District court grants plaintiffs judmgent as a matter of law in speech retaliation case

A federal judge has vacated a defense verdict and found as a matter of law that public employees suffered workplace retaliation in violation of the First Amendment. This is the rare case where a plaintiff wins such a retaliation case, and where the trial court overrules a jury verdict in favor of the employer on a post-trial motion.

The case is Cole-Hatchard v. Tower-Bernstein, issued by Judge Vratil (visiting from the federal court in Kansas) on May 22. The plaintiffs work for the Rockland County Probation Department. They sent a letter to the County Legislature complaining about matters of public concern. As the district court stated in a prior ruling, "the letter was intended to address the effect of the proposed relocation on (1) the Probation Department’s capacity to meet the needs of the population which it serves; (2) probationers’ ability to report to the proposed relocation and the impact on probation violations; (3) coordination between the Probation Department and other criminal justice agencies; and (4) County revenue."

The employer then issued a Memorandum of Warning, which explicitly stated it was in response to the plaintiffs' protected speech. The only issue at trial, then, was whether the Memorandum of Warning was an "adverse action" under the First Amendment. We define adverse actions as any employer response to speech that would dissuade a reasonable person in the plaintiff's circumstances from speaking out as a citizen. The jury said the Memorandum was not an adverse action. On the post-trial motion filed by plaintiffs, the trial court disagrees, and the plaintiffs win.

The district court says the memo would dissuade reasonable employees from speaking out again because it said that "further communications of this nature may result in disciplinary action taken against you." The defendant called an emergency meeting to reinforce that point. This reprimand "is a textbook example of adverse action," the district court states, citing Phillips v. Bowen, 278 F.3d 103, 109 (2d Cir. 2002), and Zelnik v. Fashion Institute of Technology, 464 F.3d 217, 225-26 (2d Cir. 2006), and several other cases, for that proposition.

Defendants argued in part that the memo was not serious enough to deter reasonable employees from speaking out, and that plaintiffs had job security and were therefore able to speak out without fear of reprisal. The district court does not see it that way, stating that "nothing in the evidence suggested that plaintiffs . . . were fragile snowflakes who were lacking in 'ordinary firmness,' that they enjoyed such extraordinary job security as to be invulnerable to the explicit threats and reprimands which they have received from Tower-Bernstein or that they 'knew' they could disregard the Memorandum of Warning and as constituents, speak freely to the Legislature." The real issue is how this memo would impact a reasonable employee; plaintiffs testified that they knew they were taking a risk in sending the protest letter, and that they they did not want to lose their jobs.

Dual plaintiffs in false arrest claim: one has a case, the other does not.

This case tells us that qualified immunity is a real issue for false arrest plaintiffs, but that this immunity can be overcome. We have two plaintiffs here. One is allowed to proceed with her case, but the other case is dismissed for good.

The case is Creese v. City of New York, a summary order issued on May 27. It all started in a bar. We'll start with the losing plaintiff, Janeka Creese, a bartender who was arrested after an officer determined that she had served an underage drinker. The facts are as follows: she was working as a bartender when officer Martinez approached the bar area and N.D., while holding a cup of alcohol, told Martinez that he was not old enough to drink. These facts allowed Martinez to reasonably believe that Janeka had served N.D., even though I am pretty sure Janeka denies serving N.D. The qualified immunity gives the police some slack when the facts could reasonably be interpreted either way. So, while in hindsight Martinez may have been wrong, under qualified immunity, he is free from liability because, in the court's judgment, he acted reasonably under the circumstances. We call this "arguable probable cause," which is another way of saying the officer had an objective basis to find the defendant had broken the law.

Janeka's malicious prosecution claim was also dismissed by the district court. The Court of Appeals agrees that there is no malicious prosecution claim. That claim is distinct from false arrest, which provides for damages until the time of arraignment. Post-arraignment, a baseless prosecution brings you to a new claim. Hence, malicious prosecution. Janeka loses because there was probable cause to arrest; that's a defense to the malicious prosecution claim. Plus, the police found additional evidence to support their belief that plaintiff was guilty: a sworn statement from another underage drinker, B.A., that appeared to identify Janeka as the bartender who had served him.

While Janeka has no case on the docket, her co-plaintiff survives, as the Court of Appeals (Walker, Lynch and Sullivan) reinstates her false arrest lawsuit. This is because we have a factual dispute that a jury must resolve, not a court on a motion for summary judgment. Defendants say another drinker, B.A., identified Debra as the person who served him alcohol at the bar. But, at deposition, N.D. denied saying this. In addition, Martinez did not document B.A.'s identification of Debra at the time of the arrest. All of this evidence could undermine Martinez's account of what happened and lead a jury to find in her favor on the false arrest claim.

George Washington Bridge traffic-blockers are off the hook

This was a creative but dastardly way to punish the mayor of a New Jersey city for not backing the reelection campaign of New Jersey Governor Chris Christie. His assistants decided to close the traffic lanes on the busiest bridge in the country, tangling traffic in Fort Lee in a way that people are still trying to recover from, seven years later. This ruined Christie's political career and landed his associates in serious criminal trouble. The convictions are now overturned.

The case is Kelly v. United States, issued by the Supreme Court on May 7. Everyone knows that what the governor's people did was wrong, even despicable. Ever sit in traffic in Fort Lee (or anywhere else) for two (or more) hours? The defendants bragged about the bridge-closure, which fouled everything up on the first day of school, and an ambulance struggled to reach a heart attack victim. Writing for the unanimous Court, Justice Kagan refers to them as the "cast of characters." She notes that Christie "wanted to notch a large bipartisan victory as he ramped up for a presidential campaign." Little did Christie know that corruption far greater than this would be necessary to be elected president. Gov. Christie was not charged, but he suffered his own humiliation in being deemed too currupt to work in the Trump administration. The traffic tie-up must have seemed like a good idea at the time, and it certainly was a Jersey thing to so. But it was not illegal, the Court says.

The fraud statute under which the defendants were found guilty requires that the defendants commit property fraud. The wire fraud law makes it a crime to effect "any scheme or artifice to defraud, or for  obtaining money or property by means of false of fraudulent representations, or promises." This means that much dishonesty is not covered under the statute, which further means the states have to deal with things like this, not federal prosecutors.

The government tried to defend the convictions by arguing that the defendants lied about a fictional traffic study as an excuse to close the bridge lanes. This scheme would obtain the Port Authority's money or property by taking control of the bridge lanes and depriving the PA of money to pay traffic engineers and toll collectors who performed the work of reallocating the bridge lanes. The Court disagrees, conceding that this realignment was a classic exercise of governmental regulatory power, which cannot by definition constitute an effort to appropriate governmental money. That was not the objective of the scheme, however; the point was to retaliate against the mayor of Fort Lee. The appropriation of governmental money was incidental to the bridge-closure. Bottom line, as Justice Kagan writes, "Not every corrupt act by state or local officials is a federal crime."

It's tough to upset the trial court's factual findings on appeal

This case involves a plaintiff who claimed his employer failed to pay him minimum wages and overtime under the Fair Labor Standards Act. All sides appeal. Plaintiffs argue the district court (which held a bench trial) did not award enough money, and defendants claim the trial court made unrelated errors. The Court of Appeals rejects both appeals, and the verdict stands.

The case is Li v. Chinatown Take-Out, Inc., a summary order issued on May 7. First things first: the Court of Appeals (Calabresi, Wesley and Sullivan) restates the established rule that, even in bench trials, factual findings are rejected on appeal only if the appellate court deems them "clearly erroneous," which is the Mount Everest of appellate review standards.

While plaintiffs claim the district court got it wrong in holding that they did not work certain hours for which they sought damages for non-payment of wages, the trial court was entitled to credit Defendants' testimony over Plaintiffs' recollection and determine that as to these issues, "Plaintiffs' testimony did not sufficiently show the amount and extent of their claimed work." Similarly, Defendants did not bother with nuance in arguing that the plaintiffs' testimony was so "totally unbelievable . . .  that it was unreasonable for the court to accept any of their testimony," including their claim that defendants did not pay them. This argument will not work in the Court of Appeals. Claiming that someone's testimony was too unbelievable to support a judgment is over the top, and since that argument includes the word "believable," we are getting into credibility territory which is for the trial court and the trial court alone. The trial court can believe whatever witnesses it wants, and it can even credit an admitted perjurer over a busload of nuns. When it comes to credibility, the trial court is where the action is.

As for the damages, similar analysis. Defendants claim that the trial court miscalculated them. Under federal and state labor laws, the plaintiffs get 1.5 times the amount of pay for overtime if they work more than 40 hours a week. Defendants argue that the court should have divided the weekly wage by 48, the number of hours it found the plaintiffs worked. But the Court of Appeals says that defendants did not offer credible evidence of an agreement or understanding that the plaintiffs' wages were intended to compensate more than 40 hours per week.

Another Occupy Wall Street free speech case bites the dust

Remember Occupy Wall Street? I do. It was fall 2011. I stopped by Zuccotti Park to say hello and walk around after I argued an appeal at the Second Circuit. I remember the endless drumming which echoed in the canyons of Wall Street. For about three weeks, income inequality was on the agenda. That movement has lost steam, but the lawsuits arising from Occupy are still winding through the courts. Most of the plaintiffs lose these cases on free speech grounds, and this case is no different.

The case is Meyers v. City of New York, a summary order issued on April 30. Plaintiffs claim the police violated the First Amendment in ordering them to disperse after they set up tents and lived in the parks. According to the decision, these living arrangements posed a hazard because protesters violated the sanitation laws and people were using gasoline and diesel generators near large quantities of flammable materials.

The case was dismissed, and the Court of Appeals keeps it that way. The police had probable cause to arrest the plaintiffs for disorderly conduct after they refused to leave the park. "The City had a legitimate interest in ensuring that the Park remained accessible to all members of the public -- most just the protesters -- and free of congestion." The City also had a legitimate reason to clear the Park of unlawful structures. While disorderly conduct requires proof that the public may be inconvenienced, "even in the early morning, it was entirely reasonable for the arresting officers to assume that nearly 150 protesters refusing to leave a public area in downtown Manhattan would risk 'public inconvenience."

Plaintiff also claim they suffered a retaliatory arrest. To win this claim, they have to get around the "time, place and manner" rules that allow the police to throw people out of a public forum if the directive is content-neutral, narrowly tailored to serve a significant governmental interest and allows the protesters "ample alternative channels of communication." This stems from Supreme Court authority that, in my experience, gives the government significant leeway to regulate public spaces. Plaintiffs lose on this claim because the eviction was not based on content, even if the protesters were the only ones who were actually kicked out. The order also promoted significant governmental interests in preventing mounting fire hazards and congestion. As for the ample alternatives, "the protesters were free to exercise their rights in any other public area within the vicinity of the Park (or even to return to the Park after it was cleaned").

2d Circuit upholds large verdict in sexual harassment and retaliation case

The Court of Appeals has upheld an employment discrimination judgment in the amount of $2.88 million in favor of a female civilian teacher at Attica Correctional Facility who suffered discrimination, retaliation and sexual harassment at work.

The case is Small v. Cuer, a summary order issued on May 7. This case originated in the Western District of New York. The jury awarded plaintiff $7 million but the trial court reduced that amount on remittitur. The defendant who appealed, Cuer, was hit with a $3.85 million judgment, which the district court reduced significantly, still leaving the plaintiff with close to $2.88 million against this defendant, a correction officer who became obsessed with plaintiff and made explicitly sexual comments toward her. In particular, defendant told plaintiff that God wanted her to succumb to his unwanted advances. The jury found that the jail did not effectively remediate this harassment, and Cuer eventually retaliated against plaintiff for resisting his advances and complaining about him. Plaintiff eventually stopped coming to work and exhausted her sick leave. DOCCS fired her.

The Court of Appeals (Lohier, Park and Bianco) does not provide much detail about this case, but the district court ruling does, at 2019 WL 1593923 (W.D.N.Y. April 15, 2019). The district court held that plaintiff was entitled to substantial damages for pain and suffering, as proven through testimony from her expert witness and treating psychologist. While the jury awarded plaintiff $1.55 million in pain and suffering, and the trial court said these damages "had a significant overall impact on Small's psychological and physical health" (including PTSD, major depressive disorder, sleep phobia, etc.), as the discrimination lasted months and not years, that amount shocks the conscience under federal law. The trial court reduced that amount to $500,000. The court cited comparable cases in support of this reduction, including Chopra v. General Electric, 527 F. Supp. 2d 230 (D. Conn. 2007), and Ramirez v. New York City OTB, 112 F.3d 38 (2d Cir. 1997).

The district court ruling is not clear about this, but it looks like the jury found that plaintiff was constructively discharged. Hence, the large damages award for lost wages. Constructive discharge claims are difficult to win in the Second Circuit, as the plaintiff must show the discrimination was so egregious that a reasonable person would have no choice but to resign. But it does not look like defendant challenged that portion of the verdict post-trial. He did challenge the punitive damages award, which was $50,000. But the district court found that that amount did not shock the conscience, as (1) the discrimination was reprehensible; and (2) the amount is not disproportionate to the compensatory damages award (and only a fraction of that award, not a multiple of it).

No ineffective assistance where counsel told the jury his client paid to have someone shot in a contract killing

Picture this: you are on trial, charged with conspiracy for murder-for-hire, or contract killing. You are in federal court, and if you are found guilty, you will be sentenced for life. You eagerly await your attorney's summation, when he is expected to tear apart the government's case against you because the government is relying on liars and turncoats to prove your guilt. Your attorney looks the jury in the eye and says you hired individuals to shoot the victim, but you did not intend for the victim to be killed. Wait, what?!?

The case is United States v. Rosemond, issued on May 1. The jury found defendant guilty of conspiracy to commit murder-for-hire. Hence, this appeal, claiming the trial lawyer was ineffective in violation of the Sixth Amendment and that he violated the defendant's Sixth Amendment right to autonomy.

The lawyer allows for criminal lawyers some discretion in litigating their cases. It is therefore quite difficult to win ineffective assistance appeals. In addition to that, the Supreme Court in the last term clarified the "right to autonomy" in United States v. McCoy, holding that criminal defendants have the right "to make fundamental choices about [their] defense," including whether to persist in maintaining their innocence "even in the face of overwhelming guilt." So how does all of that play out when a lawyer tells the jury in a contract killing case that his hired people to shoot the victim but not to kill him?

Defendant, a prominent rap music mogul, loses the appeal. On the ineffective assistance of counsel argument, the Second Circuit (Sack, Chin and Bianco) reaffirms that trial lawyers can make strategic choices, including whether to concede an element of the crime. This is "sound trial strategy" when he attorney does not concede his client's guilt. or when there is overwhelming evidence against the client. The same holds true on the right to autonomy, though it is the defendant's prerogative to decide on the objective of his defense. The court holds that "conceding an element of the crime while contesting the other elements falls within the ambit of trial strategy." While defendant and his attorney shared the same objective, acquittal, counsel never conceded his client was guilty of the charged crime. This was a strategic concession. Of course, counsel conceded an important element of the crime, that defendant hired people to shoot the victim. But, the Court of Appeals says, that does not mean counsel conceded that defendant hired people to kill the victim.

The Second Circuit notes that defendant, in support of his motion for a new trial, sad he dd not want his lawyer to tell the jury that he paid to have the victim shot. But he also said in this motion that he would have preferred his counsel tell the jury that he paid for a kidnapping so he could confront the victim face to face. "Had Rosemond asserted his right to autonomy to prevent his attorney from conceding any crime because of the 'opprobrium' that accompanies such an admission, his argument might carry greater weight. It loses its thrust, however, when he picks and chooses which crime he is comfortable conceding."