Friday, October 20, 2017

State Court of Appeals rejects expanded interpretation of New York City Human Rights Law

Every now and then the Second Circuit sends a case to the New York Court of Appeals to untangle a state law question. In this case, the Second Circuit asked the State's highest court to rule on whether the New York City Human Rights Law prohibits disciplining or firing an untreated alcoholic.

The case is Makinen v. City of New York, decided by the New York Court of Appeals on October 17. The two plaintiffs were New York City police officers. They were referred to the police department's internal counseling unit, which is like an EAP for police officers. Plaintiffs were not alcoholics, but the CSU determined that they "suffered from some sort of alcoholism." This lawsuit alleges that they suffered adverse employment actions because the City had wrongly believed they were untreated alcoholics. After the jury awarded them good money at trial, the City appealed, claiming the City Human Rights Law did not cover this form of discrimination. The Second Circuit referred the case to the New York Court of Appeals, which now holds that plaintiffs have no case because the City law does not explicitly prohibit this form of discrimination.

The Americans with Disabilities Act and the New York State Human Rights Law do prohibit discrimination where an employee is perceived to be an untreated alcoholic. The express terms of the City law do not prohibit that form of discrimination. The reason why the case got this far is that the City law was intended to provide for greater rights than federal and state law. On that basis, plaintiffs say, it is reasonable to interpret the City law to also prohibit discrimination against persons perceived as untreated alcoholics. Anyone familiar with the scope of the City law and its legislative history -- which demands that courts interpret it in the most plaintiff-friendly manner possible -- would understand where plaintiffs are coming from on this issue. Unfortunately for them, the State Court of Appeals does not see it that way, setting aside the pro-plaintiff statutory interpretation principles in favor of a plain reading of the statute, which takes priority over legislative intent under state law.

The State Court of Appeals concludes that "the [City law] does not consider a mistaken perception of alcoholism to be a disability covered by the [City law]." While the City law provides greater protections than federal and state law, and the legislative history and even portions of the statute tell courts to liberally construe the City law, the State Court of Appeals says "this is a rare case where through its express language, the City Council has mandated narrower coverage than" state or federal law.

This is not a unanimous decision. Five judges agreed with the City, and two judges dissent. Judge Garcia notes that courts must construe the City law "broadly in favor of discrimination plaintiffs whenever such a construction is reasonably possible." The State Court of Appeals said that in Albunio v. City of New York, 16 N.Y.3d 472 (2011). As Judge Garcia sees it, plaintiff's interpretation of the statute is "reasonably possible," concluding that legislative intent is the primary consideration in reviewing a statute's meaning. Under that interpretative model, plaintiffs are correct, Judge Garcia says, because the City law broadly protects against disability discrimination and the provision at issue in this case does not modify the broad definition of "disability" under the statute. This is a complex argument, but a reasonable one, the dissent says, even if the City also advances a reasonable argument. Under the statutory construction principles advanced by the City law, even if both sides advance a reasonable interpretation, the court must accept the plaintiff's interpretation. But, since the majority disagrees with Judge Garcia's analysis, the case returns to the Second Circuit, which must apply the majority's interpretation to the facts of the case. In all likelihood, the Second Circuit will vacate the jury award on the basis that the City law does not protect plaintiffs from this form of disability discrimination.   

Thursday, October 19, 2017

Retaliation claim fails under Title VII

In this retaliation case under Title VII, we learn once again what constitutes an adverse action under the civil rights laws. We also learn once again what constitutes the "oppositional" activity necessary to claim retaliation. Adverse actions are an easy call if you are fired or denied a promotion. But what about lesser job actions that can aggrieve most employees? Oppositional activity under Title VII is an easy call if you explicitly complain about discrimination. But not every issue is an easy one, which is what the courts are for.

The case is Moy v. Perez, a summary order decided on October 11. If you complain about discrimination and something bad happens to you afterwards, that opens the door to a retaliation case. In this case, plaintiff was denied a promotion in March 2011. In 2010-11, he participated in a "climate survey." The decision does not explain what this climate survey was intended to accomplish, but my guess is that employees were asked to accurately describe the workplace environment. My guess is also that he did not claim in the climate survey that he had to endure a discriminatory work environment. The Court of Appeals (Raggi, Hall and Carney) says that "insofar as Moy contends that his participation in the 2010-2011 'climate survey' constituted a protected activity, his claim fails because no complaint allegations suggest that such activity entailed opposition to a practice prohibited by Title VII."

Plaintiff also loses the case because he did not suffer an adverse employment action. Employees do not refer to bad experiences at work as adverse employment actions. That's a phrase that only lawyers and courts use. In plain English, an adverse action in retaliation claims is some response by management that would prevent the average employee from complaining about discrimination again.

Moy alleges that (1) his supervisors “micromanaged” him and subjected his work to “heightened scrutiny,” (2) he received a less positive performance evaluation than he had in past years; and (3) his supervisors did not follow several DOL protocols in bestowing that evaluation. Such treatment, “considered both separately and in the aggregate,” would not dissuade a reasonable employee from “‘making or supporting a charge of discrimination.’”
Not only did plaintiff have a positive performance evaluation in spite of the hassles he went through, but the alleged close supervision constitutes "trivial harm" that would not prevent a reasonable employee from complaining about discrimination in the future.

Wednesday, October 18, 2017

Hostile work environment claim fails -- not enough offensive comments

Plaintiff in this case says she suffered a hostile work environment because of her disability. The Second Circuit says she has no case even though she claims coworkers "constantly" made derogatory comments about her mental health.

The case is Lawson v. Avis Budget Group, a summary order decided on October 11. Plaintiff apparently does not explicitly allege in her complaint that she suffered a hostile environment. In 2007, the Second Circuit said that a hostile work environment claim can be inferred from a “complaint [that] does not explicitly allege discrimination based on a hostile work environment” but nonetheless “gives the defendant fair notice of [the] claim for hostile work environment and the grounds upon which that claim rests." That case was Kassner v. 2nd Avenue Delicatessen, 496 F.3d 229 (2d Cir. 2007). The Court of Appeals (Raggi, Sack and Carney) wonders if the Supreme Court's plausibility pleading standard under Iqbal (2009) has repudiated the reasoning in Kassner. The Circuit does not resolve that issue, because it finds that plaintiff has not adduced enough evidence of a HWE in any event.

"Although Lawson argues that her coworkers “constantly” made derogatory comments about her mental health, Appellant’s Br. 13, this argument is belied by her deposition testimony, in which she stated that she could recall only one instance of such a remark. This isolated incident is insufficiently severe to permit a rational trier of fact to find a hostile work environment." What you say in the brief is one thing, but briefs are not evidence. While plaintiff points to her summary judgment affidavit stating that she endured insults related to her mental health on a "near daily" basis for almost a year, that affidavit -- which might normally be enough to repel summary judgment -- cannot work here because it contradicts her deposition testimony.

Lawson tries to get around this by arguing that her deposition testimony discusses the one occasion in which she heard subordinates discuss her medical condition, and her affidavit addresses many instances in which she was "insulted" by coworkers. That argument can work, but the Court of Appeals rejects it based on how it reads the deposition and affidavit.

At her deposition, Lawson testified that coworkers discussing her medical condition said “like, oh, she’s unstable, stuff like that,” and were “laughing at” and “mocking” her for being “cuckoo for Cocoa Puffs.” In her affidavit, Lawson similarly stated that coworkers “laugh[ed] at” her and called her, among other derogatory names, “cuckoo for co[]coa puffs.” This belies the distinction she attempts to draw between the deposition and affidavit and supports the district court’s identification of a clear contradiction as to the frequency of harassment. Because Lawson has not provided a plausible explanation for this contradiction, her affidavit cannot create a triable issue of fact as to the existence of a hostile work environment.

Tuesday, October 17, 2017

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. 

Monday, October 16, 2017

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.

Thursday, October 12, 2017

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."

Wednesday, October 11, 2017

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.