Unnecessary strip-search in local police station may have been unconstitutional

This can happen to you. One day, the plaintiff, a 67 year-old property owner, was sitting on a bus on his way to Elmira when the police showed up, escorted him off the bus thanks to an outstanding warrant, and took him to the police station. The warrant was for an alleged property violation: operating a structure unfit for human occupancy. These violation related to his home. At the police station, plaintiff says, he was strip-searched for no apparent reason, and law enforcement delayed releasing him for two hours even though his girlfriend showed up with the bail money.

The case is Murphy v. Hughson, issued on September 21. He sues over the strip-search and the release delay. The district court dismissed the case, holding that a Supreme Court ruling from 2012 gave prison officials more leeway in strip-searching detainees, and the court further held the release delay was nonactionable because it did not shock the conscience under due process jurisprudence. The Court of Appeals reverses.

For many years, the Second Circuit had held that misdemeanor detainees cannot be strip-searched without reasonable suspicion that they pose a threat to someone. But in 2012, deferring to the expertise of prison officials, the Supreme Court held in Florence v. Board of Freeholders, that "a blanket policy of conducting visual body cavity searches on new inmates is constitutional, even for misdemeanor detainees where there is no reason to suspect the arrestee would have contraband." Florence abrogated some Second Circuit case law on strip searches, the Second Circuit says, but some Circuit law survives Florence because Florence does not speak to cases like this, where the plaintiff is not challenging a prison policy but instead sues over an individual officer acting on his own whim and contrary to established jail policy.

See what the Court of Appeals did here? It found a way to hold that Supreme Court authority does not apply to this particular case. Murphy found a way around Florence because the facts of his case are different from the facts in Florence. And that, ladies and gentlemen, is good lawyering.

If the jury credits plaintiff's testimony, the jail officer acted on his to strip search plaintiff, and he humiliated plaintiff in doing so. Also, under plaintiff's version of events, there was no reason to think that plaintiff posed any contraband or safety risk. He was only arrested on a property violation.

What about the delayed release from the police department after plaintiff's girlfriend showed up with the bail money? It looks like plaintiff had to wait two additional hours. Under substantive due process cases, plaintiffs cannot win unless the governmental action shocks the conscience, an unusually difficult burden of proof. The Court of Appeals says this is a close case, but it holds this case can go to trial as (1) he did have to wait two hours, and (2) the strip search was humiliating and unnecessary. 

Court of Appeals upholds six-figure sexual harassment verdict

The plaintiff in this case sued her employer, a dentist, for sexual harassment. The jury ruled in her favor, awarding her $10,000 in compensatory damages and $100,000 in punitive damages. The Court of Appeals affirms the verdict.

The case is Champagne v. Columbia Dental, P.C., a summary order issued on September 18. The appellate ruling and trial court decision on the post-trial motions do not detail the nature of the harassment evidence at trial, but the trial court in its post-trial ruling did summarize the allegations in the complaint (Stanko was the employer-dentist):

Stanko threw and punched items in the office, and yelled and cursed during the course of Plaintiff's employment. He also addressed Plaintiff as his ‘hot assistant’ and his ‘daytime wife,’ and massaged her shoulder several times. He engaged in arguably misogynistic conduct, namely forcefully grabbing her hand to force a tube into a patient's mouth, and jamming a drill into her hand, puncturing her glove, and angrily telling her to hold it in place. Plaintiff complained to district manager Ochrim who did not address or attempt to remedy the issue. Plaintiff told Ochrim that because of Stanko's behavior, she could not go back to work with him. In response, Ochrim advised Plaintiff that if she did not work with Stanko then she would not have a job. On another occasion, Plaintiff complained and Ochrim focused on her parental status responding, ‘ok, but it's a job’ and ‘you do have kids.’ Plaintiff mentioned to other employees that because of Stanko's conduct her ‘anxiety was through the roof.’

The trial court noted that, while each incident, by itself, might not have been enough to violate Title VII, in the aggregate plaintiff has a hostile work environment claim. Remember, sexual harassment cases require the trial court and the jury to view the workplace environment as a whole in determining whether the plaintiff endured sexual harassment.

On appeal, the dental practice argues that the trial court made bad evidentiary rulings that compel a new trial. Central to the appeal is Exhibit 5, consisting of medical records from plaintiff's visit with a nurse practitioner, whom plaintiff consulted for anxiety. It is quite difficult to get a new trial on the basis of an evidentiary challenge on appeal. Trial judges have significant discretion to rule on evidence, and nobody gets a perfect trial.

Defendant argues that under Rule 26, plaintiff failed to identify the nurse as an expert or provided a summary of the facts and opinions upon which she would testify. Not quite, says the Court of Appeals (Raggi, Lohier and Carney), which rules that the nurse was called as a trial witness solely to authenticate the medical records. Under the hearsay rules, you can admit medical records at trial if someone tells the jury the records are authentic. The nurse was not called as an expert witness; she only testified to show the records were legitimate.

Stanko threw and punched items in the office, and yelled and cursed during the course of Plaintiff's employment. See [Dkt. 15 at ¶¶ 19-20]. He also addressed Plaintiff as his ‘hot assistant’ and his ‘daytime wife,’ and massaged her shoulder several times. He engaged in arguably misogynistic conduct, namely forcefully grabbing her hand to force a tube into a patient's mouth, and jamming a drill into her hand, puncturing her glove, and angrily telling her to hold it in place. Id. at ¶¶ 21-22 & 30. Plaintiff complained to district manager Ochrim who did not address or attempt to remedy the issue. Id. at ¶¶ 40-41. Plaintiff told Ochrim that because of Stanko's behavior, she could not go back to work with him. In response, Ochrim advised Plaintiff that if she did not work with Stanko then she would not have a job. Id. ¶ at 29. On another occasion, Plaintiff complained and Ochrim focused on her parental status responding, ‘ok, but it's a job’ and ‘you do have kids.’ Id. at ¶ 43. Plaintiff mentioned to other employees that because of Stanko's conduct her ‘anxiety was through the roof.’ Id. at ¶ 32.

Champagne v. Columbia Dental, P.C., No. 3:18-CV-01390 (VLB), 2022 WL 168967, at *1 (D. Conn. Jan. 19, 2022)

Angry Trump supporter is convicted of making murderous threats following 2020 election

You get the feeling that a case like this would never have happened 10 years ago. The defendant in this case was arrested for making public threats against public officials after Donald Trump lost the 2020 presidential election. The jury convicted him of threatening to kill a member of Congress, and the trial judge sentenced him to 19 months in prison. The Court of Appeals affirms the conviction and the sentence and further holds the trial court did not violate the Sixth Amendment in closing the courtroom during trial to deal with the COVID-19 threat.

The case is U.S. v. Hunt, issued on September 20. Defendant was enraged that Trump lost the election. "He questioned the legitimacy of the vote count and condemned 'deceitful leftists' as 'domestic terrorists and enemies of our constitutional republic . . . [who] will be dealt with one way or another.' Beginning in late November 2020, Hunt made threats on various social media platforms against prominent elected officials, including House Speaker Nancy Pelosi, Senate Majority Leader Charles Schumer, and Congresswoman Alexandria Ocasio-Cortez." What got defendant convicted was something he said on BitChute a YouTube-like video sharing platform. He said:

Hey guys, so we need to go back to the U.S. Capitol when all of the Senators and a lot of the Representatives are back there and this time we have to show up with our guns and we need to slaughter these motherfuckers . . . . If anybody has a gun, give me it. I will go there myself and shoot them and kill them. We have to take out these Senators and then replace them with actual patriots.

He also said, "lets go, jan 20, bring your guns," and “everyone should come to Washington, D.C. on January 20th wearing masks and camo, concealed carry, body armor and just blast them all away while we still have a chance,” and “[t]here are really only a hundred of these weakling Senators. . . . Every single one of them just needs to go.” In a post-January 6 world, comments like this are not that surprising. But they are still illegal. The jury found defendant guilty, and the Court of Appeals (Walker, Parker and Bianco) affirms, holding that these comments represent "true threats" and are there exempt from First Amendment protection. The Court of Appeals reasons:

Hunt emphatically stated his own violent intent. Using the first person, he said: “we have to show up with our guns,” “we need to slaughter these moutherfuckers,” and “I will go there myself and shoot them and kill them.” He also reiterated his seriousness in replies to comments posted to the video and in two follow-up videos. Circumstances surrounding the video are relevant as well.  

Hunt posted the BitChute video two days after a mob violently  attacked  the  U.S.  Capitol  in  an  attempt  to  prevent certification of the 2020 presidential election. In this context, a reasonable person could conclude that Hunt was serious when he said that “we need to go back to the U.S. Capitol.” We have no difficulty concluding that the jury reasonably found that Hunt’s BitChute video constituted a true threat to assault or murder.

The other issue here is the partial courtroom closure. Under the Sixth Amendment, courtrooms must be open to the public. Every now and then, you see an appellate court awarding a criminal defendant a new trial because the trial judge closed the courtroom without sufficient justification. This case went to trial during the COVID crisis, and the trial court said the defendant's father and other spectators could watch the trial in a different room through an internal video link. Under the "plain error" standard of review (as defendant did not object to this during trial), the trial court did not violate the Sixth Amendment because it (1) advanced the public interest in limiting the spectator crowd during a pandemic, (2) the restriction was narrowly tailored as the closure excluded everyone was excluded from the courtroom (which allowed the jury to spread out in the spectator section of the courtroom), (3) and the trial court told the jury not to hold it against defendant that he had no visible support in the courtroom during the trial.

No attorneys' fees despite winning preliminary injunction

This is an interesting attorneys' fees decision that says that New Yorkers who were able to force the state to allow them have a wedding ceremony at the height of the COVID-19 crisis cannot recover attorneys' fees because they technically were not prevailing parties -- even though the Northern District of New York granted them an injunction so they could proceed with the wedding.

The case DiMartile v. Hochul, issued on September 15. After the pandemic came about in spring 2020, New York restricted in-person events to 50 people for non-essential gatherings, including weddings. But other venues, including restaurants, could have more people under the state's regulations. This meant fewer people could attend the weddings. An equal protection lawsuit followed, and the NDNY issued a preliminary injunction, determining that plaintiffs had a likelihood of success on the merits and plaintiffs would suffer irreparable harm without the injunction. Thanks to the district court ruling, one of the plaintiff couples had the wedding as they had planned. The preliminary injunction process was expedited, however, and the Court of Appeals vacated the injunction on the state's emergency appeal. The appeal ultimately was dismissed as moot, as one couple had already had their wedding, and another couple decided against proceeding with the wedding while the restraints remained in place "regardless of the outcome of the appeal."

The Second Circuit held years ago (Haley v. Pataki, 106 F.3d 478 (1997)) that certain preliminary injunction rulings on the merits entitle the plaintiff to attorneys' fees, as the merits-based rulings make them a prevailing party. That is why plaintiffs in this case moved for attorneys' fees. But the district court held, and the Second Circuit agrees, that the plaintiffs are not prevailing parties based on a Supreme Court ruling, Sole v. Wyner, 551 U.S. 74 (2007), which holds that "transient" preliminary injunction rulings reached after an expedited process does not permit an award of attorneys' fees. 

What hurts the plaintiffs in this case is that the preliminary injunction process was expedited, and the Court of Appeals stayed the district court's preliminary injunction. While two of the plaintiffs actually got married in the presence of more than 50 people thanks to the preliminary injunction, they still cannot get around the fact that the Court of Appeals stay undid the injunction. The prevailing party analysis in this case, thanks to the Sole ruling from the Supreme Court, is loaded with nooks and crannies, like an English muffin. As the Court of Appeals (Livingston, Carney and Bianco) mentions in this ruling, plaintiffs' counsel actually researched this very issue while the proceedings were ongoing, perhaps unsure if they were going to recover any fees for all their work, which did after all, result in a useful victory for their clients.

Bloomberg campaign workers lose breach of contract case

These plaintiffs were hired to work on Mike Bloomberg's presidential campaign in 2020. That campaign crashed and burned long before Election Day, however. What the campaign ended prematurely, the campaign stopped paying plaintiffs. They sue for fraudulent inducement and promissory estoppel.

The case is Cordova v. Mike Bloomberg 2020, a summary order issued on September 19. There are 50 plaintiffs in this case. Recall that Bloomberg ran for president in 2020 to take on another New York City businessman, Donald Trump. Bloomberg thought his tenure as New York City mayor were impressive enough to win the Democratic Party nomination. Democratic Party voters rejected Bloomberg and the campaign workers were let go when the campaign ended.

"Plaintiffs allege that Defendants recruited them to the job by promising employment through November 2020, but reneged on that promise when the Campaign dismissed Plaintiffs shortly after Bloomberg withdrew from the race in March of 2020." This case was dismissed under Rule 12(b)(6), which allows the trial court reject any case pre-discovery if it fails to assert a cause of action. The Court of Appeals agrees this case cannot proceed beyond the pleading stage. 

Under the fraudulent inducement and promissory estoppel theory, the plaintiff must show they reasonably relied on a representation or promise to their detriment. The Court of Appeals says plaintiffs cannot assert such a claim because, without an employment contract, New York is an at-will employment state, which means you can be fired or let go at any time for any reason so long as that reason is specifically prohibited by statute.

The Court of Appeals (Leval, Chin and Perez) observes that plaintiffs are reframing their theory of liability, but that effort fails. "Recasting the continued employment claim as a “specific opportunity to work on the general election for the ultimate Democratic nominee” through November 2020, does not avoid the dooming at-will language. Under these circumstances, future promises of continued employment cannot be the basis for Plaintiffs’ fraudulent inducement or promissory estoppel claims." Nor can plaintiffs argue that the campaign modified the at-will status by an oral contractual promise to provide continued employment until November 2020. Not only does the written contract of employment prohibit oral modification, but plaintiffs' offer letters also state they would be at-will employees. 

While a no-oral-modification clause may not count if the plaintiffs can show partial performance of the agreement to modify or when one party has induced the other party to rely on an oral modification, giving rise to promissory estoppel. These exceptions will not save the case, the Court of Appeals says. "Although Plaintiffs allege that they took action as a consequence of the promise of continued employment until November 2020, they point to no conduct that is 'unequivocally referable to the oral modification' or that is 'inconsistent with the agreement as written.'”

Sex discrimination claims are reinstated against Fordham University

A business professor at Fordham University has prevailed at the Second Circuit and reinstated her equal pay claim. The Court of Appeals applies a recent decision holding that equal pay claims under Title VII are not held to the strict standards guiding the Equal Pay Act.

The case is Solomon v. Fordham University, a summary order issued on September 5. This case was dismissed under Rule 12(6)(6), which means the case never reached discovery before the trial court rejected the complaint for failure to state a claim. But the district court got a few things wrong, the Court of Appeals (Calabresi, Carney and Lee) says, including rejecting certain allegations as time-barred and holding that plaintiff did not identify adequate comparators in support of her pay discrimination claim.

First, the statute of limitations. For hostile work environment claims, courts will consider allegations of sexism that pre-date the 300-day statute of limitations under Title VII. (An EEOC charge in New York must be filed within 300 days of the discriminatory act). The theory, as endorsed by the Supreme Court, is that a hostile work does not always consist of discrete acts but comments and other incidents that take place over time and often extend more than 300 days. This is settled law ever since the Supreme Court decided National R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002). But even with the older acts thrown into the equation, the Second Circuit finds, plaintiff does not have a hostile work environment claim because "her allegations concern events occurring over the course of 19 years, involving different individuals and varying kinds of incidents."

The older acts of hostility, however, allow plaintiff to proceed with her other discrimination and retaliation claims. The case returns to the district court to reconsider those claims in light of the background evidence. While that evidence may not in itself support a claim for damages, it is still relevant background evidence for purposes of determining whether plaintiff has viable discrimination and retaliation claims. 

The equal pay claim also returns to the district court. Under the Equal Pay Act, plaintiffs must show their comparators had identical jobs as the plaintiff and that they were paid more money. But equal pay claims under Title VII do not require that high-level comparison. The Second Circuit so held in Lenzi v. Systemax, Inc., 944 F.3d 87 (2d Cir. 2019). Lenzi opens the door for more equal pay claims. Here is the Second Circuit's reasoning on this claim:

The district court erred in concluding that Solomon failed to identify similarly situated comparators, and thus did not sufficiently plead an EPA claim or a Title VII claim. As discussed above, she alleged that she and the tenured male professors were paid different wages, though they had the same job responsibilities, were subject to the same evaluation standards, and were in the same practice area (Management Systems).

More proof that the City law is different from Title VII

This case demonstrates who the New York City Human Rights Law is quite different from federal employment law. If you want to bring a sexual harassment case under federal law, the harassment must be severe or pervasive. Under the City law, the plaintiff only has to show she was treated "less well" because she was a woman, and she loses the case only if the harassment was trivial. What if the plaintiff might lose her case under federal law but wants to proceed under the City law?

The case is Domingo v. Avis Budget Group, an Appellate Division ruling issued on August 30. Plaintiff lost her discrimination and retaliation claims in federal court, which dismissed those claims on a summary judgment motion. The federal court declined to exercise jurisdiction over the City law sexual harassment claim, which prompted plaintiff to refile that claim in State Supreme Court. The State Court dismissed the City law hostile work environment claim, but it did so under the federal standard. That ruling is revered by the Second Department.

Here are (at least some of) the facts as taken from the federal court ruling:

few days later, around July 10, 2017, another co-worker, Jamaal Sterling, touched plaintiff's buttocks. Plaintiff testified in her deposition that Sterling “grabbed” her buttocks, giving it “just a little squeeze.” Her affidavit in opposition to defendants’ summary judgment described the incident as a “grope.” Shocked and appalled, plaintiff ran to the restroom to escape the distressing situation. She neither confronted Sterling, nor did she feel comfortable reporting this incident to Feliz because he had previously failed to correct Roberts’ misconduct only a few days earlier, and she was afraid that she would be subject to retaliation.

Domingo v. Avis Budget Grp., Inc., No. 18-CV-5430 (BMC), 2020 WL 804898, at *1 (E.D.N.Y. Feb. 18, 2020)

Plaintiff testified in her deposition that, around July 6, 2017, a co-worker, Eric Roberts, asked her out on a date, stating that he could imagine what she “tasted like.” Feliz overheard Roberts’ inappropriate comment, but he did not reprimand him or otherwise take any corrective action. When plaintiff confronted Feliz about this, he threw his hands up in the air and told her to get back to work. As a supervisor, Feliz had a duty to report any harassment or discrimination that was brought to his attention.

A few days later, around July 10, 2017, another co-worker, Jamaal Sterling, touched plaintiff's buttocks. Plaintiff testified in her deposition that Sterling “grabbed” her buttocks, giving it “just a little squeeze.” Her affidavit in opposition to defendants’ summary judgment described the incident as a “grope.” Shocked and appalled, plaintiff ran to the restroom to escape the distressing situation. She neither confronted Sterling, nor did she feel comfortable reporting this incident to Feliz because he had previously failed to correct Roberts’ misconduct only a few days earlier, and she was afraid that she would be subject to retaliation

Domingo v. Avis Budget Grp., Inc., No. 18-CV-5430 (BMC), 2020 WL 804898, at *1 (E.D.N.Y. Feb. 18, 2020)

A few days later, around July 10, 2017, another co-worker, Jamaal Sterling, touched plaintiff's buttocks. Plaintiff testified in her deposition that Sterling “grabbed” her buttocks, giving it “just a little squeeze.” Her affidavit in opposition to defendants’ summary judgment described the incident as a “grope.” Shocked and appalled, plaintiff ran to the restroom to escape the distressing situation. She neither confronted Sterling, nor did she feel comfortable reporting this incident to Feliz because he had previously failed to correct Roberts’ misconduct only a few days earlier, and she was afraid that she would be subject to retaliation.

Domingo v. Avis Budget Grp., Inc., No. 18-CV-5430 (BMC), 2020 WL 804898, at *1 (E.D.N.Y. Feb. 18, 2020)

A few days later, around July 10, 2017, another co-worker, Jamaal Sterling, touched plaintiff's buttocks. Plaintiff testified in her deposition that Sterling “grabbed” her buttocks, giving it “just a little squeeze.” Her affidavit in opposition to defendants’ summary judgment described the incident as a “grope.” Shocked and appalled, plaintiff ran to the restroom to escape the distressing situation. She neither confronted Sterling, nor did she feel comfortable reporting this incident to Feliz because he had previously failed to correct Roberts’ misconduct only a few days earlier, and she was afraid that she would be subject to retaliation.

Domingo v. Avis Budget Grp., Inc., No. 18-CV-5430 (BMC), 2020 WL 804898, at *1 (E.D.N.Y. Feb. 18, 2020)

Remember that when the City Council enacted the New York City Human Rights Law, it wanted a more plaintiff-friendly standard for hostile work environment because it knew that "severe or pervasive," adopted by the Supreme Court in 1986, was knocking out a lot of cases involving ugly sexist and racist slurs and gestures. Here is the reasoning from the Appellate Division:

the Supreme Court erred in granting dismissal of the cause of action alleging hostile work environment pursuant to CPLR 3211(a)(5). The District Court analyzed the hostile work environment claims under the standards set by Title VII and NYSHRL, and determined that those claims were neither "pervasive" nor "extraordinarily severe." Under NYCHRL, a claimant must only prove that they were "treated less well than other employees" because of their gender. As the plaintiff's allegations of sexual harassment and improper touching could constitute "more than petty slights and trivial inconveniences" without rising to the level of being severe and pervasive, Supreme Court should not have granted dismissal of this cause of action pursuant to the doctrine of collateral estoppel.