No due process rights to Witness Protection Program

The Justice Department kicked someone out of the Witness Security Program because, it said, he broke the rules governing improper contacts with the wrong people. He challenged his expulsion from the program as a due process violation. He loses the case because courts are not allowed to entertain challenges like this.

The case is J.S. v. T'Kach, decided on April 10. The plaintiff's name is a secret because he must have testified against someone in return for witness protection. The government came to believe that plaintiff broke the rules while he was incarcerated at federal prison in Otisville, New York. He argues that the expulsion was unfair because the government did not tell him the name of the person with whom he had improper contact. Under normal circumstances, this would be a good due process case; you cannot deprive someone of a property interest without prior notice of what you allegedly did wrong.

This is not a normal case, though. The federal statute that governs this program says that the Attorney General decision to terminate protection is not subject to judicial review. The federal courts have no authority to resolve cases like this. The Attorney General can do whatever he wants. Another problem with the case is that due process claims cannot be predicated on an entitlement to which the government has discretion to revoke. There is thus no property interest here.

The holding in this case is not that remarkable. Things get interesting in the concurrence, though. Judge Parker wrote the majority opinion, to which Judges Hall and Wallace (sitting by designation) signed on. But Judge Parker filed a separate concurrence, to which Judge Hall also signed on. Judges Parker and Hall therefore submit a separate opinion to further flesh out their views. They are troubled that Congress did create procedural requirements to ensure that the Witness Security Program is administered fairly. Defendants apparently violated those requirements. While the Second Circuit says that plaintiff cannot pursue a due process claim, Judges Parker and Hall suggest that Congress revise the statute "to provide greater enforcement of the procedural protections it intended Program participants to have." 

Sex in the workplace does not support sex discrimination charge

Title VII does not recognize a claim that the boss gave his paramour favorable treatment in the workplace. Other women in the workplace cannot therefore argue that any retaliation arising from complaints about the paramour preference violated Title VII. That's the holding in a decision last week from the Court of Appeals.

The case is Kelly v. Howard I. Shapiro & Associates, issued on April 26. The decision describes a particularly toxic work environment. Plaintiff worked in the family business. Her brother was fooling around with a female subordinate, Ms. Joyce. According to the lawsuit, the workplace "became so completely permeated with sexual favoritism towards Ms. Joyce that Ms. Kelly's duties and responsibilities were substantially reduced, and her leadership duties were removed in favor of Ms. Joyce, notwithstanding the fact that that she was significantly senior to Ms. Joyce." Joyce was insubordinate and had her run of the place. Kelly added that as a result of the illicit love affair, the workplace atmosphere was "demeaning to women." Kelly eventually quit her job over this.

Rule 12 dismissal is affirmed. Kelly cannot prove a Title VII violation. Yes, Title VII prohibits sex discrimination. But this was not sex discrimination, the Second Circuit (Walker, Wesley and Droney) says. The Second Circuit held in 1987 that disparate treatment based on a romantic relationship is not discrimination. This may seem paradoxical, as the relationship all about sex, and the male supervisor is obviously doing things to promote his affair. But that does not mean the plaintiff is being treated differently because she is a woman. The discrimination stems from "a romantic relationship between an employer and a person preferentially treated."

This may seem a clunky distinction, but the Second Circuit seems adamant about this, citing other cases that support this kind of reasoning. What it means for Kelly is that her complaints about her brother's hanky-panky are not a legitimate ones under Title VII, which means they are not protected activity because she could not have believed in good faith that she was complaining about gender discrimination. So her retaliation claim -- which requires a showing that she engaged in protected activity -- fails as a matter of law, and her complaint fails to state a claim, particularly since does not support her allegation that the relationship "resulted in an atmosphere demeaning to women."

Employer's "boy's club" atmosphere may violate the New York City Human Rights Law

The Second Circuit has now officially weighed in on the New York City Human Rights Law, which was amended in 2005 to provide greater protection to employees and make it easier for them to win even those discrimination claims that might otherwise fail under Title VII and the New York State Human Rights Law. The Second Circuit vacates summary judgment in a gender discrimination and retaliation claim against a company that ran its office like a men's locker room.

The case is Mihalik v. Credit Agricole Cheuvreux N.A., decided on April 26. After plaintiff was hired, her boss subjected her to boorish behavior, propositioned her sexually and commented on her physical appearance. Co-workers openly watched pornography on their computers and shared it with plaintiff. The Court of Appeals says the workplace was like a "boy's club." After plaintiff objected to this nonsense, her boss excluded her from meetings, berated her in front of co-workers and criticized her work. Plaintiff was fired, allegedly for poor job performance. Her boss was originally going to merely give her a performance warning, but plaintiff was fired "after she asked him, in an allusion to his sexual propositions, 'What's not working out [?] Me and you or me at the company?"

As plaintiff did not sue under the state or federal anti-discrimination laws, the Second Circuit (Chin, Lohier and Droney) only resolves this case under the City Human Rights Law. That allows Judge Chin to summarize the contours of the city law. And if you litigate cases like this, you have to read this decision. In sum, the City Council wanted the amended law to be "construed liberally for the accomplishment of the uniquely broad and remedial purposes thereof, regardless of whether federal or New York Sate civil and human rights laws ... have been so construed." So, the City law must be analyzed independently of state and federal law, and courts must interpret the City law "broadly in favor of discrimination plaintiffs, to the extent that such a construction is reasonably possible."

Plaintiff's gender discrimination claim therefore goes to a jury. She does not have to prove that management subjected her to a severe or pervasive harassment. While the City law is not a general civility code, the plaintiff instead need only prove that, under the totality of the circumstances, "she has been treated less favorably than other employees because of her gender." The defendants can win by showing that the unfavorable treatment amounted to "petty slights and trivial inconveniences." Under these standards, plaintiff has a legitimate gender discrimination claim. The workplace "objectified" women and, like I said, plaintiff had to work in a "boy's club" among sex-crazed colleagues, one of whom told plaintiff that "male employees should be respected because they were 'male' and thus 'more powerful' than women." Not to mention the two unwanted sexual propositions.

Her retaliation claim also goes to trial. To win, plaintiff has to prove that management's response to her complaints about sexist behavior would deter an employee from complaining again. Plaintiff's boss was not going to fire her until she made reference to the spurned sexual advances. Even prior to her termination, after plaintiff refused to sleep with her boss, he told her in front of colleagues that she "added nothing of value," has "no fucking clue what she was doing" and was "pretty much useless." And five months after plaintiff rejected his sexual advances, she was given a poor performance review and terminated, the first time her supervisor met with her to review her performance. While the Second Circuit says that plaintiff had performance issues, that does not entitle defendant to summary judgment on this record.

The Court of Appeals goes out of its way to emphasize how the City Human Rights Law favors plaintiffs in employment discrimination disputes. Had plaintiff also raised Title VII claims, though, I would guess that she would have survived summary judgment on her federal claims as well. The workplace arguably had severe or pervasive sexual harassment, and the test governing city and federal retaliation claims is substantially identical, as least as to whether management's response would dissuade a reasonable employee from complaining again. Still, this decision puts management on notice that the revised City Human Rights Law is no joke, and that claims that fail under federal law can still go to the jury under the city law.

Speculative retaliation verdict eliminates $350k damages award

After finding that he was denied reinstatement as a firefigher in retaliation for his whistleblowing, a jury awarded Kenneth Monz $350,000 in damages. The district court then granted the fire district's post-trial motion to set aside the verdict for insufficient evidence. The Court of Appeals affirms, and the $350,000 is gone for good.

The case is Monz v. Rocky Point Fire District, a summary order decided on March 26. First Amendment retaliation verdicts are hard to come by these days, mostly because the Supreme Court in its 2006 Garcetti decision eliminated protection for public employees whose speech arises from their official job duties. Even proving that citizen speech is protected under the First Amendment can be a puzzle as well, because it has to be on a matter of public concern, which eliminates trivial and personal grievances from constitutional protection. What dooms this case is the court's finding that, even though Monz engaged in protected speech, his retaliation took place long after that speech and the fire district had a compelling unrelated reason to deny him reinstatement.

The protected speech was Monz's complaint that there was too much drinking at the firehouse and the fire department's "frat-boy" image. I would say this is borderline "public concern" speech under the First Amendment. But that's not my call. The courts said this was citizen speech for which plaintiff could not be terminated.

As the Court of Appeals (Wesley, Droney and Briccetti [D.J.]) sees it, the problem for Monz was actually two problems: first, when he resigned in 2003, the fire chief noted in writing that Monz resigned in "bad standing" because he was not participating in enough fire department events. And, there was a four-year gap between the speech and the reinstatement denial. So the jury's contrary finding that plaintiff's speech about firehouse drinking caused his termination was too speculative. And the very large jury verdict goes down the drain.

An interesting tidbit from the district court opinion shows how Moniz tried to get around the four-year causation gap. He argued that direct evidence established retaliatory intent because some fire department officials gave him the cold shoulder. While plaintiffs sometimes emphasize evidence like this in trying to prove their case, mere dislike is not evidence of retaliatory intent, the district court held, citing cases from around the country, including McCook v. Spriner School District, 44 Fed. Appx. 896 (7th Cir. 2002), Miller v. N. Belle Vernon Borough, 2010 WL 4388069 (W.D. Pa. 2010) and Heffernan v. Straub, 612 F. Supp. 2d 313 (S.D.N.Y. 2009). My guess is that courts think this method of proof is to vague and that courts do not want to read too much into the personality disputes that characterize many a workplace.

Arbitration clause takes the fun out of Title VII claim

Goldman Sachs employees sued their employer, alleging a pattern and practice of sex discrimination in promotions, compensation and other terms and conditions of employment. The plaintiffs wanted to bring a class action. The case cannot proceed in court because of an arbitration clause.

The case is Parisi v. Goldman Sachs & Co., decided on March 21. The arbitration clause reads:

any dispute, controversy or claim arising out of or based upon or relating to Employment Related Matters will be finally settled by arbitration in New York City before, and in accordance with the rules . . . of, the New York Stock Exchange, Inc. (“NYSE”) or . . . the National Association of Securities Dealers (“NASD”). If both the NYSE and NASD decline to arbitrate the matter, the matter will be arbitrated before the American Arbitration Association ... 

The agreement defines “employment related matters” as “matters arising out of or relating to or concerning this Agreement, your hire by or employment with the Firm or the termination thereof, or otherwise concerning any rights, obligations or other aspects of your employment relationship in respect of the Firm.” Despite this clause, the district court denied Goldman Sach's motion to remove the case from federal court into arbitration because the agreement's preclusion of class actions would make it impossible to arbitration a Title VII pattern-or-practice claim and it therefore waived a substantive right under Title VII.

Not all Title VII claims can be forced into arbitration (most plaintiffs prefer court and jury trials to arbitration). Arbitration is inappropriate if it effectively precludes a Title VII claim. Plaintiff argues that the arbitration clause is invalid because arbitration would prevent her from vindicating a statutory right. But the Court of Appeals (Parker, Raggi and Lynch) finds that there is no such thing as a substantive right to a pattern-or-practice claim, and the case goes to arbitration.

"Even claims arising under a statute designed to further important social policies may be arbitrated because 'so long as the prospective litigant effectively may vindicate its statutory cause of action in the arbitral forum, the statute will continue to serve both its remedial and deterrent function.'" Congress has allowed Title VII claims to be arbitrated. The Court of Appeals rejects plaintiff's argument that the arbitration clause prevents her from enforcing a right under Title VII. Pattern-and-practice claims are not freestanding claims but merely a method of proof. Plaintiff can still get relief under the statute, the Second Circuit says, and she have to do it through arbitration.

Section 1983 suit proceeds despite criminal conviction

If you were convicted of a crime in state court, can you bring a lawsuit under Section 1983 for civil rights violations in connection with your conviction? That issue brought about a slugfest in the Second Circuit last week.

The case is Poventud v. City of New York, decided on April 19. Poventud was initially convicted of attempted murder, assault and criminal possession of a weapon in connection with the death of a Bronx cabdriver. As a result of various Brady violations that tainted the state prosecution (in part due to a bad photo lineup), Poventud's conviction was vacated. He then plead guilty to a lesser charge and got time-served. As a free man no longer in custody, he then brought a Section 1983 case challenging the improprieties that led to the attempted murder conviction.

The Supreme Court decided in Heck v. Humphrey, 512 U.S. 477 (1994), that a Section 1983 lawsuit must be dismissed if its success would necessarily undercut the legitimacy of the plaintiff's criminal conviction, unless that conviction was reversed on appeal or called into question by a federal habeas corpus ruling. The idea is that you cannot relitigate in federal court matters that were decided against you in a state criminal proceeding. Citing Heck, the district court dismissed Poventud's Section 1983 claim because his guilty plea was to conduct that "necessarily required his presence at the scene of the crime" and a successful civil rights lawsuit would "logically imply the invalidity" of his guilty plea. Over a strong dissent from Chief Judge Jacobs, the Second Circuit (Calabresi and Sack) reverses and reinstates the case, reaffirming the Court's view that Heck's prohibition against Section 1983 suits in connection with a state court conviction only applies when the plaintiff is in custody at the time of the lawsuit and is able to bring a federal habeas corpus petition that could attack the conviction directly. Since Poventud had no habeas remedy in that he was a free man when he brought this lawsuit, the case is reinstated because it's the only opportunity for him now to challenge the constitutionality of his conviction.

The Second Circuit thinks this is an easy case in light of the Court of Appeals' longstanding interpretation of Heck, and Judge Calabresi says the majority was contemplating issuing a summary order rather than a published, precedential decision. It did not do so because it wanted to address Chief Judge Jacob's "apocalyptic" dissenting opinion. It takes Judge Calabresi more than six pages to respond to Judge Jacob's arguments. As the majority and dissenting opinions fight over the meaning of Supreme Court decisions and the Second Circuit's interpretation of those decisions, this case is a good candidate for the rare en banc ruling.

Habeas award overturned in burglary conviction

In habeas corpus cases, there really are two U.S. Constitutions. If a state court conviction violates the Constitution in some way, the defendant can get relief in federal court in a habeas petition. But a mere Constitutional violation will not always get the defendant relief. The state court's interpretation of the U.S. Constitution has to be contrary to  -- or an unreasonable application of  -- settled constitutional law, as defined by the Supreme Court, and not the federal courts in that jurisdiction. So the state court can interpret the Constitution differently than the federal courts might, but that incorrect interpretation may not spring the defendant to freedom.

The case is Evans v. Fisher, decided on April 3. The defendant was convicted of burglary. Here is how the district court summarized the issue:

The focus of the petition is the admission at petitioner's trial of an unsworn, highly detailed seven-page hearsay narrative, penned by the state's key trial witness, containing the most damaging evidence and nearly the entirety of the state's case. Admitted for its substance without a limiting instruction, the document was touted by the prosecutor during summation and furnished to the jurors, upon their request, at the outset of deliberations. Petitioner claims that the document's effect, as well as the state's objective in offering it, was essentially to supplant the witness's poor performance on the stand, and to nullify his primary defense, which consisted of a compelling impeachment of that testimony. He argues that he was denied due process because his conviction rests principally on this hearsay rather than the trial testimony.

The trial court granted Evans's habeas corpus petition, concluding that admission of this hearsay document violated his right to a fair trial under the due process clause. The Court of Appeals (Lynch, Lohier and Droney) disagrees. It may seem like Evans got an unfair trial, but the state appellate court affirmed his conviction. No Supreme Court case squarely holds that Evans' conviction violated the Constitution. Some cases are close, but not close enough. It wasn't always this way. The habeas corpus statute was amended in 1996, when Congress wanted to limit prisoner appeals challenging their convictions. Hence the difficult standard applied in this case. State courts are given some leeway in interpreting the U.S. Constitution, even if the federal courts disagree.