Informal complaint about "the guys" supports retaliation verdict

Retaliation cases under Title VII of the Civil Rights Act of 1964 require the employee to complain in good faith about employment discrimination. If she does complain in good faith, she can't be fired or otherwise punished. A vexing question that has arisen over the years is: exactly what constitutes a good faith complaint of discrimination?

The case is Hubbard v. Total Communications, decided on September 30. This is a summary order affirming the plaintiff's verdict after trial, so the Second Circuit does not provide all the evidence. But it does summarize the law:

This court has interpreted the opposition clause to protect not only the filing of formal discrimination charges, but also “informal protests of discriminatory employment practices, including making complaints to management, writing critical letters to customers, protesting against discrimination by industry or by society in general, and expressing support of co-workers who have filed formal charges.” Sumner v. U.S. Postal Serv., 899 F.2d 203, 209 (2d Cir. 1990).

The jury found that Hubbard did complain about discrimination. Here is what she told a supervisor in an email:

IT IS REALLY NICE TO FIND OUT THAT THE ENTIRE SERVICE DEPT GOT THEIR REVIEW/RAISES THAT WERE DUE IN JULY 2003. WHICH WOULD BE 10-12 GUYS/TECHNICIANS.” (emphasis added).

It's not good Internet etiquette to send emails in capital letters, but the jury must have thought this tactic got the attention of the people who retaliated against Hubbard. This email does not explicitly state that Hubbard thought she was the victim of discrimination. One well-known case where the plaintiff's complaints were not enough to trigger the anti-retaliation provision was Galdieri-Ambrosini v. National Realty & Development Corp., 136 F.3d 276 (2d Cir. 1998), where the plaintiff complained about unfair treatment but did not provide enough particulars to suggest she was really speaking out against gender discrimination. Many retaliation cases have been dismissed under Galdieri-Ambrosini's reasoning.

But in referencing how the "guys" got raises, Hubbard satisfies the legal standard in letting management know she was complaining about discrimination. The Court of Appeals holds that "This informal complaint of discrimination is enough to satisfy the protected activity requirement under Title VII."

The police thought the clown was a bomber

Some people are afraid of clowns. The New York Police Department was afraid, but the officers didn't know he was a clown. They thought he was a bomber. The clown brought a lawsuit. He proceeds to trial on an excessive force claim.

The case is Alhovsky v. Ryan, 2009 WL 2432688 (S.D.N.Y. Aug 7, 2009). Alhovsky is a professional clown. Let Judge McMahon introduce the case:

Alexander Alhovsky is a professional clown and magician. He spends his days in central Park, entertaining children; he commutes to work on his bicycle. One of Alhovsky's specialties is creating balloon animals. In this line of work, one needs either an extremely powerful set of lungs or a mechanical device that can blow up lots of balloons. Alhovsky uses the latter: a Majiloon battery-powered balloon inflation pump. He carries the pump in a Majiloon-issued fanny pack; the air hose, which was painted with the colors of the rainbow, protrudes from the pack and hangs alongside it.

One day after entertaining the kids the clown rode his bicycle to Starbucks and accidentally left behind the inflation pump, which has wires sticking from it and looks like a bomb to the uninitiated. It certainly looked that way to the Starbucks manager. Again, Judge McMahon: "At closing time, the shift manager for Starbucks noticed the fanny pack and opened it. Inside, she saw a mechanical device with wires protruding from it, Thinking it might be a bomb, the manager showed it to a co-worker, who immediately (1) threw the fanny pack out of the store onto the sidewalk (!) and (2) called 911. The Bomb Squad arrived shortly thereafter."

Of course, the Bomb Squad does not play games. New York City does not need another explosion. If you deliberately place a false bomb in public, you could be arrested for a Class D felony. While the police were trying to figure out who left this potential hoax in Starbucks, the clown went about his life, figuring that someone stole the inflation pump. He used a spare pump. The surveillance tapes showed that Alhovsky was a regular customer; the police wanted to ask him questions. One day, he whizzed by on his bicycle, and the police surrounded him. Judge McMahon colorfully describes what happened next:

Alhovsky did not get off his bike voluntarily, although he may have been ordered to do so. He was knocked off or grabbed off the bike. He was punched in the kidney and fell to the ground, landing on his shoulder. One officer screamed that he was going to “blow his fucking head off” while another officer put a knee in his face. He was handcuffed and kicked. His pants fell down, exposing his genitals to children playing across the street, some of whom he recognized as “clients.”

Alhovsky was “in shock” and wanted the officers to “stop hurting me.” He was afraid that he “might not even survive this.”

Alhovsky was pulled up by his hair and slammed against the window of a Chirping Chicken store. The owner of the store, Maria Psaris, who knew Alhovsky as a customer, saw plaintiff's face being slammed against the 66th Street window while his hands were cuffed and he was on his knees. Psaris also saw one officer with his weapon drawn.

When [officer] Alfonso arrived at the site, Alhovsky was on the ground surrounded by police officers. Alfonso removed the fanny pack from Alhovsky's waist and called Emergency Services. The NYPD cordoned off the area around the fanny pack and forced everyone in nearby stores to evacuate while the Bomb Squad investigated the package.

Next thing Alhovsky knows, he's at the police station, being questioned by the police. Alhovsky has no idea what's going on. He asks if he's being questioned for murder or rape. No, an officer said, "you're in far deeper shit than this, buddy, and you're going in for life." Eventually, Alhovsky convinced the police that it was not a bomb, but a balloon pump. They let him go. He sued for false arrest and excessive force in violation of the Constitution.

What happened to the clown may seem outrageous, in that the police thought the balloon device was a bomb and they treated him like a bomber, taking him to the police station for questioning. But the fact that Alhovsky was innocent does not mean the police did not have probable cause. Judge McMahon finds the police did have probable cause to believe that the clown had left behind a hoax bomb in violation of the penal law. The police did nothing wrong in taking him to the station for questioning, and they were not required under the law to ask him questions at the scene and clear up the matter right then and there. What is more, when the police ran into Alhovsky on his bike, he was carrying the same device; the police reasonably thought this guy was planting hoaxes around Manhattan. This gives the police probable cause to stop and question him at the station. Vindicating the officers on the false arrest claim is a somewhat clunky ride; the judge does cut apart some of the legal arguments of both sides, stating that "plaintiff's argument makes no sense" and defendants raised a "red herring."

The clown does have a case for excessive force. The police smacked him around when they saw him riding his bike. While plaintiff did not suffer serious injuries, and the police may have been justified in using some force in getting him to stop biking past them, Judge McMahon concludes:

the coup de grace is that a disinterested witness -- the owner of the small business outside of which the encounter happened -- has submitted sworn testimony about seeing a police officer slam plaintiff's head against her store window while an officer holding a gun looked on. She further testified that plaintiff (whom she knew and recognized) was on his knees and in handcuffs when this assault occurred. If this be true, then there was no need for any officer to slam plaintiff's head into a plate glass window in order to subdue him or to effect his arrest. The act of slamming plaintiff's head into the against the glass pane, without more, constitutes excessive force if it occurred as the disinterested witness said. It is of no moment that plaintiff did not suffer any serious physical injury as a result; it is not objectively reasonable to slam a man's head into a glass window if he is already subdued.

Pro se inmates win religious discrimination appeal

Congress has gone out of its way to provide inmates certain constitutional rights under the First Amendment's clause guaranteeing the free exercise of religion. How this came about is a long story which starts with a Supreme Court decision written by Justice Scalia in 1990, Employment Division v. Smith, 494 U.S. 872 (1990), which altered the legal standards for Free Exercise claims. Congress tried without success to overrule the Smith ruling, and when the dust settled, the best way to do it was the Religious Land Use and Institutionalized Persons Act, or RLUIPA.

Under RLUIPA, the states cannot restrict inmate religious practices without a compelling reason. Even if the reason is compelling, the government has to show that the restriction was the least restrictive way to achieve that compelling interest. (Because of what the Supreme Court did in Employment Division v. Smith, RLUIPA's consequence is that inmates have greater religious freedom rights than the rest of us). This all plays out in Jova v. Elmore, decided on September 28, where the Second Circuit reinstated the case on behalf of two inmates who practice the Tulukeesh religion. The inmates represented themselves on appeal, by the way.

Borrowing from the legal reasoning of other federal appeals courts which have taken up this issue, the Second Circuit find that prison security is a compelling government interest. But the government has to support its argument with evidence, not speculation or after-the-fact rationales. In this case, the plaintiffs claimed their religion requires a group setting and they cannot worship alone. The jail responded that in order to have a group setting, the inmates have to find outside religious clergy to officiate. Among other things, the inmates also want martial arts training as part of their religious exercises and a particular diet. The government is able to convince the court with voluminous evidence in the form of affidavits that the restrictions are "justified by powerful security and administrative interests."

Not so easy on the second set of legal issues on appeal: whether the government used the least restrictive means to protect security in the prison. As it does not want religious meetings to serve as a proxy for gang activity, the government is able to justify its requirement that the inmates use an outside chaplain to officiate their religious exercises. If the inmates cannot find someone, an inmate can facilitate the meetings provided "the religion is known outside the institution." For obvious reasons, the government is also able to prevent martial arts training ("potentially violent physical activities") in the jail.

However, it is unclear to the Court of Appeals whether the dietary restrictions are narrowly-tailored. The inmates need a vegan diet that does not include soybeans or certain soy-related products. The Court of Appeals wonders why the jail cannot provide an entirely vegetarian menu to inmates who request it. If the jail can do so, then its proposed alternative menu may not be acceptable. The case is remanded to the district court to figure this out.

Garcetti standard dooms Almontaser's free speech case

A Southern District judge has dismissed a First Amendment lawsuit brought by a high school principal who was forced to resign after she gave an interview with the New York Post about a controversial t-shirt which made reference to the Arab-Israeli conflict.

The case is Almontaser v. New York City Department of Education, 2009 WL 2762699 (S.D.N.Y. Sept. 1, 2009) decided by Judge Stein. This case previously went to the Second Circuit, which affirmed Judge Stein's order denying Almontaser's motion for preliminary relief. That case can be found at 519 F.3d 505 (2d Cir. 2008). The Court of Appeals' ruling is among the few to interpret the Supreme Court's ruling in Garcetti v. Ceballos, 547 U.S. 410 (2006), which altered the rules governing the free speech rights of public employees. I wrote about Amontaser's Second Circuit ruling here.

Almontaser was interim acting principal of Khalil Gibran International Academy. The New York Post wanted comment on the t-shirt. The Board of Education make arrangements for the telephonic interview, and it also arranged, guided and directly participated in the interview. Almontaser testified that she gave the interview "because I was told it was in the best interest of the school. Otherwise I wouldn't have done the interview." Although she claimed the newspaper misquoted her, it was her comments during the interview which led to her forced resignation.

The case began when an activist group accused Almontaser of associating with an organization known as Arab Women Active in the Arts and Media which distributed t-shirts bearing the words "Intafada NYC." When the New York Post interviewed Almontaser, she denied any relationship with that organization and, according to the Court of Appeals, the New York Post misquoted her in stating that the t-shirts were an "opportunity for girls to express that they are part of New York City society."

Prior to 2006, Almontaser would have a great case. The Supreme Court has held for at least 40 years that public educators (and all public officials, really) have the right to speak out on matters of public concern without fear of reprisal. There were always limits to that rule (which covers whistleblowers also), and the plaintiff could lose the case only if the speech was too disruptive of the public workplace or she would have been fired even without the speech.

It's not 2005 anymore. In Garcetti, the Supreme Court limited the rights of public employees in holding that speech made in the course of the plaintiff's official job duties is not protected under the First Amendment, only speech made as a citizen. No matter how important it may be, speech made in the course of your official duties is no longer speech on a matter of public concern; it's merely job speech, treated no differently under the Constitution than a watercooler conversation about the Yankees.

A lot of cases have gone out the window under Garcetti's new formulation. Almontaser's is one of them. What kills the case is the fact that "the parties agree that Almontaser's official duties included speaking with the press." As the interview owes its existence to Almontaser's official responsibility to interact with the press on the school's behalf, the speech is unprotected and management can force her to resign.

New legal standard dismisses inmate's wrongful death claim

Inmates who sue their captors for constitutional violations have a difficult legal standard to satisfy. In 1994, the Supreme Court ruled that it is not enough for the inmate to show that the prison employee (usually a guard or someone in the medical office) was deliberately indifferent to his serious medical needs (an objective standard). That case was Farmer v. Brennan, 511 U.S. 825 (1994). Under Farmer, the inmate has to show that his captor consciously disregarded a risk of harm (a subjective standard). Farmer involved prisoners who were already convicted of a crime and are in state custody. Does the Farmer standard also apply to pretrial detainees who have not yet been convicted of anything? The answer is now Yes.

The case is Caiozzo v. Koreman, decided on September 22. The case stems from an inmate who died shortly after entering county jail on a harassment charge. The intake staff mistakenly thought the inmate was intoxicated upon entering the jail and, in fact, he had a serious drinking problem. The mistaken belief that the inmate was drunk prompted staff to place him in a "continual observation" setting. After a difficult first night of spasms and other problems, he was rushed to Albany Medical Center, where he died from a seizure due to acute and chronic alcoholism. His family sues the jail under the Constitution for deliberate indifference to serious medical needs. They claim that staff should have known the inmate was in danger of severe alcohol withdrawal and that this oversight caused his death.

The jail officials win the case. But not before the Court of Appeals (Sack, Katzmann and Kelly) deal with the ramifications of the Farmer precedent, now on the books for 15 years. Farmer is an Eighth Amendment ("cruel and unusual punishment") case which covers prisoners who were already convicted of a crime. For pretrial detainees, the due process clause of the Fourteenth Amendment applies. Farmer applied a subjective test because in Eighth Amendment cases the inmate is challenging an aspect of his punishment which necessarily requires that jail personnel actually be aware of an excessive risk to the inmate's health and safety. Over the years, the Second Circuit has not gotten around to deciding if pretrial detainees have to satisfy the same legal standard. However, the circuits around the country have already resolved this issue, favoring the jail officials and holding that a pretrial detainee must prove that the defendant knew about and disregarded a risk of harm to the inmate.

This is not a new rule, though. In 1977, the Second Circuit held in Arroyo v. Schaefer, 548 F.2d 47 (2d Cir. 1977) that this heightened standard should apply. Arroyo pre-dates Farmer by 17 years. Post-Farmer, the Court of Appeals assumed the Arroyo standard still applied. Today the Court of Appeals makes it official. The Farmer standard applies whether the inmate is a pretrial detainee or a convicted prisoner.

Unfortunately for the plaintiff in today's case, the revised legal standard requires dismissal. Plaintiff argues that jail personnel should have known that Caiozzo was in immediate danger of alcohol withdrawal and that appropriate action could have saved his life; instead they thought he was intoxicated and therefore did not act accordingly. Although jail personnel incorrectly thought he was simply intoxicated and no in danger of imminent severe alcohol withdrawal, there is no evidence that personnel was actually aware of any imminent danger. Without that evidence, the case is dismissed.

"Arguable probable cause" dooms false arrest case

I used to have cases before a federal judge who said it was a "ticket to federal court" when a criminal defendant was acquitted in state court (or the charges were dropped). This meant that if the police arrested someone but the charges didn't stick, the defendant could turn around and sue the police. Well, he can sue the police, but that doesn't mean he'll win the case. Quite often, these false arrest cases do not survive summary judgment.


The case is Droz v. McCadden, decided on September 14. Droz was arrested for criminal contempt when he acted out in Town court (he would not let the court officer see what was in his brown paper bag). The Town Judge, Shirley Herder, summoned the police, who arrested Droz. That officer was McCadden. The charge was eventually dismissed. Droz gets a ticket to federal court.


That Droz gets to sue McCadden doesn't mean he wins the case. There is no false arrest if the police have probable cause to arrest. Probable cause can exist even if the charges are dropped or a jury acquits the defendant. This is because the "beyond a reasonable doubt" standard for conviction is much higher than the probable cause standard.


McCadden finds a more obscure way to win the case. The parties agreed that McCadden reasonably believed that he was acting at Town Judge Herder's behest in arresting Droz. In fact, Droz's lawyer actually admitted that "McCadden ... relied upon his alleged understanding of Herder's direction to him to arrest Droz for criminal contempt." The Court of Appeals (Sack, Winter and Cogan) is a little flummoxed at counsel's weasly language about McCadden's "alleged understanding," but it's close enough to get the case dismissed. As the Second Circuit writes, "Droz concedes, then, that McCadden thought he was operating at the direction of Herder when he arrested Droz."


This belief was reasonable because Droz also "concedes that Herder agreed ... that Droz's actions should be reported to the police." So when McCadden arrested Droz for criminal contempt, his reliance on Herder's judgment gets him off the hook. This brings the case within the gray area known as "arguable probable cause," a defense to false arrest cases. Arguable probable cause is enough to win, and by its very terms this doctrine is more favorable to the police than mere probable cause. Under arguable probable cause, the case is dismissed if the officer "could have reasonably believed that probable cause existed in the light of well established law." On the facts of this case, McCadden has arguable probable cause, and Droz's ticket to the courthouse gets him nowhere.

Don't talk to jurors about the Yankees during trial

What do you do when a juror talks to a witness during a break in the trial? When the trial begins, the judge tells the jurors they cannot speak to any of the parties or their attorneys, and that if a juror runs into anyone associated with the trial in the elevator (or anywhere else for that matter), the juror should not be offended if the defendant or an attorney ignores the juror.


The same rules apply when a juror unwittingly talks to a witness during a break. The judge still has to decide if the inappropriate contact requires some kind of action, i.e., a mistrial or sending the juror home. That's what happened in Luca v. County of Nassau, where the Court of Appeals on August 19 affirmed a Title VII retaliation verdict in favor of the plaintiff (a verdict in which the plaintiff received more than $600,000 in front pay, by the way).


A juror was seen talking with a witness. The witness said he did not know he was talking to a juror. They were not talking about the case; they were talking about the Yankees. It's not illegal to talk baseball during breaks in the trial, but, really, jurors should not be talking to witnesses about anything. This is certainly enough to file a non-frivolous appeal. But these appeals are not easy to win. The legal standard is as follows: "To secure reversal on this ground, defendants must demonstrate both juror misconduct and ensuing prejudice." The trial judge has to make a decision, but she enjoys great flexibility in dealing with the problem.


As the Court of Appeals puts it: "Because we recognize that in handling incidents of possible juror misconduct, a trial court confronts a 'delicate and complex task,' we accord it 'broad flexibility.' The court must be sure that any investigation it conducts does not “create prejudice by exaggerating the importance and impact of what may have been an insignificant incident.' Moreover, '[i]n many instances, the court’s reiteration of its cautionary instructions to the jury is all that is necessary.'”


Under this broad standard, the Court of Appeals lets the employment discrimination verdict in favor of the plaintiff stand. In dealing with the problem, the trial court did not speak to the juror; it only questioned the witness about the conversation. This is fine, since no one asked the court to speak to the juror. The trial court has discretion to assess the credibility of what the parties to that conversation told him when the court investigated what happened, and his determination that the fairness of the trial was not compromised is affirmed on appeal, particularly since the court reminded the jurors to avoid any conversations with anyone associated with the trial. Moral of the story: don't talk to jurors about anything during trial, be it the Yankees or any other topic.