Tuesday, May 22, 2018

Supreme Court endorses arbitration agreements that curtail FLSA collective actions

The Supreme Court has ruled 5-4 that arbitration agreements can foreclose employees from bringing wage-and-hour collective actions. This means that employees who sign arbitration agreements upon commencing employment will have to proceed to one-on-one arbitrations, which may not be worth it for many employees who have a legitimate case but do not have significant damages claims.

The case is Epic Systems v. Morris, decided on May 21. The case presents a clash of two federal statutes: the Arbitration Act of 1925, which authorizes parties to bring their disputes to arbitration and not court, and the Fair Labor Standards Act of 1935, which allows employees to form a union, collectively bargain and "engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection."

Writing for the majority, Justice Gorsuch says the Arbitration Act allows employers to mandate arbitration even if the aggrieved employees want to bring a collective action under the FLSA. The majority rejects the argument that "other concerted activities" includes collective action lawsuits to recover lost wages or overtime. That phrase, the majority says, "serve[s] to protect things employees 'just do' for themselves in the course of exercising their right to free association in the workplace, rather than 'the highly regulated, courtroom-bound 'activities' of class and joint litigation." This is how the majority harmonizes both statutes. Indeed, a theme of Justice Gorsuch's opinion is that statutes should be read in harmony with each other, if possible. So this case is another lesson in statutory construction.

The tone of the Justice Gorsuch's majority decision is occasionally casual. This must be his style. As the youngest member of the Court, Gorsuch is surely online and aware of the collective freakout a decision like this would create, particularly since these arbitration agreements are going to foreclose lucrative but important collective actions that individual employees are not going to be able to pursue on their own, either because the cases are too expensive to bring or there is no one to coordinate a joint effort. Justice Gorsuch's tone goes something like this: we know this is a difficult case for some of you to accept, but that's the way we interpret the statutes, and that's the way it is.

Justice Ginsburg dissents. If you're a fan of the Notorious RBG, the dissent is a must-read. She points out that employees who sign these arbitration agreements do not exactly have equal bargaining power with management, and that in this case in particular, the agreements were emailed to employees in the understanding that "their continued employment would indicate their assent to the agreement's terms. . . . [the employees] this faced a Hobson's choice: accept arbitration on their employer's terms or give up their jobs." Also, consider the entry-level employee who is presented with agreements like this. Are they really going to object to the agreements on the basis that, if they ever suffer wage-theft, they will want to proceed in court? Justice Ginsburg writes:

Suits to enforce workplace rights collectively fit comfortably under the umbrella “concerted activities for the purpose of . . . mutual aid or protection.” “Concerted” means “[p]lanned or accomplished together;combined.” American Heritage Dictionary 381 (5th ed. 2011). “Mutual” means “reciprocal.” Id., at 1163. When employees meet the requirements for litigation of shared legal claims in joint, collective, and class proceedings, the litigation of their claims is undoubtedly “accomplished together.” By joining hands in litigation, workers can spread the costs of litigation and reduce the risk of employer retaliation. . . . There can be no serious doubt that collective litigation is one way workers may associate with one another to improve their lot.
This decision will certainly kill off many FLSA collective actions. No large company in its right mind will forego the opportunity to have its employees sign arbitration agreements like this. Otherwise, they risk a collective action that can cost the company hundreds of thousands, even millions, in damages among the many plaintiffs whose claims are not lucrative enough for an individual arbitration. The solution is legislative action, but that is highly unlikely in this political climate.

Thursday, May 17, 2018

2d Circuit issues a rare victory for public employee whistleblowers

Ever since the Supreme Court in 2006 revised the legal standards governing when public employees engage in First Amendment speech, plaintiffs have had a difficult time winning their cases, as courts usually find that the plaintiff did not speak as a citizen but as an employee spoke out pursuant to his official job duties. We call this the Garcetti rule. In this case, the Second Circuit, finds for the plaintiff, a police officer who was retaliated against for speaking on matters of public concern in his capacity as a union representative.

The case is Montero v. City of Yonkers, decided on May 16. As vice president of the union, Montero criticized the police commissioner's decision to discontinue several police units  -- including those dealing with domestic violence and burglary and one dedicated to the Police Athletic League -- that would adversely affect the police department and the community. After plaintiff suffered retaliation for this speech, he brought this lawsuit, which the district court dismissed on Garcetti grounds. The Second Circuit rejects the district court analysis and finds plaintiff engaged in in protected speech, but plaintiff still loses most of the case on appeal on qualified immunity grounds.

The Second Circuit made these cases much harder to win in 2010, when it held in the Weintraub decision that a public employee's speech is unprotected under the First Amendment if it is part and parcel of his ability to perform his job duties. That is a broad net that has swept up many-a-case over the years. Another question that factors into the analysis is whether the plaintiff's speech had a civilian analogue; if the answer is yes, the speech is more likely to be protected.

The Court (Sack, Hall and Katzmann) notes "there may be some confusion as to whether" the issues of "whether (1) the speech was outside the speaker's official responsibilities and (2) there was a civilian analogue -- must be answered in the affirmative for the speech to be protected under Garcetti." But the Court settles that issue in this case. "Although the presence or lack of a civilian analogue may be of some help in determining whether one spoke as a citizen, 'the critical question under Garcetti is whether the speech at issue is itself ordinarily within the scope of an employee's duties.'"

We have three primary holdings here, at least as to the free speech issue. First, since plaintiff's speech as a union official was not "part and parcel of his concerns about his ability to properly execute his duties" as he spoke "as union vice president, a role in which he was not required to serve," his remarks "did not fall within his employment responsibilities." The court does not, however, categorically hold that all speech in your capacity as a union member constitutes speech as a private citizen. Since "his union speech was not composed of statements made as a 'means to fulfill' or 'undertaken in the course of performing' his responsibilities as a police officer," he spoke as a citizen. Second, plaintiff spoke on a matter of public concern because his union remarks opposed the commissioner's personnel cuts and plaintiff called for a no-confidence vote with respect to the commissioner. Speech about the terminate of police units that would endanger public safety constitutes speech on a matter of public concern.

So far, so good for plaintiff (and other municipal speakers), but the analysis does not end there. Most of the defendants are entitled to qualified immunity, which lets public defendants off the hook in damages claims when the law was not clearly-established at the time of the violation. The Court of Appeals says the state of the case law at the time of the retaliation was too murky to put defendants on notice that they were violating the First Amendment. One defendant does not get qualified immunity, at least, for now, because he has not asked for it yet. He probably will on remand. For plaintiff, this is a pyrrhic victory: he improves the state of law for other plaintiffs, but he cannot prevail in this case because of qualified immunity.

Wednesday, May 16, 2018

Muslim plaintiffs can sue federal officers for religious discrimination

This case has not received the attention it deserves. The Court of Appeals finds that two Muslims are allowed to sue federal officers for religious discrimination because the were placed on the "no fly list" after refusing to serve as informants against other Muslims. This is a case of first impression.

The case is Tanvir v. Tanzin, decided on May 2. This case is brought under the Religious Freedom Restoration Act. The plaintiffs are in the U.S. lawfully but have family overseas. Federal agents asked them to spy on the Muslim community, but they rejected that request based on their religious beliefs. According to the complaint, in retaliation for declining to serve as informants, plaintiffs were prohibited from flying and could not visit their families overseas or travel abroad for work.

While the trial court dismissed the case on the basis that the RFRA does not permit recovery of money damages against federal officers sued in their individual capacities, the Court of Appeals (Pooler, Lynch and Katzmann) finds otherwise. Congress passed RFRA in 1993 in order expand religious freedom rights after the Supreme Court in 1990 scaled them back in a decision written by Justice Scalia. The question here is whether the statute authorizes individual capacity claims against federal officers. Under RFRA, a plaintiff can assert a violation of the statute "as a claim or defense in a judicial proceeding and obtain relief against a government," defined as "a branch, department, agency, instrumentality, and official . . . of the United States." By its plain terms, RFRA allows plaintiffs to sue federal officers personally under the statute.

The statute also says you can sue federal officers for "appropriate relief." That relief includes money damages. While the statute does not define "appropriate relief," which is an ambiguous phrase, the legislative history surrounding the statute suggested Congress wanted people to recover damages for these violations. In Franklin v. Gwinnett County, 503 U.S. 60 (1992), the Supreme Court said that this exact phrase (in the context of a different statute) means that "federal courts may use any available remedy to make good the wrong done." Since RFRA was enacted one year after the Court decided Franklin, we can presume that Congress knew what the Court said in Franklin and intended that "appropriate relief" includes the damages that the Court recognized in Franklin. And that, ladies and gentlemen, is how we interpret federal statutes.

Monday, May 14, 2018

Truth is always a defense to a defamation claim

This defamation claim alleges that a vocational school defamed one of its students in claiming she was disruptive in class and exhibited threatening and aggressive behavior toward other students and teachers. The Court of Appeals assigned pro bono counsel to brief and argue whether the plaintiff was able to maintain a defamation per se claim, but the Court sidesteps that issue and rules against plaintiff under a simpler theory: the school's statements about plaintiff were true.

The case is Cain v. Altelier Esthetique Institute, a summary order issued on May 3. Plaintiff was involuntarily terminated from the program after a week of classes. The school said she was disruptive. So plaintiff sued under the Americans with Disabilities Act and state defamation law. The defamation claim was dismissed on summary judgment because, the trial court held, you cannot have a defamation per se claim as a student. Defamation per se -- which presumes you suffered damages if someone tells a falsehood about your profession -- does not apply when the student is the defamation victim. At least that's what the trial court said.

The disability discrimination case went to trial, without a jury. The trial court ruled in favor of the defendant. So this appeal is limited to the defamation claim that was dismissed on summary judgment. The Court of Appeals assigned a lawyer to brief the issue of whether students may bring defamation per se claims in the same manner that a business professional could. As the Second Circuit notes, the trial court "held that extending the doctrine of presumed damages under the 'trade, business, or profession' category to students 'makes little sense.'"

I am sure pro bono counsel did a great job in briefing this issue, but the Court of Appeals (Wesley, Chin and Furman [D.J.]) rules in favor of the school on a different basis: the school's comments about plaintiff were true. Truth is always a defense to a defamation case. How do we know the comments were true? In ruling against the plaintiff on her disability claim, the trial court said "plainly, Ms. Cain appears to suffer from delusions, and although these may be manifestations of her mental disabilities, they resulted in behaviors that rendered her unqualified to to participate in Altelier's educational program." The trial court also said plaintiff had tuned out in class. "While these findings were made in the context of the trial court's post-trial rulings on Cain's discrimination claims, nothing in the record suggests that Cain would have produced any additional evidence if the defamation claim had proceeded to trial."

Friday, May 11, 2018

The First Amendment protects the right not to be a prison informant

The Court of Appeals has recognized a new constitutional right for prisoners. It holds that inmates have the right not to serve as prison snitches at the insistence of correction officers. However, this right is so new that the Court also grants the individual defendants qualified immunity, as no one violated a clearly-established right.

The case is Burns v. Martuscello, decided on May 9. According to the plaintiff, the guards told plaintiff that if did not agree to lie for them as an informant, they would banish him to Involuntary Protective Custody. Plaintiff said he would not snitch. Is this free speech? If it was not clear in the past that this was free speech, it is now.

The Court of Appeals runs through the right not to speak, under the compelled speech doctrine. This goes way back, and includes the Pledge of Allegiance cases from the Supreme Court in the 1940s, and the "Live Free or Die" case where the Supreme Court said New Hampshire cannot force people to drive around with license plates carrying that slogan. The Second Circuit most recently handled this issue in the employment context in Jackler v. Byrne, 658 F.3d 225 (2d Cir. 2011) (a case I argued), where it held a police officer could not suffer retaliation for refusing to lie in a police report to protect a sergeant who subjected someone to excessive force. The Court says, "The right not to speak . . . safeguards a humble but vitally important restraint on the government's coercive powers. And, in light of the unobtrusive but foundational nature of the right not to speak, we think it clear that inmates generally retain a First Amendment interest in declining to speak." That right now extends to the prison context, at least when the prison guards want to plaintiff to lie for them. Except that this holding is not limited to lies, but truthful snitching. "We find that Burns held a strong First Amendment interest in refusing the demands of the guards that he provide both false information, and truthful information on an ongoing basis."

What complicates this case is that prisoners have fewer rights than the rest of us, as the jailkeepers need to maintain order inside the Big House. Your instinct might say that the guards need informants to keep them apprised of inmate misconduct at the jail. But the Court of Appeals identifies an inmate's superior interest in not exposing himself to violence if other inmates find out he is a snitch.

This is all great for inmates, but it does not really help plaintiff because the Court of Appeals has never reached this holding before. That means the defendants get qualified immunity, which protects governmental defendants from suits for money damages if the law was not clearly established at the time of the rights violation. The next inmate who brings a suit like this will benefit from this holding. 

Monday, May 7, 2018

Steady drumbeat of retaliation creates plausible Title VII claim

In 2015, the Second Circuit clarified the rules governing when Title VII cases may be dismissed at the outset. The Court noted that the Supreme Court in 2009 made it more difficult for plaintiffs to survive motions to dismiss in general. That was the Iqbal case. The Second Circuit also noted that other decisions hold that the plaintiff carries a light burden in making out a prima facie case. The plaintiff in this case survives the motion in this retaliation case.

The case is Duplan v. City of New York, decided on April 30. The go-to cases in the Second Circuit on this issue are Littlejohn v. City of New York, 795 F.3d 297 (2d Cir. 2015), and Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72 (2d Cir. 2015). Here are the basic rules:

“[F]or a retaliation claim to survive a motion for judgment on the pleadings or a motion to dismiss, the plaintiff must plausibly allege that: (1) defendants discriminated—or took an adverse employment action—against him, (2) because he has opposed any unlawful employment practice.” . . . To adequately plead causation, “the plaintiff must plausibly allege that the retaliation was a ‘but-for’ cause of the employer’s adverse action. . . . ‘But-for’ causation does not, however, require proof that retaliation was the only cause of the employer’s action, but only that the adverse action would not have occurred in the absence of the retaliatory motive.”
The trial court dismissed plaintiff's retaliation claim as implausible. The Court of Appeals (Lynch, Lohier and Reiss [D.J.]) reinstates it. But first, the Court rejects plaintiff's claim that a two-year delay between his EEOC charge and the denial of a pay increase creates an inference of retaliation. That two-year delay is a long time, but plaintiff says we can infer that management denied him the pay increase at the first available opportunity to do so. That theory of retaliation is a good one for plaintiffs who need to get around a lengthy time-gap between protected activity and adverse action. But the complaint does not provide enough facts to get us there. The Court says,

that problem is caused by the lengthy gap in time between his initial protected act and the ensuing instances of retaliation that were properly exhausted by his 2014 complaint. For instance, Duplan does not specify whether he was eligible for or received other raises between his 2011 complaints and the 2013 raise he was denied. It is also unclear how we could apply a “first available opportunity” theory to what Duplan alleges to be a persistent pattern of denying his applications for new positions when he has only exhausted the last denial in that chain. . . . His “first available opportunity” theory would require us to find it plausible that the City’s plan to retaliate against him included, among other things, biding its time for three years until a flimsy sexual harassment complaint finally gave it an excuse to suspend him.
Plaintiff still wins the appeal, as the Second Circuit seizes upon a more rational way to infer causation. The Circuit cites two district court cases for the proposition that "a 'pattern of antagonism' over the intervening period may be sufficient to demonstrate the requisite causal connection." Plaintiff alleges that a series of adverse actions

occurred against a backdrop of continuing antagonism and frustration of his professional ambitions. Following his 2011 complaints, his supervisors collectively and persistently discouraged him from remaining at the Department by ostracizing him, giving him insufficient work, and making clear to him that his career would not advance further by denying him every promotion and raise. Those allegations establish a drumbeat of retaliatory animus from which a plausible inference of causation can be drawn. 
Plaintiff also claims retaliation followed his 2014 complaints of discrimination. The Court of Appeals allows that claim to proceed, as well. The Court notes that "significantly diminished responsibilities" post-complaint may constitute "the sort of employment action ‘sufficiently disadvantageous to constitute an adverse employment action’ in a Title VII case.'” Plaintiff pleads a plausible retaliation claim under this test. The Court reasons:

Duplan alleges that his responsibilities were so diminished shortly after he filed his 2014 complaint, when the City assigned him duties well below his civil service and functional titles and took away his access to the personnel management program, thereby rendering him unable to perform the sole task he had retained from his pre-2011 responsibilities.

Friday, May 4, 2018

Some guidance from 2d Circuit on EEOC exhaustion rules under Title VII

The filing deadlines under Title VII are shorter than most. In New York, you have 300 days from the last discriminatory act to file a charge of discrimination with the Equal Employment Opportunity Commission. There are some exceptions to this rule, particularly in hostile work environment cases, but the courts don't like extending these exceptions past the breaking point. This case provides a good example.

The case is Duplan v. City of New York, decided on April 30. Duplan worked in the City's Department of Health and Mental Hygiene. In July and August 2011, he filed a charge of discrimination with the EEOC, claiming he was denied a promotion for discriminatory reasons and then demoted in retaliation for complaining about that discrimination. He then got a right-to-sue letter from the EEOC in July 2012, which means the EEOC had wrapped up its investigation and Duplan could proceed in court with his lawsuit. But Duplan did not file a lawsuit in connection with that EEOC charge. Meanwhile, Duplan continued working for the City. Claiming to suffer additional discrimination following the 2011 complaint, he filed another EEOC charge in October 2014. Following the filing of the 2014 EEOC charge, plaintiff says, he suffered retaliation.

Here's the question: can plaintiff bring a lawsuit over the retaliation arising from the 2011 EEOC charge? Normally, if you bring an EEOC charge and then suffer retaliation because of that charge, you do not have to file additional EEOC charges arising from that retaliation. Instead, you can bring the lawsuit and assert the retaliation claim in court for the first time. The reason for this is that the post-EEOC complaint retaliation would surface anyway in the course of the EEOC investigation, and the courts don't think its efficient for the employee to continue to file EEOC charges, which then trigger a new investigatory period for the EEOC, which may last six months or longer, further delaying the lawsuit. As the Second Circuit says in this case:

In the paradigmatic case for which the “reasonably related” doctrine was adopted, retaliation occurs while the EEOC charge is still pending before the agency. It is well established that the plaintiff may then sue in federal court on both the adverse actions that gave the impetus for the initial EEOC charge and the retaliation that occurred thereafter, even though no separate or amended EEOC charge encompassing the subsequent retaliation was ever filed.
 . . .

[W]e have also applied the “reasonably related” doctrine to retaliation that occurs after the EEOC investigation is complete, even though the rationale that the retaliation likely was or should have been encompassed by the EEOC investigation is not available in such cases.
These lenient administrative exhaustion rules do not help Duplan, however, because he did not proceed with a lawsuit arising from the 2011 EEOC charge, even after receiving the right-to-sue leter in 2012. That means he cannot bring the post-2011 charge retaliation into the lawsuit that arises from the 2014 EEOC charge. Here is how the Court of Appeals reasons it out:

No administrative or judicial proceeding is still pending, and the employee who suffers further discrimination or retaliation, like any other employee with a potential Title VII claims, therefore remains subject to that statute’s administrative exhaustion requirement. There is no reason to expand the judicially created waiver of the statutory exhaustion requirement to permit unexhausted retaliation claims to be held open indefinitely into the future, or litigated without going through a new administrative process, simply because, if the plaintiff had timely filed suit, policy considerations would have weighed in favor of waiving the exhaustion requirement so that the retaliation claim could have been joined with that hypothetical lawsuit.
Although we have not previously had occasion to make clear that “reasonably related” retaliation claims are excused from the exhaustion requirement only if they arise during the pendency of an EEOC investigation or a timely filed federal case, that outcome is consistent with Title VII’s statutory scheme and our existing case law.