$250k retaliation damages award under Title VII is thrown out

The jury does not always have the last word. In this case, the plaintiff won a Title VII retaliation verdict in federal court, recovering $250,000 in damages. The trial court then took away the verdict under Rule 50, and the Court of Appeals affirms. The verdict is gone for good.

The case is Levitant v. Human Resources Administration, a summary order decided on March 6. It's always a shock when the trial court grants a Rule 50 motion to vacate the verdict. We assume that the jury must have had good reason to find for the plaintiff, and the trial court under Rule 50 will give the plaintiff the benefit of the doubt in determining if there was any factual basis for the plaintiff to win. As the trial court wrote in this case, "Under our system of jury trials, a jury's verdict has always been accorded great deference, and the court is cognizant of the extraordinary circumstances that must exist to overturn a jury's determination." According to the trial court, though, this was one of those extraordinary circumstances.

To win a retaliation case, the plaintiff has to show, among other things, that he suffered an adverse or negative employment action as a result of the complaints of discrimination. Not everything is an adverse action. Short of a demotion or termination from employment, the employer's reaction to the protected activity must have dissuaded a reasonable employee from speaking out again.

According to the trial court, in addition to a promotion denial, plaintiff identified three such adverse actions: "(1) plaintiff's suspension after his departure from Brooklyn [Adult Protective Services] on August 8, 2003 and during his subsequent vacation and medical leave of absence; (2) the weeklong delay in plaintiff's reassignment to Lombardi [a long-term home health care program] after his return from medical leave; and (3) plaintiff's transfer to Lombardi, which entailed a longer commute, the performance of supervisory tasks with a caseworker title and salary, and a prohibition on plaintiff speaking Russian on personal calls in the office."

As for the suspension, the trial court said, "[b]ased on the complete lack of any evidence that plaintiff's suspension was without pay, otherwise changed the terms and conditions of his employment, or was unreasonable or procedurally flawed, a jury could not find that the suspension constituted a materially adverse employment action." As for the weeklong delay in plaintiff's reassignment, the trial court said, among other things, that "Plaintiff failed to present any evidence that he lost any salary, rank, or benefits as a result of the week he spent at Personnel, that plaintiff was required to stay in Personnel any longer than was necessary to arrange his reassignment, or that the delay or lack of any work assignments in any way negatively affected his career." The court added that "there is no evidence in the record suggesting any other reason, whether retaliatory or not, for the week plaintiff spent at Personnel, there was insufficient evidence for the jury to conclude that plaintiff satisfied his burden to establish that retaliation was a substantial reason for his placement at Personnel for a week." The Lombardi transfer was also not adverse. Summing up its lengthy analysis of this issue, the trial court said that "it is undisputed that plaintiff was transferred to Lombardi because he was returning from an extended medical leave of absence and plaintiff presented no evidence that he ever opposed the transfer to Lombardi."

These issues are fact-intensive. But in the aggregate, the trial court said (and the Court of Appeals [Raggi, Chin and D'Agostino (D.J.)] agrees) that management's reaction to plaintiff's complaints of discrimination was not serious enough to prove retaliation. The Court of Appeals focuses on the fact that plaintiff was denied a promotion after he engaged in protected activity. It finds that the promotion denial -- normally an adverse action -- in this instance was not unfair to plaintiff:

The promotion at issue went to two candidates who achieved higher scores than Levitant on the test used to select interviewees. No trial evidence rebuts this legitimate non-discriminatory reason for promoting these applicants over Levitant. Although Levitant, who had the third highest score on the test, points to some evidence suggesting that promotions could have been made among the top three candidates, he adduced no trial evidence indicating that HRA had, in filling other positions, passed over the first or second highest scorer in promoting the third highest scorer.

Supreme Court to decide when dishonest juror gets you a new trial

The Supreme Court has agreed to hear a case that would interest any trial lawyer. The question is: when can you throw out a verdict upon proof that the juror lied about something during jury selection? The federal courts have split on this issue, prompting the Supreme Court to hear the case.

The case is Warger v. Shauers, decided by the Eighth Circuit in July 2013. The Supreme Court granted certiorari on March 3. Warger is a car accident case that was tried in federal court. The plaintiff lost the trial. After losing, he learned that the foreperson of the jury told the other jurors about her daughter's experience in a serious car accident. Another jury reported the foreperson's conduct to Warger's lawyers. According to the juror, "during deliberations the foreperson stated her daughter's life would have been ruined had her daughter been held liable for damages caused by the accident. The affidavit further alleged the foreperson expressed she was unwilling to return a verdict for Warger because the Shauers were a young couple and their lives would also be ruined should they be found liable. Further, it silted other jurors had been persuaded by her expressions of sympathy and thus decided to return a verdict for Shauers."

Doesn't sound like Warger got a fair trial, does it? During federal jury selection, the judge (and sometimes the lawyers) asks the potential jurors questions about their prior experience with the legal system, among other topics. Although the Eighth Circuit ruling does not make it clear, the jury was probably asked if they could be fair in a case like this in light of their prior experience. The foreperson must have answered "yes" to that question. Of course, the foreperson could not be fair, in light of the concerns raised by another juror about the foreperson's refusal to hold the defendant liable in this car accident case in light of a family member's personal experience. If the foreperson was lying during jury selection, does that negate the verdict?

The Eighth Circuit says this is no basis for a new trial. The Court says, "Although juror testimony can be used to show dishonesty during voir dire for the purpose of contempt proceedings against the juror, there is a split among the circuits as to whether such testimony may be used to challenge a verdict." The Court notes the general rule that a juror cannot impeach his own verdict through a post-trial affidavit, i.e., a sworn statement that says the jury misunderstood the evidence or the jury instruction, or that one juror pressured the other jurors to vote a certain way. This is to encourage open debate among jurors without allowing lawyers to gain another bite at the apple by interrogating jurors in the hopes that they might say something stupid or interesting in the hallway post-trial about the deliberations.

While some courts have made an exception to this rule in holding that juror dishonesty during jury selection can get you a new trial, the Eighth Circuit likes a statement made by [now Supreme Court Justice] Samuel Alito when he sat on the Third Circuit years ago: "[A]llowing juror testimony through the backdoor of a voir dire challenge risks swallowing the rule. A broad question during voir dire could then justify the admission of any number of jury statements that would now be re-characterized as challenges to voir dire rather than challenges to the verdict." The Eighth Circuit adds, "full and frank discussion in the jury room, jurors' willingness to return an unpopular verdict, and the community's trust in a system that relies on the decisions of laypeople would all be undermined by a barrage of postverdict scrutiny of juror conduct."

Legal hail mary gets this guy out of prison

One of the difficulties of practicing criminal law is that a criminal conviction may have consequences that extend beyond the criminal case. In legal terms, we call this "collateral consequences." Not quite "collateral damages," i.e., war casualties, but for some people, the collateral consequences are quite serious. Serious enough to accuse your criminal lawyer of ineffective assistance of counsel.

The case is Kovacs v. United States, decided March 3. Kovacs was a businessman who plead guilty to business fraud after the government accused him of overstating his business losses following a burglary, a scheme that ripped off the insurance company. When he plead guilty, Kovacs asked his lawyer to make sure the plea did not have immigration consequences. Kovacs' fear was that the plea would get him deported, as he was not a U.S. citizen. His lawyer told him not to worry. This is not a deportable offense, counsel said.

Counsel was wrong. One day, Kovacs was trying to re-enter the United States following a business trip. Immigration officials nailed him at the border because the crime he plead to was a one of moral turpitude, something for which you can be deported. He returned to Australia while his family remained in the United States to carry on the family business.

My guess is that, at some point or another, nearly every convicted felon thinks about filing a writ of habeas corpus to challenge the adequacy of his legal representation in criminal court. Kovacs did. He filed the writ of error coran nobis in the Eastern District of New York, which denied him relief. The Court of Appeals reverses and vacates the conviction. (This writ is not quite a habeas corpus petition. Although it does not carry a statute of limitations, it has been described as the "hail mary" of criminal motions).

In 2002, the Court of Appeals held in the Couto case that a lawyer misrepresents his client in failing to advise about the immigration consequences of a guilty plea. The question here is whether that 2002 precedent helps Kovacs even though his conviction became final in 2001, one year before Court decided Couto. The Court of Appeals (Jacobs, Kearse and Parker) says that Kovacs can invoke Couto. The general rule is that a precedent applies retroactively unless it announces a new rule. Here, the Couto decision did not really announce a new rule. Since the 1970s, the Court of Appeals had been trending in that direction. That trend culminated in the Cuoto ruling. Since Kovacs has proven that he would have negotiated a plea that did not impact his immigration status, he has therefore shown that his lawyer was ineffective in representing him in criminal court. His conviction is vacated. 

Where do I go to get my money back?

There was a Reagan administration official in the 1980s who got acquitted from a corruption charge and asked what he had to do to get his reputation back. I can't answer that one. But another question following acquittal is where do you go to get your money back. Sometimes the government has to reimburse you.

The case is Guertin v. United States, decided on February 26. Guertin was the City of Middletown Corporation Counsel who was brought up on corruption charges in 2004. The allegation was that he conspired with the Mayor to misuse money from the U.S. Department of Housing and Urban Development. Guertin was acquitted following a bench trial. One of the allegations was that the Mayor benefited personally from a HUD loan. However, the judge that acquitted Guertin was troubled by one of the loans, which had created a prohibited conflict for which there was no mens rea, or intent to commit a crime. The Judge said that Guertin had worn "two hats" for this transaction, finding that he had negotiated it in his private capacity as the Mayor's personal lawyer.

After Guertin was acquitted, he asked the government to reimburse him for the legal expenses from the criminal trial. In cases like this, the government has to reimburse you if the criminal proceedings arose from the administration of a federal program. The government told Guertin to take a hike, noting that the criminal court judge said that Guertin had done what he did as the Mayor's private lawyer, not as the Corporation Counsel. The district court said this determination was not an arbitrary and capricious. The Court of Appeals (Walker, Cabranes and Lohier) reverses.

The arbitrary and capricious standard is nearly impossible to overcome when challenging unfair government actions. But here the government's refusal to pay Guertin for his legal expenses was arbitrary. HUD had incorrectly determined that Guertin's legal fees were the result of his acting solely as the Mayor's private counsel. Careful review of the criminal trial record shows that Guertin was not really acting as the Mayor's private lawyer; he was acting as in his public role as the Corporation Counsel. While the district court ruled otherwise in denying Guertin the money, the Court of Appeals says the lower court got it wrong: it was not enough for HUD to rely on the verdict transcript to determine the nature of the criminal action if the relevant evidence, including the indictment, shows otherwise.

EEOC charge does not toll statute of limitations for state law claims

The Court of Appeals holds that the filing of an EEOC charge does not toll the statute of limitations for related state torts claims. This is worth knowing if you handle cases like this, and it requires that you keep both eyes on the calendar.

The case is Castagna v. Luceno, decided on May 5. Imagine how this all plays out. A client comes to you with a sexual harassment lawsuit that you can file under Title VII. The harasser also touched her inappropriately, so the potential client also has state law claims for assault and battery and maybe even intentional infliction of emotional distress. So you file the EEOC charge to preserve her right to proceed under Title VII in federal court. You have 300 days to do that in New York. But what about the statute of limitations on the state law torts claims? Normally, in New York, intentional torts carry a one-year statute of limitations. But sometimes the EEOC process takes more than a year to wind down before you get the Right-to-Sue letter that allows you to sue in federal court.

The dilemma is that you don't want to waive the state law claims. The possibility exists that, at trial, you win under state law but lose under Title VII. That can happen if management properly responded to the plaintiff's in-house sexual harassment complaints, giving the defendants a legitimate affirmative defense under the Supreme Court's rulings in Faragher and Ellerth. But that does not prevent the plaintiff from prevailing against the harasser himself for assault and battery, no matter how effectively management handled her in-house complaints. Bottom line: you have to sue under federal and state law to preserve your client's rights.

Here is how the Court of Appeals (Stein [D.J.], Lohier and Livingston) frames the issue:

Our Court has not previously determined whether filing an EEOC charge tolls the statute of limitations for state tort claims arising from the same nucleus of facts as underlie the EEOC charge. We now join the U.S. Courts of Appeals for the Seventh and Ninth Circuits in holding as a matter of federal law that filing an EEOC charge does not toll the limitations period for state‐law tort claims, even if those claims arise out of the same factual circumstances as the discrimination alleged in the EEOC charge.

What this means in plain English is that when you file the EEOC charge, the statute of limitations on the state claims continues to run. The problem for plaintiff in Castagna v. Luceno is that the statute of limitations on the state law claims did expire by the time her lawsuit was filed in federal court. After the district court threw out the state law claims on timeliness grounds, her lawyer argued in the Court of Appeals that "were the statute of limitations for state tort claims not tolled pending the EEOC’s consideration of a charge of discrimination, to preserve her claims, a litigant would be forced first to bring a tort case in state court 'and later bring a federal, discrimination related claim in federal court ... with an identical set of facts,' thereby 'thwart[ing] . . . the judicial efficiency encouraged by the grant of supplemental jurisdiction ... in 28 U.S.C. § 1367.'” Not a bad argument, but the Court of Appeals says that "although EEOC proceedings 'often are beneficial' in resolving workplace disputes, ...'nonetheless[] ...Congress did not intend for these proceedings to delay independent avenues of redress.'" In addition, "a plaintiff who in the future finds herself in Castagna’s situation 'may ask [a] court to stay proceedings' in the initial action 'until the [EEOC’s] administrative efforts ... have been completed.'” The plaintiff's state law claims in this case are gone.

Plaintiff finally argues to the Court of Appeals that "New York law mandates tolling of the time in which to file her state tort claims, again because of the pendency of her EEOC charge." The Court does not take up this argument because plaintiff did not assert them in the district court and they are therefore waived.

So here's the bottom line: if you have a Title VII claim and also want to pursue state law claims in the federal lawsuit, to ensure that the statute of limitations on the state law claims is not blown by the time you get the Right-to-Sue letter, you may have to file the tort claims in state court while the EEOC charge is pending (unless you know you can get the Right-to-Sue letter within 365 days after the plaintiff suffered the state law violations, which is a possibility if you file the EEOC charge soon after the sexual harassment took place). If you don't want to litigate related claims in separate courts (and who does?), when the Title VII case is finally brought in federal court, you can try to consolidate all claims in the federal action, resulting in the voluntary dismissal of the state lawsuit.

Court of Appeals revives medical indifference claim under Iqbal

A few years ago, the Supreme Court issued a new standard governing when a lawsuit can proceed to discovery. We call it the Iqbal standard. It requires that the plaintiff show that she has a plausible case, not simply a possible case. We can always use more guidance from the Second Circuit on Iqbal plausibility. This case provides some, with an interesting dissent from Judge Jacobs that asks the question: at what point do we simply disbelieve the plaintiff's allegations on their face?

The case is Nielson v. Rabin, decided on February 13. Nielson claims the police kicked the hell out of him on the street. He ended up in the hospital, where hospital staff minimized the nature of his serious injuries and did not provide him proper treatment. He sues the doctor for deliberate indifference to serious medical needs, a claim that arises under the due process clause of the Fourteenth Amendment. In order to win a case like this, you have to show (1) you had a serious medical situation (2) to which government officials were deliberately different. Medical negligence is not enough to win. You have to show that the doctors (or prison guards whomever else is in a position to help someone in dire pain) basically said, "screw it."

Here is what the lawsuit alleges:

After the beating, Nielsen was taken to the emergency room in a wheelchair where he complained of severe pain in his shoulder and back and a broken nose. There, he was evaluated by Dr. Rabin and Dr. Sylvia Tschenyavsky. Even though Nielsen screamed when his shoulder was lightly touched, the doctors reported that his level of pain and discomfort was low: a two out of ten. The doctors diagnosed Nielsen as having “mild bruising” and suggested that he was “malingering” – fabricating or exaggerating his symptoms. No X‐rays, CT‐scans or MRIs were performed, and no significant treatment was provided.

 After the City filed a motion to dismiss, plaintiff (representing himself pro se) wrote in his brief that the doctor refused to treat him at the offending police officer's direction. The Second Circuit (Kearse and Straub) summarizes the new allegations: "the officers who brought him to the emergency room told Dr. Rabin that he had attacked a female police officer and that he should be ignored and left alone. According to Nielsen, no such attack actually occurred. Nielsen also alleged that Dr. Rabin allowed herself to be influenced by the officers."

The Court says that Nielson alleges a plausible claim that Dr. Rabin was deliberately indifferent to his serious medical needs. This holding is not remarkable, except that it raises an important question under Iqbal plausibility: at what point do we believe or disregard what the plaintiff says in the complaint simply on plausibility grounds? What triggers this debate on the Court is Neilson's claim that a medical doctor did not treat the plaintiff because a police officer told her to. Judge Straub writes:

We would love to live in a world where it is implausible for a doctor to disregard her oath and refuse to treat a patient she believed had attacked a female officer – just as we would love to live in a world where it is implausible for an employer to be so irrational as to refuse to hire a qualified applicant because of the applicant’s skin color. Unfortunately, we do not. Taking the allegations in Nielsen’s complaint and his opposition brief as true, Nielsen can plausibly allege that Dr. Rabin acted with a sufficiently culpable state of mind.

This language helps plaintiffs who bring routine discrimination and other claims alleging they were treated illegally. The world is not perfect, and people do bad things. It's often plausible to allege that something illegal happened to you, including employment discrimination.

In dissent, Judge Jacobs says this ruling ignores plaintiff's medical records and also disrespects the medical profession. Disagreeing with the majority's interpretation of the record, Judge Jacobs says plaintiff did not really suffer a serious physical injury. "The claim thus becomes that two doctors violated their oaths and that a nurse falsely reported that Nielsen was in a low level of pain at the time of discharge, all at the behest of police officers who told the doctors that their patient should be neglected. This claim, which is absurd, is easily classed as implausible." He adds, "the majority’s ruling on plausibility unintentionally implies a certain disrespect for the ethics of doctors and nurses. The majority deems it plausible that each of these medical professionals (and all of them together) would allow a patient’s suffering to go unabated at the say‐so of policemen expressing hostility to a person in custody."

Judge Jacobs then describes the ills of Section 1983 litigation, and the financial burden it can place on individual defendants, some of whom are not indemnified by their government employers. He has said this before in written dissents. "There is insufficient appreciation that this section 1983 action is a personal claim against the individual assets of Dr. Rabin, and that the defense costs of such a claim alone can wipe out a college fund or equity on a home." He adds, "The plausibility test in cases such as this is a safeguard against a financial injustice that can often outweigh the harm claimed by a plaintiff. True, some or many defendants are indemnified by employers or insurers (though insurance may not cover intentional acts); but such an arrangement would be dehors the record, and may not be considered by us in deciding whether a claim survives through the expense of discovery and extended motion practice."

Sex offender has no "stigma plus" claim

Are there any civil rights cases that are harder to win than "stigma plus" cases under the Fourteenth Amendment? There are some, but few. My memory may be off, but I don't think the Second Circuit has sustained a "stigma plus" claim in years. This case fails as well.

The case is Balentine v. Tremblay, a summary order decided on February 11. Stigma plus claims allege that the government defamed you in such a way that you were deprived of a tangible interest, like a property or liberty interest, without due process. It often happens when someone is fired from a government job in a manner that the employee cannot find other work (like if was accused of ethical breaches). As the Second Circuit (Cabranes, Carney and Droney) reminds us, "reputation alone, apart from some more tangible interests, is not sufficient to invoke the procedural protection of the Due Process Clause."

Stigma-plus cases are frustrating for civil rights lawyers who wants to ride the white horse into federal court on behalf of someone who got screwed by the government. And these plaintiffs can be sympathetic, having been defamed and unable to find work because of that defamation. Other stigma-plus cases say that the loss of the right to a public education can meet this standard. The plaintiff in this case is not sympathetic, though. He is a convicted sex offender from New York who moved to Vermont. He sued because the state posted  his face on the "high risk" online sex offender registry without the notice or opportunity to be heard on whether he had successfully reintegrated into the community.

This mistake may have defamed plaintiff, so that satisfies the "stigma" prong of the "stigma plus" case. But there is no "plus" here. "Balentine was properly classified as a sex offender subject to the accompanying registration and notification requirements, and he does not claim that Vermont wrongfully imposed any substantive legal burden on him. Moreover, his alleged reputational damage resulting in the loss of private employment, humiliation, and embarrassment are inadequate to satisfy the 'plus' requirement." While plaintiff says he was denied the opportunity to be heard prior to the online registry posting, that denial does not count as a "plus," either. That is not the deprivation of a tangible interest under Supreme Court authority.