Speculation is not enough under Title VII

The Court of Appeals sees enough employment discrimination cases to know what cases will succeed and what cases will not. A common basis for the Court to reject a case is to find that plaintiff is urging the Court to infer discriminatory or retaliatory intent based on speculation. Speculation will not cut it.

The case is Meyer v. Shulkin, a summary order issued on October 11. Plaintiff was a psychiatrist for the New Jersey Veterans' Affairs Medical Center, where her performance reviews were mixed to negative, though there was scattered praise. When she sought to work with the Veterans' Affairs Medical Center in Syracuse, she was recommended for a vacant position and they sought her personnel file from the New Jersey VA. Once the Syracuse people reviewed the personnel file, they decided to retract the offer in light of the interpersonal and performance issues described in that file. Plaintiff brought this lawsuit, claiming the real reason was that the Syracuse people learned about the  EEO complaints that she had filed in her New Jersey position. Since the employment offer was retracted, it would seem at first glance that plaintiff has a retaliation lawsuit. She does not.

The reason she does not have a case is that plaintiff cannot prove the decisionmaker, Antinelli, even knew about the EEO complaints. Any such argument is speculation, especially since the EEO complaints are not in the personnel file. The Court reasons it out this way:

no reasonable jury could find for Meyer on this issue. No rational finder of fact could conclude that Antinelli even knew about Meyer’s EEO activity when he decided to terminate her offer. Meyer’s sole pieces of evidence to support this claim are that: (1) she believes that she saw references to her EEO activity when she reviewed her OPF in preparing for litigation, and (2) she speculates that the chief of human resources at the New Jersey VA Center informed Antinelli about her EEO activity. But she offers no evidence to back up either of these claims. Antinelli swore under penalty of perjury that he was not aware of Meyer’s EEO complaints. And the record contains a “true and correct copy” of Meyer’s entire OPF. Meyer does not point to a single page in this copy that references her EEO activity, and after a thorough review we could not find such a reference. In short, Meyer’s evidence consists solely of the “unsubstantiated speculation,” and “conjecture,” that we have held do not suffice to defeat a motion for summary judgment.

Plaintiff tries to get around this reasoning by arguing that Syracuse had already known about the reviews in New Jersey and that nothing in the personnel file could have been a surprise to them, so that the EEO charges must have been the real reason for the job revocation. But not only did the personnel files not include the EEO charges, but plaintiff did not tell Syracuse about the poor marks she received for her interpersonal skills. 

Res ipsa loquitur wins plaintiff her negligence case

One of the great concepts of American tort law is res ipsa loquitur, which is Latin for "the thing speaks for itself." This point is that certain negligent acts are the result of inherent negligence, such that the very fact that a piano fell out of a 82nd floor window, or 80 jars of olive oil splattered in aisle 7 could only mean one thing, and that these unusual circumstances mean the defendant blew it and plaintiff can satisfy his prima facie case (which normally requires evidence that someone breached a duty, causing harm).

The case is Manhattan by Sail, Inc. v. Tagle, decided on October 5. Plaintiff took a ride on a sightseeing boat in New York Harbor. When the crew raises the forestaysail, they have to pull downward on a halyard and the forestaysail goes upward toward a pulley near the top of the mast. But something went wrong that day. When crewman Biggens went to do this, the halyard got unclipped, and "tugged by gravitational force toward the mast, the freed halyard pulled loose from Biggen's grip and swung back towards the mast where Tagle was seated. The clip at the end of the Halyard swung back towards the mast" and struck Tagle in the head. At trial, Biggens could not explain why this had happened. The trial court dismissed Tagle's case because she did not prove negligence.

The Court of Appeals (Leval, Sack and Raggi) reverses. Not only do they reinstate the lawsuit, but the judges order that the trial enter judgment for plaintiff as a matter of law! Here is the standard for res ipsa loquitur:

Under that doctrine, a fact‐finder may infer negligence merely from the happening of the event that caused the harm if: (1) the event is of a type that ordinarily would not occur in the absence of  negligence; (2) it is caused by an agency or instrumentality under the exclusive control of the party charged with negligence; and (3) it is not due to any voluntary action or contribution on the part of injured party. 

The Court says that res ipsa loquitur is not limited to accidents that could occur only because of negligence. Rather, the plaintiff must show the event is the kind that ordinarily does not occur in the absence of negligence. In this case, plaintiff showed that what had happened to her would ordinarily not happen without negligence. The defendant did not rebut her evidence. "While no doubt things can happen at sea that could cause an extended halyard to slip out of a seaman’s grasp without negligence, Tagle’s evidence was sufficient to show that this does not ordinarily happen without negligence." Simply put, if the workers did their job properly, this accident would not have happened. While you can blame it on the wind or some other external factor, there was no evidence of any such external force. The Court reasons:

A deckhand who carefully exercises the skills required for the seaman’s job will not ordinarily lose hold of an extended weighted halyard—all the more so when passengers are seated in the halyard’s swing‐path. Waves and wind, and the consequent shifting and rolling of the deck, are the normal conditions of the sea, in which seamen must work protecting the safety of passengers and crew. While it is no doubt true that sudden unexpected turbulence can be of such force that a seamen’s loss of control of a line could be deemed non‐negligent, there was no evidence in the record of any such abnormal circumstance that caused the halyard to slip from Biggins’s grasp. As Johnson made clear, the mere possibility that “some external force”—here, perhaps an unusual wave or gust—“might conceivably compel” a seamen to let go of a dangerous halyard is not sufficient reason to reject the application of res ipsa loquitur if this would ordinarily not happen in the absence of negligence, and there was no evidence of any such unusual external force.

Even without res ispa loqutur, plaintiff still wins, as she has established negligence without that theory. The Court says there is no other way to view the evidence, which means plaintiff wins the case.

The inmate wins his appeal

Inmates win their civil rights cases in the Second Circuit more often than you would think. Some win their appeals pro se, which is noteworthy because they are not lawyers and face off against highly skilled state lawyers. Others win their appeal because, after handling the cases pro se in the district court, the Second Circuit assigns them counsel who know what they are doing. In this case, the inmate is represented on appeal by one of the largest law firms in New York City.

The case is Shapard v. Attea, a summary order decided on October 12. Plaintiff says the correction officers punched and kicked him and beat him with a baton, causing serious injuries that required medical treatment. He says this was in retaliation for the grievances that he filed. While the complaint asserts that prison officials found after a hearing that plaintiff had initiated the incident by assaulting an officer, the complaint does not admit nor deny this finding, though the complaint attaches documents produced in connection with the incident in which plaintiff contemporaneously denied any misconduct. He also denied any wrongdoing at his deposition. Eventually, plaintiff pleaded guilty to assault arising from the incident.

Based on that guilty plea, the district court threw plaintiff's case out the window, reasoning that under Heck v. Humphrey, 512 U.S. 477 (1994), "Shapard’s version of the facts 'clearly impl[ies] the invalidity of his assault conviction, which has not been set aside, and consequently [his claims] are
barred by Heck[.]” In other words, the guilty plea means that plaintiff is responsible for his injuries and there is no case because he had assaulted an officer. The district court concluded that plaintiff's civil rights case is undermined by the guilty plea.

The Second Circuit (Jacobs, Cabranes and Wesley) reinstates plaintiff's case. It reasons, "Shapard’s excessive force claims are not Heck‐barred because their favorable adjudication would not 'necessarily imply the invalidity'” of his prior assault conviction." In addition, "the complaint does not deny that Shapard assaulted Officer Attea. Although attachments to the complaint reflect Shapard’s previous denials, the complaint does not necessarily adopt those denials (which were made years earlier, before Shapard pleaded guilty)." Nor do Shapard’s civil rights claims depend on the invalidity of his assault conviction. His lawyer argued in the district court that "nothing in Plaintiff’s guilty plea or allocution precludes him from testifying as to what happened next, including testifying as to force used against him by the Defendants and testifying as to the injuries he sustained."

No First Amendment claim for teacher who objected to cheating students

The Court of Appeals holds that a professor cannot sue a public college under the First Amendment even though he suffered retaliation for refusing to allow his students to cheat. This case again illustrates the hurdles faced in presenting public employee speech claims.

The case is Bhattacharya v. SUNY Rockland Community College, a summary order decided on October 10. To prevail in a public employee speech claim, the plaintiff must show (1) he spoke on a matter of public importance and (2) he spoke out as a citizen and not as an employee. The first element (public concern) derives from a Supreme Court ruling, Connick v. Myers (1983). The second element (citizen speech) derives from another Supreme Court ruling, Garcetti v. Ceballos (2006). The idea is that the government cannot operate efficiently if employees are allowed to speak on personal or trivial matters that do not concern the public. These cases also advance the principle --- which courts love to remind us -- that courts are not "super-personnel" departments and that under the "at-will" employment principle, management can treat its employees any way that it wants to so long as it does not violate a specific legal principle.

Plaintiff spoke as an employee and not as a citizen in refusing to permit his students to cheat. This speech was "part and parcel" of his official duties, even a "core duty" as a teacher. In addition, the Court (Lohier, Droney and Rakoff [D.J.]) says, "there is no plausible allegation that the speech at issue was on a matter of public concern rather than 'calculated to redress a personal grievance' between Bhattacharya and his students."

Plaintiff offers the Court an angle that would get around Garcetti: that his speech relates to scholarship or teacher. Garcetti did decline to specifically hold that the citizen/employee speech distinction applied to public schools. The concern was academic freedom. That argument will not work here. Whatever the Supreme Court intended in staking out a possible exception for academic freedom, plaintiff's case does not implicate those concerns. While the Second Circuit has "recognized an academic freedom claim where a restriction on speech implicates the content of a teacher's lessons or restricts a school's ability to determine its curriculum," plaintiff does not allege any of that here.

Unfair treatment is not discrimination

This case drives a point home that many plaintiffs do not want to hear. If you get shafted at work, that is not necessarily a discriminatory action. The Court of Appeals feels bad about how this guy was treated, but it still finds he has no case.

The case is Williams v. New York Hospital Medical Center of Queens, decided on October 6. Williams applied for a job at the Hospital, which stopped considering his employment application after a prospective or recently hired employee racially profiled Williams and wrongly accused him of stealing her cell phone while he was waiting for his second job interview. This accusation was ultimately dropped, but along the way it "led to an escalating series of interrogations in which Williams became increasingly agitated. He ultimately was removed from the Hospital by police officers and not allowed to continue with the interview process."

In reviewing the case, the Court of Appeals (Newman, Walker and Pooler) says that "it does seem that he was badly and unfairly treated. Apparently without any evidence, Williams was accused of theft and interrogated by police. He was thrown out of the Hospital when he protested his treatment, even though he had been cleared of wrongdoing. Unfortunately, it is well known to this court that racism on the part of accuser, investigators, and bystanders may well have affected the course of events." But that is not the end of the story. Williams is suing for discrimination. There is no unfair treatment law in New York.

Even if Williams provides reason to infer that his accuser and the NYPD officers were “motivated by discriminatory intent,” "he does not provide reason to infer that the decision not to hire him derived from the same motives." The Court goes on:

The motives for accusation and unfair treatment during the investigation cannot be equated with the motives not to hire Williams, at least not on the factual allegations that Williams puts forward. Had Williams instead been late to a job interview due to a racially discriminatory police stop, we could simultaneously conclude that he had been mistreated due to his race and that he had no claim against those who decided not to hire him. Similarly here.

No due process violation for tenured ex-City employee

We are all familiar with the concept of due process, a right embedded in the Constitution. Due process means the government cannot deprive you of a liberty or property interest without "due process," or a fair shake. That right, however, is not always vindicated in court. There are numerous defenses available to the government in these cases, including this case.

The case is Richardson v. New York Board of Education, a summary order decided on October 2. Plaintiff worked for BoE, handling special education matters. After a parent complained about plaintiff, the BoE investigated and reached adverse findings against plaintiff. By then, plaintiff had resigned her position and was placed on the Ineligible List, which means she cannot work for the BoE -- or any related vendors -- again.

Plaintiff says she was denied due process. The Court of Appeals (Livingston, Lynch and Rakoff [D.J.]) says she was not. In 1996, the Court of Appeals held in Finley v. Giacobbe, 79 F.3d 1285 (2d Cir. 1996), that public employees "cannot complain of procedural defects and omissions because she resigned before her employer took all the steps necessary to fire her,"and the resignation "makes it impossible for her to demonstrate that she would not have received the procedural protections prior to her actual firing." In other words, the public employee cannot short-circuit the process by resigning and then turn around and claim she was not given procedural rights to which she was entitled. That reasoning applies to this case.

While plaintiff says Finley is distinguishable because plaintiff was a tenured administrator and the plaintiff in Finely was an at-will employee, "nothing in Finley suggests that its reasoning was cabined to at-will employees." Plaintiff's tenure status does not affect the due process analysis.

The Second Circuit strikes down plaintiff's various other arguments. As a retired employee, plaintiff does not have a protected property interest under the Due Process Clause for purposes of finding other government employment. "Prospective government employment is not a protected property interest," the Second Circuit held in Abramson v. Pataki, 278 F.3d 93 (2d Cir. 2002). She only had an abstract need or desire for a future position. That will not cut it.

Trainspotting plaintiff cannot pursue false arrest claim

The 16 year-old plaintiff was a Westchester County train enthusiast who liked to stand by the tracks and monitor their performance. Someone reported him to the police -- if you see something say something! Upon arrival, the police saw him holding a camera with a backpack on the ground and two electronic devices (one was a scanner) were next to him. The police did not take plaintiff up on his offer to produce a letter from the MTA that allows him to do this, as they thought he might instead activate a sabotage device with his phone. He was arrested for trespass, but that charge was later dropped.

The case is Grice v. McVeigh, decided on September 29. This case represents the clash of two principles: the right to be free from false arrest without probable cause and our present-day fears of terrorism. The Court of Appeals (Jacobs and Walker) holds that the arresting officers are entitled to qualified immunity, which gives public officials the benefit of the doubt in close cases if an objective police officer would have also made the arrest. In what I see as a pattern in recent years, the Second Circuit frequently grants qualified immunity to the officers in a false arrest case, reminding us that the Supreme Court has been generous with this defense, which is "forgiving" and "protects all but the plainly incompetent or those who knowingly violate the law." An officer's bad judgement may not be enough for the plaintiff to win the case.

The Court says the officer had reasonable suspicion to stop and cuff plaintiff, either for lawful interference with a train or for trespass, as this officer had recently been trained on railroad sabotage, and someone in nearby Putnam County had recently been caught with a homemade device wrapped in black tape and a radio-controlled antenna. The officer had never previously heard of what the Court of Appeals calls "trainspotting," and he was not legally required to credit an innocent explanation, a principle that is embedded in Second Circuit case law. "It was not unreasonable for a lone officer to handcuff Grice in order to ensure that Grice could not press a detonator button on any electronic device until the tracks could be searched."

Judge Parker dissents. While he says the officer had the right to initially ask plaintiff questions, that Terry stop ripened into an arrest because plaintiff was cuffed and not free to leave. He then attacks the majority for dropping a footnote summarizing recent cell phone use by terrorists. "If a generalized fear of terrorism coupled with the possession of a cell phone is sufficient to justify an arrest, then our Fourth Amendment is in real jeopardy," as practically every American has a cellphone. Since the officer should have recognized that plaintiff was a train buff and the officers continued plaintiff's detention even after they cleared him of any threat to the railroad.