Court expands the rights of pre-trial detainees who were denied proper medical treatment

The Court of Appeals has revived a civil rights case alleging that jail officials in Putnam County were deliberately indifferent to a pre-trial detainee who died following a suicide attempt while she was undergoing heroin withdrawal. This case details the rules governing when poor supervision by jail officials may result in liability under Section 1983.

The case is Lara-Grimaldi v. County of Putnam, issued on March 27, more than year following oral argument. The deceased ("plaintiff") entered the County Jail following her arrest for an alleged probation violation and allegedly possessing a hypodermic needle. She told the intake officers that she had recently injected heroin and that she had previously attempted suicide. The officers also knew she was mentally ill. The claim is that, despite this knowledge, the officers were not sufficiently attentive to plaintiff, who hanged herself with a bedsheet in her cell and died after she was taken to the hospital.

The Eighth Amendment prohibits the cruel and inhumane treatment of inmates, but those cases impose a high standard for plaintiffs who were convicted of a crime. Under the Fourteenth Amendment, invoked by pre-trial detainees (not yet convicted of anything), the legal standard is more lenient. The Supreme Court has drawn that distinction, and the Second Circuit developed it further in Darnell v. Pineiro, 849 F.3d 17 (2d Cir. 2017) (a case I briefed on appeal), and Charles v. Orange County, 925 F.3d 73 (2019). Under these cases, the plaintiff wins if the correction officer was deliberately indifferent to jail conditions and acted intentionally to impose the jail condition or recklessly failed to act with reasonable care to mitigate the risk to the inmate. If the defendant knew or should have known the condition posed an excessive risk to the plaintiff, then the Fourteenth Amendment is violated.

The Court of Appeals extends Darnell to cases like this, where the officers, aware of an excessive health risk, do not properly supervise the plaintiff. While Darnell involved prison conditions (bad toilets, overcrowding, vermin, etc.), the Second Circuit (Kearse, Leval and Nardini) says its reasoning "is equally applicable to due process claims for denial of medical care." This is a civil rights victory for inmates and their lawyers.This case will proceed to trial because defendants were aware of plaintiff's risk of experiencing withdrawal symptoms, her bipolar disorder, and her prior suicide attempt. As the jury may find these defendants failed to properly supervise plaintiff and that failure led to her death, summary judgment is reversed. 

You can't ask the jury to impeach its own verdict: $2 million equal pay verdict stands

Jury deliberations are off-limits to everyone but the jury. We only know what the jury thinks when it formally asks the judge a question during deliberations and then issues its verdict. A body of case law says you cannot obtain an affidavit from the jury post-verdict in an effort to overturn the verdict. The reason for this is that we do not want to intrude on jury deliberations, and such a practice will result in harassment of the jury. There are exceptions to this rule, but those exceptions are narrow. In this the case, the losing side wanted a new trial on the basis that the jury did not follow the judge's instructions. That effort failed, and a $2 million verdict stands. 

The case is Nordenstam v. State University of New York, New York State College of Environmental Science (ECF), issued by State Supreme Court, Onondaga County, on April 9. A.J. Bosman tried the case. I assisted in opposing the post-trial effort to undo the verdict. 

Plaintiff claimed she was denied equal pay in violation of Title VII and the New York State Human Rights Law. The jury was instructed to award compensatory damages but not lost wages. The jury ruled that the state violated the equal pay laws and awarded plaintiff $2 million in damages.

Following trial, the Attorney General's office spoke with the jury's foreperson. This is what the foreperson's affidavit says:

The foreperson stated that the jury concluded that plaintiff suffered damages “mentally and physically,” and experienced “pain, suffering, and mental and medical issues, all as a result of what occurred at SUNY ESF." In particular, as the jury found, plaintiff left her teaching post after she suffered (and as a result of) these harms, she did not return to the field, and she “never reached her full professorship” toward which she had worked for her “whole career.”

To give shape to its damages assessment, the jury decided on “running some numbers and doing some math." The foreperson explained that it “awarded [plaintiff]] $1.5 million for lost wages. This was based on about 10-12 years of work, as a full professor, that she should/could have achieved/accrued if she stayed at the university.” The jury awarded a further sum of $500,000 (bringing the total to $2,000,000) for medical expenses and pain and suffering.

The AG's office sought a new trial on the basis that the jury actually awarded plaintiff damages for lost wages. The motion was denied and the verdict stands. The trial court noted the general rule against asking jurors about their deliberations in order to impeach the verdict. The only exceptions are that the jury statement is useful if "an error is made in reporting the verdict" such that the trial court can correct a "ministerial error," or where the record "demonstrates substantial confusion among the jurors in reaching a verdict." These exceptions do not apply here, Justice Antonacci held, because the jury instructions were clear, and there was no ambiguity in the verdict sheet. The Court states:

What ESF seeks to do here is not illuminate an instance of confusion or impropriety apparent from the record. Instead, ESF endeavors to intrude on the jury’s secret deliberations to create grounds for questioning the verdict where none existed. “[I]f ‘verdicts solemnly made and publicly returned into court can be attacked and set aside on the testimony of those who took part in their publication . . . all verdicts could be, and many would be, followed by an inquiry in the hope of discovering something which might invalidate the finding’ ”

Without evidence of jury confusion, the verdict stands. In any event, the Court stated, "a fair reading of the statement does not support the conclusion that the jury failed to follow the Court's instructions." The Court explains:

plaintiff did not ask the jury to award a monetary amount for lost wages in conjunction with this cause of action. More to the point, in placing such great weight on the phrase “lost wages” in the foreperson’s written statement, ESF disregards the fuller context of the foreperson’s explanation. Given a fair reading, the foreperson’s statement reflects the jury’s care in compensating plaintiff for mental anguish and pain and suffering (Doc No. 98 at 1 [referring to damages to the plaintiff ’s health, “mentally and physically,” and her “pain, suffering, and mental and medical issues”]). Presumably, ESF would have had no qualm with the foreperson’s explanation if he had stated that the jury plucked the number from the air, or that it was the product of some form of “gut instinct.” In any event, the Court is not persuaded that the jury failed to follow its legal instructions merely because it sought to imbue its compensatory award with some form of grounded rationality.

Disability discrimination verdict is affirmed on appeal

The Court of Appeals has affirmed a jury verdict in favor of a high school student who was thrown off the baseball team because of his disability. The Court also finds the trial judge abused his discretion in reducing plaintiff's attorneys' fees by 80%.

The case is Spring v. Allegany-Limestone Central School District, a summary order issued on April 10. I briefed the appeal. A.J. Bosman tried the case and argued the appeal.

The plaintiff had multiple disabilities. As the Second Circuit summarizes this issue, plaintiff had "Tourette’s and Callosum Dysgenesis, conditions that restricted his ability to process information, 'put his  thoughts into words,' and speak. When Gregory did speak, verbal tics, such as repeating the 'F' word, interrupted and distracted him. These conditions also inhibited Gregory’s ability to control and articulate his emotions.  When Gregory was trying to get a word out, process what was going on, or respond to authority, he became anxious and upset." In this state, he would act act impulsively and get into verbal confrontations. On these facts, the jury had reason to find plaintiff was disabled under federal law.

During a baseball team practice, the boys were playing a game where they kicked each other. After Gregory kicked a teammate, the coach singled him out for discipline, and Gregory used the "F" word and told the coach to "suck it." The coach sent Gregory home and he was off the team. At trial, the coach admitted that he removed Gregory from the team for "what he said" and "the way he acted after he kicked the other student." That admission confirms he was removed from the team because of his disability and not for kicking a teammate. The coach knew about Gregory's disability and his tendency to use foul language, a condition over which he had no control. The Court of Appeals (Livingston, Wesley and Sannes [D.J.]), affirms the verdict.

Following the verdict, a plaintiff's lawyer will file a motion for attorneys' fees. The trial court generally will multiply the number of attorney and paralegal hours by their hourly rates and then perform a downward departure if the plaintiff was not fully successful at trial or the billing records contain vague or otherwise improper entries. The 80% reduction in this case went too far, the Court of Appeals holds, as the vague time entries were not so severe as to warrant this steep reduction, and the trial court miscalculated the degree of plaintiff's success in the case, as the student-on-student harassment claim, which plaintiff lost at trial, involved a similar core of facts as the successful baseball team expulsion claim. The fee motion returns to the trial court for further review.

Court of Appeals reinstates hostile work environment and other civil rights claims

The Court of Appeals has reinstated a hostile work environment claim brought by a former laundromat employee who claims her supervisors subjected her to a barrage of racial slurs. The Court also reinstates her retaliation claim, as well as her disability discrimination and wage-and-hour claims.

The case is Knox v. CRC Management Co., issued on April 9. I briefed and argued the appeal. Plaintiff alleges that, on a daily basis, supervisor Ashmeade made derogatory comments, telling her she was "too 'hood' and 'ghetto' to work" for defendant, and that "the Yankee in you makes you timid." Another supervisor, Ferris, "began routinely making derogatory comments of his own," once telling plaintiff that she "looked like Aunt Jemima," and he criticized her for "'talking Jamaican' when she got upset." The district court said these daily comments, while "deplorable," were not enough to create a hostile work environment "because they only lasted two months and did not involve any physical altercations with a coworker." The district court also held that plaintiff's declaration in detailing the racial harassment was "self-serving" and thus not enough for trial.

The Court of Appeals (Park, Perez and Kearse) disagrees and remands this issue for trial. The Court says a jury can find that "daily and routine comments such as these were sufficiently continuous and concerted to have worsened the conditions of Knox's employment," and the Second Circuit held in Whidbee v. Garzarelli Food Specialties, 223 F.3d 62 (2d Cir. 2000) (a case I argued 25 years ago) that "a stream of racially offensive comments over the span of two to three months was sufficient to defeat summary judgment. Plaintiffs in these cases do not need to prove there was any physical altercation to win these cases, though the record actually shows there was such an altercation. The Court reminds us that "specific descriptions of each instance of harassment -- which, if harassment occurred daily, could be difficult to provide -- are unnecessary for a plaintiff to defeat summary judgment." The plaintiff does not need specific details to prove pervasive harassment. The case for that proposition is Torres v. Pisano, 116 F.3d 625 (2d Cir. 1997).

The retaliation claim, stemming from plaintiff's termination shortly after she complained about the work environment, will also proceed to trial. She last complained about the harassment in mid-March 2019, and she was fired in mid-April 2019. Cases hold that a four-month period is enough to prove the causation element of the prima facie case. Plaintiff can also show she was fired for pretextual reasons. While defendant said plaintiff was fired for taking cash from the register, the jury could find Ferris had given her permission to reimburse herself if she left her cab receipt in the register. If defendant's articulated reason was knowingly false, then the jury may find pretext and can rule in her favor on the retaliation claim.

Plaintiff also has a triable disability discrimination claim. After she broke her thumb from a car accident, one supervisor said plaintiff could refrain from lifting 25 pounds during her shifts (again, this was a laundromat), but Ashmeade told plaintiff that she "shouldn't have a job" if she needed an accommodation, and she continued to require plaintiff to lift more than 25 pounds. After plaintiff complained to another supervisor about this, that supervisor responded that "we might need to have a conversation if you can't do your job."

The wage-and-hour claim is also reinstated. Plaintiff alleged she was denied pay for extra working hours and that her time sheets were altered to make it look like defendant had paid her, and that compensation for her hours seemed to have been allocated to Ashmeade. Under Kuebel v. Black & Decker, 643 F.3d 352 (2d Cir. 2011), an FLSA plaintiff can meet her burden through her own estimates about her time estimates.

NYU processor has a retaliation claim for filing internal hostile work environment claim

The plaintiff is a professor at NYU school of dentistry who claims he suffered retaliation after filing an internal hostile work environment charge. The trial court dismissed the case on summary judgment, but the Second Circuit brings it back. The professor will have his trial.

The case is El Chaar v. New York University, a summary order issued on April 2. The hostile work environment claim is discussed at this link. After plaintiff filed his charge with the Office of Equal Opportunity (OEO), which supported his charge, he wanted to be appointed Department Chair, where there was an opening. The Dean of the College of Dentistry, Bertolami, told plaintiff, "We are not appointing the chair because of your complaint to OEO. We need to have a chilling period. And you should have been the acting chair, but because of your complaint, we can't -- I can't put you there." In another conversation, Bertolami, contemplating a search for a permanent chair, told plaintiff that he would have been a logical choice to serve as Interim Chair but that he did not appoint plaintiff "for political reasons." This conversation was recorded. Bertolami then convened a committee to search for a permanent chair. The search committee identified plaintiff as a finalist; as part of that process, a faculty survey reported mixed reviews of plaintiff. Some thought very highly of him but others said he was divisive, vindictive, a bully, and narcissistic.Plaintiff was denied the position,

The Court of Appeals holds as follows: 

1. Plaintiff can sue for retaliation over his denial of the interim Chair position. The admissions from Bertolami are enough for plaintiff to prevail. Bertolami told plaintiff he was not appointed interim Chair because he filed the OEO charge. How this claim was dismissed on summary judgment is unclear. While Bertolami may dispute some of these admissions, the Second Circuit notes the plaintiff's testimony on such a matter is enough to avoid summary judgment. The case for that is Bellamy v. City of New York, 914 F.3d 727 (2d Cir. 2019).

 2. As for the permanent chair position, plaintiff cannot prevail at trial on that claim. It is undisputed that Bertolami wanted a tenured full professor for the position and someone who was a consensus builder who was good at interpersonal relationships. Such a person was appointed to the position, While plaintiff was second choice for the position, he was not on a tenure track and "was emotional and divisive" in the department. What about the above admissions? The Court of Appeals says they are not relevant to this claim.

Bertolami’s reference to the OEO complaint in the context of his decision to appoint an external interim chair in 2018 can’t reasonably support an inference that, in the face of the above evidence—including the survey results, which indicated that El Chaar was a divisive figure—El Chaar’s OEO complaint was a but-for cause of the decision to appoint a different candidate as a permanent chair.

Moreover, El Chaar points to insufficient evidence that Bertolami’s decision to survey the department about the finalists was pretextual. It is undisputed that Bertolami regularly sought input from faculty in making hiring decisions and had, in the context of prior searches, conducted “listening tour[s]” seeking faculty input.  And it is undisputed that, because the COVID-19 pandemic made it difficult for the faculty to gather in person, Bertolami solicited the feedback in writing. Without more, the fact that Bertolami relied upon a survey of the faculty doesn’t itself show retaliatory intent.

 

No hostile work environment claim for NYU professor

The Court of Appeals holds that an NYU professor cannot proceed with a hostile work environment claim because it is time-barred. But the Court also finds that plaintiff may pursue his retaliation claim against NYU. The latter holding reverses summary judgment on that issue.

The case is El Chaar v. New York University College of Dentistry, a summary order issued on April 2. This blog post will cover the hostile work environment. The next will cover the retaliation claim. For now, we look at the racial harassment claim, and the many ways that such a time-barred claim cannot extend into the limitations period.

Plaintiff immigrated from Lebanon in 1993 and worked for NYU from 1995 through 2012, returning in 2013. During these time periods, plaintiff suffered derogatory remarks about his ethnicity. Yes, this even happens at NYU's College of Dentistry. After plaintiff filed an internal hostile work environment complain in August 2017, the Office of Equal Opportunity (OEO) found in February 2018 that "the evidence as a whole supported a finding of a hostile work environment." But plaintiff still does not have a case.

Plaintiff sued NYU under Section 1981, which prohibits racial discrimination and carries a four-year statute of limitations. Since plaintiff brought suit on October 6, 2021, all claims that accrued prior to October 6, 2017 are time-barred. Now, courts hold that hostile work environments permit the "continuing violations" theory, which holds that if any related harassment took place during the four-year period, then all the harassment that predated the statute of limitations is actionable. That's because hostile work environment claims inherently last for an extended period of time, both prior to and after the statute of limitations. 

The problem for plaintiff is that the post-October 6, 2017 incidents are not related episodes of harassment. A July 2019 letter to the Interim Department Clair, in which he said the hostility had not stopped, is not a related act of harassment within the limitations period because the letter "provides insufficient evidence that any incidents constituting 'part of the same discriminatory pattern or practice of mistreatment' took place within the limitations period." While plaintiff further argues that NYU failed to investigate  his complaints of retaliation and ongoing harassment within the limitations period, the Court of Appeals (Parker, Robinson and Perez) holds that no rational jury could find as such because none of the "alleged failures to investigate were part of the same course of conduct as the offensive statements that gave rise to the August 2017 OEO complaint." And, the Court says, "an employer's failure to investigate a discrimination complaint cannot, by itself, contribute to or constitute a hostile work environment absent a showing that the failure altered the terms and conditions of employment." Moreover, while plaintiff alleges that NYU failed to respond properly to his harassment complaint and its leaders did not engage with the trainings prescribed by OEO, "inadequate engagement by leadership in remedial trainings is not in itself part of the continuing course of conduct creating a hostile work environment."

2d Circuit clarifies reasonable accommodations under the ADA

This case raises an issue that the Second Circuit not previously resolved under the Americans with Disabilities Act: is the plaintiff entitled to a reasonable accommodation if he she can perform the essential functions of her job without an accommodation? 

The case is Tudor v. Whitehall Central School District, issued on March 25. Plaintiff is a teacher with  PTSD, whose symptoms have affected her neurological functioning, interfered with her ability to perform daily tasks, induced a stutter, and causes severe nightmares. Her employer gave plaintiff an accommodation that allows her to leave campus for a 15 minute break during her morning and after noon prep periods. A new school administrator then directed that no teachers can leave school grounds during prep periods. Under the arrangement that led to this lawsuit, plaintiff would leave during afternoon study hall. Plaintiff's lawsuit alleges that defendant's refusal to guarantee a 15 minute afternoon break violated the ADA. Defendant argued, and the district court agreed, that plaintiff cannot win this case because she is able to perform her job without the accommodation.

The Court of Appeals goes back to the basics in this case, reviewing the reasonable accommodation cases that have developed over the last 30 years, when the ADA was enacted. The Court reaches this conclusion based on the statutory language:

an employer must, absent undue hardship, offer a reasonable accommodation--such as a modified work schedule--to an employee with a disability if that employee is capable of performing the essential functions of her job with or without the accommodation.  

Under a straightforward reading of the phrase “with or without,” the fact that an employee can perform her job responsibilities without a reasonable accommodation does not mean that she must: she may be a “qualified individual” entitled to reasonable accommodation even if she can perform the essential functions of her job without one.

Other Circuits have held as such, and the Second Circuit joins in that interpretation of the ADA. Adding to its analysis, the Court of Appeals says, "To say that an accommodation must be strictly necessary to be reasonable would run counter to this purpose; if Congress had wanted employers to make only necessary accommodations, rather than reasonable ones, it could have said so.  But Congress did not require 'necessary accommodations'; the ADA plainly directs employers to make 'reasonable accommodations.'” Per se rules are inapplicable in the ADA context, the Court of Appeals adds, as the "reasonableness of an employer's accommodation is a fact-specific question." Bottom line: "An employee may qualify for an accommodation even if it is not strictly necessary to her performance of the essential functions of her job."

One other point, as the Second Circuit remands this case to the district court for trial. The Court says that while the defendant may argue that "that the requested accommodation would impose on it an undue hardship," plaintiff's "long history of receiving her requested accommodation and [defendant's] evolving policies indicate that Tudor’s requested accommodation may have been reasonable, notwithstanding that she performed her essential job functions without it." This is significant: many ADA plaintiffs argue that a longstanding accommodation was rejected by new supervisors. This language allows plaintiff to argue that the longstanding arrangement is inherently reasonable and cannot be altered for the time being.