EEOC charge is admissible evidence on summary judgment motion

The Second Circuit has revived a racial discrimination claim against the Village of Southampton, ruling that the plaintiff survives summary judgment, in part, through his EEOC affidavit which lays out the facts needed to show that he was denied a promotion because he is white.

The case is Broich v. Incorporated Village of Southampton, a summary order decided on February 15. The EEOC charge initiates the litigation, and by the time the case reaches the summary judgment stage, it may very well have been forgotten, hiding in the EEOC/administrative folder at the bottom of a very large pile. But since the charge is signed under oath, its contents are admissible evidence just as an affidavit is admissible. The Court of Appeals (Cabranes, Straub and Livingston) reminds us of that in this case. This may be the first time the Second Circuit has said that an EEOC charge is admissible evidence on a summary judgment motion; the case it cites for the admissibility of Broich's EEOC charge is a non-employment civil rights case filed by an inmate who submitted an affidavit in opposition to summary judgment.

The district court overlooked the EEOC charge, but the Court of Appeals says that it helps to make out plaintiff's prima facie case, i.e., that he was denied a promotion under circumstances creating an inference of discrimination. The Court of Appeals says:

Broich alleged in his sworn EEOC charge that he was white, that he sought and was qualified for a promotion to detective sergeant, and that the promotion went to an African-American detective in the Southampton Village Police Department (Herman Lamison) who had less time in rank and less supervisory experience than Broich. Broich also alleged that Lamison was promoted to provide political advantage to one of the candidates in the upcoming Southampton mayoral election, in which race was the salient issue.

While defendant notes that the EEOC charge also suggests that other factors played a role in denying plaintiff the position, the Court of Appeals notes that defendants are "merely point[ing] out opposing inferences that could be drawn from Broich's sworn statement. It is not for us to choose inferences ... and determine which inference is most likely." This is nice language for plaintiffs trying to avoid summary judgment, but since this is a summary order, it's not binding on any other court (although it reflects a true interpretation of Rule 56).

Impulse killing knocks out habeas claim

Over the last few years, a parade of convicts have petitioned the federal courts for habeas relief on the theory that the homicide could only have been intentional and not deliberately indifferent to human life. The courts recognize the distinction between the two theories of criminal liability, but these habeas actions are hard to win.

The case is Garbutt v. Conway, decided on February 9. The intent to kill/depraved indifference distinction is well-known to law students. What we see in the habeas context is the state court jury convicts the defendant of depraved indifference murder. The defendant then asks the federal court to vacate the conviction because, if he is guilty of anything, it would be intentional murder (for which he was acquitted) and not deliberate indifference (for which he was convicted). The problem with this approach is two-fold. First, federal courts give state courts the benefit of any close constitutional calls (thanks to the 1996 habeas corpus law) and second, juries are able to draw the "right" inferences in these cases at trial.

This case is a good example. Garbutt had a domestic dispute with is girlfriend, Blanchard. He chased her down on the street and confronted Blanchard when she was with her daughter, Tolbert. During the struggle, Garbutt thrust a knife in their direction, hitting the daughter in the chest. Garbutt ran away, and the daughter died from her wounds shortly thereafter. While the jury was free to find that Garbutt intended to kill the daughter, that was not the only reasonable option. It could also find that Garbutt was guilty of recklessness manifesting depraved indifference to human life. Here is how the Court of Appeals (Chin, Hall and Lynch) sees it:

a reasonable a jury could have inferred that Garbutt stabbed Blanchard with the intent to cause her death. But a reasonable jury could equally have found that Garbutt had struck out in blind anger, without specifically intending to cause death, but with an awareness that his conduct could have deadly consequences for either Blanchard or Tolbert or both. The jury could further have inferred from the fact that Garbutt ran away before verifying that Blanchard had died that he had not intended to kill her. Moreover, a reasonable jury could also have found that Garbutt's violent and callous response to Blanchard's refusal to follow his orders, which endangered not only her but also Tolbert, manifested exactly the sort of depraved indifference to human life that New York case law continues to treat as a mental state sufficient for a murder conviction.

Court of Appeals upholds discipline in student speech case

Rejecting a First Amendment challenge, the Court of Appeals holds that a public school could discipline a 10 year-old student who joked in a class assignment that he wanted to blow up the school.

The case is Cuff v. Valley Central School District, decided on March 22. Bergstein & Ullrich, LLP, represents the plaintiffs. The issue was whether school officials reasonably believed the fifth grader's written statement would materially and substantially interfere with appropriate discipline at the school. A two-judge majority (Winter and Hall) said the district had the right to discipline the student by sending him home for five days. In a lengthy dissent, Judge Pooler disagreed and said the statement -- written in an "about me" assignment on an astronaut drawing -- did not disrupt school operations and was merely a clunky attempt at humor.

This case poses the question of how much a school district has to put up with when a student writes up a violent statement. Particularly since this is a 2-1 decision, I would say this case lies at the boundaries of what constitutes acceptable speech in public school. The boy did not mean any harm, and his classmates giggled at the drawing. Yet, the specter of Columbine arises anytime someone talks about violence in school, even if it's a joke. While the majority worries that the failure to discipline the boy would cause a discipline breakdown at the school, the dissent sees it differently:

While a young child’s call for the destruction of his school and the killing of his teachers may not seem to “justif[y] sounding the First Amendment bugle,” I believe that there are important, if subtle, free speech values at stake in this case.

B.C.’s teacher explicitly suggested that her students consider writing about missiles. While the concept of irony may seem well beyond the ken of an average ten-year-old, young children routinely experiment with the seeds of satire. They learn by fumbling their way to finding the boundaries between socially permissible, and even encouraged, forms of expression that employ exaggeration for rhetorical effect, and impermissible and offensive remarks that merely threaten and alienate those around them.

This young boy’s drawing was clearly not some subtle, ironic jab at his school or broader commentary about education. It was a crude joke. But the First Amendment should make us hesitate before silencing students who experiment with hyperbole for comic effect, however unknowing and unskillful that experimentation may be.

As counsel for plaintiffs, of course I cannot be objective here. So let me run the Associated Press article that tells it like it is:

Suspension upheld for NY boy over violent drawing

By LARRY NEUMEISTER
Associated Press

 NEW YORK (AP) -- Acknowledging school violence nationwide, a federal appeals court on Thursday upheld the suspension of a 10-year-old boy for a crayon drawing expressing a desire to blow up his school and its teachers.

But the 2nd U.S. Circuit Court of Appeals in Manhattan was not unanimous in rejecting the First Amendment claims of his parents. Judge Rosemary Pooler said the drawing by the fifth grader at a Montgomery, N.Y., elementary school in Orange County was obviously the work of a class clown.

"It was a crude joke," Pooler wrote. "But the First Amendment should make us hesitate before silencing students who experiment with hyperbole for comic effect, however unknowing and unskillful that experimentation may be."

The boy, identified in court papers only as "B.C.," was suspended for six days in September 2007 after he showed his drawing to classmates. Other students laughed, though one complained to his teacher.

Writing for the majority, two 2nd Circuit judges agreed that the boy deserved punishment for his response to an assignment to write about himself on a picture of an astronaut including a "wish." The teacher at one point told students they "can write about missiles," the court noted. It said it was in the "wish" spot that B.C. wrote: "Blow up the school with the teachers in it."

The teacher said she sent B.C. to the principal's office after a girl who seemed "very worried" told her about the drawing.

The 2nd Circuit said the discipline was appropriate particularly because the boy had a history of drawings and writings embracing violence.

"Whether B.C. intended his `wish' as a joke or never intended to carry out the threat is irrelevant," the opinion said. "Nor does it matter that B.C. lacked the capacity to carry out the threat expressed in the drawing."

The 2nd Circuit said school administrators must maintain parental confidence in their ability to shield children from frightening behavior and to protect safety. It said a failure to respond forcefully to the "wish" might have eroded parental confidence in school safety, forced the hiring of security workers or led to an enrollment decline.

The judges noted they sit on the bench of at least the second federal appeals court to acknowledge the need to confront school violence "given the recent wave of school shootings that have tragically affected our nation."

In her dissent, Pooler said the case must be considered in the context of "our justified fears of yet another horrific school shooting."

She said the case that was dismissed by a lower court judge belonged before a jury, which would learn the boy was portraying a paintball game rather than playing out a violent fantasy. She said the jury also would learn that the girl who complained about him had a history of sparring with him over rules and "seems to have taken it upon herself to ensure that B.C. was punished each and every time he did something that was even arguably inappropriate."

"In short, a jury could conclude that she was prim, not petrified," Pooler wrote. "The First Amendment's protection of free speech cannot hinge entirely on the reaction of a listener to a person's speech. If that were the case, the First Amendment would only be as strong as the weakest, or at least the most thin-skinned, listener in a crowd," she added.

Adam I. Kleinberg, a lawyer for the Valley Central School District, said the ruling "reaffirms that school officials should be afforded great deference in their decision making."

He added: "School officials should not be required to wait until after an incident occurred. They can't predict the future. They can only do their best to keep everyone safe."

Stephen Bergstein, an attorney for the parents, said he probably won't appeal.

"He's 10. It was just a little drawing. Nobody cared. That's what kids do," Bergstein said, noting that the boy had a paintball court in his backyard. "There are times when you're going to make references to violence and it doesn't mean the school's going to go into lockdown."

The boy, now 15, is in high school and doing fine, he said.

Bergstein recalled the day the boy showed up for the deposition with attorneys. "His feet didn't touch the ground. When he trotted out of the building you got the feeling he was going to walk around barefoot and go fishing," he said.

The Court of Appeals gives one to the inmates

The Court of Appeals gives one to inmates at the County Jail, who have more rights than inmates in the State lockup. It also gets around the Prison Litigation Reform Act, which requires inmates to file grievances over their mistreatment before they can file suit in federal court.

The case is Johnston v. Genessee County Sheriff, a summary order decided on February 2. Johnston was at the Genessee County Jail. Before he was found guilty of burglary, he was placed in isolation without an opportunity to challenge his placement. The district court dismissed the claim on summary judgment, applying the Supreme Court's ruling in Sandin v. Conner, 515 U.S. 472 (1995), which applies the Eighth Amendment in making it easier for jail officials to isolate inmates who are convicted of a crime. Since Johnson was not yet convicted of anything when he was placed in isolation, a Fourteenth Amendment test applies. The Second Circuit (Cabranes Kearse and Straub) sends the case back to the district court to apply the right test.

Johnston also claims that a correctional officer assaulted him after he was convicted of burglary, two days before he was sent to State Prison. The district court threw out this claim because Johnston did not file a grievance over the assault before bringing his lawsuit. That's right, folks. Under the Prison Litigation Reform Act, you have to grieve the beating before filing suit. The PLRA was supposed to make life easier by keeping more inmate cases away from the courts, but, of course, in life what was supposed to be easier only made things more complicated. There are unintended loopholes in the PLRA and the courts have to deal with them one case at a time. In this case, since Johnston left the County Jail only a few days after a corrections officer assaulted him, the grievance exhaustion requirement is excused. "The PLRA does not require prisoners to reach across jurisdictional lines to take advantage of grievance systems that are no longer available to them."

District court finds a way around Garcetti

A district court case from Connecticut shows how public employees can maintain First Amendment retaliation claims against municipalities despite Garcetti v. Ceballos, a 2006 Supreme Court ruling that has nearly wiped out these cases under its holding that speech is not protected if the plaintiff makes it pursuant to his official job duties.

The case is Ricciuti v. Gyzenis, 2011 U.S. Dist. LEXIS 148748 (D. Conn. Dec. 28, 2011). The Second Circuit has sustained very few First Amendment retaliation claims since Garcetti altered the landscape six years ago. In this case, the plaintiff worked for the Madison Police Department. I love how Judge Kravitz opens up the decision:

To read the parties' statements of facts in this case is already to suspect that summary judgment is not to be. As the Plaintiff would have it, this case is about an experienced officer who was disgusted by the misuse of public funds at the Madison Police Department ("MPD"), and who decided to speak up as a town resident and taxpayer. According to the Defendants, this case was brought by a complaining, often insubordinate probationary officer who thought she knew better than her superiors how to run the Department.

The department had a budget shortfall, so Ricciuti on her own created a revised shift schedule that would save the department money. Then, the interim Police Chief asked her to research ways to modify the department schedule to please more officers and cut overtime costs. Six months later, plaintiff created an "Overtime Matrix" that focused on supervisors' schedules and matters relating to overtime pay. She shared the Matrix with people both inside and outside the department, including friends and family, local public officials and the local gadfly. The Chief then investigated Ricciuti for alleged misconduct and she was eventually fired.

Garcetti junkies might say this case will be dismissed because the Chief initially asked plaintiff to look into ways to save money on overtime. That would make her speech work-related and therefore unprotected. But the district court does not see it that way.

First, while Chief Nolan "commissioned" Ms. Ricciuti's initial research into MPD scheduling, the matrix had a different focus—supervisors and their schedules—and was made almost entirely on Ms. Ricciuti's own time and on her  own initiative. Second, Ms. Ricciuti discussed the matrix with co-workers at the MPD as well as with her family, a family friend, local officials, and even a concerned citizen who was preparing to appear at a Police Commission hearing. Talking politics with co-workers and preparing questions to be asked at a town meeting undeniably count as the kinds of activities engaged in by "regular citizens." Finally, the parties here sharply dispute the issue of whether Ms. Ricciuti spoke pursuant to her employment duties.

The district court does not want to broadly apply Garcetti. In Weintraub v. Board of Education, 2010, the Second Circuit said that speech is pursuant to the employee's job duties if it is "part and parcel" of his ability to perform his job. Judge Kravitz limits that holding: "Were 'part-and-parcel' to encompass all speech that aims to improve a government employee's workplace—thereby helping the employee carry out her core duties there—everything that employees say relating to their work would end up falling outside the First Amendment's protections. This would fly in the face of the Supreme Court's repeated reminders that government employees' speech is often most valuable when it concerns a subject they know best: their jobs." Scheduling was not Ricciuti's job, and in any event she went outside the workplace with her speech, one of the few ways people can distinguish Garcetti these days.

This case is a good primer not only on Garcetti but Mt. Healthy causation, Pickering balancing and qualified immunity. These concepts are well-known to lawyers who handle cases like this. On Mt. Healthy causation, the court says that plaintiff might not have been insubordinate in refusing to sign a counseling memo since the memo itself may have been a retaliatory act:

If the MPD's investigation of Ms. Ricciuti and the resulting Performance Plan were forms of retaliation against Ms. Ricciuti's protected speech -- as hotly disputed evidence in the current record suggests—then Ms. Ricciuti's refusal to sign the Performance Plan could not have constituted an independent, non-retaliatory justification for her termination. The proposed Performance Plan itself required Ms. Ricciuti to cease engaging in the speech at issue here. A government employer that fires someone for refusing to acquiesce in her own silencing cannot then go on to say that the cause of the termination was insubordination, not speech.

A reasonable jury could conclude on the evidence currently before the Court that had the MPD never learned of Ms. Ricciuti's protected speech, the whole chain of events that led to her insubordination would have never occurred. Similarly, a jury might find that the legitimate concerns about Ms. Ricciuti offered by the Defendants were pretextual, or were not weighty enough to have led the MPD to fire her. In the end, too much is disputed or unknown at this point about what went on at the meeting on May 7 and at the Police Commission meeting that followed.

The qualified immunity discussion is also interesting, because the district court notes there is a split among Second Circuit judges about how to determine if the defendants' actions were objectively reasonable sufficient to make them immune from suit. The Supreme Court says the law has to be clearly-established for the plaintiff to get around qualified immunity, but some Second Circuit cases (and not others) say that the defendant also gets immunity if his actions were objectively reasonable. Most recently, the Second Circuit said in Nagle v. Marron, 663 F.3d 100 (2d Cir. 2011), that "an official who violates clearly established law necessarily lacks an objectively reasonable belief that his conduct was lawful." While this language conflicts with other Second Circuit pronouncements on qualified immunity (and is more favorable to plaintiffs), the district court here follows it as the most recent case on qualified immunity. The case thus goes to trial.

2d Circuit quietly applies Amended ADA retroactively

In 2008, Congress amended the Americans with Disabilities Act to overturn Supreme Court decisions that had narrowly applied the statute. The Americans with Disabilities Amendments Act (ADAAA) took effect on January 1, 2009. Among other things, the ADAAA broadens the definition of who is "disabled" under federal law, making it easier for plaintiffs to win their cases. No court has applied the ADAAA retroactively ... until now.

The case is Hilton v. Wright, decided on March 9. I have summarized the case at this link. Briefly, Hilton was an inmate in state prison. He was diagnosed with Hepatitis C virus and wanted treatment at the jail. Dr. Hilton would not provide Hilton that treatment, so Hilton sued in federal court under the Eighth Amendment (cruel and unusual punishment) and the Americans with Disabilities Act. The Second Circuit vacated summary judgment because the district court issued a cursory decision that did not fully explain why plaintiff was not entitled to a trial.

In ordering the district court to resolve the motion again, the Second Circuit provided some guidance on remand, ruling that the ADAAA, not its predecessor, governs this case. As I wrote in yesterday's summary of the case,

Hilton also sues under the Americans with Disabilities Act. The Court says that under the old ADA, Hilton probably does not have a "disability" under the law, because "to avail himself of the 'regarded as' prong of the definition of 'disability' [Hilton] needed to show that he was perceived as both 'impaired' and 'substantially limited in one or more major life activity.'" Thus, "under the old regime, Hilton could survive summary judgment on his ADA claim only if he could raise a genuine issue of material fact about whether Dr. Wright and/or DOCS regarded him personally as being substantially limited in a major life activity. The record is devoid of any such evidence."

The ADA Amendments Act (ADAAA) changes the legal standard, making it easier for plaintiffs to win their cases. Under the new law, which applies to Hilton's case, "An individual meets the requirement of 'being regarded as having such an impairment' if the individual establishes that he or she has been subjected to an action prohibited under this Act because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity." The difference between the new ADA and the old ADA is that to prevail under a "perceived as disabled" claim, the plaintiff need only show that the defendants believed he had an impairment, even if that impairment does not impair a major life activity.

This lawsuit was filed in 2005, so the Complaint does not raise any events post-dating January 1, 2009. The question in this case is whether DOCS violated Hilton's rights under federal disability law when Dr. Wright denied him treatment in 2005. Yet, the Court of Appeals expressly applies the ADAAA, which took effect four years later. The Second Circuit (Winter, Pooler and Hall) does not address whether the ADAAA has retroactive effect (and does not acknowledge cases from around the country that go the other way on this issue), but in applying the Amended Act, the Court is in fact applying it retroactively. This is significant, because no court, to my knowledge, has held the ADAAA has retroactive effect.

In 2009, a Southern District of New York judge noted, "Primmer acknowledges that all courts, in this Circuit and elsewhere, that have addressed the question of whether the ADAAA applies retroactively to claims filed before its effective date have answered in the negative." Primmer v. CBS Studios, Inc., 667 F. Supp. 2d 248, 257 (S.D.N.Y. 2009) (citing, inter alia, Lytes v. DC Water & Sewer Auth, 572 F.3d 936 (D.C. Cir. 2009); Milholland v. Sumner County Bd. of Educ, 569 F.3d 562, 567 (6th Cir. 2009)). And, in Villanti v. Cold Spring Harbor Cent. Sch. Dist., 733 F. Supp. 2d 371, 377 (E.D.N.Y. 2010), a judge noted that "While the Second Circuit has not yet addressed this issue in a published decision, it has held in multiple summary orders that the ADAAA does not apply retroactively. ... Moreover, other federal district and circuit courts have held almost universally that the ADAAA does not apply retroactively. ... The Court finds these cases to be persuasive. The ADAAA contains no language indicating that it applies retroactively, and it would work an injustice on parties to be held liable for conduct that they would have reasonably believed at the time was in compliance with the law."

So the question is, did the Second Circuit inadvertently apply the ADAAA retroactively? I doubt it. This case was argued in March 2011; the Court had a long time to think about this. It also noted that the parties did not brief this case under the ADAAA. That did not stop the Court of Appeals from resolving this case under the ADAAA anyway. 

Second Circuit weighs in on ADA Amendments Act

The Court of Appeals has sent a prisoners' rights case back to the district court to clarify why the judge dismissed the case on summary judgment. In doing so, the Second Circuit (for the first time) provides an extended look at the recently-enacted Americans with Disabilities Amendments Act, which took effect in 2009.

The case is Hilton v. Wright, decided on March 9. Hilton is an inmate with Hepatitis C virus. The state prison system had a treatment program for this, but defendant Dr. Wright disallowed treatment because Hilton had used drugs in the past and therefore needed to enroll in a substance abuse program. Hilton was ineligible for the program, however, because he would not be in prison long enough to complete the program. After Hilton complained to prison medical staff about the Hepatitis symptoms, Dr. Wright again considered whether to allow him to undergo antiviral treatment, but he again disallowed it, concluding that Hilton would not benefit from treatment. Hilton eventually got treatment after he filed the lawsuit.

The district court's grant of summary judgment was too cursory, the Second Circuit (Hall, Winter and Pooler) says, and for that reason the case is remanded for clarification. This is what the Court of Appeals wants to know:

 (1) why, given the evidence on the record, there is no genuine issue of material fact about whether Dr. Wright is entitled to qualified and immunity, and (2) why there is no genuine issue of material fact about whether the doctor's conduct violated the Eighth Amendment.

The Court of Appeals tips its hand on these issues, though, suggesting "there may well be genuine issues of material fact." While everyone agrees that Hilton had a serious medical condition (a necessary requirement for a deliberate indifference claim), the disputed issue is Dr. Wright's subjective recklessness in denying him the antiviral treatment. As the Court of Appeals frames the issue, "what did Dr. Wright know about how long Hilton's treatment had been delayed and what did Dr. Wright know about the likely medical consequences of such a delay?"

Hilton also sues under the Americans with Disabilities Act. The Court says that under the old ADA, Hilton probably does not have a "disability" under the law, because "to avail himself of the 'regarded as' prong of the definition of 'disability' [Hilton] needed to show that he was perceived as both 'impaired' and 'substantially limited in one or more major life activity.'" Thus, "under the old regime, Hilton could survive summary judgment on his ADA claim only if he could raise a genuine issue of material fact about whether Dr. Wright and/or DOCS regarded him personally as being substantially limited in a major life activity. The record is devoid of any such evidence."


The ADA Amendments Act (ADAAA) changes the legal standard, making it easier for plaintiffs to win their cases. Under the new law, which applies to Hilton's case, "An individual meets the requirement of 'being regarded as having such an impairment' if the individual establishes that he or she has been subjected to an action prohibited under this Act because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity." The difference between the new ADA and the old ADA is that to prevail under a "perceived as disabled" claim, the plaintiff need only show that the defendants believed he had an impairment, even if that impairment does not impair a major life activity.

Many ADA cases died on the vine under the old ADA when plaintiffs claimed they were discriminated against because of a perceived disability. The new ADA changes that. The parties in this case may not have been aware of the new standards. The Second Circuit overlooks that, probably because the law is the law whatever the parties think it is, or was. The Court writes:

Although both parties thought that Hilton needed to demonstrate that the defendants regarded him as being substantially limited in a major life activity, it is clear that he was only required to raise a genuine issue of material fact about whether Dr. Wright and/or DOCS regarded him as having a mental or physical impairment. Hilton was not required to present evidence of how or to what degree they believed the impairment affected him.

On remand, the district court has to review this claim along with the Eighth Amendment claim.