Hostile work environment case dismissed on appeal

Some hostile work environment cases make it to trial, and some don't. This one did not, even though the Court of Appeals finds the conduct of a male supervisor to be particularly inappropriate.

The case is Kercado-Clymer v. City of Amsterdam, a summary order decided on March 25. Kercado-Clymer sued under Section 1983, which allows the defendants to raise a qualified immunity defense, which in turn allows them to take up an immediate appeal if the district court denies their motion for summary judgment.

Here's the plaintiff's hostile work environment evidence: "Kercado-Clymer alleges that Brownell created a hostile work environment based on her gender by making several sexually and racially derogatory statements and by denying her desk duty during the week, disciplining her for driving the wrong way down a one-way street, and denying her overtime opportunities." Her claim fails. The Second Circuit (Winter, Katzmann and Rakoff, D.J.) concludes:

[W]hile Kercado-Clymer argues that she was subject to sexual harassment on a regular basis, she only points to a few incidents of facially sexual harassment over a thirteen year period—Brownell’s comment about raping his wife, his remarks about her hair and her relationship with her husband, and the inappropriate postcard he sent to the precinct. The other incidents alleged by Kercado-Clymer as contributing to the hostile work environment were not facially related to sex. Even taken together, however, while certainly highly offensive, these instances are far less severe or pervasive than those for which we have concluded that a reasonable trier of fact could find a hostile work environment.

The Court of Appeals certainly sympathizes with plaintiff, and the Court thinks that Brownell is a pig, deeming his behavior "patently inappropriate." What dooms the case for plaintiff is that not enough incidents happened over a 13-year period and not all of it was explicitly gender-related. While offensive behavior that is not explicitly sexist may support a gender-harassment case, (Raniola v. Bratton, 243 F.3d 610, 621 (2d Cir. 2001), the Court doesn't think that Kercado-Clymer has enough for trial.

You can't just smack inmates around

It's true. You can't just smack inmates around. The Constitution protects inmates from the excessive use of force. The courts have outlined a way to resolve these cases, sensitive to the fact that jails need to maintain order and some pushing and shoving is inevitable.

The case is Abreu v. Nicholls, decided on March 3. Abreu won this appeal pro se, by the way. It all started when he was a new inmate, and Correction Officer Nicholls told Abreu to stop looking at him.

Nicholls then took out a rubber-headed “hammer” from an office desk and stood in front of Abreu. Nicholls said, “Didn’t I tell you not to look at me,” to which Abreu responded, “I’m not from this prison, I come from the state.” ... Nicholls then “began to press the hammer to [his] forehead.”

While the hammer was pressed to his head, Nicholls told Abreu, “Come on, do what ever you want,” but Abreu did not respond because the other inmates urged him to stay silent. Nicholls pressed the hammer into his head between one and five times and his head went “half way” backwards. After one to two minutes, Nicholls removed the hammer from his forehead and put it back into the desk.

This testimony is enough for Abreu to win the case, so the Court of Appeals (Calabresi, Katzmann and Chin [D.J.]), reverses summary judgment in a summary order. In the early 1970's, the Court of Appeals held that not every push or shove at the jailhouse is actionable under the Eighth Amendment's prohibition against cruel and unusual punishment. But the Supreme Court has also ruled that the issue is "whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.” The extent of the inmate's injury is a relevant factor, but it is not dispositive. Summing up the legal standard, the Court of Appeals notes that "Where a prison official acts 'maliciously and sadistically,' 'contemporary standards of decency always are violated. This is true whether or not significant injury is evident.' But even when a prison official acts maliciously or sadistically, 'not every push or shove ... violates a prisoner’s constitutional rights.' '[T]he Eight Amendment’s prohibition against cruel and unusual punishment does not extend to de minimis uses of physical force, provided that the use of force is not of a sort repugnant to the conscience of mankind.'”

It doesn't look like Nicholls used force against Abreu for any good reason, certainly not "any proper penal purpose," the Second Circuit holds. Rather, it looks like a "calculated effort to apply a moderate amount of force in a way that threatened the use of significantly greater force." Using a rubber-headed hammer to bend Abreu's head "half way backwards" does not seem kosher, either.

Malicious prosecution case goes back to the drawing board

Two women sued the police after an arrest for something they didn't do. They lost at trial. The Court of Appeals remands for a new trial because the trial judge made what looks like a seriously misguided evidentiary ruling that allowed some police witnesses to opine on the officers' credibility. The Court of Appeals also tells the district court what evidence to admit on remand.

The case is Cameron v. City of New York, decided on March 10. Malicious prosecution cases are all about witness credibility. The plaintiffs claim they did nothing to justify the arrest. The police say that they had probable cause to arrest the plaintiffs. The jury -- God bless 'em -- has to figure out who is telling the truth, or at least who has the more believable story.

What happened here was that the judge allowed the City to elicit testimony from two assistant district attorneys and a police officer who was present when plaintiffs were arrested. These witnesses testified about the credibility of officers Ramos and Rivera on the issue of whether they had probable cause to arrest plaintiffs Cameron and Higgenbottom, and as to whether certain evidence strengthened or weakened the plaintiffs' case.

This testimony certainly bolstered the City's case. One of the ADA's, for example, "testified extensively about her communications with Rivera and Ramos. She testified that nothing Rivera or Ramos said led her to consider dropping the case; that she had no reason to believe anything they said was inaccurate." Another ADA testified that "she would not have decided to prosecute Ms. Cameron if [she] did not believe there was probable cause to believe that [Cameron] had committed a crime.” A lieutenant testified that "after speaking with Ramos and Rivera, [she] thought that probable cause existed to arrest Cameron and had no 'reason to doubt the officers’ account of the facts that day.'” It looks like the plaintiffs' lawyers objected like crazy to some of this testimony.

Plaintiffs' lawyers called it right. Credibility is for the jury. Trial witnesses cannot testify that another witness is credible. They also cannot testify as to legal conclusions. While lay witnesses can provide some opinion testimony, that's only allowed when "helpful to a clear understanding of the witness' testimony or the determination of a fact in issue." As probable cause was a key issue at trial, the Court of Appeals (Calabresi, Cabranes and Hall) provides a bright-line rule: "we hold that prosecutors’ opinions as to probable cause and complaining officers’ credibility are irrelevant in virtually all cases involving claims of malicious prosecution. In such cases, district courts remain bound by the rules of evidence that normally govern opinion testimony."

Although the district court should not have allowed this testimony, the City still wins the appeal unless the evidence was harmless at trial. It was not. Not only did this testimony speak to the critical issues at trial (whether the police had probable cause or acted with malice), but this testimony was not cumulative but, instead, "provided strong external validation for propositions that would otherwise have come in only from the appellees' mouths." As the City's lawyers used this testimony in opening and closing arguments and the City did not have a particularly strong case to start with, the Second Circuit is convinced that the trial judge's error was not harmless. After next taking the time to set forth what evidence is admissible on remand, the Second Circuit orders a new trial.

Qualified immunity attaches in child neglect case

Over the last few months, the Second Circuit has reminded us how difficult it is to sue state child welfare caseworkers who mistakenly remove children from their parents. Cases in point are Cornejo v. Bell, 592 F.3d 121 (2d Cir. Jan. 4, 2010) and Graham v. Mattingly, 2009 U.S. App. LEXIS 22908 (2d Cir. Oct. 19, 2009).

This time around it's V.S. v. Muhammad, decided on February 17. Caseworkers took V.S.'s child away after infant T.S. had a swollen leg and a fractured femur. When caseworker Muhammad and Dr. Esernio-Jenssen investigated, V.S. and her mother could not explain away these injuries. The mother eventually admitted that she dropped the baby, but even that did not explain all the injuries. The doctor concluded that T.S. was the victim of "shaken baby syndrome," and Family Court took away the baby after a hearing in which Muhammad did not advise the court about the mother's negligence in dropping the baby or other exculpatory information. Plaintiff's expert opined that the injuries were more consistent with childbirth injuries, and in the end, V.S. got her baby back when the agency withdrew the petition.

The Court of Appeals (Miner, Cabranes and Rakoff, D.J.) finds that defendants have qualified immunity from suit. Qualified immunity is a creature of the federal civil rights laws; it gives public officials benefit of the doubt in close cases requiring discretionary judgment. Not all civil rights cases warrant qualified immunity, but Judge Rakoff says this one does in light of the information known to the defendants when they made their initial decisions about child abuse. That initial decision was not unreasonable, particularly since some of the injuries were not sufficiently explained.

V.S. had some interesting arguments in her favor, but the Court of Appeals sees it differently. While Muhammad did not tell the Family Court certain facts which may have cleared the plaintiff, the Court of Appeals notes that plaintiff's attorneys were in Family Court as well and could have easily apprised the judge in that proceeding the same information. While the doctor in this case allegedly had "repeatedly misdiagnosed child injuries as evidence of child abuse," the Court of Appeals doesn't find this a sufficient reason to reject immunity:

She based her diagnosis of T.S. on determinations made by another doctor, Dr. Sylvia Kodsi, of retinal hemorrhages, a common indicator of shaken baby syndrome, and her opinion was shared by another well qualified physician, Dr. Shakin. Even if the ACS personnel here involved had been aware of Dr. Esernio-Jenssen’s alleged “reputation” for overdiagnosing child abuse, it still would not have been unreasonable for them to rely on Dr. Esernio-Jenssen’s diagnosis of T.S. in these circumstances.

Monserrate loses Senate expulsion appeal

Former State Senator Hiram Monserrate lost his expedited appeal that challenges his expulsion from the Senate after he was convicted on a domestic violence offense.

The case is Monserrate v. New York State Senate, decided on March 16. The Senate booted Monserrate after he was convicted. Monserrate sued with the help of noted civil rights lawyer Norman Siegel. The Court of Appeals (Jacobs, Lynch and Restaini) heard the appeal on March 12, a Friday, issuing a lengthy decision the following Tuesday.

This was an appeal from an adverse district court ruling. Monserrate sought an injunction in his favor, requiring a finding that he was likely to succeed on the merits. The primary argument was that the Senate violated the voting rights of Monserrate's constituents in violation of the Constitution. Voting rights cases are decided on a flexible legal standard. While the right to vote is quite valuable, that does not mean the courts review voting rights cases under "strict scrutiny," the heightened judicial review standard where the government nearly always loses. Rather, we have a flexible framework that says that "if the burden imposed is less than severe and reasonably related to the important state interest, the Constitution is satisfied."

Monserrate loses his appeal. His expulsion from the Senate imposed a "less than severe burden." This is because the special election held on March 16 (in which Monserrate ran and lost) will "(i) reduce the amount of time that the voters of the 13th Senatorial District are without representation, (ii) allow those voters to exercise their voting rights anew, and (iii) provide those voters an opportunity to re-elect Monserrate should they choose to do so following his misdemeanor conviction. That there would be no Special Election but for Monserrate’s expulsion, does not diminish the Special Election’s value."

The Court of Appeals next finds that the Senate's justification for giving Monserrate the heave-ho did vindicate an important government interest, i.e., maintaining the integrity of the Senate. This is not a hard call. The Senate is entitled to enforce its zero-tolerance policy against domestic violence. Monserrate's behavior was "incompatible with the duties of the Senate to uphold publoic confidence and promote the administration of justice under law." As his expulsion was reasonable, it does not violate the Constitution.

Circuit tosses ADA verdict in "Shy Bladder" case

The Americans With Disabilities Act requires employers to reasonably accommodate your disability. What does it mean to "reasonably accommodate"? And what is a "disability"? The answer to those questions can take all day. Our focus today is Paruresis and New York City's rules for shipboat captains.

The case is Kinneary v. City of New York, decided on March 19. I argued this appeal. Kinneary worked for the City as a Sludge Boat Captain with the NYC Department of Environmental Protection. He was unable to comply with the City's drug tests because of his Paruresis, commonly known as Shy-Bladder Syndrome, an anxiety that prevents you from urinating under pressure. However, as the Court of Appeals (Hall, Cabranes and Sullivan [D.J.]), noted, after the City notified Kinneary that he was going to lose his license to operate these vessels, "Kinneary took a number of proactive steps. He passed a blood test and a hair test. Kinneary twice wrote a City equal employment opportunity officer about the situation, but he never received a response to his inquiries."

The jury ruled in Kinneary's favor, awarding him back pay and damages for pain and suffering. The Court of Appeals reverses, holding that Kinneary was not qualified for his position because he was unable to pass the drug test and the reasonable accommodation that the City has in place for this problem -- a doctor's note containing certain particulars -- was not satisfied because his doctor's note did not affirmatively say that Kinneary "had a medical condition that did, or with a high probability could have, precluded Kinneary from providing a sufficient amount of urine for the test. Instead, the note simply stated the name of the condition, noted it was chronic and could be helped by an alpha blocker that Kinneary had been given, and indicated that Kinneary was not a substance abuser."

Even if it did not technically satisfy each requirement in the regulations, the doctor's note was good enough for the jury, probably because the note said that Kinneary's "medical condition" was "chronic." But the note was not good enough for the Court of Appeals, which also implicitly found that the alternative tests that Kinneary completed (blood, hair and saliva) were not enough to prevail at trial, even though these tests were reliable and confirmed that plaintiff was drug-free.

As an added bonus, the Court of Appeals drops a footnote that questions whether Kinneary's condition qualifies as a disability under the Americans With Disabilities Act. The jury said that Kinneary's Shy-Bladder condition was a disability. The Second Circuit is not so sure, stating (without conclusively resolving this issue):

Because Kinneary fails to make out this element of his claim, we need not and do not resolve here whether “shy bladder syndrome” can be a disability under the ADA. We did not reach this issue in Buckley v. Consol. Edison Co. of N.Y., because the plaintiff in that case had conceded that his bladder condition was not a disability under the ADA. 155 F.3d 150, 152 (2d Cir. 1998). We note that a U.S. District Court has said that, on the record before it, there was no evidence that shy bladder syndrome limited a plaintiff’s “ability to care for himself, perform manual tasks, or engage in other major life activities” and that the plaintiff before it, in opposing summary judgment, did not contend that the condition was an ADA disability. Balistrieri v. Express Drug Screening, LLC, No. 04-C-0989, 2008 WL 906236, at *5 (E.D. Wis. Mar. 31, 2008).

2d Circuit strikes down parts of New York's attorney advertising rules

Goofball legal advertisements might make lawyers look bad, but the State of New York cannot prohibit them. That's the long and the short of a recent decision from the Second Circuit, which strikes down several provisions adopted by the state courts intended to prohibit potentially misleading ads and overly aggressive marketing.

The case is Alexander v. Cahill, decided on March 12. If you run a law office you should read this opinion. If you want to know why lawyers are allowed to run silly advertisements on television, you should also read this opinion.

Under the Central Hudson test, the state can regulate commercial speech to prevent misleading promotions. The government needs a substantial reason to regulate this speech. And the rules cannot be more extensive than necessary. This means that only false and deceptive speech can be regulated, along with unlawful activity. Since potentially misleading ads cannot be restricted, the state regulations on this point violate the First Amendment. Except that you cannot promise clients that some kind of "dream team" will try your case; the advertisements cannot suggest that lawyers not associated with the firm actually work for the firm.

The Court of Appeals takes on some of the other advertising provisions. Since client testimonials are not inherently misleading, the state can regulate them only if the ads say that past success in other cases indicate future performance. You can also have someone portray a judge in the ads so long as you are not suggesting that you can influence the court. While the state wants to prohibit ads that rely on irrelevant techniques to catch the viewer's attention, these advertisements cannot be regulated no matter how silly (the ad in this case showed the lawyers towering over New York City and representing space aliens). Irrelevant advertisements are not necessarily misleading. You can also use nicknames in promoting your law office, so long as they do not imply an ability to get results. The plaintiffs in this case referred to themselves as "heavy hitters." The First Amendment allows for this nickname, which does not mislead.

The Second Circuit also looks at rules that (with some exceptions) place a 30-day moratorium on certain advertisements, in particular those that prevent lawyers from seeking a specific client or group of clients through television, radio, newspapers and the Internet. Rules like this would apply when lawyers want to represent disaster victims. These rules are also constitutional. Persons who are targeted by lawyers during times of trauma are particularly vulnerable, and Judge Calabresi calls them the "Porcelain Hearts." He also upholds up the rules to preserve Wemmick's Castle (a Charles Dickens reference), that is, to temporarily prevent lawyers from sending letters to the homes of trauma victims. Borrowing from the Supreme Court's "7 Dirty Words Case" (FCC v. Pacifica Foundation, 438 U.S. 726 (1978), Judge Calabresi says that while Internet and other electronic solicitations are not quite like direct mailings, for purposes of this case, they are comparable in that the consumer is subjected to obnoxious advertisements which intrude on the home and therefore disturb domestic tranquility. The 30-day moratorium is legal.