Due process victory against upstate municipality

Do you know how hard it is to bring a due process case against a municipality? These cases often fail because under "substantive due process," the violation is not outrageous enough for the plaintiff to win. Under procedural due process, if the plaintiff could have brought an Article 78 petition in state court, the federal case might fail. Or it might not.

The case is Manza v. Newhard, a summary order decided on March 20. Manza sued the Village of Warwick, in Orange County, up in my neck of the woods. And a lovely neck of the woods it is! Litigation can cause bad feelings all around, though, which is what happened here. Manza is a landowner. He sued under the Due Process Clause, claiming that the cessation of free water service was sufficiently outrageous to implicate the substantive due process theory of liability. But the Court of Appeals (Winter, Raggi and Rakoff [D.J.]), sees it differently. This was not an outrageous denial of services because (1) the village gave plaintiff 60 days' notice "to afford the property owner an opportunity to pursue legal remedies"; (2) the village attorney (a defendant here) relied on a 1980 village attorney opinion that multiple 19th century deeds did not support free water service for this land and (3) State Supreme Court -- which ruled in Manza's favor on this issue -- said the case was "unique." So, even though Manza won in state court, a case that is "unique" cannot "shock the conscience" on this record.

Manza also sues on a procedural due process violation. The district court dismissed this claim, also, but the Court of Appeals reinstates it. True, Manza brought an Article 78, which is usually enough due process, but it only provided him with a post-deprivation remedy. Manza was also entitled to pre-deprivation process, which the Article 78 did not address. Under the Due Process Clause, the plaintiff has the right to be heard prior to the deprivation. While defendants say that Manza got pre-deprivation process in meeting with village officials before they turned off the water, the complaint and documents attached to it do not compel that finding. In fact, the major's Article 78 affidavit says that the decision to start billing Manza for water was final on December 15, 2008 and "no further administrative remedies were available to Manza in the Village of Warwick." This affidavit helps Manza, and so on the face of the complaint, he has a case.

Why did the district court get it wrong? The Court of Appeals says it was because the parties did not adequately brief the issues. "In vacating the dismissal of Manza’s procedural due process claim, we note that the district court’s brief treatment of the claim is understandable in light of the parties’ sparse briefing of the question below. Defendants’ memorandum in support of dismissal addressed procedural due process in less than a page; Manza’s opposition did not discuss the claim at all. On remand, the parties may develop this claim, and the district court may address it further as warranted."

Disability and national origin discrimination claims fail

Although Congress a few years ago amended the Americans with Disabilities Act to broaden the definition of "disability," that law is not retroactive, and cases governed by the old ADA are still percolating through the system. Those cases often fail because the plaintiff does not have a "disability" under the old law. This is one of those cases.

The case is Joseph v. North Shore University Hospital, a summary order decided on April 3. Under the old ADA, walking was a major life activity. If Joseph was substantially limited in her ability to walk, she would be protected under the statute. Her case fails. The Court of Appeals (Livingston, Lynch and Droney) says:

On de novo review of the record, we identify evidence that Joseph suffered from a bunion and pain on her toenail following surgery which prevented her from wearing stockings with closed shoes. While these symptoms caused Joseph some difficulty with walking, see 29 C.F.R. § 1630.2(i) (1991), Joseph did not adduce sufficient evidence to support a finding that she was “significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities.” 29 C.F.R. § 1630.2(j)(3)(i) (1991), superseded by 29 C.F.R. § 1630.2(j) (2011). Indeed, Joseph testified that she was not limited in performing her work duties by her foot condition.

 Joseph, who is Haitian, also brought a national origin discrimination claim. Her evidence for this was a disciplinary notice reprimanding her for speaking in her native French in violation of the hospital's policy to speak English in the office unless the employee is speaking with a patient who spoke another language. The Court rejects this case: "Joseph adduced no evidence to support her claim that other employees were permitted to speak Spanish in the workplace without being disciplined and thus no evidence that she was treated differently by the Hospital because of her Haitian origin."

You may ask whether it violates the civil rights laws to require employees to speak English in the workplace. It does not. The Second Circuit cites a 29 year-old case that says so, Soberal-Perez v. Heckler, 717 F.2d 36, 42 (2d Cir. 1983) (observing that a policy having a preference for English over all other languages is not evidence of discriminatory intent).

Boorish comments do not a sexual harassment case make

What does it take to make out a sexual harassment case? These cases rely on the totality of the evidence, making it difficult to predict when the court will grant or deny summary judgment. This case tells us when the case is too weak for a jury. The retaliation case doesn't cut it, either.

The case is Christofaro v. Lake Shore Central School District, a summary order decided on April 2. Plaintiff says that, over a seven-year period, her former supervisor, Redman:

(1) occasionally commented on Cristofaro’s physical appearance; (2) participated in a bet with three other male employees as to when Redman would be able to engage Cristofaro in sexually explicit conversation; (3) once made a non-sexual sarcastic or derogatory remark to Cristofaro in front of a colleague; (4) beckoned to Cristofaro in the halls by yelling “hey,” curling his finger in her direction, and engaging her in conversation unrelated to her work once a month for three-and-a-half years; (5) threw a piece of paper at Cristofaro in a faculty meeting; (6) lied about Cristofaro to a colleague; and (7) briefly made contact with the side of her body while standing next to her.

The supervisor may have been boorish, but he did not create a hostile work environment. The Court of Appeals (Sack, Raggi and Droney) notes that the supervisor did not touch plaintiff or ask for sexual favors. "The record indicates only limited, infrequent, and at worst, mildly offensive conduct falling well short of the severity and frequency required to raise a triable issue of fact as to the existence of an objectively hostile work environment." Other than one comment about plaintiff's physical appearance and the "sex talk" bet, the offensive conduct was not based on sex. While plaintiffs can make out a hostile work environment case, in part, through gender-neutral comments, "there must be a circumstantial or other basis for inferring that incidents sex-neutral on their face were in fact discriminatory." That's the rule in Alfano v. Costello, 294 F.3d 365 (2d Cir. 2002).

Plaintiff also claims management retaliated against her for filing a discrimination charge with the State Division of Human Rights. Plaintiff was denied a volunteer position at the school district as a dance-team advisor. In order to make out a retaliation claim, you need an "adverse action." An adverse action is something that management did to you that would dissuade a reasonable employee from complaining about discrimination. I guess the Court of Appeals does not think it's a big deal to be a volunteer dance instructor. "No reasonable employee would have been deterred from making or supporting a charge of discrimination based on Redman’s refusal to give the employee an unpaid and effectively volunteer position as co-advisor to a student dance team. Other than being denied the opportunity to volunteer as the team advisor, none of the terms and conditions of Cristofaro’s employment were altered by Redman’s decision."

Inmate wheelchair claim fails under qualified immunity

An inmate sued state prison officials under the Eighth Amendment, arguing that they were deliberately indifferent to his serious medical needs because they failed "to provide [him] a new wheelchair[,] thus forcing him to use an unsafe wheelchair while he was in custody of the New York State Department of Correctional Services." The district court denied the state's motion for summary judgment. The Court of Appeals reverses, dismissing the lawsuit.

The case is Hall v. State of New York, a summary order decided on March 27. Jail is where the bad boys go. Qualified immunity is where potentially good cases die. Qualified immunity is the doctrine that says that state defendants get the benefit of the doubt in close cases, such as where the law was not clearly established at the time of the alleged violation. In this case, the inmate, Hall,  had a defective wheelchair. The Court of Appeals says that Nurse Stevens "took appropriate steps to address Hall’s concerns about his wheelchair. Upon receiving a complaint from Hall, Stevens sent the wheelchair to the Physical Therapy Department for evaluation and repair. The Physical Therapy Department then tightened the armrests on the wheelchair and informed Stevens that the wheelchair was safe and functional. When Hall continued to complain about the condition of his wheelchair, Stevens responded that he would look into 'getting [the] wheelchair repaired.'” Similar evidence relates to the other defendant, Weinstock, leading the Second Circuit (Katzmann, Raggi and Rakoff [D.J.]) to conclude that it was objectively reasonable for these defendants to believe that they were not deliberately indifferent to Hall's serious medical needs.

I'm gonna tell you something. I have represented inmates, and this case (as summarized by the Court of Appeals) does not seem that strong to me. So how did this case survive summary judgment at the district court level? Here is how the district court set forth the evidence:

Plaintiff Peter Hall suffers from polymyositis, a chronic muscle disease that causes pain in the limbs and limits his ability to walk for periods of time. Plaintiff entered the custody of the New York State Department of Correctional Services in 2003, and, at that time, his condition was so severe that he was wheelchair-dependent because he was unable to stand or walk. In September 2004, while transferring from his state-issued wheelchair into a shower chair, the right armrest broke, causing Plaintiff to fall in the shower. Plaintiff sustained serious injuries, including a fracture of his ninth and tenth thoracic vertebrae, and a pinched cervical/facial nerve.

. . .

Plaintiff alleges that he spoke with Stevens on at least four occasion after he filed his grievance but before he received a final disposition, expressing dissatisfaction with the repairs and informing Stevens of his remaining fear. Stevens admits that, though he had the authority to order Plaintiff's wheelchair repaired, he exercised it only when responding to Plaintiff's formal grievance. Thus, as the Magistrate Judge found, a reasonable jury could conclude that "[Stevens]' failure to send [Plaintiff]'s wheelchair for further repairs or replacement constituted a deliberate indifference."

Looking at the evidence this way, the case looks a little stronger. We don't always know the full story in reading a summary order by the Second Circuit. But that's the legal process, and that's how summary judgment and qualified immunity works. At best, the Court of Appeals thought this was a close case. You can have a decent case, but government employees are immune from suit unless the case is a strong one. If the case falls within a gray area, you can survive dismissal in the district court, but the case will not make it past the Court of Appeals. 

Stray remarks that stereotype Asians not enough to save discrimination claim

How relevant are biased comments in assessing an employment discrimination claim? Very relevant if a decisionmaker made them, or if someone with influence over the decision made them. If someone else made the comments, not so much.

The case is Chao v. Mount Sinai Hospital, a summary order decided on April 17. The Court of Appeals sets the tone for the decision as follows: "This action arises from a lengthy internal investigation conducted by Mount Sinai School of Medicine resulting in a finding that Chao, formerly an Assistant Professor of Medicine at Mount Sinai, had committed research misconduct." Dr. Chao argued that his termination was based on his race and national origin.

In these cases, the plaintiff has to show, at a minimum, that management's reason for the adverse decision was a pretext, or lie. The Court of Appeals (Jacobs, Katzmann and Keenan [D.J.]), says, "Chao did not meet his burden of proffering sufficient evidence to support a rational inference that Mount Sinai’s legitimate, nondiscriminatory reason for Chao’s termination -- the 'rigorously-investigated charge and finding that Chao committed research misconduct and violated professional or ethical standards.'"

Plaintiff tried to get around this by highlighting stereotypical comments made by someone at Mount Sinai. According to the district court,

Dr. George Atweh, a non-party who was formerly the chief of Chao's division at MSSM, made several questionable remarks in an interview on March 13, 2009 during the investigation process. He attributed Chao's alleged authoritarianism to his national origin. ("I think that in part it's cultural, in China you never question authority . . ."); ("I counseled him on that, that that's no approach to run a laboratory, certainly not in this country, maybe in China, but not here . . ."); ("there are clearly issues with his ability to run a laboratory. Conflicts with people; authoritarian issues, like we mentioned . . . [A]s I said, I think some of these are cultural . . .").

The district court did not like these statements, but they are not relevant to Chao's claim. "While these remarks demonstrate a speculative and naïve acceptance of stereotypes based on national origin, they do not suggest that discriminatory animus occasioned Chao's termination because Atweh was not even on the Investigation Committee, let alone involved in the decision to terminate Chao; in fact,  the statements were made after Atweh was no longer employed by MSSM. Moreover, Chao has characterized Atweh as a friendly witness and the Investigation Committee agreed to interview Atweh at Chao's behest." The trial court further stated, "taken as a whole, these comments fail to show that Chao's termination occurred as a result of a racial or national origin bias. Rather, Chao's behavior was independently objectionable, and no facts suggest that the unprofessional and unfortunate remarks by Chao's colleagues during the investigation had an effect on Dean Charney's termination decision. The comments do not evidence the kind of animosity that has in other cases overcome summary judgment motions."

The Court of Appeals agrees. "The allegedly discriminatory comments made by certain defendants regarding Chao’s Chinese culture and background were 'stray remarks buried within . . . thousands of pages of testimony and reports,' and were made by persons with a 'significant distance . . . in terms of both time and institutional hierarchy' from the ultimate decision-makers."

Pro se inmate wins excessive force appeal

How often does the government concede on appeal that the trial court improperly granted summary judgment? Never happens? It happened.

The case is Porter v. Goord, a summary order decided on March 15. Porter was an inmate who sued prison guards for excessive force. This case was filed in the Western District of New York, which dismissed the case. That cannot happen, of course, unless the Attorney General's office filed a motion for summary judgment. I guess the state's appellate lawyer got a fresh look at the case. While the AG's office is supposed to defend the district court's ruling, it did not do so here even though inmate Porter brought the appeal pro se and presumably did not write a stellar brief.

Must have been a real bummer for the Attorney General's office to make concessions like this. It will give you credibility with the Second Circuit, but it means that that office will lose the appeal and its trial team has more one case to try. The Court of Appeals (Jacobs, Chin and Carney) tells the story:

 As to the excessive-force claim, the defendants concede that the district court erred in granting summary judgment for New York State Department of Correctional Services (“DOCS”) Officers Paul Weed, Peter Mastrantonio, and Joel Armstrong. Porter has disputed the defendants’ account of the incident, specifically denying that he provoked Officer Mastrantonio by kicking him and that he violently resisted the subsequent attempts to subdue him. Moreover, the record does not indicate whether the evidence adduced by Porter disputing the officers’ account is “contradict[ed]” by the surveillance video that supposedly captured (a portion of) the incident.

The defendants also concede that the district court erred in granting summary judgment for Sergeant Gary Morse on Porter’s claim that Morse failed to intervene to prevent the other officers from using excessive force. “A law enforcement officer has an affirmative duty to intercede on the behalf of a citizen whose constitutional rights are being violated in his presence by other officers,” ... and “is liable for the preventable harm caused by the actions of the other officers where that officer observes or has reason to know ... that excessive force is being used.”  ... The record reflects a genuine issue of material fact as to whether Morse failed to protect Porter from an alleged assault by officers that he knew or had reason to know was occurring.

Attorney advertising rules violate the Constitution

If lawyers want to advertise, there are special rules governing whether they can tell the public they are "specialists." The Court of Appeals has struck down some of those rules as unconstitutional.

The case is Hayes v. State of New York Attorney Grievance Committee, decided on March 5. The Second Circuit really smacks around the attorney licensing board in this case. Hayes is a board-certified lawyer who specializes in civil litigation, having been so designated by the National Board of Trial Advocacy, an American Bar Association accredited organization. His advertisements, including billboards and letterhead, mention this certification. The grievance committee went after him for violating its rules. The Second Circuit says these some of these rules are too vague and therefore violate the First Amendment.

The Court of Appeals first says that it's legal for the requirement that advertisements say that the certifying organization, such as NBTA, are not affiliated with any government authority.This rule ensures that potential clients are not fooled into thinking that the government actually certifies lawyers.

But two other requirements violate the First Amendment. The state requires that the lawyer tell potential clients that certification is not a requirement for practicing law. As there is no proof that this rule is really necessary to avoid that risk, it fails under the Constitution as prohibiting a speculative harm. The Court says, "It is difficult to imagine that any significant portion of the public observing the thousands of lawyers practicing in New York without certification believe that all of them are acting unlawfully."

The other requirement that violates the First Amendment is one that compels the lawyer to state in his advertisement that certification "does not necessarily indicate greater competence than other attorneys experienced in this field of law. The Court says:

Although the assertion might be technically accurate, depending on how "competence" and "experienced in the field" are understood, the assertion has a capacity to create misconceptions at least as likely and as serious as that sought to be avoided by the first assertion. Some members of the public, reading this third assertion, might easily think that a certified attorney has no greater qualifications than other attorneys with some (unspecified) degree of experience in the designated area of practice. In fact, the qualifications of an attorney certified as a civil trial specialist by the NBTA include having been lead counsel in at least 5 trials and having "actively participated" in at least 100 contested matters involving the taking of testimony, passing an extensive examination, participating in at least 45 hours of CLE, and devoting at least 30 percent of the lawyer's practice to the specialized field. These qualifications may reasonably be considered by the certifying body to provide some assurance of "competence" greater than that of lawyers meeting only the criterion  of having some experience in the field, and a contrary assertion has a clear potential to mislead. Such a requirement does not serve a substantial state interest, is far more intrusive than necessary, and is entirely unsupported by the record.

Finally, the Second Circuit rejects another requirement, one that says that the disclaimers must be prominently displayed in the advertisement. As applied to Hayes, this is a vague rule, which runs afoul of the First Amendment.

Hayes advertised on billboards that set forth the disclaimer in lettering six inches high, one inch larger than the lettering required by the federal government for health warnings on similar cigarette advertising. It is not our role to assess whether such a disclaimer does or does not comply with the New York rule, and this case does not require us to opine on whether a clear and specific rule that required even larger lettering would comport with the Constitution. We find ourselves unable to conclude, however, that a lawyer of average intelligence could anticipate that lettering of that dimension could be construed as not "prominently made."

Making things worse, former principal counsel for the Grievance Committee said that his successor would probably apply the "prominence" rule differently than he would. This kinda proves how difficult it is to apply this rule, doncha think? If the rule is that difficult to apply, then it violates the First Amendment. The state is going to have to come up with some objective standards for the "prominence" rule.