Another false arrest case bites the dust

The police arrested this guy because he was standing near police activity and ignored police directives to move away from the scene. He was arrested for obstructing governmental administration and later took an ACD, a probationary dismissal. Plaintiff next sued the police for false arrest. The Court of Appeals says there is no case.

The case is Basinski v. City of New York, a summary order decided on August 24. The Second Circuit is the place where false arrest claims go to die. It's not that people don't have a case. It's that qualified immunity draws the case into a gray area that allows the Court to hold that a reasonable police officer would have made the arrest under the circumstances, even if the arrest is found to be unlawful through the benefit of 20/20 hindsight.

Plaintiff came upon a food vendor who had set up shop outside a police station, an unusual situation. Plaintiff waited for the police to exit the station to see what they would do upon seeing the vendor. As the police went about their business upon approaching the vendor, they told plaintiff to move away. Plaintiff moved away a few feet but the police asked him to move away even further. This back and forth went on for a few minutes, as plaintiff told the police he was not doing anything wrong. All the while, the police had directed other passersby to move away as well. The police eventually arrested plaintiff for obstructing governmental administration, which prohibits people from obstructing police activity by means of intimidation, physical force or interference. Was there probable cause to nail plaintiff for this? And was it objectively reasonable for the police to think there was probable cause? That's what qualified immunity is all about.

The Court of Appeals (Jacobs, Livingston and Daniels [D.J.]) notes that New York courts have interpreted the "physical interference" element of the obstructing law broadly. You don't have to make physical contact with the police to obstruct.

Here, a reasonable officer could conclude that Basinski engaged in disruptive conduct at the scene of the performance of an official function. Browne put Basinski on “specific, direct” notice multiple times, telling him that he was “standing in an area that [he was] not allowed to be standing in.” In addition, the police activity area was arguably “confined and defined.” For instance, when Browne asked another individual standing nearby to move, Basinski acknowledged that Browne wanted him to move to the same place where that individual moved. Basinski intentionally remained in the specific area of police activity despite Browne’s repeated requests for him to move away, as Kass did before his arrest. Finally, Basinski verbally interjected and reengaged with Browne once Browne had turned his back to Basinski and was speaking to other individuals.

To the uninitiated, plaintiff was not doing anything wrong. The police told him to move away, but there is no indication that he was actually interfering with the police officer's job. It appears the police needed some space to interact with the food vendor. In ordering plaintiff to move away, the police created the opportunity for plaintiff to "obstruct" in refusing to do so and in moving away just a bit. It may be that, had the police proceeded with the criminal case against plaintiff, no jury would have convicted plaintiff for obstructing. But that's not the issue in this civil case. The Court of Appeals holds the the police could have reasonably thought plaintiff was obstructing governmental administration, and that is enough to make the case disappear.

A lesson in how to provide a reasonable accommodation

This reasonable accommodation case brought under the Americans with Disabilities Act holds that a schoolteacher does not state a claim in arguing that the school district violated the ADA in failing timely to grant his accommodation request to teach sixth grade rather than first grade.

The case is Wenc v. New London Board of Education, a summary order decided on August 21. Disabled employees are entitled to a reasonable accommodation if that accommodation allows them to perform the essential functions of their job. This case covers two separate school years.

For the 2011-12 school year, plaintiff's doctor wrote a note stating that it was in plaintiff's "best interest" not to return to work that year because of his medical condition. While the doctor stated that a sixth grade classroom would "be more suitable" for him, that same note stated that it remained in plaintiff's "best interest to be out of work." The Court of Appeals (Raggi, Pooler and Hall) holds that the district did not have a legal responsibility to be more proactive in opening a dialogue with plaintiff over his return to work. This is because an employer is not liable for failing to engage in the interactive process when the employee cannot perform the essential duties of his position.

For the 2012-13 school year, a neutral doctor said plaintiff could work with the assistance of two classroom aides. Since the district gave plaintiff a second classroom aide, it reasonably accommodated his disability in helping him to attend to the "higher physical demands of the first grade students" who, I am sure, were difficult if not completely out of control and possibly even out of their minds. Plaintiff argues that the doctor's opinion means the district should have given him two additional classroom aides rather than the two aides that he received. The Court of Appeals rejects this nuanced argument. "The assigned additional aide was intended to substitute for the physical efforts of only one person, and Wenc himself agreed that the aide was satisfactory."

This holding reminds us that the ADA does not require the defendant to provide plaintiff with the best possible accommodation. It is enough for the accommodation to be good enough for the plaintiff to perform the essential job functions.

Circuit strikes down day-laborer sidewalk speech law

The Court of Appeals holds that a Long Island ordinance that prohibited people from soliciting work on the side of the road violates the First Amendment. The Town of Oyster Bay enacted this law to restrict immigrants from seeking work as day laborers.

The case is Centro De La Comunidad v. Town of Oyster Bay, decided on August 22. In 2009, the Town passed a law that said:

It shall be unlawful for any person standing within or adjacent to any public right-of-way within the Town of Oyster Bay to stop or attempt to stop any motor vehicle utilizing said public right-of-way for the purpose of soliciting employment of any kind from the occupants of said motor vehicle.

The law does not explicitly reference immigrants, but the law was enacted to regulate day laborers seeking employment in the town. Plaintiffs challenged this law under the First Amendment, which provides the government some leeway in regulating commercial speech. But even the commercial speech doctrine will not allow localities to regulate speech if the laws are not drafted properly. As this law was not drafted properly, the Court strikes it down.

The government can regulate commercial speech if (1) the law regulates lawful activity; (2) the town asserts substantial reasons for enacting the law; (3) the law directly advances that interest; and (4) the law is not more extensive than necessary to advance that interest. We call this the Central Hudson doctrine.

The Second Circuit (Parker, Restani [sitting by designation] and Jacobs [who dissents]) starts off by holding the law does in fact regulate speech-related conduct, as day-laborers looking for work are soliciting employment; that expresses a message. The majority goes on to say that the ordinance regulates lawful activity, since not all persons seeking work on the side of the road are illegal workers who don't pay their taxes and are otherwise unauthorized to work in the U.S. "The solicitation of employment ... is not in and of itself illegal," the Court says. After reviewing comparable cases from around the country, the Court concludes, "the First Amendment offers no protection to speech that proposes a commercial transaction if consummation of that transaction would necessarily constitute an illegal act. However, if, as here, there are plausible ways to complete a proposed transaction lawfully, speech proposing that transaction “concerns lawful activity and is therefore protected commercial speech." Since the law extends to U.S. citizens who are looking for work, it regulates legal activity and is subject to First Amendment standards.

After concluding that the law advances a substantial government interest in protecting the health, safety and welfare of motorists and pedestrians using public roads, the Court proceeds to a more complicated analysis: does the law restrict more speech than necessary to achieve its aims? The answer is yes. This is a far-reaching ordinance, the Court says, because it prohibits speech that poses no threat to safety in the town's streets and parks. In addition, the town had less burdensome ways to address public safety than to restrict speech; it could have simply enforced state and local public safety laws. As Judge Parker writes, "there are numerous ways in which an individual, adjacent to any public right-of-way, might attempt to stop a motor vehicle utilizing said public right-of-way for the purpose of soliciting employment that would cause no threat whatever to public safety." Noting that people can stand on the side of the road soliciting employment without stopping the car or simply holding a sign that reads, "Will Work for Food," the Court notes that in the "great majority of situations, stopping a vehicle on a public right-of-way creates no inherent safety issue. Entirely prohibiting one speech-based subset of an activity that is not inherently disruptive raises the question whether the Town's actual motivation was to prevent speech having a particular content, rather than address an actual traffic and pedestrian congestion issue."

Firing female employee because she is "too cute" violates state and city law

A debate is slowly emerging in the federal courts about what constitutes gender discrimination. Language in Title VII prohibiting discrimination "because of sex" is subject to different interpretations. In September 2017, the Second Circuit will hear oral argument on whether discrimination against gay and lesbian employees constitutes discrimination because of sex. In the meantime, the courts are working through less celebrated cases, like this one decided by the Appellate Division First Department.

The case is Edwards v. Nicolai, decided on August 22. This case is brought under the New York State and New York City Human Rights Laws. Plaintiff worked as a yoga and massage therapist for the Wall Street Chiropractic and Wellness office. Nicolai is the head chiropractor. His wife is the chief operating officer. While plaintiff had a professional relationship with Nicolai, his wife did not like plaintiff. Here are the facts set forth in the complaint:

In June 2013, . . . Nicolai allegedly "informed Plaintiff that his wife might become jealous of Plaintiff, because Plaintiff was too cute.'" Approximately four months later, on October 29, 2013, at 1:31 a.m., Adams sent Edwards a text message stating, "You are NOT welcome any longer at Wall Street Chiropractic, DO NOT ever step foot in there again, and stay the [expletive] away from my husband and family!!!!!!! And remember I warned you." A few hours later, at 8:53 a.m., plaintiff allegedly received an email from Nicolai stating, " You are fired and no longer welcome in our office. If you call or try to come back, we will call the police.'" The complaint further alleges that, on October 30, 2013, Adams filed a complaint with the New York City Police Department (NYPD) alleging - falsely - that Adams had received "threatening" phone calls from plaintiff that so frightened her as to cause her to change the locks at her home and business.

Does plaintiff's termination count as sex discrimination? Yes, says the Appellate Division. "It is well established that adverse employment actions motivated by sexual attraction are gender-based and, therefore, constitute unlawful gender discrimination." But plaintiff does not allege any sexual harassment. No matter. "While plaintiff does not allege that she was ever subjected to sexual harassment at WSCW, she alleges facts from which it can be inferred that Nicolai was motivated to discharge her by his desire to appease his wife's unjustified jealousy, and that Adams was motivated to discharge plaintiff by that same jealousy. Thus, each defendant's motivation to terminate plaintiff's employment was sexual in nature."

2d Circuit upholds arbitration agreement in Uber cellphone app

This is a case for the modern age. Does the Uber cellphone app trick users into agreeing to arbitrate their disputes? The Court of Appeals says it does not.

The case is Meyer v. Uber Technologies, decided on August 17. Uber is a private taxi service that allows you to hail a ride through a cellphone app. When you download the app that brings you into Uber-land, you have to agree to the terms of service. One of those terms of service is that if you have a dispute with Uber, you have take it to arbitration, not court. Corporate America likes arbitration, in part, because they are streamlined lawsuits largely held outside the public view. Most people, in downloading an app, click "I agree" to the terms and conditions without reading them. Even if they did read them, most people could not care less about mandatory arbitration. They have no plans to sue the entity.

But these plaintiffs did sue Uber, asserting price-fixing allegations. The district court said the process leading to the app download did not properly place unsuspecting people on notice that they were agreeing to arbitrate their disputes. This is how the Court of Appeals (Chin, Raggi and Carney) describes the process:

Below the input fields and buttons on the Payment Screen is black text advising users that ʺ[b]y creating an Uber account, you agree to the TERMS OF SERVICE & PRIVACY POLICY.ʺ See Addendum B. The capitalized phrase, which is bright blue and underlined, was a hyperlink that, when clicked, took the user to a third screen containing a button that, in turn, when clicked, would then display the current version of both Uberʹs Terms of Service and Privacy Policy. Meyer recalls entering his contact information and credit card details before registering, but does not recall seeing or following the hyperlink to the Terms and Conditions. He declares that he did not read the Terms and Conditions, including the arbitration provision.

Does this process give reasonable conspicuous notice or an unambiguous manifestation of assent to the arbitration provision? Web-based contracts have spawned a new strand of case law, but fundamental contract principles still guide the inquiry. ʺCourts around the country have recognized that [an] electronic ʹclickʹ can suffice to signify the acceptance of a contract,ʺ and that ʺ[t]here is nothing automatically offensive about such agreements, as long as the layout and language of the site give the user reasonable notice that a click will manifest assent to an agreement.ʺ The question here is whether the plaintiff "was on inquiry notice of the arbitration provision by virtue of the hyperlink to the Terms of Service on the Payment Screen and, thus, manifested his assent to the agreement by clicking 'Register.'ʺ Plaintiff loses, and the case goes to arbitration.

Turning to the interface at issue in this case, we conclude that the design of the screen and language used render the notice provided reasonable as a matter of California law. The Payment Screen is uncluttered, with only fields for the user to enter his or her credit card details, buttons to register for a user account or to connect the userʹs pre‐existing PayPal account or Google Wallet to the Uber account, and the warning that ʺBy creating an Uber account, you agree to the TERMS OF SERVICE & PRIVACY POLICY.ʺ The text, including the hyperlinks to the Terms and Conditions and Privacy Policy, appears directly below the buttons for registration. The entire screen is visible at once, and the user does not need to scroll beyond what is immediately visible to find notice of the Terms of Service. Although the sentence is in a small font, the dark print contrasts with the bright white background, and the hyperlinks are in blue and underlined.

Circuit rejects constructive discharge claim

It's been a while since the Second Circuit last issued a published opinion on constructive discharge. The Court this time around reminds us how difficult it is to prove that an employee was justified in quitting her job.

The case is Shultz v. Congregation Shearth Israel of the City of New York, decided on August 10. The Court of Appeals held that the plaintiff did have a pregnancy discrimination and FMLA interference claim even though management rescinded her termination two weeks after it showed her the door. That ruling found that plaintiff suffered an adverse employment action even though she did not spend a day unemployed and defendant changed its mind after she hired a lawyer.

But plaintiff also wants damages for back pay and a hostile work environment. This is important for plaintiff because, as the Court of Appeals (Lynch, Cabranes and Matsumoto D.J.] points out, plaintiff may have a claim arising from her brief pregnancy-related termination, but the damages arising from that claim may be slight.

Plaintiff claims constructive discharge in violation of Title VII because management made her working conditions so horrible that she had no choice but to resign. Here is the evidence of constructive discharge:

After [defendants rescinded the termination letter]. Shultz was subject to a “pattern and practice of repeat discrimination” by Reiss, Soloveichik, and Lustig, consisting of at least the following events: (1) speaking loudly enough to be overheard by Shultz, Reiss told Lustig in a telephone conversation that the Congregation “had a right” to disapprove of Shultz’s pre-marital pregnancy and disparaged Shultz and her lawyers; (2) Shultz’s name was removed from the Congregation’s newsletters to the membership and from the employee list that was displayed on a wall outside the synagogue; (3) Reiss continued to demand that she complete her assigned tasks before the date of her previously scheduled termination, and to transition her responsibilities to other employees; and (4) Soloveichik and Lustig refused to speak with her.

Courts do not like constructive discharge claims. “The constructive-discharge doctrine contemplates a
situation in which an employer discriminates against an employee to the point such that his working conditions become so intolerable that a reasonable person in the employee’s position would have felt compelled to resign.” The working conditions have to be horrendous for an employee to claim that management effectively pushed her out the door. This case does not satisfy that test. The Court writes:

These acts alone, occurring over a period of a few weeks, are insufficient to raise an issue of fact with respect to whether Shultz can meet “the high standard to establish that [s]he was constructively discharged.” “Such a claim requires the employee to show both (1) that there is evidence of the employer’s intent to create an intolerable environment that forces the employee to resign, and (2) that the evidence shows that a reasonable person would have found the work conditions so intolerable that he would have felt compelled to resign.” Id. (internal quotation marks omitted). Shultz has not pled sufficient facts arising after the notice of termination to establish that a reasonable person would have been compelled to resign in these circumstances.

For these reasons, plaintiff also does not have a hostile work environment claim. In order to make out a hostile work environment claim, "a plaintiff must . . . show that the workplace is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” Management may have been been rude to plaintiff, but it is not against the law to be rude.

Fired then rehired two weeks later creates an adverse employment action

I would say this is the most pro-plaintiff Title VII decision issued by the Court of Appeals this year. The Court holds for the first time that a plaintiff suffers an adverse employment action where the employer fires her (allegedly because of her pregnancy) but then rescinds the termination two weeks later. The Court also holds the plaintiff has made out an FMLA interference claim.

The case is Shultz v. Schearith, decided on August 10.  When plaintiff returned from her honeymoon on July 20, 2015, she was visibly pregnant. Management fired her the next day, stating her position was eliminated. The termination was effective August 14, 2015. After plaintiff's lawyer got involved, defendant sent plaintiff a letter on August 5, 2015 stating defendant had reinstated her position and she would not be terminated on August 14, 2015.

Here's the question: was plaintiff's limited termination an adverse employment action? The courts hold that not everything bad that happens at work is worth a lawsuit. Plaintiff has to allege an adverse action, which is part of the prima facie case of employment discrimination. What follows is the definition of adverse action:

A plaintiff sustains an adverse employment action if he or she endures a materially adverse change in the terms and conditions of employment. To be materially adverse a change in working conditions must be more disruptive than a mere inconvenience or an alteration of job responsibilities. A materially adverse change might be indicated by a termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices . . . unique to a particular situation.

Both sides have decent arguments on appeal. The Court of Appeals summarizes them:

Shultz argues that informing an employee that she has been fired is the quintessential adverse employment action, in that it terminates (even if prospectively) her employment, occasioning both the psychological anxiety of unemployment and the costs associated with beginning a search for employment (and, where the employee believes she has been fired for discriminatory reasons, the costs of finding and retaining counsel to pursue appropriate legal action). Defendants argue in response that the tangible adverse consequences of firing are imposed only when the job is actually lost; during the interim period before the firing becomes effective, the employee continues to work in the same position and receive the same pay and benefits. Each of those arguments has some intuitive appeal.

As Judge Lynch writes, "Our Court ... has not yet decided whether a notice of termination, which is rescinded before the termination is implemented, qualifies as an adverse employment action." So the Court of Appeals (Lynch, Cabranes and Matsumoto D.J.] draws from Supreme Court authority on when to calculate the statute of limitations in wrongful discharge claims. In Delaware State College v. Ricks, 449 US 250 (1980), the Court said the SOL starts to run when the plaintiff learns about his termination, i.e., when management notifies him about it, even if the termination actually takes effect down the road. Judge Lynch writes, "The Supreme Court’s conclusion that a discrimination claim accrues upon notice of termination, rather than upon the implementation of that decision, necessarily implies that the notification of termination qualifies as an adverse employment action."

The Court tells how this decision works in practice. The short termination period does give plaintiff a case, but it may result in limited damages, especially if she did not lose any money. Also, since plaintiffs must mitigate their damages, the Court of Appeals has held in the past that “[a]n employer may toll the running of back pay damages by making an unconditional offer to the plaintiff of a job substantially equivalent to the one he or she was denied, even without an offer of retroactive seniority.” Pierce v. F.R. Tripler & Co., 955 F.2d 820, 830 (2d Cir. 1992). The Court adds that, in some cases, a rescinded termination decision may not be an adverse action if the employer does it quickly, like the next day, rendering the termination a de minimus event. But for plaintiff in this case, it could be an adverse action because she "had ample time to experience the dislocation of losing her employment at a particularly vulnerable time, undertake the effort of retaining counsel, and inform the Congregation that she was going to file suit."

This reasoning also supports plaintiff's FMLA interference suit, which stems from the same facts. Employers cannot interfere with employee rights under that statute. "We see no reason to construe the FMLA differently from Title VII with respect to whether the rescission of a notice of termination given to a pregnant employee establishes as a matter of law that the notice may not constitute an adverse employment action sufficient to deter or interfere with the employee’s exercise of FMLA rights."