City Human Rights Commission's procedures satisfy due process

Nearly all employment discrimination cases are filed with an administrative agency that gets first crack at the case before the plaintiff can file in federal court. Federal and state agencies take on this task. At the federal level, it's the Equal Employment Opportunity Commission. At the state level, its the New York Division of Human Rights. New York City has its own agency. In this case, the plaintiff challenges the constitutionality of the New York City Commission of Human Rights' procedures. He loses.

The case is Rosu v. The City of New York, decided on February 7. Rosu was hounded at work because of his national origin and was then fired shortly after he suffered a stroke. This forms the basis for his hostile work environment and disability discrimination claims. He filed a charge of discrimination with the New York City Commission of Human Rights, claiming this maltreatment violated the City's civil rights laws. According to plaintiff, the investigators did not really investigate his claims before dismissing his case for lack of probable cause. In his due process case against the Commission that he filed in federal court, plaintiff says the Commission's procedures "permit a reviewer to dismiss an administrative complaint for insufficient information or investigation in the absence of a hearing and without allowing complainant to cross-examine witnesses or have access to the investigative file."

The due process clause of the United States Constitution is only a few words long. It reads, "[N]or shall any State deprive any person of life, liberty, or property, without due process of law." This brief statement has spawned thousands of lawsuits requiring the courts to decide what due process means in any conceivable context. The standards governing due process are judge-made. Judges decide what procedures are fair. This is not an easy task, but the Second Circuit (Pooler, Parker and Wesley) says "the question before us is refreshingly narrow: does the Commission on Human Rights' procedures facially satisfy the due process requirements" under Supreme Court authority? "We find that they do."

The lack of an evidentiary hearing before the Commission does not violate due process because an aggrieved plaintiff can always challenge that determination after-the-fact, by way of an Article 78 proceeding, a quick and easy state court process that requires filing a petition, affidavits and evidentiary materials for a state judge to resolve whether the Commission arbitrarily denied you a hearing. The Court of Appeals says the Article 78 process provides a fair opportunity to fully litigate your claims against the City Commission if it says you don't deserve an evidentiary hearing on the employment discrimination claims.

While the aggrieved employee has a substantial interest in vindicating his rights, the risk that the Commission's procedures will undermine those rights is minimized by the requirement that the case have merit before the Commission schedules a hearing. In other words, the Commission will give you a hearing if it finds you have a case. If you don't have case, then the lack of an evidentiary hearing will not cause you any harm, at least according to the Second Circuit. And if you really do have enough for a hearing, the Court says, the state court in the Article 78 proceeding will order the Commission to hold one.

Rosu brought his claims under the New York City Human Rights Law, by the way. You don't have to bring an administrative charge with the City Human Rights Commission to proceed against  your former employer under the City law. You must do so in order to proceed under federal law. But since the City law provides nearly the same relief as the federal law (and in some instances, more relief), if you want to bypass the administrative process altogether and your employment discrimination claim arises in New York City, you can go right into state court and proceed to discovery and a potential trial in that forum.

For DFR junkies only

I guess this is not the most exciting case in the world, but many important cases are not exciting.
If you handle Duty of Fair Representation cases against labor unions, keep reading. This one concerns the statutes of limitation for these cases, and when they accrue.

The case is Kalyanaram v. American Association of University Professors, decided on February 3. The plaintiff taught at New York Institute of Technology. After students complained about plaintiff, the school brought him up on charges, which went to arbitration. After the arbitrator found that the school had just cause to fire him, plaintiff sued the union on a DFR claim (Duty of Fair Representation). He claimed the union did not properly represent him at the hearing. The claim is time-barred.

Under DFR jurisprudence, the statute of limitations is six months, and it accrues when the arbitrator issues the decision. This allows the employee to trust in the union's abilities before he decided that the union stabbed him in the back. While plaintiff filed his lawsuit almost 11 months after the arbitrator issued the final award, he says the case is timely because he filed it within six months after the state court confirmed the arbitration decision, denying his motion to vacate the award. True, the union contract allows aggrieved employees to challenge the arbitration decision in state court, but the arbitration decision in this case was designated a "Final Award." That was when the statute of limitations began to run.

Plaintiff also argues that the statute of limitations was tolled by the state court action he filed to vacate the arbitration decision. "The question of whether the statute of limitations on a DFR claim is tolled during litigation in state court to confirm or set aside an arbitration award is one of first impression in this Circuit," the Court of Appeals (Newman, Winter and Droney) says. Hard to believe an issue this exciting has never found its way to the Second Circuit. It has now.

"Although equitable tolling of limitations periods has been recognized in other contexts where pursuing a separate administrative remedy is a precondition to filing suit ... , no such tolling is available where an optional, parallel avenue of relief is pursued." That's what's going on here. Plaintiff's state court action to vacate his arbitration was a parallel action to the DFR claim that he filed in federal court. He did not have to bring that state court action, in other words, to maintain the DFR claim. "Success in [plaintiff's] petition to vacate the arbitration award was not a prerequisite to bringing a DFR claim against the union," the Court says.

Bad search warrant on no-knock search goes to trial

Here we have a no-knock search gone wrong. A Drug & Gang Task Force investigator in Troy, N.Y. got a search warrant for a residence that his confidential informant had told him was a place to buy drugs. The search turned up nothing. As it happened, the search warrant affidavit did not tell the whole story. The woman whose apartment was searched brought a lawsuit, and the district court denied the investigator's motion for summary judgment. The case will go to trial.

The case is McColley v. County of Rensselear, decided on January 21.  First, let's talk about what went wrong with the search warrant. A confidential informant told the investigator, Riley, that he had gone to McColley's apartment and purchased drugs there. The informant had been reliable in the past. The search warrant affidavit left out two things: first, that McColley lived at that address and the fact that she did not have any criminal history, and second, that surveillance of that location did not turn up any evidence of drug-dealing or other criminal activity. This allows the jury to believe that Riley did not have probable cause to search the property.

By the way, this is what happens when your house is searched under a no-knock warrant:

On July 3, 2008, at approximately 6:00 a.m., McColley was awoken in her home by the sound of the City of Troy Police Department Emergency Response Team (“ERT”) knocking down her door and the explosion of a flash‐bang grenade. Dressed in all black, wearing face masks, and carrying automatic weapons, the members of the ERT screamed for McColley to get on the floor, but as there was not enough space for her to lie on the floor, a member of the ERT instead shoved McColley face down onto her bed.

As she had been roused from sleep, McColley was clad in only a t‐shirt and underwear. She repeatedly requested to cover herself but was repeatedly denied.

The search yielded no drugs. Hence this lawsuit. The Court of Appeals (Pooler, Calabresi and Raggi [dissenting]) agrees that the jury can find Riley liable for the bad warrant. The magistrate who issued the warrant was falsely led to believe that a drug dealer had custody and control of the property. The magistrate did not know that McColley lived there, or that she had no criminal record. And, of course, the magistrate was unaware that surveillance of the property did not turn up evidence of criminal activity. This information  affected the informant's credibility and could have nixed the warrant altogether.

Riley takes up an appeal, arguing that he is entitled to qualified immunity because his actions were objectively reasonable, even putting aside the errors in the search warrant application. The district court disagreed. The Court of Appeals normally can only entertain appeals when the case is over, not right after summary judgment is denied. But it can do so when qualified immunity is denied, on the theory that the defendant is allowed to make the case go away as soon as possible if he acted in good faith. But qualified immunity appeals cannot be entertained if material fact issues exist on the question whether the defendant did act in good faith. That's the case here; there are too many factual disputes to make a decision on paper. This means that the Second Circuit, while it provides guidance on when a search warrant application may lack probable cause, cannot resolve Riley's appeal. Over Judge Raggi's dissent, the case goes to trial.

Supreme Court tackles what it means to "change clothes"

The Supreme Court has unanimously rejected a claim that people working for United States Steel are entitled to compensation for the time spent dressing for work. The question boils down to the meaning of the phrase "changing clothes" under the Fair Labor Standards Act.

The case is Sandifer v. United Steel Corp., decided on January 27. The employees wear substantial protective gear, including flame-retardant jackets, special boots and a respirator. They remove this clothing at the end of the workday. "Donning and doffing" clothing is compensable under the FLSA, that is, you get paid for it like any other work activity. In this case, though, management says the union contract makes this activity noncompensable. You can do this under a contract, waive compensation for "time spent in changing clothes ... at the beginning or end of each workday." So the question is whether the employees are really "changing clothes." If they are, then the contract validly waives their compensation for this activity.

Justice Scalia writes the decision. He gives us a history of portions of FLSA that cover compensation for changing and washing clothes, even quoting from a New York Times article from 1946. Through it all, "the statute provides that the compensability of time spent changing clothes or washing is a subject appropriately committed to collective bargaining."

All the equipment and stuff that employees put on at the start of their workday: is it clothing? Some of it does not sound like clothing, but equipment. But clothing is not simply for decency or comfort, the Court says. "We see no basis for the proposition that the unmodified term 'clothes' somehow omits protective clothing." And the Court cannot allow the plaintiffs' interpretation swallow the rule. Some workers have to wear "what might be called workers' costumes," like doormen, train conductors and waiters. And in 1947, the Labor Department said that "changing clothes" applies to someone working in a chemical plant, who wears protective clothing. The employees are also "changing." Plaintiffs say changing means substitution. This is a clever argument, but the Supreme Court does not like clever. You don't change clothes when you put on an overcoat, right?

The workers do wear a few things that are probably not clothing, the Court says, like glasses and earplugs. But these exceptions are minor. Justice Scalia says the law does not like trifles. The Court will not parse out these trifles. Congress did not want federal judges to be "time-study professionals." Rather, "the question for courts is whether the period at issue can, on the whole, be fairly characterized as 'time spent in changing clothes or washing. ... If the vast majority of the time is spent in donning and doffing 'clothes' as we have defined that term, the entire period qualifies, and the time spent putting on and off other items need not be subtracted."

Second Circuit throws out drug conviction for lack of reasonable doubt

How often does the Court of Appeals throw out a criminal conviction because there was no evidence beyond a reasonable doubt that the defendant committed the crime? Or because it is highly unlikely that the defendant committed the crime? It's rare, but it happened in this case.

The case is U.S. v. Clark, decided on January 17. Clark was arrested following some kind of tavern disturbance. After patting him down for weapons and other contraband, the police handcuffed Clark behind his back put him in the police cruiser, where the ride to the police station lasted about one minute. Here's where it gets interesting:

Once Clark was out of the police car, [officer] Giamberdino lifted the cushion of the back seat out and up, making visible the space between the back of the back-seat cushion and the bottom of the back-seat back rest. In that space he saw a quantity of a white powdery substance that later analysis determined was crack cocaine. Giamberdino also testified that he had checked this space before starting his evening shift, nothing was there at that time, and Clark was the first person to occupy the back seat of the car that evening.

Now, the cocaine that was found hidden in the police vehicle was not in a plastic baggie. It was simply loose cocaine. But no one say any white powdery substance on Clark's hands or on his clothing after he got out of the police car and was escorted to the police station. The jury convicted Clark of cocaine possession anyway. The Court of Appeals is uncomfortable with this conviction, and it is vacated.

Again, the Court of Appeals rarely does this. So Judge Newman opens the decision with the following language: "This appeal of a criminal conviction presents extraordinary facts that challenge a reviewing court to take seriously its constitutional obligation to assure that evidence resulting in a conviction was sufficient to permit a jury reasonably to find guilt beyond a reasonable doubt." He then gets philosophical later in the decision, noting the oft-stated quote that "It has been said that it is better to let ten guilty persons
go free than to convict one innocent person. In the past, some have favored higher ratios." Then, the kicker:

However one prefers to quantify an unacceptable risk of convicting the innocent, it is difficult to imagine a case where the possibility that an innocent person has been convicted of an offense is greater than the one now before us.

In all likelihood, the Second Circuit (Newman, Winter and Droney [dissenting]) says, Clark did not place the cocaine in the police cruiser as a means to get rid of it before he got to the police station. In throwing out the conviction, Judge Newman reasons,

We cannot say it is an absolute impossibility for a person with his hands securely handcuffed behind his back to extract a substantial quantity of crack cocaine from his person or clothing and wedge it into the space where the quantity was found without leaving a trace of cocaine on his fingers or clothing, but we can say that the possibility of such an occurrence is so exceedingly remote that no jury could reasonably find beyond a reasonable doubt that it happened. The remote possibility is diminished virtually to zero by the fact that no glassine envelope or other packaging material was found in the police vehicle or on Clark’s person. It taxes credulity to think that Clark carried such a quantity of crack cocaine loose in his pocket and, while handcuffed, extracted it from his pocket and secreted it where it was found, all without leaving a trace on his person or clothing.

 Judge Droney dissents, setting forth a few scenarios where Clark could have stashed away the cocaine when no one was looking as he sat in the police car with handcuffs on. During the pat-down before Clark was placed in the vehicle, the officer was not actually looking for drugs but weapons, given the nature of the 911 call that drew the police to the scene. Clark also had a few minutes to himself in the car while the police were doing other things. It would have been hard for Clark to pull this off while in handcuffs, but "the stakes for Clark were high" and the seat design would have allowed for this maneuver. Clark also could have discarded the baggie when no one was looking as the police took him from the car and walked him to the station. In addition, one of the officers testified that he had thoroughly checked behind and underneath the seat for contraband at the start of the shift, and had found nothing. "It was certainly reasonable for the jury to conclude from this testimony that Clark was the only possible source of the cocaine," Judge Droney writes.

Sex video in the workplace kills off discrimination claim

The Court of Appeals does not like this employment discrimination case at all, stating that the plaintiff's argument is "absurd."

The case is Humphreys v. Cablevision Systems Corp., a summary order decided on January 17. In order to bring a discrimination case, you have to first make out a prima facie case, a low-threshold requirement that allows the plaintiff to make an initial showing of discrimination. If the plaintiff does so, then the employer has to advance a neutral reason for the plaintiff's termination. Plaintiff does not meet this low threshold. This is how the Court of Appeals (Jacobs, Lohier and Droney) summarizes the case:

Humphreys, a senior manager at a Cablevision facility, does not deny that he flagrantly violated Cablevision’s Harassment Prevention Policy by showing two of his colleagues a vulgar and offensive internet video. Humphreys’ only response is that one of the two viewers, Dianne Yepes, a human resources employee who later reported his conduct, was equally or more culpable because she did not immediately prevent Humphreys from showing the video, yet was spared termination.

You can win a gender discrimination case is someone else was not disciplined for the same misconduct. But Yepes is not comparable to Humphrey. The Court of Appeals therefore says that plaintiff's argument "borders on the absurd." It adds, "To use Yepes as a comparator for a showing of disparate treatment, Humphreys must show that Yepes was 'similarly situated,' i.e., 'engaged in comparable conduct.'” Yates is not a good comparator. The Court says:

Humphreys introduced the video into the workplace and exhibited it to his co-workers. The Policy specifically prohibits “the distribution of sexually explicit or otherwise abusive or offensive . . . communications.” It was Humphreys who distributed the video; at most, Yepes failed to interrupt the video and protect Humphreys from his own poor judgment. The audience members are not similarly situated comparators.

Sex in the workplace is frowned upon, to say the least. George Costanza learned that the hard way. Humphreys brought the explicit video to work and showed it to others. Pointing the finger at those in the room who did not stop him from showing the video will not create an issue of fact for trial.

Court of Appeals strikes down speech requirements for abortion-alternative facilities

The abortion wars rarely reach the Second Circuit, but this one does. The Court of Appeals rules on the constitutionality of a New York City law that regulates pregnancy crisis centers, known for trying to counsel woman not to have an abortion. A portion of that law that regulates the centers' speech violates the First Amendment

The case is The Evergreen Association v. City of New York, decided on January 17. The lawsuit challenges three requirements for pregnancy services centers: they must disclose:

(1) whether or not they have a licensed medical provider on staff (the “Status Disclosure”); (2) that “the New York City Department of Health and Mental Hygiene encourages women who are or who may be pregnant to consult with a licensed provider” (the “Government Message”); and (3) whether or not they provide or provide referrals for abortion, emergency contraception, or prenatal care (the “Services Disclosure”).

The district court struck down these three disclosure requirements. After deliberating on this case for more than a year, the Court of Appeals (Pooler, Lohier and Wesley [dissenting in part]) says the Government Message and Services Disclosure violate the First Amendment's prohibition against compelled speech. The Status Disclosure requirement is legal.

1. On the Status Disclosure requiring these facilities to disclose whether they have a licensed medical provider on staff, this survives strict, or close, scrutiny under the First Amendment. This kind of neutral "speech" is a narrowly-tailored effort to ensures that women know that a particular facility has a licensed professional on board. This ensures that women have prompt access to the services they seek.

2.  On the Services Disclosure requiring these facilities to affirmatively state whether they provide referrals for abortion and other services, this violates the First Amendment. This speech requirement is made in the context of a public debate on the morality of efficacy of contraception and abortion, for which many of these facilities provide alternatives. As Judge Pooler sees it, "The Services Disclosure will change the way in which a pregnancy services center, if it so chooses, discusses the issues of prenatal care, emergency contraception, and abortion. The centers must be free to formulate their own address. Because it mandates discussion of controversial political topics, the Services Disclosure differs from the 'brief, bland, and non‐pejorative disclosure' required by the Status Disclosure." The government is essentially telling these facilities what to say, and that message may conflict with the facilities' own mission.

3. On the Government Message that requires these facilities to disclose that the City encourages women to consult with a licensed provider, this also constitutes compelled speech in violation of the First Amendment. The City can accomplish its objective in other ways: it can do so through an advertising campaign rather than require these providers to convey that message. As it is also a matter of public debate, the Court says, whether women should see a doctor in this context, the government is forcing these facilities to take sides on this issue, contrary to the First Amendment.

Judge Wesley dissents in part, concluding that the entire statute is too vague in defining "pregnancy services center." He writes that the law gives the City too much discretion in determining that a facility has the "appearance of a licensed medical facility" that would be covered under the law. Since the framework encourages arbitrary enforcement, it violates the First Amendment. For this reason, he writes, "Local Law 17 is a bureaucrat’s dream. It contains a deliberately ambiguous set of standards guiding its application, thereby providing a blank check to New York City officials to harass or threaten legitimate activity."