school responsibilities, such as working with students and preparing lesson plans. His performance review even made reference to Donnelly's late hours.

Reversing summary judgment, the Court of Appeals (Lynch, Calabresi and Lohier) says that the jury may find that the practical realities of a teacher's workday bring plaintiff's hours far beyond the 1,250 FMLA minimum. Under the regulations, the employer has the burden of proving FMLA ineligibility if it did not maintain an accurate record of employee hours. On summary judgment, the school district cannot meet its burden in light of plaintiff's affidavit detailing his excess hours. The regulations also say that school districts must prove FMLA ineligibility because full time teachers often work outside the classroom or at home in fulfilling their responsibilities. As the Court of Appeals holds that the union contract is not the sole means to count the plaintiff's hours under the FMLA, this issue is for the jury.

The second issue of importance concerns the standards governing public school tenure denial cases. The district court granted summary judgment, holding that plaintiff could not prove his case under the demanding multi-part test under Zahorik v. Cornell University, 729 F.2d 85 (2d Cir. 1984), which governs university tenure cases. Zahorik takes into account various factors relevant to the university context, including the fact that university tenure decisions are made through a multi-tiered and decentralized review process with many decisionmakers, college professors remain in one department for the rest of their careers, and tenure decisions often involve judgments on someone's arcane scholarship specialties. College tenure cases under Title VII and other discrimination laws are difficult to prove in light of the multi-factor test under Zahorik. But these factors are not relevant to public school tenure decisions, in part, because it is easier under state law to fire a tenured public school teacher than a tenured college professor, public school teachers can be transferred to different departments and even different buildings, public school tenure decisions involve fewer decisionmakers, and the relevant considerations governing public school tenure usually involve only teaching excellence and classroom performance, not scholarship. What it all means is that the Court of Appeals says that Zahorik is not relevant to teacher tenure cases, and the district court was wrong to hold Donnelly to that standard.

Having clarified that public school tenure cases are not controlled by the complex test governing college tenure, the Court of Appeals further holds that Donnelly can win his case because he was qualified for his position (having the appropriate certifications and licensing credentials) and was denied tenure under circumstances creating an inference of retaliation. Not only was he denied tenure shortly after taking FMLA leave, but his teaching evaluations sharply declined in the wake of his medical leave, and the evaluations criticize Donnelly for excessive absences when those absences were permissible under the FMLA. "The District may not, in its efforts to address teacher absenteeism, violate the law with respect to those teachers who miss school for purposes Congress has specifically protected."

Prisoners have no constitutional right to a seatbelt

If you are thinking of committing a felony, be assured that incarceration means that you might suffer physical injuries while prison officials are transporting you in a bus without a seatbelt. There is no recourse for this under the Constitution.

The case is Jabber v. Fischer, decided on June 21. Jabber was incarcerated at Woodbourne Correctional Facility. He was taken to Ulster Correctional Facility for a medical appointment. The bus had no seat belt for the inmates. (The corrections officers did have seat belts). I can see state officials cutting corners on these costs. Do you think they really care if prisoners have seat belts? Probably not.

The sequence of events sounds painful. The Court of Appeals (Winter, Chin and Droney) writes: "During transport, Jabbar was shackled from his wrists to his ankles. The bus made a forceful turn and Jabbar, who had fallen asleep, was thrown from his seat. He hit his head on another seat and was knocked unconscious. He sustained injuries to his face, head, and back."

Jabber sues under the Eighth Amendment, which prohibits cruel and unusual punishment. The claim fails under Rule 12 for failure to state a claim. Inmates are entitled to humane but not comfortable treatment. On which side of the equation does this case fall? Is it humane to forcefully drive a bus with passengers who are not strapped in? Or is this simply a case about discomfort? Every federal court to have resolved this issue seems to have rejected these claims under the Eighth Amendment. So does the Second Circuit, which writes:

the failure to provide a seatbelt is not, in itself, "sufficiently serious" to constitute an Eighth Amendment violation. ... While seatbelts may offer 'reasonable safety' for the general public, on a prison bus their presence could present safety and security concerns. Inmates, even handcuffed or otherwise restrained, could use seatbelts as weapons to harm officers, other passengers, or themselves. A correctional facility's use of vehicles without seatbelts to transport inmates, when based on legitimate penological concerns rather than an intent to punish, is reasonable.

The jailors were slave-drivers

You don't see much in the way of Thirteenth Amendment litigation. That amendment prohibits slavery and involuntary servitude. A resourceful pretrial detainee brought suit against corrections officers who "compelled him to work in the prison laundry under threat of physical restraint and legal process." The Court of Appeals allows his case to proceed.

The case is McGarry v. Pallito, decided on August 3. According to the plaintiff, officers told him that if he did not work in the laundry, they would place him in administrative segregation, which involves lock-up for 23 hours a day and the use of shackles. He would also receive an inmate discipline report if he refused to work, which might affect his release from prison. In addition,

McGarry alleges that he was compelled to work long hours in the prison laundry in hot, unsanitary conditions. He alleges that the bathroom adjacent to the laundry room was bolted shut and that, although he was required to handle other inmates’ soiled clothing, he was not provided with gloves or access to a sink or hand-cleaning products. He further alleges that he was required to work under these conditions on shifts lasting up to fourteen hours per day, three days a week. Finally, he alleges that his work in the laundry caused a painful staph infection in his neck that manifested itself as a series of reoccurring lesions.

Whether these allegations are true or not, no one knows yet. This case comes before the Court of Appeals (Parker, Katzmann and Wesley) under Rule 12. The question is whether the complaint states a claim under the Thirteenth Amendment. It does. Judge Parker writes that "it is well-settled that the term 'involuntary servitude' is not limited to chattel slavery-like conditions. The Amendment was intended to prohibit all forms of involuntary labor, not solely to abolish chattel slavery. Although passed in response to the scourge of American slavery, the Amendment is 'not a declaration in favor of a particular people,' but extends to 'reach[] every race and every individual.'"

To state the legal standard is to say that plaintiff has a cause of action. The Court of Appeals does not even see this a difficult case. "He alleges that his work in the prison laundry was compelled and maintained by the use and threatened use of physical and legal coercion. He supports his allegations with well-pleaded facts that the defendants threatened to send him to 'the hole' if he refused to work and that he would thereby be subjected to 23 hour-per-day administrative confinement and shackles. These allegations
plausibly allege 'threat of physical restraint or physical injury.' ... Likewise, McGarry also plausibly alleges facts supporting his assertion that defendants coerced him through legal process by threatening him with DRs, which are alleged to be taken into consideration when making recommendations for a release date and, therefore, lengthen any period of incarceration."

The defendants invoke qualified immunity because (1) the work program advances a legitimate interest in rehabilitation and (2) they claim there is a housekeeping exception for inmates under the Thirteenth Amendment. This will not fly. Plaintiff is a pretrial detainee, not a convict. The state has no right to rehabilitate pretrial detainees, who are presumed innocent. Second, the complaint does not allege that plaintiff was forced to perform routine housekeeping but hard labor. For now, defendants are not entitled to qualified immunity.

Buffalo firefighter examination withstands disparate impact challenge

The City of Buffalo administered civil service examinations that had a disparate impact on black test-takers, who sued under Title VII claiming that the tests were not sufficiently job-related and therefore illegal because the test was not sufficiently relevant to test-takers in the city. The Court of Appeals sides with the city.

The case is M.O.C.H.A. Society v. City of Buffalo, decided on July 30. Disparate impact has been in the news lately, most notably because the Supreme Court a few years ago ruled in favor of the City of New Haven in Ricci v. Destefano, in a high-profile disparate impact challenge involving minority firefighters. The Buffalo case also involves firefighters, who took the exam in 1998 and 2002. Here's the issue: "can an employer show that promotional examinations having a disparate impact on a protect class are job related and supported by business necessity when the job analysis that produced the test relied on data not specific to the employer at issue," that is, the City of Buffalo? Writing for a 2-1 majority, Judge Raggi answers "yes" to that question, stating:

While employer-specific data may make it easier for an employer to carry his burden at the second step of Title VII analysis, such evidence is not required as a matter of law to support a factual finding of job relatedness and business necessity. Where, as here, the district court hears extensive evidence as to how an independent state agency (1) determined, based on empirical, expert, and anecdotal evidence drawn from fire departments across New York and the nation, that the job of fire lieutenant, wherever performed, involves common tasks requiring essentially the same skills, knowledge, abilities, and personal characteristics; and (2) developed a general test based on those findings, we conclude that the district court had sufficient evidence to make a preponderance finding that Buffalo’s use of that test to promote firefighters to the rank of fire lieutenant was job related and consistent with business necessity.

In other words, in creating the 1998 examination, the State Civil Service Department used a thorough job analysis from fire departments around the state, but not the City of Buffalo, which administered the test for its employees. That survey helped the test maker to draft questions for the lieutenant promotional test. For some reason, she was unable to gather too much information from Buffalo firefighters, but she determined that the information from other departments was close enough to create a test for Buffalo promotional candidates. A similar job analysis governed the 2002 test. The Court of Appeals concludes the the district court could deem this test legal under Title VII and that it was relevant to Buffalo firefighters.

Application of the statewide job analysis to Buffalo was not a stab in the dark. Rather, it was based on a sound inference that, because reliable statistics showed that fire lieutenants across the state (and even the nation) shared the same critical tasks requiring the same critical skills, it was more likely than not that the same tasks and skills were critical to the fire lieutenant job in Buffalo. ... Survey data warranting 95% statistical confidence showed that persons across New York with the title of “fire lieutenant” identified the same tasks as critical to their jobs regardless of the size or location of the fire department where they served. Indeed, 90% of surveyed New York fire lieutenants, when asked to rank specified tasks according to their criticality in the performance of the respondents’ jobs, provided virtually identical responses, and those who departed did so only “slightly.” Such data made it highly likely that the job of fire lieutenant, wherever performed in New York, had the same critical tasks and required the same critical skills. Indeed, state survey data showed greater consistency across New York with respect to the position of fire lieutenant than with other high-ranking firefighter positions, where responses were more variable.

Due process extravaganza for City taxi drivers

In this complex procedural due process case, the Court of Appeals finds that the City of New York may have violated the rights of taxi cab drivers in many, many ways. The Court vacates summary judgment in one of the longest and detailed summary orders I have ever seen.

The case is Rothenberg v Daus, decided on June 4. The Second Circuit usually issues brief summary orders when they affirm summary judgment. The orders are a few pages long and do not break new legal ground. This case is eight single-spaced pages with a ton of different holdings. Could've been a published opinion.

Anyway, the City heavily regulates taxi drivers, for good reason. If you think the legal taxi drivers are crazy, imagine the ones who actually lose their taxi licenses. This case concerns due process for suspending and revoking taxicab drivers licenses when, for example, the drivers fail a drug test. If you are a due process junkie, then this case is for you. There are six or seven holdings which vacate summary judgment because the plaintiffs could win at trial.

If you're not a due process junkie, here are some highlights: the drivers did not have fair warning that they could lose their jobs if they fail a drug test. The rules say that drivers licenses "may" be revoked after a hearing if they fail the test. This looks permissive, not mandatory. The district court should consider whether this violates the due process right to fair notice of the consequence of failing the drug test. It is also possible, the Court of Appeals says, that specific rules governing drugs suggest that a failed drug test will not be grounds for revocation without a finding of addiction or on-duty use.

Another flaw in the taxi rules is that a driver can lose his taxi license if he is found to lack "good moral character." This is a vague standard. It all depends on what the driver did wrong. An unpublished city policy says that some convictions automatically cost the driver his taxi license. For example, illegal use of alcohol while driving is a per se terminable offense, and someone testified that "TLC had a zero tolerance policy for convictions" even though state law requires employers to take a variety of factors into account. The Second Circuit says, "The question is thus whether a taxi driver familiar with the rules would reasonably have expected a per se determination that certain convictions rendered him unfit rather than a case-by case
inquiry interpreting good moral character in light of the detailed regulations. We therefore vacate and remand for full consideration of this question in light of the evidence."

Court of Appeals throws out $900,000 wrongful death verdict

The Court of Appeals has thrown out a $900,000 jury verdict in a wrongful death case, ruling that that jury had no basis to find that the Town of East Haven was responsible for the shooting death of a young black man by a police officer. This case generated extensive news coverage in Connecticut, including a good summary of the oral argument in January 2012.

The case is Jones v. Town of East Haven, decided on August 1. This a crushing blow to the mother of the deceased, who filed this action in 1999 and endured two trials before a jury exonerated the police officer on qualified immunity grounds. But the jury accepted plaintiff's municipal liability claim under Monell on the basis that the shooting was part of the town's custom or practice of deliberate indifference toward the rights of blacks.

Here is how Monell claims work. Normally, in a civil rights case under Section 1983, you sue the individual public officer/wrongdoer. You can only sue the municipality if the civil rights violation was part of a policy or custom. This is not easy to prove. No municipality has a formal policy against the rights of minorities. But you can show a custom or policy based on a pattern of rights violations. But again, this is hard to prove, and the plaintiff cannot prove it here, though she tries through a series of incidents. The jury deemed these episodes as part of the town's custom and practice, but the Court of Appeals sees it differently. The verdict is vacated and the case is over.

Jones was shot and killed while driving his car in reverse toward officer Flodquist, who fired shots at the car in the belief that Jones was trying to run him over. Since the jury exonerated Flodquist on qualified immunity grounds, Jones could only prevail on her Monell claim, based on a series of incidents: (1) in 1991, Flodquist apprehended a black male who fled from a moving car during a joyride; (2) in 1996, four East Haven officers beat up and used anti-black slurs against a white suspect who attacked them during an arrest; (3) in 1998, a black female came to believe she was being followed by East Haven officers because of her race; (4) in 2000, the same female was physically abused and subjected to racial slurs at the police station after they booked her on an outstanding warrant; (5) in 1997, some East Haven officers wore T-shirts during a softball game that showed two white suspects on the hood of a police car, with the phrase "Boyz in the Hood."

The Second Circuit says that each of these incidents was insufficient on its own and in the aggregate to show a custom or policy against the rights of black residents. The Court of Appeals reviews them in detail in highlighting the evidentiary deficiencies. For example, the officer in 1991 was justified in apprehending the escapee. The 1998 traffic stop "did nothing for plaintiff's case" as her subjective belief that the officers were pursuing her was mere speculation. The T-shirts may have been disrespectful of blacks (and the police chief did nothing to put a stop to it) but "while the message of the T-shirts was disrespectful of black people, it did not reveal an inclination on the part of the officers to abuse the rights of black people." And the officers may have even had the right to wear shirts like this off-duty. And so on.

The Court of Appeals (Leval, Pooler and Walker) is defensive about this opinion, noting in a footnote that the Justice Department in December 2011 found that the East Haven Police Department had engaged in all kinds of lawbreaking, including "widespread biased policing." But "a federal appellate court makes no assessment of the true facts. Our court has no investigative authority and does not find facts. It reviews only the record created by the parties in the course of trial."

FLSA riddle: domestic worker, or friend of the family?

The Court of Appeals holds that a jury must decide whether a woman who helped in the household was a family friend who could work without pay or a household worker who deserved a salary under the FLSA.

The case is Velez v. Sanchez, decided on July 31. Velez came to the U.S. from Ecuador, where she lived with her mother and a guy who was the biological father of Sanchez, who asked if he knew anyone in Ecuador who could help out around the house in the U.S. Velez left Ecuador as a 16 year-old and moved in with Sanchez in New York. She did all sorts of household work and sued under the Fair Labor Standards Act for back pay. (She also sued under the Alien Tort Claims Act, alleging that Sanchez was abusive, but the Court of Appeals rejects that claim).

The Court of Appeals evidently has not resolved a case like this. So it has to review the standards governing who is a "domestic worker" or simply a member of the household for whom the FLSA does not apply. The district court ruled against Velez because "the economic reality of the situation was that Velez was a part of the family because (1) Velez thought of Sanchez as a sister and valued that relationship; (2) Velez received gifts and opportunities outside of the home; and (3) Velez did not leave the Sanchez household when she did not receive wages." The Court of Appeals (Raggi, Droney and Matsumoto [D.J.]) sees it differently, at least for purposes of summary judgment, stating, "[w]hile these circumstances may support the defendant’s argument that a familial relationship existed, they do not, either individually or in combination, summarily preclude Velez from being an employee under the FLSA as a matter of law."

Judge Droney writes:

the following factors are useful to a district court evaluating a minimum wage claim under the FLSA’s domestic worker provision: (1) the employer’s ability to hire and fire the employee; (2) the method of recruiting or soliciting the employee; (3) the employer’s ability to control the terms of employment, such as hours and duration; (4) the presence of employment records; (5) the expectations or promises of compensation; (6) the flow of benefits from the relationship; and (7) the history and nature of the parties’ relationship aside from the domestic labor. Of course, a court must not apply these factors rigidly, and the list is not all inclusive.

Velez can win the case, the Court of Appeals says, because Sanchez did promise to pay her and provide room and board at the start of the relationship, triggered by Sanchez's search for an employee. Sanchez exercised "considerable control" over Velez's employment, including hours and duties. Moreover, "the evidence that Sanchez claimed to 'own' Velez and could send her back to Ecuador at any time indicates that Sanchez could terminate the relationship at will."