Free speech win for the companies who make school gymnasium products

The First Amendment does not just protect individuals. As you know from the outcry over the Supreme Court's Citizens United ruling, the free speech clause also protects corporations. This First Amendment case is unusual because the corporation sued New York City over its refusal to use its product. The Second Circuit says the plaintiff has a case.

The case is Safepath Systems, LLC v. New York City Department of Education, a summary order decided on April 30. Safepath and Gym Door Repairs make those electric folding partitions that you see in school gymnasiums. Under state law and certain regulations, the City schools have to contract with plaintiffs to install these devices. Plaintiffs argue that the City stopped using their services in retaliation for plaintiffs' public objections to defendants' failure to comply with these mandates. Here is how the Court of Appeals (Calabresi, Livingston and Cabranes) describes plaintiffs' speech:

Specifically, plaintiffs allege that they notified defendants of their failure to comply, and, upon seeing no result, also notified the New York City Department of Investigations (“NYCDOI”) and the New York State Attorney General’s Office (“NYAG”). Plaintiffs also filed a lawsuit in New York state court pursuant to NYCPLR Article 78 to compel defendants to enforce the law, regulation, and manual. Plaintiffs allege that defendants thereafter “instructed contractors . . . to ‘never use’ GDRI or SPS on any NYCDOE or NYCSCA projects.” They also “removed (or caused the removal of) the Safe Path System from the specifications of NYCSCA.”

In order to win a free speech case, the plaintiff has to show that it spoke out on a matter of public concern, and not solely on a matter that is personal to the plaintiff. My instinct would be that plaintiffs lose this case because their speech was personal to them, that the City failed to use their products. But the Court of Appeals sees it differently: "Plaintiffs’ complaints and their subsequent lawsuit were of public interest, because they were publicly asserting that defendants were failing to comply with the law, thereby allegedly endangering New York City schoolchildren. That there is an ancillary private interest (here, plaintiffs’ profit motive) does not preclude First Amendment protection for speech that accuses defendants of failing to follow the law."

Plaintiffs also win the appeal because they petitioned the government for redress of their grievances, also protected under the First Amendment. The Court notes that “[t]he rights to complain to public officials and to seek administrative and judicial relief from their actions are protected by the First Amendment.” That is true enough, but the Second Circuit has previously held that a lawsuit cannot predicate a free speech claim unless it addresses a matter of public concern. The Supreme Court has similarly held. But in this case, the Court says, "even if the topic had not been of public interest, by complaining to defendants, the NYCDOI, and the NYAG, and by filing the Article 78 petition, plaintiffs were engaging in protected speech." I could be wrong, but this seems at odds with prevailing law. I am sure plaintiffs don't mind. Their case goes forward.

Hard to challenge poor performance evaluations in employment discrimination cases

A common issue in employment discrimination cases is how to prove pretext when management says it fired the plaintiff for poor job performance. It is usually not enough for the plaintiff to simply disagree with the employer's assessment. It's also difficult to do this when the plaintiff has bad performance evaluations. This case tells us how it can all shake out.

The case is Davies v. New York City Department of Education, a summary order decided on April 25. Plaintiff says her teaching performance was unfairly evaluated after taking FMLA leave. The employer says there was no retaliation, pointing to the school's "numerous unsatisfactory ratings of Davies's classroom conduct and complaints from students and teachers regarding Davies's performance from March 2008 to April 2009." From that evidentiary proffer, plaintiff cannot win unless she can show these poor evaluations were false. The Court of Appeals (Winter, Parker and Hall) summarizes plaintiff's argument:

Davies does not challenge the substance of the unsatisfactory evaluations. Instead, she claims that for the past twenty years she has had a sterling performance record and the EBA’s timing and close scrutiny of her performance is circumstantial evidence that the EBA was deliberately developing a case against her.

That's one way to challenge poor evaluations. I say this because courts are reluctant to second-guess job evaluations, especially those that require specialized knowledge, like in the field of public education. The Court of Appeals is not buying plaintiff's argument, though.

Davies cannot use her past performance to shield her from two years of unsatisfactory performance evaluations. As for the timing and frequency of her performance reviews, the EBA conducted its first formal observation of Davies’s class on March 6, 2008. It subsequently continued to observe her classroom performance to evaluate whether she was implementing recommendations for improvement, but Davies continued to perform poorly and received an overall unsatisfactory rating for the 2007-2008 and the 2008-2009 school years. We have been clear that temporal proximity between protected activity and an adverse employment action, alone, is insufficient to establish pretext, and nothing about the timing and number of evaluations suggests a retaliatory intent as opposed to normal oversight of a less-than satisfactory teacher.

So what does this mean for plaintiffs and their attorneys? When the lawyer meets with the potential client for the first time, ask about the performance reviews. Even if the potential client says they were fine, take a look at them. Contemporaneous performance reviews are the best measure of how the plaintiff was performing her job. At least that's how the courts see it. If the reviews are problematic, the case is going to be problematic. 

Second Circuit clarifies how to plead a "state actor" conspiracy claim

Non-lawyers sometimes think constitutional protections apply whenever someone is wronged. This is common when a private entity silences someone. The victim asserts his First Amendment rights to speak, but that goes nowhere because the government did not silence the victim, a private entity did. More broadly, none of our constitutional provisions apply without "state action," a clunky phrase that means the government has to be responsible for the rights deprivation.

The case is Betts v. Shearman, decided on May 2. This case began as a domestic dispute when the wife, Shearman, went beserk and Betts hid out in a spare bedroom while Sherman called the police to falsely complain that Betts had assaulted her. Betts was arrested for assault, but the charges were later dropped. The general false arrest claim (dismissed under Federal Rule 12 for failure to state a claim) is summarized here. Betts also says that Sherman's bad acts are imputed to the government for state action purposes because the police worked with her to falsify the charges. That claim also fails.

In dismissing this claim, the Second Circuit (Winter, Walker and Wesley) summarizes the state of the law on state actor conspiracy, using a Second Circuit and two district court rulings as examples. It is settled law that "a private actor can only be a willful participant in joint activity with the State or its agents if the two share some common goal to violate the plaintiff's rights." But the Court of Appeals uses the lower court rulings for illustration for lack of any good ones from the Court of Appeals.

In one case, Ginsburg v. Healey Leasing, 189 F.3d 268 (2d Cir. 1999), the leasing manager called the police to report that plaintiff did not pay his rental fee. But there was no joint state actor claim because "Healey Leasing's requesting police assistance and providing information that led to police action did not make Healey Leasing a joint participant in state action." But in two district court cases, the courts found potential joint actor liability. In Bang v. Utopia Restaurant, 923 F. Supp. 2d 46 (1996), the police arrested the plaintiff after speaking to the restaurant owner for 20 minutes. The court said it was reasonable to infer that, during that 20 minute conversation, the police and the business owner agreed to arrest the plaintiff without probable cause. Had the police arrested plaintiff as soon as they showed up at the restaurant, there would not  have been time to hatch the conspiracy. And in White v. Moylan, 554 F. Supp. 2d 263 (D. Conn. 2008), the plaintiff alleged a joint state action claim for a bogus shoplifting arrest because he alleged that security guards and the arresting officer reviewed surveillance footage and worked in tandem to arrest him for theft after determining that his merchandise was not in fact stolen.

So that's how joint action conspiracy works in constitutional cases. It does not work in this case. The husband argues that the wife conspired with the police to falsely arrest him for assault, but that does not work because "Betts's allegation that Shearman was coached by the the Officers into making false accusations is not plausible given that Sherman first called the police and reported that she was assaulted prior to her interaction with the officers."

No false arrest claim in domestic violence case

False arrest claims are hard to pursue in federal court. The Supreme Court over the years has set out rules that allow officers to win summary judgment if their actions were objectively reasonable, despite their subjective motives against the plaintiff. There is also the qualified immunity problem. In this case, these factors result in the dismissal of a false arrest case arising from a domestic dispute caused by an intoxicated wife.

The case is Betts v. Shearman, decided on May 2. Betts and Shearman were married. Shearman was drunk and also high on drugs when she became abusive toward Betts, who locked himself in room for safety. Shearman then called the police and accused Betts of assaulting her. The police came to the house, forcibly entered the spare bedroom where Betts was sleeping and arrested him. All charges against Betts were later dropped, and he then sued the police and his Shearman, now his ex-wife.

Like I said, the police enjoy many protections when they are sued for false arrest. It is clear that Betts got the shaft, but he still has to prove that the police lacked probable cause to arrest him. Even without probable cause, the police win if their actions were objectively reasonable at the time. The latter equation (also known as "arguable probable cause") is part of the qualified immunity defense, which gives the police the benefit of the doubt in tough situations.

The Court of Appeals (Walker, Winter and Wesley) summarizes Betts's claim: "Officers Rodriguez and Doe responded to a domestic disturbance based on Shearman’s report over the phone that she had been assaulted and found Betts locked in a bedroom. Betts alleged, and now argues, that the officers had reason to doubt Shearman’s credibility because she was visibly intoxicated and had made false accusations against Betts in the past, and because there was a lack of physical evidence to support an assault charge."

Here is why the Rule 12 dismissal is affirmed: the wife's false accusations in the past do not show the police lacked probable cause because the lawsuit does not allege that the police knew about her prior false accusations when Betts was arrested. The fact that Shearman did not display any signs of physical abuse does not mean the police lacked probable cause; the police are not required "to finally determine guilt through a weighing of the evidence." While Betts says his wife was obviously high and strung out, the lawsuit does not allege how the arresting officers would have known this when Shearman called the police. "Even assuming that the officers were aware that Sherman was intoxicated, absent other indicia raising concerns reliability, the officers were not unreasonable in surmising that an office had been committed by Betts."

Betts also claims the police coached Shearman to concoct false charges against him. This claim also fails under the Iqbal plausibility test. The reasoning on this issue is interesting, shedding some light on what it takes to make out a "plausible" claim:

Betts alleges that Officers Rodriguez and Doe, upon arriving at the apartment he shared with Shearman, “assisted Shearman in making a false allegation and . . . coached her in fabricating a contrived version of the events to justify a baseless and false arrest.” Betts, however, also alleges that Shearman initially phoned the police and made the same “false” accusations that, among other things, Betts assaulted her. The original accusation without the possibility of any police complicity was sufficient to sustain the arrest, thereby undermining the claim that it was the police whose false accusation denied Betts a fair trial. Moreover, it is not plausible that, without more, a complaining witness who had originally conceived of false accusations on her own accord also required “coaching” in making substantially the same accusations again.

What we have is a failed claim under the Iqbal plausibility test because the plaintiff's claims about the police conspiracy are contradicted by the facts that he necessarily had to plead in the complaint. Ten years ago, pre-Iqbal, this might not have mattered. It matters now.

Decent alibi defense does not always get you habeas relief

If you are not familiar with habeas corpus law, it might surprise you to know that federal courts defer to state court interpretations of the Constitution. This means that if the federal judges (who interpret the Constitution every day) know in their heart of hearts that the defendant did not get a fair trial, they have to sustain the conviction if "fairminded jurists could disagree" about the state court's proper application of constitutional precedent.

The case is Matthews v. Raymond, a summary order decided on April 14. Matthews was convicted of burglary in the second degree. Matthews said he was not at the scene of the crime. He told his lawyer this. But for strategic reasons, his lawyer did not pursue the alibi defense. Here is how the Second Circuit summarizes the possible alibi:

Department of Corrections documents place Matthews in downtown Brooklyn, approximately 3.5 miles away from the crime scene, just 75 to 100 minutes before the burglary was committed. This gave him very little time to reach the crime scene, acquire the burglary tools later found in the apartment, pick up the bicycle he would later use to flee the scene, circumvent the locks on the outside of the building and on the door to the second‐floor apartment without leaving signs of forced entry, and locate and take possession of the victim’s jewelry box and two laptop computers in the victim’s apartment. Although these feats are not beyond the realm of physical possibility, an alibi defense based on this evidence, even without testimony from the defendant, might well have raised substantial doubts in the mind of the judge, as trier of the facts here, as to Matthews’ guilt.

Let's not kid ourselves. It looks like Matthews had a decent alibi argument. The Second Circuit seems to think so. But according to the Court (Straub, Sack and Lohier), counsel "declined to pursue the alibi because the evidence did not conclusively establish Matthews' innocence and because it could supply a possible motive for the burglary."

You can challenge your conviction in a habeas petition on the "ineffective assistance of counsel" theory. That theory could work here, but the state court that first entertained Matthews' challenge said that his lawyer's strategic choice was permissible. The Court of Appeals concludes, "Even if we were of the view that counsel erred and that this justification did not amount to a reasonable trial strategy in light of the alibi’s exculpatory value, we cannot conclude in the face of the contrary State court judgment that any and all fairminded jurists” would agree. We therefore conclude, as we must, that Matthews’ habeas petition was properly denied."

Leering and other behavior does not create hostile work environment

Disgusting things still happen in the modern workplace. If it gets too sexual, then Title VII is violated. The plaintiff has to show that he endured a hostile work environment. If so, management has to take the harassment seriously. If not, plaintiff wins the lawsuit. In this case, the behavior was disgusting, but not sexual enough.

The case is Lewis v. City of Norwalk, a summary order decided on April 14. Plaintiff was the City's Director of Management and Budget. His openly gay supervisor, Hamilton, began making advances on plaintiff. Here is how the Court of Appeals (Calabresi, Cabranes and Livingston) sums up the evidence:

Specifically, Hamilton is alleged to have “leered” at Lewis, looking from his crotch to his head while smiling, and to have made gestures with his tongue, which Lewis found “irritating.” Lewis claims that this conduct occurred a couple of times a week in the beginning but became more sporadic over time, occurring no more than a handful of times in 2008-09. Lewis’s other allegations are that Hamilton complimented his taste in clothing; invited Lewis to join his gym so that they could work out together; invited Lewis out for drinks; and disclosed to Lewis that he was lonely in his current relationship, and asked for help dealing with his loneliness. Once, when Lewis was in his office, Hamilton banged on the door and, when Lewis told him not to come in because he was changing into his jogging clothes, Hamilton waited outside until Lewis came out and then spoke with him excitedly.

 This is not a hostile work environment, the Court says. Here's the reasoning:

The only arguably overt sexual conduct was Hamilton’s alleged licking of his lips and so-called “leering,” which, by Lewis’s own admission occurred only sporadically over time, and no more than a few times a year by mid-2009. Even assuming the conduct occurring prior to July 2009 is not time barred, which it may be under Title VII, the alleged “leering” is insufficiently severe or pervasive to qualify as having created a hostile work environment. The other “facially sex-neutral incidents”— invitations to join Hamilton’s gym, invitations to have drinks with other co-workers, and discussions about Hamilton’s personal life—even if they made Lewis subjectively uncomfortable, do not, under a “totality of the circumstances” inquiry, “create . . . an environment that a reasonable person would find hostile or abusive . . . .” Accordingly, we conclude that the District Court properly granted summary judgment for defendants on the Title VII hostile work environment claims.

Could this case have been decided the other way? It wasn't just leering. Hamilton also "made gestures with his tongue." Use your imagination on that one. It also looks like Hamilton wanted some action with Lewis, and was inordinately interested in Lewis in general. Would the result have been different if a man behaved like this to a woman? A jury could think so. Remember what the Court of Appeals said in Gallagher v. Delaney (1998):

Today, while gender relations in the workplace are rapidly evolving, and views of what is appropriate behavior are diverse and shifting, a jury made up of a cross-section of our heterogenous communities provides the appropriate institution for deciding whether borderline situations should be characterized as sexual harassment and retaliation. The factual issues in this case cannot be effectively settled by a decision of an Article III judge on summary judgement. Whatever the early life of a federal judge, she or he usually lives in a narrow segment of the enormously broad American socio-economic spectrum, generally lacking the current real-life experience required in interpreting subtle sexual dynamics of the workplace based on nuances, subtle perceptions, and implicit communications.

The plaintiff was eventually fired from his job. He claims it was because he complained about Hamilton's behavior. Management said he was fired for poor job performance, and that they were already thinking about firing plaintiff even before he complained about harassment. Plaintiff complained in response to being told that he was in danger of being fired. After an investigated deemed the complaint uncorroborated, the City went ahead with the termination. The Court of Appeals agrees that plaintiff has no retaliation case. It notes that the Supreme Court held in 2001 that "employers need not suspend previously planned employment actions upon discovering that a Title VII suit has been filed, and their proceeding along lines previously contemplated, though not yet definitively determined, is no evidence whatsoever of causality."

You can't draw blood with shaky hands

The plaintiff in this Americans with Disabilities Act case sued the local community college after he was kicked out of an academic program for dishonesty. The Court of Appeals says the plaintiff does not have a disability under the pre-2009 ADA and that the college articulated a neutral reason for plaintiff's expulsion.

The case is Widomski v. Orange County Community College, issued on April 8. Plaintiff was studying to be a licensed medical laboratory technician. He was required to submit weekly clinical summary reports to his instructor. These reports would talk about the work that students performed in their course of study. At some point, the teacher told plaintiff that he could not draw blood from patients because he has shaky hands. Although plaintiff does not have a disability that makes his hands shake, he argues that the College perceived him to have such a disability. He complained that he was not allowed to draw blood. Plaintiff was ultimately shown the door when the College came to believe that he was submitting false written reports to satisfy the academic requirements.

The Court of Appeals opts to publish this opinion, probably to clarify that the definition of "disability" under the ADA applies to each section of the Act, be it Title I (which covers employment) or other Titles which deal with public accommodations, etc. Some district courts applied a different definition for the Titles, but the Court of Appeals (Lohier, Sack and Straub) puts its foot down. Disability means disability.

On the merits, plaintiff cannot show that the College perceived him as disabled. Again this case was brought under the old ADA, not the new ADA, which grants plaintiffs more leeway in proving they have a perceived disability. Under the old ADA, the College did not regard plaintiff as having an impairment that substantially limits a major life activity. No one believed that plaintiff's shaky hands "excluded him from a broad class of jobs." Instead, he could work other jobs with his degree from the College. He just can't draw blood. I don't think the Court of Appeals wants guys with shaky hands drawing anyone's blood.

As for plaintiff's expulsion from the program, the Court says that he cannot show his removal from the program was a pretext for retaliation. (The protected activity was his lawyer's letter of protest when plaintiff was removed from the blood draw program). The College believed in good faith that plaintiff fabricated two written assignments, and plaintiff "fails to raise a genuine factual dispute as to whether this explanation is false or otherwise pretextual."