Hostile housing environment claim fails

The Second Circuit has affirmed the summary judgment dismissal of a hostile housing environment claim brought under the Fair Housing Act, finding that plaintiffs did not plausibly allege that they suffered severe or pervasive harassment by the landlord.

The case is B.L.M. v. Board of Managers of the Vireum Schoolhouse Condominium, a summary order issued on November 4. There is such a thing as a hostile housing environment case, based on the same principles as a hostile work environment claim, in that you have to show the racial (or other unlawful) harassment was severe or pervasive. But under a recent Second Circuit case, Francis v. Park Manor, 992 F.3d 67 (2d Cir. 2021), you cannot sue landlords for the racial harassment of the tenants. You have personally attribute the harassment to the landlords in some way, i.e., the landlord himself engaged in the harassment.

First, there is no severe or pervasive harassment. The Court of Appeals (Pooler, Lee and Englemayer [D.J.]) writes, "the only instances of alleged conduct that could be attributed to the Board, one of the Board’s members, or a Vireum resident acting in concert with the Board were the pattern of banging, stomping, and scraping noises coming from the unit above the unit occupied by A.L.M. and her family, and the pattern of behavior in which Vireum residents would intersect, come unwantedly close to, or temporarily block, Moore Family members as they came to or from their unit . . . We are unpersuaded, however, that a reasonable juror could not find that the Moore Family experienced a pervasive and severe hostile housing environment." While the noise was excessive (more than 100 times) and frequent, there is no evidence that it was motivated by race (plaintiffs are Chinese), gender or age. Their allegations about unlawful motivation are conclusory, the Court finds. 

Instead, the records suggests there were non-discriminatory reasons for this senseless harassment. It looks like the parties hated each other for other. The Court writes, 

there was evidence of long- standing antagonistic relations between Scott Moore [the plaintiff-tenant] and the Board relating to the operation of the building. The record includes, for example, email exchanges with the Board in which the Moores attempted to limit Vireum residents’ use of the condominium’s common areas, such as prohibiting them from gardening in front of the Moore Family’s unit, limiting the use of their parking spots, or standing in the parking area. Those exchanges indicate that the personal relations between the Moores and the Vireum Board and residents had irreparably broken down, for reasons independent of A.L.M.’s race and national origin or other protected characteristics.

Court of Appeals gives pro se discrimination plaintiff a break

This pro se appeal alleging disability and religions discrimination fails, but the Court of Appeals gives him a second chance to amend the complaint because it thinks he may actually have a case.

The case is Patel v. NYU Langone Hospitals, a summary order issued on October 19. The case was dismissed under Rule 12(b)(6) for failure to state a claim. But the district court dismissed the case without analysis, giving the Court of Appeals nothing to work with other the plaintiff's complaint and his letters to the district court and the Court of Appeals further detailing his case. While the Court of Appeals would never credit these letters had plaintiff been represented by counsel (as they would be outside the record), the courts give latitude to pro se litigants who do not always know the rules of the road. These letters save the appeal.

What this means for plaintiff is that while the disability discrimination allegations in the complaint do not make out all the elements, in that they do not outline whether plaintiff could perform the essential functions of his position as a nuclear medicine technologist, his letter submissions and statements made in his appellate brief (which may not have cited to materials in the record) provide details about his medical conditions that suggest he may have been fired because of disability. So while the failure-to-accommodate claim is gone for good, the unlawful termination claim may be revived in the district court with a properly-amended complaint that notes that he had received good performance reviews for 20 years.

The same thing happens with the religious discrimination claim. The pro se complaint does not provide enough facts. But plaintiff's letters to the court suggest he had to leave work early one day to satisfy a religious obligation (he is Hindu) and that management knew about his religion and told him not to read religious texts at work. The Second Circuit (Walker, Sack and Carney) thinks plaintiff should get another shot in the district court in pleading this claim. 

We also have a Family and Medical Leave Act claim. Same thing here. Plaintiff says he was fired because he needed FMLA leave relating to dental surgery. "Patel alleges that NYU approved his application for FMLA leave related to his need for dental surgery. This allegation suggests that he was eligible for FMLA leave, entitled to take it, and gave NYU notice. He also alleges that he was fired for his absences (specifically, for a record of absences culminating in his May 2017 early departure) and that NYU counted medical leave covered by the FMLA against him in evaluating his attendance record. Patel took leave for eye surgery in the month before May 2017, when he was dismissed, and had been approved for upcoming FMLA leave for dental surgery. That temporal connection between a series of protected absences and his firing for poor attendance gives rise to a plausible inference that he was fired for taking FMLA leave." But plaintiff does not allege in the complaint that he was qualified for his position. Again, a pro se mistake. But the appellate brief does say he was qualified. The Court of Appeals gives him the benefit of the doubt. He can amend the complaint on remand to fix that pleading deficiency.

I am sure defendant's counsel raised holy hell about giving plaintiff a second chance to amend the complaint, and they probably said plaintiff had his chance to plead his case, and he did not even ask the district court for permission to file an amended complaint. But we are dealing with a pro se plaintiff, and courts know that pro se plaintiffs don't always know the procedure. We don't want cases to be dismissed for that reason, which means Patel gets a second chance on remand.

The harsh lessons of attorneys' fees appeals

I rarely see successful appeals challenging the trial court's award of attorneys' fees when plaintiff's counsel wins a civil rights case. The Court of Appeals is quite deferential to the trial court's attorneys' fees award, suggesting that this determination is largely within the district court's responsibility, and the appellate judges will not get their hands dirty on these billing issues. This case proves that point yet again.

The case is Chaparro v. John Varvatos Enterprises, Inc., a summary order issued on November 4. This case was brought under the Equal Pay Act. Plaintiffs won the case and were awarded nearly $750,000 in damages. Their lawyers then moved for attorneys' fees. The district court awarded counsel $105,000 in fees to be paid from the damages award allocated to punitive damages. That's good money, but counsel appeals, claiming they were entitled to more money.

The attorneys first argue that the district court's hourly rate was too low. The rates ranged from $250.00 to $450.00 per hour for the lawyers. The district court declined to award higher rates, reasoning that "There are effective attorneys at lower prices [than those sought by Plaintiffs-Appellants] for experienced litigators." In non-legalese, this means that, in theory, plaintiffs could have hired lawyers for less money. This is a theoretical proposition since most civil rights plaintiffs do not pay their lawyers any money at all.  But the courts like to use an objective test in fixing an hourly rate in these cases. The Court of Appeals does not like to second-guess these determinations, figuring the trial courts have a better handle on these issues than the appellate judges. 

With that in mind, while the trial court praised plaintiffs' counsel for their excellent work in the courtroom and their quality of their written submissions, it also held "the litigation of this case positioned counsel to demonstrate expertise in class action and employment law that did not exist before. The hourly rates fall within the reasonable range in the Eastern District and the trial court did not abuse its discretion in rejecting counsel's higher rates. 

The appeal also alleges that the trial court improperly reduced the compensable hours by 50 percent. This means that instead of recovering $105,000 in fees counsel could have gotten $210,000. But the Court of Appeals thinks the trial court had reason to do this. The trial court said this reflected excessive hours resulting from the lawyers' "utter lack of experience in either class actions or employment litigation." And, in other employment cases, lawyers put in far fewer hours than plaintiffs' lawyers did. While plaintiffs' lawyers said the comparable cases were actually incomparable because they involved single-plaintiff discrimination suits, "class actions are not categorically more complex than individual actions, and the district court appropriately considered the nature of the case as a class action lawsuit when formulating the award." 

Some basic rules on the Americans with Disabilities Act

This case highlights an obvious reality under the Americans with Disabilities Act. While the ADA requires your employer to provide a reasonable accommodation for your disability, there are limits to that obligation. If you can't come to work, there will not be an accommodation for you (at least in most cases).

The case is Gorbea v. Verizon New York International, a summary order issued on October 19. Plaintiff says Verizon fired her because she is disabled and the company failed to accommodate her. Verizon says this is not true. In order to prove such a claim, plaintiff has to make out a prima facie case, which includes proving that she could perform the essential job functions without a reasonable accommodation. Under the ADA, if you cannot perform an essential job function -- defined as a job duty that is critical to good job performance -- then there is no claim. The ADA does not provide a claim simply because you have a disability.

The problem for plaintiff is that her disabilities, PTSD and depression, prevented her from coming to work. It goes without saying that showing up for work is an essential job requirement (unless there is some telecommuting component to the job). She admitted this under oath. As such, plaintiff was not "otherwise qualified" to perform her job under the ADA. As for the failure-to-accommodate claim, plaintiff loses that also because she never requested an accommodation for her PTSD and depression. The Court (Walker, Carney and Sack) writes that "Verizon therefore could not have 'refused' to accommodate a request that was not made." The Court does not mention that the employer sometimes has to initiate the reasonable accommodation discussion if it knows the plaintiff needs an accommodation, but it does note that Verizon invited her to request an accommodation but plaintiff did not respond.

Plaintiff also sues under the New York City Human Rights Law, which has a more lenient burden of proof for plaintiffs to satisfy in order to win the case. But that law only goes so far. Even under the City law, plaintiffs inability to come to work means she has no case. 

An astute reader has drawn my attention to a ruling from the New York Court of Appeals on this issue, suggesting the law in New York is better than federal law. Unlike "the State HRL (as well as the ADA) . . . there is no accommodation (whether it be indefinite leave time or any other need created by a disability) that is categorically excluded from the universe of reasonable accommodation" under the City HRL]). That's from Romanello v. Intesa Sanpaolo, S.p.A., 22 N.Y.3d 881, 884 (2013).

Court of Appeals holds NY's mandatory vaccination rule is probably constitutional, reinstating the mandate

The Second Circuit has held that the State of New York's requirement that healthcare workers take the Covid-19 vaccination is likely constitutional and cannot be struck down at this time. This ruling overturns a preliminary injunction against the mandatory vaccination issued by a federal trial court in Utica, and it affirms a second ruling that that upheld the mandatory vaccination rule by a federal trial court in Brooklyn. 

The case is We the Patriots, Inc. v. Hochul, issued on November 4, one week after oral argument. The challenge arises from the absence of any religious exception from the mandatory vaccination rules. For that reason, the plaintiffs bring this case under the Free Exercise Clause of the First Amendment (also known as the religious freedom clause) and Title VII of the Civil Rights Act of 1964, which prohibits religious discrimination in employment. A central component of their argument is that, since the mandatory vaccination rules contain a medical exemption for people who get sick from the vaccine, the lack of a religious exemption singles out religion and is therefore illegal.

Under the Free Exercise Clause, a facially-neural law that has the incidental effect of burdening religious activities is constitutional. The Supreme Court said that in Employment Division v. Smith (1990), written by Justice Scalia. At the time, legal scholars raised holy hell about this ruling, claiming it discarded decades of Supreme Court authority that said that even neutral laws that burdened religious activities are presumed unconstitutional unless the government could advance a compelling reason for applying it to religious practices. In that case, the government was able to restrict religious but ceremonial drug use by a Native American tribe, because the law applied to everyone. But if the law singles out religious practices on its face, in contrast, then the law is unconstitutional unless the government can articulate a compelling reason for this selective legislation. So, for example, if a religion advocates human sacrifices, then a law prohibiting the religion from doing that will will not be struck down under the Free Exercise Clause.

The New York vaccine mandate for health care workers is neutral and does not single out religion, the Court (Carney, Walker and Sack) says, even though the original, albeit emergency, mandatory vaccination law did provide for such an exemption before New York revised it after further deliberation  to remove the religious exemption. That sequence of events does not mean the revised regulation is hostile toward religion; nor does it mean the absence of a religious exemption means that religion is being singled out. On its face, the revised regulation means it is neutral toward everyone, except for people who claim a medical exemption. 

The medical exemption does not change things, the Court holds, because the medical exemption is not comparable to the religious exemption. The Court accepts the state's justification for the distinction between medical and religious exemptions, stating:

the State maintains [that] the medical and any religious exemption differ in an important respect: applying the Rule to those who oppose vaccination on religious grounds furthers the State’s asserted interests, whereas applying the Rule to those subject to medical contraindications or precautions based on pre-existing conditions would undermine the government’s asserted interest in protecting the health of covered personnel. Vaccinating a healthcare employee who is known or expected to be injured by the vaccine would harm her health and make it less likely she could work. 

In addition, "the State has also presented evidence that raises the possibility that the exemptions are not comparable in terms of the 'risk' that they pose. It notes that the medical exemption is defined to be limited in duration, as the vaccine requirement is 'inapplicable only until such immunization is found no longer to be detrimental to such personnel member’s health.' . . . In contrast, a sincerely held religious belief that vaccination is inconsistent with one’s religion is unlikely to change to permit vaccination in the future, absent the approval of new vaccines that are developed in a different way. The statistics provided by the State further indicate that medical exemptions are likely to be more limited in number than religious exemptions, and that high numbers of religious exemptions appear to be clustered in particular geographic areas."

What about the Title VII claim alleging the mandate discriminates against religion in the workplace? That argument also fails, the Court of Appeals says, because allowing employees to forego the vaccine is not the only religious accommodation that management may extend to employees. Any reasonable accommodation that does not cause the employer undue hardship will do. The limited preliminary injunction record does not provide the Court of Appeals with enough information for it to know whether there were many or few such accommodations available to religious employees. 

Of course, this fight is not over. I am sure the plaintiffs' attorneys are seeking Supreme Court review on this issue. The conservative Justices have been favorably inclined toward religious freedom arguments in recent years, especially in the context of Covid-19 policies. They may use this case to reevaluate its prior interpretations of the Free Exercise Clause, as well, to make it easier to challenge government policies that in some way infringe on religious practices. 

 

2d Circuit weighs in on the City's pandemic legislation intended to help commercial tenants

The City of New York enacted various laws in the wake of the Covid-19 pandemic intended to protect commercial tenants from being evicted because they were unable to pay the rent. The concern was that, without these protections, the businesses would have to close up for good and New York City would never recover economically from the pandemic. Two of those measures came before the Second Circuit.

The case is Melendez v. City of New York, decided on October 28. The first law prevents commercial landlords from harassing or threatening their tenants because of their actual or perceived status as a person impacted by Covid-19. The landlords argue this law violates the First Amendment's free speech guarantees because it might prohibit the collection of rent. The Court of Appeals disagrees.

The anti-harassment provision does not define "threatening." The Court (Raggi, Cabranes and Carney in dissent on the contracts clause issue) uses the dictionary definition of "threatening" in finding the law would not make it illegal to make a routine request for rent because that would not be an illegal means to seek payment for delinquent rent. Nor would such a routine request signal an intent to inflict harm on the tenant. Since the plaintiffs do not intend to pursue unlawful remedies in collecting rent, they cannot claim the law violates the First Amendment. The Rule 12(6)(6) motion to dismiss that claim was therefore granted.

The second law under review says that commercial tenants do not have to pay back rent ever if they were unable to do so during a 16-month window. The idea was to ensure that city businesses do not face the loss of their businesses and face financial ruin or bankruptcy because the pandemic. This law would allow them to recover financially and save their businesses once the pandemic subsides.

The landlords challenge this law under the Constitution's contracts clause, a relatively obscure provision of the Constitution, which says that "no State shall pass any law impairing the obligation of contracts." Judge Raggi provides an extensive review of contracts clause jurisprudence over the years, noting that courts used to interpret it literally, without any balancing test. But courts have since interpreted the clause with more flexibility. As now understood, the contracts clause "allow[] states to protect the public welfare" in cancelling some contracts, so long as the state can identify a legitimate and significant public purpose through reasonable and appropriate means. Courts like balancing tests in applying constitutional provisions that have absolute language, and the contracts clause is no exception.

Under this test, the landlords may proceed with their constitutional challenge to the rent-cancellation law, and the district court should have denied the Rule 12(6)(6) motion. The rationale here is that the law "appears permanently and unexpectedly to repudiate commercial lease guaratees for arrears arising over a sixteen-month period" such that they have suffered significant impairments of their contracts. In addition, While the law is motivated by a significant government interest, it is not clear that the City adopted the best means to protect tenants from financial ruin, as the law does not provide them temporary protection from paying back rent, but permanent protection, even if they never reopen their businesses. The law also protects tenants even if they do nothing in the public interest in generally ensuring functioning neighborhoods. Nor is the law necessarily based on need, as even businesses that might someday be able to pay their back rent are excused from doing so. In short, there may have been better ways for the City to protect tenants during the pandemic. The case returns to the district court to sort out these issues in discovery.

No Section 1983 claim for violating substance abuse patient confidentiality

Plaintiffs' lawyers will from time to time get phone calls over health care privacy. Sometimes you get a call because someone's HIPAA rights were breached in the unauthorized release of medical records. But the courts have already ruled that HIPPA does not provide a private right of action. There is no lawsuit under HIPAA for this. In this case, the Second Circuit considers another health records case under a different statute, also finding there is no claim.

The case is Schlosser v. Kwak, issued on November 2. Plaintiff was incarcerated in a Connecticut state prison before he was released on probation and began using illegal substances to deal with the withdrawals occasioned by running out of medication to treat his mental illness. He was sent to a counseling center for substance abuse treatment. When plaintiff's probation officers submitted an affidavit that mentioned his substance abuse treatment, a process that led to proceedings against him in state court for violating the terms of his probation, plaintiff sued under 42 U.S.C. 290dd-2(a), which prohibits public disclosure of substance abuse treatment.

Is there a case for the violation of this statute? The general federal civil rights law, Section 1983, provides damages for the violation of a federal right. But not every federal statute can give rise to a Section 1983 case. The Supreme Court has devised a formula for determining which statutes can predicate a Section 1983 lawsuit. We ask whether Congress intended that the federal statute creates personal rights that are enforceable through Section 1983. That's the rule in Blessing v. Firestone, 520 U.S. 239 (1997).

This statute cannot support a Section 1983 claim, the Second Circuit (Lohier, Leval and Sullivan) says. The Fourth and Sixth Circuits have already held as such. The Second Circuit adopts the reasoning in those cases, stating that nothing in the statutory language suggests that Congress had in mind the creation of individual rights for purposes of suing under Section 1983. Rather, "Congress was concerned primarily with  fostering programs aimed at curtailing our nation's staggering substance abuse problems." And, while Congress provided criminal sanctions for violating this law, it made no mention of any private enforcement mechanism.