Another First Amendment retaliation case goes down the chute

Public employees continue to lose their First Amendment retaliation cases in the Second Circuit. This time, it's a payroll clerk typist who was fired after she brought financial improprieties to her supervisors' attention.

The case is Ross v. Lichtenfeld, decided on September 10. Ross worked for the Katonah-Lewisboro School District in Westchester County. She processed payroll and verified payroll amounts. If plaintiff found any mistakes or improper payroll payments, she told the Superintendent about it. On one occasion, when Ross told him about some improper payments, the Superintendent said, "Oh, my God. This is worse than the Enron scandal. If taxpayers find out heads will spin." On other occasions, she told the Superintendent that people were improperly receiving overtime payments and that various disbursements were made without School Board approval. She also told the School Board about this stuff.

Ross sounds like a hero, right? Well, she was fired after an arbitrator found that she had a falsified employment application for the position. Still, she did expose some financial improprieties. But her First Amendment retaliation claim fails. The Second Circuit says that Ross did not speak as a citizen in speaking out but instead spoke pursuant to her official job duties. That dooms the case under Garcetti v. Ceballos, 547 U.S. 410 (2006), and its progeny, which makes it harder to win these cases even if the plaintiff exposes a matter of public concern. Ross was just doing her job, but doing you job is not citizen speech; it's work speech.

The Second Circuit (Walker, Leval and Pooler) suggests one way that Ross might have won the case:  "Because Ross never attempted to communicate her complaints to the public, she cannot avail herself of the argument that her duties in no way included public revelation of misconduct of district officials that is generally available to the employee who takes the issue public." So, one way to avoid summary judgment is for the plaintiff to report these matters to the media or some other outlet. Citing Garcetti, the Court also suggests that other whistleblower statutes "or other similar employment codes" might have protected Ross from termination, but she did not assert them in this case. The Court is probably referring to Civil Service Law section 75-b, which says that "A public employer shall not dismiss or take other disciplinary or other adverse personnel action against a  public  employee  regarding the   employee's   employment   because  the  employee  discloses  to  a governmental body information ... which  the employee   reasonably  believes  to  be  true  and  reasonably  believes constitutes an  improper  governmental  action" that violates a law, rule or regulation."

Dog hoarder loses her case

There is such a thing as dog hoarding. The SPCA often shows up after neighbors complain about the smell of dog feces and other foul odors, and the hoarder is charged with violating the New York State Agricultural and Markets Law. Sometimes the hoarders file a civil rights suit over the confiscation of their animals. These are very hard cases to win.

The case is Fabrikant v. French, decided on August 16. After Fabrikant's criminal charges were dismissed, she sued the SPCA for constitutional violations, including false arrest and the seizure and outplacement of her dogs. The district court dismissed the case, and the Court of Appeals (Newman, Straub and Lynch) affirms.

These cases are hard to read if you love dogs. The Second Circuit lays out the suffering these many dogs experienced, and I will spare you the details. The case is notable for a few holdings, though. First, the Court of Appeals says for the first time that people working for the Society for the Prevention of Cruelty of Animals may be sued under Section 1983 as state actors. This is because animal control is traditionally a governmental function. Municipalities have delegated that function to local SPCA's. That's what happened in Ulster County, where this case originated and incidentally where I live and have donated to and visited the SPCA with our beloved Standard Poodle who lives like a king and basically runs the household.

The other holding of note is the qualified immunity ruling. The Court of Appeals rejected plaintiff's constitutional claim on qualified immunity grounds even though defendants waived/forfeited that argument in failing to raise it in the district court. Qualified immunity gets government defendants off the hook if the court finds they acted reasonably under the circumstances or the case law was not clear at the time they alleged violated the plaintiff's rights. In fact, defendants did not assert qualified immunity until oral argument in the Second Circuit. No matter. The Court of Appeals can resolve this issue because it is a question of law without any need for additional factfinding. Having gotten around the waiver, the Court says that the SPCA defendants are immune from suit because in 2002, when the events gave rise to this case, there was no clearly-established "right not to have her dogs sterilized by the SPCA, at least without some form of process, prior to being sent to foster homes while she was awaiting trial in state court on animal abuse charges." Even today, SPCA workers would not reasonably understand "that spaying or neutering  Fabrikant's dogs following their seizure from her home violates a clearly established due process right." Rather, state law allows SPCA's and humane societies broad powers to promote the welfare of at-risk animals.

Finally, the Court of Appeals rejects plaintiff's search and seizure claim because the SPCA had probable cause to seize the animals. There is no evidence that anyone conspired against Fabrikant, and the SPCA people testified in detail about the conditions they observed when they came upon Fabrikant's property. It's difficult to get around a probable cause finding in a Section 1983 suit, particularly in cases like this where eyewitnesses give firsthand accounts in support of the charges. Law enforcement is allowed to rely on those firsthand accounts in going after the alleged wrongdoer.

Mixed result in student racial harassment case

In this racial harassment case filed by the parents of a young boy who was ridiculed at school because of his race, the Court of Appeals allows some claims to proceed to trial but grants qualified immunity to some school officials who were not on notice that certain physical harassment violated the Constitution.

The case is DiStiso v. Cook, decided on August 21. This is the first time in years that the Second Circuit has provided extensive guidance on school harassment cases. What complicates matters is that the parents brought this case under the Equal Protection Clause of the Constitution (which prohibits racial discrimination in general) and not Title VI of the Civil Rights Act of 1964, which addresses discrimination in public schools. Unlike statutory claims like Title VI, qualified immunity is available to public defendants in Section 1983 claims brought under the Constitution, which means the defendants can wiggle out of the case if the law governing the case was not clearly established at the time of the alleged violation.

The boy was harassed both verbally and physically. He was unable to testify who exactly committed the harassment. Still, since the parents complained about it, the jury could find that the teacher and principal knew about the racial name-calling in kindergarten (other kids called him "nigger" and "blackie" and said his skin was dirty after he washed up). The jury may also find that defendants' response to these complaints was "clearly unreasonable" (the legal standard in these cases) because they did nothing about it, i.e., they did not do anything to stop or deter the harassment or undertake a full investigation. Legally, this part of the case is not that remarkable, except for the holding that the parents' testimony about what their son told them about the harassment is admissible at trial. The Second Circuit (Raggi, Pooler and McLaughlin) says:

Although Nicholas himself had no present recollection of the frequency of these racially derogatory remarks or even of who said them, when they were said, or the circumstances in which they were said, his parents testified that their son complained of racial name-calling, specifically, use of the word “nigger,” approximately eight, and possibly as many as 15, times over the course of his kindergarten year. Mr. and Mrs. DiStiso may not be competent witnesses to the underlying truth of their child’s complaints, i.e., to the fact that other children called Nicholas racial epithets. But if a jury were to credit Nicholas’s testimony that he experienced such name-calling and reported it to his parents, his parents’ testimony as to the number of times their son made such reports, which we must assume would also be credited, might constitute circumstantial evidence as to the frequency of the harassment. This is enough to raise triable issues of fact as to (1) whether Nicholas experienced racial name-calling during his kindergarten year at Wakelee and, if so, (2) whether that name-calling was sufficiently severe or pervasive as to have effectively deprived the child of educational opportunities provided by the school.

The Court says, however, that defendants are entitled to qualified immunity on claims that they were deliberately indifferent to acts of physical harassment. The law is not clearly established in this area, so there was no way for defendants to know that otherwise race-neutral physical harassment was racially-motivated, even if the verbal harassment to which they were aware was explicitly racial. Over Judge Pooler's dissent, Judge Raggi writes, "Where, as in this case, the subsequent misbehavior is of a type routinely engaged in by school children of the age at issue without regard to motivation, there must be some objective evidence linking initial racially hostile acts to such subsequent misbehavior to support a finding that a school official has actual knowledge that the latter behavior, like the former, is racially motivated." There was "no objective evidence linking the physical conduct to the alleged name-calling. Nor is there evidence that the misbehavior went beyond the commonplace for children of Nicholas's age. In these circumstances, no clearly established law would have alerted defendants that they could be deemed to have actually known that the physical misbehavior was racially motivated so as to expose their responses to the physical misbehavior to possible constitutional scrutiny."

The result in this case would be different if the same kids who verbally harassed the boy were the ones who physically harassed him. But the child is unable to identify the harassers, and there is no other evidence connecting the bad kids with both forms of harassment. "In such circumstances, a jury might well find that if a teacher actually knows that particular students have harassed a classmate for invidious reasons on several occasions, the teacher actually knows that the same prohibited motive animates the same students’ further misbehavior toward the same classmate. ... Absent some such evidence to connect the racial name-calling to the later commonplace physical misbehavior, there is no basis in established law for inferring that a teacher who receives complaints as to the racial motivation for former conduct has actual knowledge that the latter conduct is similarly motivated."

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Anti-parole policy does not violate Constitution

The State of New York allegedly had an unofficial policy against granting parole to violent offenders. They sued the state, claiming this policy violates the Constitution. The Court of Appeals does not think so.

The case is Graziano v. Pataki, decided on August 3. According to plaintiffs, who wanted to make this a class action, the state sharply reduced parole after George Pataki became governor, from 28 percent in 1993-94 to 3 percent in 2000-01. You can see how the state can get away with this. No politician was ever taken to the woodshed for denying parole to violent felons, including murderers.

In a series of summary orders over the last few years, the Second Circuit has held that the alleged anti-parole policy does not violate the Constitution. It re-affirms those rulings in this case, this time in a precedential opinion. Plaintiffs argue that the blanket parole denials violate due process because "they have a limited liberty interest in 'not being denied parole for arbitrary or impermissible reasons."  But the Court of Appeals concludes that the parole scheme does not create a legitimate expectancy of release from jail, which means there is no property interest, which means there is no due process claim. Not only do the plaintiffs fail to allege that the parole officials are taking improper factors in account in denying parole, but all the parole deciders are really doing is heavily emphasizing the violent nature of the inmates' crimes, a legitimate factor under state law.

While the parole law requires the parole board to consider a variety of factors in granting or denying parole, they are allowed to overvalue the violent crime at the expense of other statutory considerations. The Second Circuit (Katzmann and Wesley) concludes, "a policy of according substantial weight to the severity of the crime is neither arbitrary nor capricious; indeed the Board is required to consider this factor as part of its determination, and it is entitled to give whatever weight it deems appropriate to each of the statutory factors." District Judge Underwood dissents.

What happens when the decisionmaker dies prior to the Title VII trial?

What happens when the decisionmaker in a Title VII case dies? Without his testimony, can the employer prove its nondiscriminatory reason? The Second Circuit has never addressed this issue, until now.

The case is Bucalo v. Shelter Island Union Free School District, decided on August 10. Plaintiff sued the school district for age discrimination and retaliation after she was twice denied the position of school librarian. The first time she was denied this position in 1999, plaintiff filed an EEOC charge but did not bring a lawsuit. After she was again denied the position four years later, plaintiff sued for retaliation. After the lawsuit was filed, the decisionmaker, Lanier, died. Prior to his death, as he was too ill to provide deposition testimony, Lanier signed an affidavit that explained why plaintiff was denied the position in 2003: he thought plaintiff had an unstable work history and he denied that her age or prior EEOC charge had anything to do with the job denial. At trial, the court said the affidavit were inadmissible hearsay. Plaintiff lost at trial, and argues on appeal that she is entitled to judgment as a matter of law because, without Lanier's testimony, the school district cannot prove its age-neutral reason for denying her position.

The Court of Appeals (Straub, Winter and Lynch) rejects plaintiff's argument and affirms the verdict. In St. Mary's Honor Center v. Hicks (2003), the Supreme Court said that if the plaintiff conclusively proves her prima facie case and the employer does not meet its burden of proving a legitimate reason for the adverse action, then the plaintiff wins as a matter of law. That rule does not help plaintiff here because the jury had a factual basis to find that plaintiff did not prove her prima facie case. Specifically, the jury could find that plaintiff was not denied the position under circumstances creating an inference of discrimination because it could find that Lanier did not know that plaintiff was significantly older than the woman who was offered the position; Lanier had never met plaintiff and the the resumes of plaintiff and the selectee suggested that both were in their early 30's. As for the retaliation claim, same result. The jury could have found there was no causal connection between the first EEOC charge and the 2003 position denial because of the lengthy time gap and that Lanier was not involved in the 1999 position denial.

Even if plaintiff did conclusively prove her prima facie case, the fact that Lanier was unable to testify at trial does not mean that plaintiff could win the case as a matter of law. There were other ways for defendant to prove that plaintiff was denied the position in 2003 for legitimate reasons. The Court of Appeals has held that "a defendant's failure to 'come forward with a non-discriminatory reason' does not compel a jury verdict for the plaintiff if the defendant 'furnishes a satisfactory explanation for its inability to tell the reason why plaintiff was disfavored.'" Defendant had a compelling reason in this case: Lanier died prior to trial and was too sick to provide deposition testimony. Meanwhile circumstantial evidence -- including plaintiff's questionable resume and the selectee's superior qualifications -- permitted the jury to find that the school district had a legitimate reason to deny plaintiff the job.

No adverse employment actions in public employee retaliation case

The Court of Appeals has not been kind to First Amendment retaliation claims, often ruling that the plaintiff's speech was unprotected because it was work-related and not uttered as a citizen. In this case, the Second Circuit rules against the plaintiff for a different reason: no adverse action. This reasoning would apply to Title VII retaliation claims as well.

The case is Wrobel v. County of Erie, decided on August 1. Other aspects of the case are discussed here. Wrobel was targeted by new supervisors in the highway department, Naylon and Rider. Wrobel's wife and other colleagues tried to expose Naylon and Rider's mistreatment of county workers and other improper behavior, such as the misuse of public money. They sent letters to the State Attorney General about this, signing them as "Concerned Erie County Employees." Wrobel and others also met with the FBI about these allegations.

This may constitute speech on matters of public concern -- a necessary prerequisite for any First Amendment retaliation claim -- but Wrobel did not suffer an adverse employment action. Under Circuit precedent, an adverse action is any managerial response that would deter a reasonable public employee from speaking out again. Here, management interrogated him without the presence of a union representative in telling Wrobel to keep his wife out of County buildings. Wrobel was also questioned by the County sheriff about a workplace theft. These are de minimus slights, the Court of Appeals says. They may not have been pleasant, but they were not enough to prevent the average employee from speaking out again. There was no proof that the sheriff's questions were motivated by Wrobel's speech, and these were only a few polite questions anyway, after which Wrobel was left alone.

Plaintiff's best argument is that, when plaintiff grieved his transfer, management encouraged and tried to bribe employees to testify against him. But there is no real proof of this other than a email from Rider to Naylon asking him to attend the hearing "and bring other employees who did 'not want him back.'" This showed they disliked plaintiff, not that they were manipulating testimony.

Back and front wages are taxable

No one likes taxes but the IRS. Everything is taxed, including wages under Title VII. That's the rule in a recent Second Circuit case in which the plaintiff objected that a chunk of his large judgment was lost to taxes.

The case is Noel v. New York State Office of Mental Health, decided on August 31. Noel won a Title VII discrimination case in which the jury awarded him $280,000 in back and front pay. When the state paid out the award, it Office of State Comptroller on its own took out the various deductions and sent Noel a check in the amount of $139,582.52. That's fifty percent in taxes! Noel objected that the state made these deductions, and the district court sided with Noel, concluding that the state had no legal authority to withhold these taxes. The court ordered the state to reimburse Noel for the money that it deducted. The court further entered a judgment in the amount of $164,987.59, which reimbursed Noel for the taxes (plus interest and attorneys fees) that the state deducted from his check. The Court of Appeals reverses.

Here's the deal. Title VII authorizes an award of back and front pay if the plaintiff is wrongfully terminated. Since these are the wages that plaintiff would have recovered but for the defendant's wrongful discharge, he has to pay withholding taxes. After all, had plaintiff not been terminated in violation of Title VII, he would have paid taxes on that income. Under the IRS code, income is taxable. And the district court's order that "reimburses" Noel is really a windfall. The Second Circuit (Parker, Katzmann and Wesley) writes,

[P]ayments pursuant to Title VII judgments for back and front pay are “wages” as defined under the Internal Revenue Code and, as such, employers are required to withhold income and Federal Insurance Contributions Act (“FICA”) taxes. Moreover, we conclude that – although district courts have discretion to oversee the procedure by which these deductions are taken – the district court should not have ordered the
double payment.

...

The obligation on employers to collect taxes by withholding a specified portion of the tax from wages paid is mandatary. Specifically, I.R.C. § 3102(a) provides that FICA taxes “shall be collected by the employer . . . as and when paid.” Likewise, the Code uses mandatory language with respect to the withholding of income taxes. Moreover, an employer who fails to withhold FICA and income taxes from the wages of his employees, or who fails to pay those withheld taxes over to the government, can be held personally liable for an amount that is equal to the amount that should have been withheld and paid over.

The district court's ruling gave an "undeserved windfall" to Noel. This was an "inappropriate hit to the public fisc," the Court of Appeals says.

By the way, the decision says that the state paid out the full judgment to Noel after the district court ordered the state to reimburse to Noel the taxes that it withheld. Now that the state has won the appeal, Noel has to pay all that money back in taxes. I certainly hope Noel did not spend all the money while the case was on appeal.