Friday, August 18, 2017

2d Circuit upholds arbitration agreement in Uber cellphone app

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

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

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

Below the input fields and buttons on the Payment Screen is black text advising users that ʺ[b]y creating an Uber account, you agree to the TERMS OF SERVICE & PRIVACY POLICY.ʺ See Addendum B. The capitalized phrase, which is bright blue and underlined, was a hyperlink that, when clicked, took the user to a third screen containing a button that, in turn, when clicked, would then display the current version of both Uberʹs Terms of Service and Privacy Policy. Meyer recalls entering his contact information and credit card details before registering, but does not recall seeing or following the hyperlink to the Terms and Conditions. He declares that he did not read the Terms and Conditions, including the arbitration provision.
Does this process give reasonable conspicuous notice or an unambiguous manifestation of assent to the arbitration provision? Web-based contracts have spawned a new strand of case law, but fundamental contract principles still guide the inquiry. ʺCourts around the country have recognized that [an] electronic ʹclickʹ can suffice to signify the acceptance of a contract,ʺ and that ʺ[t]here is nothing automatically offensive about such agreements, as long as the layout and language of the site give the user reasonable notice that a click will manifest assent to an agreement.ʺ The question here is whether the plaintiff "was on inquiry notice of the arbitration provision by virtue of the hyperlink to the Terms of Service on the Payment Screen and, thus, manifested his assent to the agreement by clicking 'Register.'ʺ Plaintiff loses, and the case goes to arbitration.

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

Monday, August 14, 2017

Circuit rejects constructive discharge claim

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

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

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

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

After [defendants rescinded the termination letter]. Shultz was subject to a “pattern and practice of repeat discrimination” by Reiss, Soloveichik, and Lustig, consisting of at least the following events: (1) speaking loudly enough to be overheard by Shultz, Reiss told Lustig in a telephone conversation that the Congregation “had a right” to disapprove of Shultz’s pre-marital pregnancy and disparaged Shultz and her lawyers; (2) Shultz’s name was removed from the Congregation’s newsletters to the membership and from the employee list that was displayed on a wall outside the synagogue; (3) Reiss continued to demand that she complete her assigned tasks before the date of her previously scheduled termination, and to transition her responsibilities to other employees; and (4) Soloveichik and Lustig refused to speak with her.
Courts do not like constructive discharge claims. “The constructive-discharge doctrine contemplates a
situation in which an employer discriminates against an employee to the point such that his working conditions become so intolerable that a reasonable person in the employee’s position would have felt compelled to resign.” The working conditions have to be horrendous for an employee to claim that management effectively pushed her out the door. This case does not satisfy that test. The Court writes:

These acts alone, occurring over a period of a few weeks, are insufficient to raise an issue of fact with respect to whether Shultz can meet “the high standard to establish that [s]he was constructively discharged.” “Such a claim requires the employee to show both (1) that there is evidence of the employer’s intent to create an intolerable environment that forces the employee to resign, and (2) that the evidence shows that a reasonable person would have found the work conditions so intolerable that he would have felt compelled to resign.” Id. (internal quotation marks omitted). Shultz has not pled sufficient facts arising after the notice of termination to establish that a reasonable person would have been compelled to resign in these circumstances.
For these reasons, plaintiff also does not have a hostile work environment claim. In order to make out a hostile work environment claim, "a plaintiff must . . . show that the workplace is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” Management may have been been rude to plaintiff, but it is not against the law to be rude.

Friday, August 11, 2017

Fired then rehired two weeks later creates an adverse employment action

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

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

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

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

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

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

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

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

Tuesday, August 8, 2017

State anti-discrimination law does not conflict with National Labor Relations Act

This case asks whether union members who want to challenge the union's discriminatory actions may do so pursuant to the New York State Human Rights Law, which prohibits discrimination in employment and in union membership. The question is whether the National Labor Relations Act, which covers the union's duty of fair representation, preempts the state anti-discrimination laws. The Court of Appeals holds there is no preemption, and union members can sue their unions under state law.

The case is Figueroa v. Foster, decided on July 25. We assume that federal law preempts state law, but, as always, there are many exceptions. In this case, there would appear to be some overlap between the State Human Rights Law and the NLRA. We solve this problem under a three-part test:

“Under the Supremacy Clause of the Constitution, state and local laws that conflict with federal law are without effect.” N.Y. SMSA Ltd. P’ship v. Town of Clarkstown, 612 F.3d 97, 103‐04 (2d Cir. 2010). “In general, three types of preemption exist: (1) express preemption, where Congress has expressly preempted local law; (2) field preemption, where Congress has legislated so comprehensively that federal law occupies an entire field of regulation and leaves no room for state law; and (3) conflict preemption, where local law conflicts with federal law such that it is impossible for a party to comply with both or the local law is an 1 obstacle to the achievement of federal objectives.”

As Judge Pooler frames the issue:

If the NLRA’s duty of fair representation preempts the NYSHRL, then Title VII as administered by the Equal Employment Opportunity Commission will serve as the primary force protecting union  members from invidious discrimination by their labor organizations. If, on the other hand, the NLRA’s duty of fair representation does not preempt the NYSHRL, then the NYSHRL as administered by the New York State Division of Human Rights will provide union members with additional protections against invidious discrimination by their labor organizations.
There is no preemption. Under the field preemption theory, where the federal law is so comprehensive that it forecloses any relief under state law, not every provision of the NLRA automatically occupies the field which its proscriptions function. "There is no evidence that the NLRA’s duty of fair representation was designed or intended to preempt state laws focused on combatting invidious discrimination, such as the NYSHRL. Instead, our independent review of the  evidence leads us to the opposite conclusion based on the textual and structural relationships between the NLRA, Title VII, and the NYSHRL." Congress has manifested an intent that the NLRA not preempt Title VII and other federal antidiscrimination laws. The state antidiscrimination law is a precursor to Title VII, enacted long before the Civil Rights Act of 1964 because New Yorkers are more enlightened than the rest of the country. Title VII explicitly states that it does not preempt comparable state antidiscrimination laws, and the Second Circuit (Calabresi, Pooler and Wesley) find that Congress considered and sought to preserve the states' coordinate role in fighting discrimination in employment. The text of Title VII further recognizes the continued vitality of its state-law counterparts, and it is not impossible for a private party to comply with the NLRA's duty of fair representation and the NYSHRL's prohibition against employment discrimination.

Monday, August 7, 2017

Was he seized? The majority says yes. The dissent says no.

Here are the facts in this criminal case where the police obtained evidence that the defendant claims was unlawfully seized:

In May 2014, a woman pulled her car alongside a police cruiser in Bridgeport, Connecticut to ask about the process for amending a police report.

After Officer Thomas Lattanzio responded, the woman drove away for a few feet, then reversed toward the police car and told Officer Lattanzio that a man named Branden was nearby with a gun. She pointed down the street, but Officer Lattanzio did not see anyone. Without giving her name, the woman drove away.

Officer Lattanzio then drove in the direction the woman pointed, searching for an armed man. He soon saw Huertas standing on a street corner holding a black bag. Officer Lattanzio drove toward Huertas, going the wrong way on the one-way street. As the cruiser approached, Officer Lattanzio turned on the cruiser’s spotlight and illuminated Huertas. Through the car’s window, Officer Lattanzio asked Huertas a few questions, such as “What’s going on?” and “What happened with the girl?” During Officer Lattanzio’s approach and questioning, Huertas stayed in a fixed position and began answering the questions. The encounter lasted between thirty seconds and one minute. As soon as Officer Lattanzio got out of the cruiser, Huertas ran away. Other police officers later found and arrested Huertas. A search of Huertas’s route turned up a bag similar to the one Huertas had been holding. The bag contained a firearm.
The case is US v. Huertas, decided on July 24. If the police "seized" defendant, then the search was illegal and the police cannot use the gun against him. Defendant says he "submitted" to police authority, the equivalent of a seizure under the Fourth Amendment. The Court of Appeals (Jacobs and Winter) disagrees, holding that defendant was evasive, having run away when the police approached him. Had he stayed still, defendant would have quieted suspicion and hoped the officers would have driven away after being satisfied with his answers to their questions. Instead, he ran. The police were not within defendant's reach, and could not have physically restrained him. The totality of the circumstances says defendant was evading police authority, not submitting to it. There was no seizure.

Judge Pooler dissents. She says the majority extends the meaning of "evasion" beyond activity intended to slow down pursuing officers, and that the Court further "embraces the wrong side of a deepening split between the circuits regarding whether a suspect must do more than simply pause briefly in order to be seized within the meaning of the Fourth Amendment.

The majority states that Huertas’s conduct was undertaken to “quiet suspicion and hope that Officer Lattanzio would drive away after being satisfied with answers to his questions,” and that Huertas thereby intended to “evade” the police. The majority thus adopts the view that answering questions to clear one’s name counts as “evasion” just as much as does pretending to submit so that officers put themselves in a worse position for an impending chase.
The consequences of eliding this distinction are far‐reaching. Suppose, for example, that a suspect speaks with the police not for one or two minutes, but for an hour or two, because he thinks he can talk his way out of going to jail. Would we say he had not submitted, since his only hope was that the interview would “quiet suspicion” and that the officer would let him go “after being satisfied with answers to his questions”? I am comfortable asserting that the vast majority of criminal suspects engage with the police only when they think they will avoid incarceration by doing so. Under that assumption, the majority’s position suggests that stopping to speak with the police, even at length, is unlikely to constitute a seizure because it instead will constitute evasion.

Friday, August 4, 2017

Mistakenly locked up for three years, US citizen cannot bring lawsuit

This case involves an American citizen who was locked up for three years because the authorities thought he was a deportable immigrant. He was not. After he left custody, the plaintiff sued his captors, and he prevailed in the district court, which awarded him $82,500 in damages. The Court of Appeals reverses, and the plaintiff has no case.

The case is Watson v. United States, decided on July 31. In locking up Watson, "ICE agents were presented with information strongly suggesting that Watson was a citizen based on his father’s naturalization, but the agents did not competently pursue the leads. For example, during Watson’s first interview with ICE, he claimed U.S. citizenship, told the ICE agents the names of his father and step-mother, and gave their telephone number to assist the investigation. The ICE agents did not call the telephone number, despite writing a note to do so in order 'to verify status.'" The Second Circuit highlights other blunders that led to Watson's incarceration.

Watson loses because the statute of limitations under the Federal Tort Claims Act is two years. The Court (Jacobs, Livingston and Katzmann [partially dissenting]) states that "a false imprisonment claim starts to run when a detainee begins to be held pursuant to legal process." The Court holds that Watson was held pursuant to such process by the time an immigration judge ordered Watson's removal from the U.S., which occurred on November 13, 2008. By that date, an immigration judge had ruled that the government had the right to detail Watson Since Watson's claim for false imprisonment was filed on October 20, 2013, his claim was untimely.

What about equitable tolling? Under that theory, the statute of limitations is put on hold (extending the time to bring the lawsuit) if the plaintiff "has been pursuing his rights diligently and some extraordinary circumstance stood in this way. Surely this helps Watson, right? The Second Circuit notes that "Watson's case is certainly extraordinary in a number of unfortunate ways." But we define "extraordinary" based on "the severity of the obstacle impeding compliance with a limitations period." Plaintiff must also show these extraordinary circumstances caused him to miss the deadline. The Court writes:

The district court’s grant of equitable tolling was based on Watson’s lack of education and legal training, his unawareness that he could bring an FTCA claim until being advised by appointed counsel, his depression, and “most significantly,” the fact that government officials told Watson that he was not a U.S. citizen. None of those reasons justifies equitable tolling.
 The Court explains it this way: (1) Watson "mounted a vigorous case in the immigration court" in trying to stop his deportation; (2) his depression did not stop him from contesting his citizenship before the immigration judge, so he could have pursued his damages claim and (3) equitable tolling does not usually help the plaintiff simply because of his lack of education or ignorance of his right to bring the claim.

Watson also has no claim for malicious prosecution and negligence, the Court says, because he cannot show malice on the part of the people who locked him up; it was more likely negligence, which is not malicious. However, under NY law, there is no claim for "negligent investigation,"
and state law did not require ICE officials to follow their own directives.

Wednesday, August 2, 2017

Occupy Wall Street protest watcher loses false arrest case

This case tells us how hard it is to sue the police for false arrest. The plaintiff -- a 73 year old lawyer who talked on the street with some Occupy Wall Street protesters -- is quite sympathetic and appears to have been in the wrong place and the wrong time, or perhaps he was in the right place at the right time. No matter. He loses the case under the broad standards governing probable cause.

The case is Kass v. City of New York, decided on July 24. Here is what happened: on the anniversary of the Occupy movement in 2013, the police placed barricades around the perimeter of the park to cordon off the area where the protestors were gathered and to separate the protestors from pedestrians who were on the adjacent sidewalk. Kass was a spectator who decided to speak quietly with the protesters. Kass did not impede pedestrian or vehicular traffic. The police approached Kass and told him to "keep walking." Kass said he wanted to hear the protestors’ views, he was not blocking pedestrian traffic, and he had a right to remain on the sidewalk. The police repeated the directive but Kass refused to comply, but Kass repeated he had a right to speak with the protesters. An officer grabbed Kass by the elbow, but Kass pulled away.When the officer suggested that Kass go inside the park to continue his conversation with the protestors, Kass refused to comply, so the officer grabbed Kass’s right arm and pulled him toward the middle of the sidewalk, away from the barricade and protestors. Kass objected, saying “get your hands off of me, how dare you, get your hands off me.” Kass was then arrested. That charge was dismissed for failure to prosecute.

Did plaintiff do anything wrong? Even if he did not, the police could still have probable cause, or at least qualified immunity. That's how Kass loses the case. On the Obstructing Governmental Administration charge, the police were performing an official function because they were trying to regulate pedestrian traffic in the heart of downtown shortly before 5:00 pm. While Kass was on the sidewalk, a traditional public forum, that is not enough for him to win the case, as the government has an interest in keeping public spaces free of congestion and the officers told him he could continue speaking with the protesters inside the park. Since Kass refused the officers' repeated officers to move along, he interfered with an official function, and the officers could reasonably believe that Kass intended to interfere with their lawful efforts. So that takes care of the Obstructing claim.

Kass also loses on the false arrest claim arising from the disorderly conduct charge. The officers reasonably thought he was congregating with others in a public space, he refused a lawful order to disperse and officers could reasonably disagree about whether his behavior recklessly created a risk of causing public inconvenience, annoyance or alarm.

What does it all mean? What looks like relatively innocent behavior by Kass was enough to justify his arrest. We do not have free speech/association absolutism under the First Amendment. The police have many defenses in these cases, including qualified immunity, which gives them the benefit of the doubt. If Kass was just an establishment lawyer strolling along to see what the protesters were up to, it is likely this case has turned him into an antiestablishment guy as well. No one likes to be arrested without a good reason.

Tuesday, August 1, 2017

Summary judgment granted to plaintiff due process/firearms case against Nassau County

This is a guns rights case, sort of. The Court of Appeals holds that a plaintiff was entitled to summary judgment in a procedural due process case involving Nassau County's refusal to return a woman's shotguns.

The case is Panzella v. Sposato, decided on July 19. Plaintiff's ex-husband got an ex parte order of protection against her. It said she could not possess any firearms. But since ex parte orders cannot prohibit you from possessing guns without a hearing, the gun prohibition could not really apply to her. But the police confiscated her guns anyway and would not give them back under County policy that says the Sheriff cannot return guns without a court order. The district court granted plaintiff summary judgment in this case on her due process case, and the Court of Appeals (Calabresi, Pooler and Vilardo [D.J.]) affirms.

Judge Calabresi tees up the analysis like this:

The facts relevant to this appeal are largely undisputed. Both parties agree that Defendants confiscated Panzella’s longarms, and that the County, through the Sheriff’s Department, has a policy of doing so even when an order of protection issued by the Family Court does not explicitly order the Defendants to confiscate firearms pursuant to § 842-a. The parties also agree that Defendants have a policy of retaining confiscated firearms, even after an order of protection expires or is dismissed, until the Sheriff’s Department is presented with an order from a court of competent jurisdiction directing the return of the longarms. And all agree that the Family Court believes it cannot issue such an order in circumstances like those before us. 
When the plaintiff wins summary judgment, it means she has a great case. Usually, it's defendants who win summary judgment motions. Not this case. Under the well-known due process standards, the court weighs the following factors in determining if the plaintiff got the process that was due when the government deprived her of a liberty or property interest:

(1) “the private interest that will be affected by the official action;” (2) “the risk of erroneous deprivation of such interest through the procedures used;” and (3) “the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.”
We call this the Matthews factors, named after a Supreme Court case from the 1970s. The first factor tilts in plaintiff's favor because she has a property interest in her guns. She meets the second factor because, while she can (as the County argues) bring an Article 78 petition, that takes a substantial amount of time and that procedure places the burden on plaintiff. In light of the burdens an Article 78 petition places on the plaintiff, "there is a significant risk of erroneous deprivation of that person's interest in her longarms." While she would probably win the Article 78, the Court says, that would not prevent a lengthy deprivation, as per Supreme Court authority, Fusari v. Steinberg, 419 U.S. 379 (1975), a principle of which I was unaware until now. As for the third factor, the government's interest in this equation -- public safety -- is limited since plaintiff could buy new guns given the lack of licensing requirement for such weapons in Nassau County. Finally, since a post-deprivation due process hearing would not be particularly burdensome for the County, all the due process factors tilt in plaintiff's favor, and she wins the case.

Monday, July 31, 2017

Sexual harassment case returns to the district court

Here's a li'l sexual harassment decision that you probably missed because it's a summary order that flies under the radar. The Court of Appeals says the plaintiff may have a case and sends it back to the district court for further review.

The case is McLeod v. Jewish Guild for the Blind, a summary order issued on July 19. A plaintiff makes out a sexual harassment case when a co-worker or supervisor creates a hostile work environment based on gender. A series of vulgar statements in a short period of time may satisfy that test. At a minimum, that evidence may entitle you to a trial, and then a jury decides if the work environment was offensive enough to violate Title VII.

The Court of Appeals (Hall, Lynch and Droney) says the district court did not view the summary judgment evidence in the light most favorable to the pro se plaintiff. The Court writes:

On appeal, the Plaintiff points to evidence in the record tending to show that Donald Dettmer repeatedly entered the men’s bathroom while he knew that she was in the room assisting a client, and urinated in her presence while she was unable to leave. The Plaintiff also points to evidence in the record tending to show that Dettmer repeatedly made comments about her attire suggesting that she was a sex worker. It appears the district court only considered two of these instances in granting summary judgment in favor of the Defendant. The district court characterized the Plaintiff’s case as “premised entirely on . . . five comments made by Dettmer over a period of approximately six years[.]”
The Second Circuit says other evidence was overlooked. Rather than make an initial determination whether plaintiff has a Title VII harassment case, the Court sends it back to the district court to resolve the motion again, in the hopes that the trial court is a little more careful this time around.

Wednesday, July 26, 2017

Cutting pro se discrimination plaintiffs a break

In this case, the Court of Appeals cuts the pro se discrimination litigants a break, holding they may proceed with their cases even if they do not comply with the technical requirements in filing the lawsuit.

The case is McLeod v. Jewish Guild for the Blind, decided on July 19. Using a form complaint provided by the federal court's pro se office, plaintiff checked off some but not all of the boxes to signify what claims she wanted to pursue. She checked off the Title VII box but not the ones for the New York City and New York State Human Rights Laws. The district court therefore disallowed her from proceeding with any claim other than Title VII. The Court of Appeals (Hall, Lynch and Droney) reverses.

The Second Circuit notes that it has traditionally cut pro se litigants a break when it comes to technical pleading deficiencies. Pro se litigants do not know the complexities associated with filing a lawsuit. We do not want form over substance for non-lawyers. The Court also notes that it has held in the past that even counseled litigants do not have to cite the correct law in pleading their cases and that it's the factual allegations that matter. The cite for that is Albert v. Caravello, 851 F.2d 561, 571 n.3 (2d Cir. 1988).

On these bases, the Court of Appeals reinstates plaintiff's City and State law claims. You may ask, what's the point? The point is that the City and State laws offer certain protections that Title VII does not, even if the plaintiff is claiming sex discrimination (as in this case) under all statutes. The City law is construed more liberally than Title VII, particularly with respect to hostile work environment claims. The State law provides a longer statute of limitations and allows you to sue individual defendants, unlike Title VII. If you practice in these areas, you know about these distinctions. But, the Court of Appeals says, pro se litigants are probably unaware of these distinctions, and they may inadvertently forfeit those rights in filling out the complaint forms provided by the courts.

Tuesday, July 25, 2017

2d Circuit upholds million dollar labor arbitration award

The Court of Appeals clarifies what it takes for an aggrieved party to challenge an labor arbitration award, ruling that the arbitration in this case was fair and the employee is entitled to keep his million dollar wrongful discharge award.

The case is Odeon Capital Group v. Ackerman, decided on July 21. Ackerman was a bond trader. When he was fired, Ackerman challenged his termination in arbitration, alleging breach of contract, disability discrimination and retaliation arising from an investigation into one of his bond trades. While it rejected the bulk of Ackerman's claims, an arbitration panel found in Ackerman's favor on the unpaid wages claim, awarding him $1.1 million.

The employer sought to vacate the arbitration in federal court. This is always an uphill battle. The purpose of arbitrations is the keep the case away from the courts. But there are exceptions: You can vacate the arbitration upon a finding of fraud. In this case, the employer said Ackerman perjured himself at the arbitration hearing in connection with one o' his bond trades. The Court of Appeals (Calabresi, Pooler and Wesley) says that fraud cannot predicate a federal challenge to an arbitration ruling unless the fraud was material to the arbitration award. The standard is that "the petitioner must demonstrate a nexus between the alleged fraud and the decision made by the arbitrators, although petitioner need not demonstrate that the arbitrators would have reached a different result."  The Court of Appeals cites cases from other circuits on this point, which means the Court is probably saying this for the first time in our circuit.

What does it all mean for Ackerman? He keeps the arbitration award. Even if he did perjure himself about a bond trade, the arbitrators granted him relief only on his unpaid wages/breach of contract claim, not the claim arising from the bond trade claim. Any possible fraud was immaterial to Ackerman's award.

Ackerman brings his own cross-appeal. The district court said he was not entitled to attorneys' fees expended in defending his successful arbitration award in federal court. The district court thought you only get fees in that circumstance if the party challenging the arbitration does so in bad faith. On that rationale, no fees for Ackerman, the district court said, because the employer's arbitration challenge was not a bad faith endeavor. But the Court of Appeals nixes that analysis, noting that New York Labor Law entitles you to attorneys' fees "in any action instituted in the courts upon a wage claim by an employee ... in which the employee prevails." That statute applies to "special proceedings" under the CPLR. Since applications to confirm, vacate or modify arbitration awards are special proceedings, Ackerman gets his attorneys' fees for the work his lawyer did in the district court, and presumably on appeal as well.

Monday, July 24, 2017

New trial in deadly excessive force case

This excessive force case tells us once again that the best way to appeal from an adverse jury verdict is to find a way to challenge the jury instructions. If something is wrong with the jury charge, then the trial may be fatally infected.

The case is Callahan v. County of Suffolk, decided on July 12, Callahan was shot during a confrontation with the police. What happened was the police were called to a single-family house; someone reported a situation involving a gun. Officer Wilson came upon a room with the door ajar. He saw that someone was inside the room. That person tried to shut the door. When the door partially shut, Wilson was holding his gun in his left hand. His hand holding the gun was on the other side of the door, inside the room. The officer was pinned on the door frame. The person inside the room made "some type of growl" that was "scary." Wilson thought he could be shot through the door or that the guy inside the room might take his gun. He saw a shadow coming around the door and "a hand thrusting toward him with an object." Wilson then fired his weapon, as he was unable to free himself. Those shots hit Callahan, who later died from the gunshot injuries. Callahan had no weapon.

Calllahan's family sued for wrongful death, but the jury found in favor of the police. This was a tough case for Callahan's estate. Callahan was unable to testify on his own behalf, and the officer was caught in a difficult position. It's easy to imagine a jury finding that the officer had no choice but to fire his gun in self-defense.

The problem was the jury charge. In 2013, the Second Circuit held in Rasamen v. Doe, 723 F.3d 333 (2d Cir. 2013), that the instruction in cases like this "must" convey "that the use of force highly likely to have deadly effects is unreasonable unless the officer had probable cause to believe that the suspect posed a significant threat of death or serious physical injury to the officer or to others." The charge in Callahan's case did use this language. But while Rasamen says the jury "must" be instructed that the use of deadly force is "unreasonable unless the officer had probable cause to believe that the suspect posed a significant threat of death or serious physical injury," in this case the charge said the officer "may use deadly force ... if" the officer has the requisite probable cause." The instructions were further tainted because they suggested the jury could find the officer's shooting "complied with constitutional standards for reasons other than the fact that Wilson had probable cause to believe that Callahan posed a significant threat of death or serious injury to Wilson or others." But Rasanen makes clear that deadly force is unreasonable unless the officer had probable cause to think the individual posed a significant threat of death or serious physical injury."

These errors may seem subtle, but the Second Circuit (Droney and Parker) thinks they warrant a new trial. Judge Raggi dissents, finding that that the jury charge complied with the directive in Rasamen as well as recent Supreme Court rulings that provide additional guidance on what it takes to win a deadly excessive force case.

Friday, July 21, 2017

When can the jury know the plaintiff invoked the Fifth Amendment at deposition?

The jury trial is the name of the game. If you lose, you are entitled to file a notice of appeal, but few appeals from adverse jury verdicts are successful. The jury is allowed to view the facts any way it wants (within reason), and the judge enjoys broad discretion in making evidentiary rulings at trial. In this case, however, the appeal was successful. The Court of Appeals provides some guidance on when you can impeach the plaintiff's credibility at trial.

The case is Woods v. START Treatment, decided on July 19. The plaintiff sued her former employer for FMLA retaliation. The jury found for the employer. Plaintiff wins the appeal for two reasons: first, the trial court improperly charged the jury, telling them the plaintiff had to prove "but for" causation instead of "motivating factor." As I write in this blog post, this case represents the first time the Court of Appeals holds that the motivating factor test governs FMLA retaliation cases.

The other holding in this case is that the trial court got it wrong in allowing the employer's attorney to exploit how the plaintiff in pre-trial deposition invoked the Fifth Amendment on unrelated issues that could have affected her credibility.While evidentiary rulings are difficult to challenge on appeal, in this case, the trial court crossed the line, and the Second Circuit (Kearse, Hall and Chin) says the plaintiff gets a new trial because the evidentiary error denied plaintiff a fair trial.

In deposition, defense counsel asked plaintiff if she had ever been investigated by the City of New York. She took the fifth. She also took the fifth when counsel asked if she was accused of "some kind of immoral conduct" and whether she was accused of lying or fabricating events or submitting false documentation. She further took the fifth when asked if she was accused of misrepresenting the facts to the government. The jury knew about all of this, and defendants used plaintiff's refusal to self-incriminate against her at trial, attacking her credibility.

This was unduly prejudicial to plaintiff, the Court of Appeals held, for a number of reasons. "Most of the questions in Woods’s deposition were merely whether Woods had been accused of something. Even assuming her answers would have been 'yes,' accusations have little, if any, probative value because the innocent and guilty alike can be accused of wrongdoing. Without more, accusations do not 'impeach the integrity or impair the credibility of a witness.'' Second, plaintiff "suffered even harsher prejudice from the admission of an adverse inference based on her invocation of the Fifth Amendment in response to being asked whether she was ever convicted of any immoral or unethical conduct. Federal Rule of Evidence 609(a)(2) permits the admission of a conviction only when the crime is a felony or the court 'can readily determine that establishing the elements of the crime' required proving a 'dishonest act or false statement.' The district court here failed to consider whether the requirements of Rule 609(a) were met." Third, the jury may have thought plaintiff had something to hide when she took the fifth. The Court of Appeals explains:

the danger of unfair prejudice is high when a jury is told that a witness declined to answer a question by invoking the Fifth Amendment; the implication is, at best, that the witness refused to answer because she had something to hide. We tolerate some danger of prejudice from such inferences in civil cases, unless it substantially outweighs the probative value of those inferences. Here, the way in which Woods’s Fifth Amendment invocation was raised and later argued at closing elevated the prejudice to an intolerable level. Woods’s Fifth Amendment invocation was repeatedly emphasized—defense counsel raised it during Woods’s cross examination, the district court instructed the jury on it, and defense counsel argued it during his summation. Although defense counsel attempted to moderate this line of argument, see J. App’x 632 (“I am not hanging my hat on [the] Fifth Amendment invocation.”), he did so only after forcefully highlighting the inferences that the jury was permitted to draw. In arguing that the entire case hinged on Woods’s credibility, defense counsel told the jury “you are permitted in this case to infer that Ms. Woods was the subject of a government grand jury investigation, was accused of fraud, lying, fabricating events, and misrepresenting facts to the government and was then convicted of a crime.” Id. Defense counsel’s statement was consistent with the district court’s instruction, but the inferences that the jury was permitted to draw did not necessarily mean anything with respect to Woods’s credibility or character
for truthfulness.

Thursday, July 20, 2017

2d Circuit rejects "but for"causation test for FMLA retaliation claims

The Court of Appeals holds for the first time that FMLA plaintiffs only have to show their family/medical leave was a motivating factor in their retaliatory dismissal. The Court rejects the more defendant-friendly "but for" causation test.

The case is Woods v. START Treatment, decided on July 19. (In addition to the causation standard, the Court also says plaintiff got an unfair trial because the jury knew she had taken the Fifth on certain deposition questions. I address that in a separate blog post). This case went to trial in the EDNY; the jury returned a verdict in favor of the employer. Plaintiff appealed, arguing that the trial was fatally tainted because the judge charged the jury under the "but for" test and not the "motivating factor" test. Finding that the jury was in fact wrongly charged and the bad charge could have made a difference at trial, the Court of Appeals (Hall, Kearse and Chin) remands the case for a new trial.

Woods worked for a drug rehabilitation facility. In summarizing the evidence at trial, the Second Circuit notes that management had repeatedly criticized plaintiff's job performance. However, plaintiff was fired shortly after taking FMLA leave. Disputes about what motivated plaintiff's termination entitled her to a jury trial.

The FMLA authorizes interference claims and retaliation claims. The interference claim arises when the employer prevents or impedes the employee's ability to exercise rights under FMLA. Retaliation claims "involve an employee actually exercising her rights or opposing perceived unlawful conduct under the FMLA and then being subjected to some adverse employment action." The Court of Appeals holds that retaliation claims fall under 29 U.S.C. § 2615(a)(1), which provides: "It shall be unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under this subchapter." (A related provision, § 2615(a)(2), provides: "It shall be unlawful for any employer to discharge or in any other manner discriminate against any individual for opposing any practice made unlawful by this subchapter").

Under Section 2615(a)(1), employers cannot fire staff in retaliation for taking FMLA leave. If the case goes to trial, the jury must be charged that plaintiff need only show that retaliatory intent was a motivating factor in the decision to terminate. That means there may be other factors that motivated the termination, as well, but so long as there was some retaliatory intent in the equation, the plaintiff wins. Under the more restrictive "but for" test, which applies to claims brought under the Age Discrimination in Employment Act and retaliation claims under Title VII, retaliatory intent must have been the determining factor, that is, that intent (as opposed to some other motivation) made the difference. The Second Circuit has held the "motivating factor"/"but for" distinction generally cannot be resolved on a summary judgment motion. But it can make a difference at trial. The Court sums it up like this:

We now hold that FMLA retaliation claims like Woods’s, i.e. terminations for exercising FMLA rights by, for example, taking legitimate FMLA leave, are actionable under § 2615(a)(1). The plain language of § 2615(a)(1) supports this conclusion. Firing an employee for having exercised her rights under the FMLA is certainly “interfere[nce]” with or “restrain[t]” of those rights. Indeed, FMLA rights have two parts—the right to take leave and the right to reinstatement, so terminating an employee who has taken leave is itself an outright denial of FMLA rights.
The Department of Labor's regulations support this analysis. The Second Circuit defers to the DOL's regulations under Chevron deference, owing to the DOL's expertise in the area. While the Second Circuit hinted in Millea v. Metro-North Railroad, 658 F.3d 154 (2d Cir. 2011), that "but for" causation governs FMLA retaliation claims, the Court of Appeals now says the reasoning in Millea did not squarely address the issue in Woods' case.

Since the record contains evidence both that management took issue with plaintiff's job performance and that she was fired shortly after taking FMLA leave, the bad jury instruction could have made a difference at trial. 

Wednesday, July 19, 2017

Supreme Court strikes down same-sex Arkansas birth certificate rule

In its final days of the 2016-17 term, the Supreme Court issued a brief ruling that you may have overlooked. It holds that the Constitution prohibits the State of Arkansas from refusing to note that a newborn baby's parents are same-sex couples. This case is notable for Justice Gorsuch's dissenting opinion.

The case is Pavan v. Smith, decided on June 26. The female parents were married in Iowa and conceived children through an anonymous sperm donor. When the children were born, the state would only list the birth mother's name on the birth certificate. Yet, if heterosexual couples have children, both their names are on the birth certificate.

The Supreme Court holds that Arkansas's treatment of same-sex couples violates the Equal Protection Clause. Recall that a few years ago, the Court held in Obergefell v. Hodges that the Constitution makes it illegal for states to prohibit same-sex marriages. The Court now applies the reasoning in Obergefell to this case, reasoning that the state "denied married same-sex couples access to the 'constellation of benefits that the Stat[e] ha[s] linked to marriage.'" The Court adds, "As a result [of this unequal treatment], same-sex parents in Arkansas lack the same right as opposite-sex parents to be listed on a child’s birth certificate, a document often used for important transactions like making medical decisions for a child or enrolling a child in school. ... Obergefell proscribes such disparate treatment. As we explained there, a State may not 'exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples.' Indeed, in listing those terms and conditions—the 'rights, benefits, and responsibilities' to which same-sex couples, no less than opposite-sex couples, must have access—we expressly identified 'birth and death certificates.'”

While the Court decided this case in a per curium opinion, a brief unsigned ruling, three Justices dissent: Gorsuch, Thomas and Alito. Justice Gorsuch writes the dissent, making it clear that his appointment to the Court will continue the conservatism of his predecessor, Justice Scalia. He writes:

Before the state supreme court, the State argued that rational reasons exist for a biology based birth registration regime, reasons that in no way offend Obergefell—like ensuring government officials can identify public health trends and helping individuals determine their biological lineage, citizenship, or susceptibility to genetic disorders. In an opinion that did not in any way seek to defy but rather earnestly engage Obergefell, the state supreme court agreed. And it is very hard to see what is wrong with this conclusion for, just as the state court recognized, nothing in Obergefell indicates that a birth registration regime based on biology, one no doubt with many analogues across the country and throughout history, offends the Constitution.

Tuesday, July 18, 2017

Ministerial exception scuttles school principal's Title VII lawsuit

Not all employment discrimination can be challenged in court. If the plaintiff is a "minister" as defined by the Supreme Court, she cannot bring her lawsuit. The reason for this is a doctrine called the ministerial exception, endorsed by the Supreme Court in 2012. Last week, the Second Circuit applied that exception for the first time in holding that the principal of a private religious school cannot proceed with her gender discrimination lawsuit.

The case is Fratello v. Archdiocese, decided on July 14. I wrote an amicus brief in this case for the National Employment Lawyers Association. Fratello worked for St. Anthony's School in Nanuet, New York. After she was fired, plaintiff sued in the Southern District of New York, alleging gender discrimination. Citing the ministerial exception, the district court dismissed the case on summary judgment, and the Second Circuit (Sack, Lohier and Woods [D.J.]) affirms.

Judge Sack provides a comprehensive overview of the ministerial exception, drawing from Supreme Court and other authorities in noting that the values promoted by Title VII of the Civil Rights Act of 1964 (prohibiting gender and other forms of employment discrimination) clash with the Free Exercise and Establishment Clauses of the First Amendment, which protect the free exercise of religion and prohibit government regulation of religion. What it all means is that "ministers" as defined by the Supreme Court cannot bring these lawsuits because that would requires courts to tell religious institutions whom to employ as ministers. Some plaintiffs will end up on the losing end of these cases even if they are not formal "ministers." As the Supreme Court defined the term in Hosanna-Tabor v. EEOC, 565 U.S. 171 (2012), you can be a "minister" if the totality of the circumstances shows you took on certain religious duties such that a lawsuit would have the effect of telling religious institutions who can spread the gospel. This doctrine is therefore not limited to actual ministers.

As principal, Fratello's formal title was not religious in nature. But that is not enough for her to get around the ministerial exception. Other factors help the defendants. The school's principal must be a practicing Catholic, committed to the teachings of the Church, and she must, among other things, exercise leadership to ensure a thriving Catholic school community. The Circuit court also says plaintiff understood that she would be perceived as a religious leader, and she performed important religious functions in that role. The Court says:

We think the record establishes beyond doubt that, as principal, Fratello “convey[ed]” the School's Roman Catholic “message and carr[ied] out its mission,” id., insofar as she: (1) consistently managed, evaluated, and worked closely with teachers to execute the School's religious education mission; (2) led daily prayers for students over the loudspeaker, and other prayers at various ceremonies for faculty and students; (3) supervised and approved the selection of hymns, decorations, and lay persons chosen to recite prayer at annual special Masses; (4) encouraged and supervised teachers' integration of Catholic saints and religious values in their lessons and classrooms; (5) kept families connected to their students' religious and spiritual development through the newsletter; and (6) delivered commencement speeches and yearbook messages that were religious in nature.Not only did Fratello perform all these functions, she was also evaluated on the quality of that performance.
In the end, no lawsuit for plaintiff. As the Second Circuit sees it, her job duties were too religious in nature to get around the ministerial exception. Although plaintiff was not a formal minister but instead a school principal, under Supreme Court authority, she was a "minister" under Hosanna-Tabor.

Monday, July 17, 2017

For appellate junkies only

I know there are appellate junkies out there. Some of you may even practice in the Court of Appeals. If you do, this case answers a question that few of us had even asked before.

The case is Hines v. City of Albany, decided on July 6. In this Section 1983 case, the plaintiff claimed the City had illegally seized and retained his SUV. The district court granted summary judgment for the plaintiff on the seizure claim. This is unusual. Normally, the defendants win summary judgment, not the plaintiff. So the City appealed from that ruling, and the Second Circuit affirmed. This all happened in 2011-2013. After plaintiff won the appeal, his attorneys moved for attorneys' fees arising from the appeal. These fees are recoverable. Defending a plaintiff's judgment in a Section 1983 case takes time and effort, and the fee-shifting statute governing these cases applies beyond the district court.

Here's the problem. After upholding summary judgment in favor of the plaintiff, the Court of Appeals said that each party would bear its own costs respect to the appeal. What does this mean? Plaintiff said that it only means that defendant was not obligated to pay the out-of-pocket costs associated with prosecuting the appeal, i.e., the cost of printing up the briefs and appendix, which can be sizable. Defendant said this means that it does not have to pay the attorneys' fees, which can be exponentially higher than the out-of-pocket costs. In this case, the appellate fees amounted to over $13,000.  The district court on remand denied plaintiff's application for those fees, concluding that the Court of Appeals wanted that result in stating that each side would bear its own costs on appeal.

The Court of Appeals (Lohier, Livingston and Rakoff [D.J.]) sides with plaintiff on this, and his lawyers get their attorneys' fees from that appeal, and presumably this appeal as well. Other Circuits have already reached this conclusion.

The Second Circuit runs through what it means to pay costs and how costs fall into a different category as attorneys' fees. But apart from the dry analysis drawing from Federal Rules, the Second Circuit also considers policy reasons, noting that the fee-shifting law allows civil rights plaintiffs to bring their cases even if they have no money, as their lawyers will have an economic incentive to pursue these claims in the knowledge that if they win, the defendant pays their fees. Without that incentive, few people would actually bring their civil rights claims to court. "Prevailing parties under Section 1988 [the fee-shifting] law are therefore entitled to recover a reasonable fee for preparing a defending a fee application. That includes attorneys' fees incurred as a result of appeals related to the defense of a fee award." While the Circuit notes that fees litigation should not turn into a second major litigation, it concludes that "plaintiffs were entitled to attorneys' fees on appeal under Section 1988 even though it was their third fee application."

Wednesday, July 12, 2017

Occupy Wall Street plaintiff loses excessive force case on qualified immunity grounds

This police misconduct reaches the Second Circuit for the second time. The first time around, the Court said the plaintiff had identified an issue of triable fact on the issue of whether the police officers had used excessive force in trying to arrest her after she was on the ground outside a Starbucks during an Occupy Wall Street demonstration. This time around, the plaintiff argues that the trial court on remand violated the Second Circuit's mandate in granting the officers' motion for qualified immunity.

The case is Brown v. City of New York, decided on July 5. My write-up on the first appeal is at this link. This is how I summarized the facts:

Brown tried to enter Starbucks because she had to go to the bathroom. The Starbucks was closed, and an employee called the police because a noisy crowd, bladders a-bursting, was pounding on the door. When the officers arrived, they asked plaintiff for her identification without explanation, which she declined to provide. The officers then arrested Brown, and after she resisted the handcuffs, they took her to the ground, where she continued to resist until the officers pepper-sprayed her twice. At that point, she was cuffed and taken to the police station.

This episode was videotaped, and Judge Jacobs dissented, finding that no jury could rule in plaintiff's favor in light of her resistance to police authority. Anyway, the majority specifically remanded this case "for trial." But on remand, the trial court then entertained the officers' motion for summary judgment on qualified immunity.You did not think the City law department would just allow the case to go to trial without a fight, did you? The trial court granted the qualified immunity motion, finding that the officers' actions were objectively reasonable. The Second Circuit is OK with this, holding that trial courts have discretion to manage their dockets as they see fit, including resolving dispositive motions. While the trial court was not free to entertain another motion for summary judgment on whether the officers used excessive force in arresting plaintiff (as such a maneuver would violate the mandate), "it was not constrained from considering a second summary judgment motion raising the issue of whether the Section 1983 excessive force claims were defeated by qualified immunity, and issue that [the prior appeal) never decided."

Some other procedural issues also arise in this appeal. Plaintiff says defendants waived the qualified immunity defense because they barely mentioned it in their summary judgment motion prior to the last appeal and they did not raise it in the last appeal. That is not waiver, the Second Circuit (Jacobs, Droney and Stanceu [D.J.]) holds. Trial courts have discretion to resolve issues that might have been waived, and in this case, the defendants did raise the qualified immunity defense in their answer and they also raised it in their first summary judgment motion, even if they did so in passing. While the officers did not raise that issue in the first appeal, as every appellate practitioner knows, the Second Circuit can decide whatever issue it wants on appeal and even rule against a party on issues that the other side did not raise.

Finally, the district court did not get it wrong in granting the officers qualified immunity. Officers get the benefit of the doubt in close cases; that is how immunity works. Here, the plaintiff resisted orders to put her hands behind her back for the handcuffs, and they forced her body to ground. The facts set forth in this decision do not paint a pretty picture in describing how the officers were able to place her in cuffs for her initial offense, disorderly conduct. As the plaintiff had repeatedly refused orders to follow police instructions in order to place her in cuffs, "no precedential decision of the Supreme Court or this court 'clearly establishes' that the actions of [defendants], viewed in the circumstances in which they were taken, were in violation of the Fourth Amendment." That means the defendants get qualified immunity, and they are therefore not liable. Cases in which plaintiff relies in arguing otherwise involved excessive force that was truly excessive in relation to what the plaintiff had done in the presence of the police. 

Tuesday, July 11, 2017

Qualified immunity undercuts police taser case involving severely injured plaintiff

I hope you never get tased. I have handled a few taser cases, and the plaintiff always testifies that being tased hurts like living hell, like being electrocuted. The taser shuts down your ability to control your body. Excruciating pain is the controlling factor. Officers are trained to use this device. Sometimes, the use of a taser lands everyone in court.

The case is Soto v. Gaudett, decided on July 5. The police tased Soto while he was fleeing the police. Soto was driving at night without headlights and made a turn without signaling. When the police tried to stop him, Soto drove off at a high rate of speed. He then got out of the car and ran away. The police told him to stop; he would not. As he was running across the street, a police car hit him and he was thrown backwards but kept running. An officer than activated his taser, which hit Soto. In the end, Soto suffered serious injuries: a fractured skull and severe traumatic brain damage. He cannot speak, walk or act as a functional human being. He also requires around-the-clock care.

The injuries are dreadful, but does he have a case? The Court of Appeals (Kearse, Jacobs and Pooler) says Soto does not. The Court applies qualified immunity, which asks whether the police violated clearly-established law. This gives the police the benefit of the doubt; even if they technically violated the Constitution, if they did not violate clearly-established case law as handed down by the Supreme Court and the Second Circuit, then the police are immune from suit. The Second Circuit appears to have abandoned granting qualified immunity when the officer's actions are objectively reasonable as a matter of fact. It became clear to the Court that that basis for immunity found no support in Supreme Court authority, and that the only basis for immunity is whether the officers violated clearly-established law. In the end, this narrow basis for immunity may not really help plaintiffs, as the immunity inquiry is still fact-specific, and the Court now asks whether the facts as set forth by plaintiff are close enough to prior cases to deny the officers qualified immunity.

This all plays out in this case. The Circuit says there are no cases as of the date of this incident -- January 23, 2008 -- that established that "a suspect who was fleeing had a right not to be stopped by means of a taser." That means the police are immune from suit; they had no basis at the time to known that someone running from the police had the right not to be tased. You may argue that if the suspect is running away and is presumably not armed, that there is no reason to tase him. But the police do have the right to seize people who are fleeing a legitimate police pursuit. The law in this area was simply to fuzzy for the police to be on notice that they could be liable under the Constitution. This all means that Soto cannot sue these officers. (The decision goes on to state that the district court identified factual issues for trial against the other officers who also pursued Soto, so he may still proceed against those defendants).

Monday, July 10, 2017

Supreme Court OK's government money for church playground

The Supreme Court holds that the State of Missouri violated the Free Exercise Clause of the First Amendment in denying a church government money that would replace the gravel playground surface with a more child-friendly rubber surface. Justice Sotomayor's dissenting opinion says this is the first time the Supreme Court holds the Constitution requires the government to provide public funds directly to a church.

The case is Trinity Lutheran Church of Columbia v. Comer, decided on June 26. Missouri allocated money to public and private schools and other entities to help buy rubber playground surfaces made from recycled tires. But since Trinity is a church, it was not eligible for this money. Writing for the Court, Chief Justice Roberts says the Free Exercise Clause protects religious observers against unequal treatment. As the majority interprets Supreme Court authority on this issue, Roberts says "The Department's policy expressly discriminates against otherwise eligible recipients by disqualifying them form a public benefit solely because of their religious character. If the cases just described make one thing clear, it is that such a policy imposes a penalty on the free exercise of religion that triggers the most exacting scrutiny."

Supreme Court authority can be interpreted any way the Justices want to interpret it. Since this case was not decided unanimously, two Justices see it differently, Justices Sotomayor and Ginsburg. Sotomayor opens her dissent like this:

To hear the Court tell it, this is a simple case about recycling tires to resurface a playground. The stakes are higher. This case is about nothing less than the relationship between religious institutions and the civil government—that is, between church and state. The Court today profoundly changes that relationship by holding, for the first time, that the Constitution requires the government to provide public funds directly to a church. Its decision slights both our precedents and our history, and its reasoning weakens this country’s longstanding commitment to a separation of church and state beneficial to both.
Citing established precedent, the dissent writes that "the government may not directly fund religious exercise," and that "nowhere is this rule more clearly implicated than when funds flow directly from the public treasury to a house of worship." Like this church. While the Court has sometimes found some direct government funding of religious institutions is consistent with the Establishment Clause, "the funding in those cases came with assurances that public funds would not be used for religious activity, despite the religious nature of the institution. The Church has not and cannot provide such assurances here." But this case involves a playground, not religious classes, right? Not so fast, Sotomayor writes. The plurality in a prior case implicitly agreed that public money cannot be used for religious activity, and that it would not "supplant non-program funds," that no money would "ever reach the coffers of religious schools" and that the program had adequate safeguards to police violations.

The Court resolved this case even though the State of Missouri had issued a directive in 2017 allowing religious organizations to compete for and receive government grants on the same terms as secular organizations. Would this not moot out the case? No, says the majority. "We have said that such voluntary cessation of a challenged practice does not moot a case unless 'subsequent events ma[ke] it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.' The Department has not carried the 'heavy burden' of making 'absolutely clear' that it could not revert to its policy of excluding religious organizations. The parties agree." Yet, the governor did issue a directive. How likely is it that the directive will be overturned? And though the parties agree this case is not moot, is that not a self-serving position so the parties may have this case resolved by the Supreme Court? As I see it, the Second Circuit employs a more stringent test governing voluntary mootness. If you care about this issue, see then-Judge Sotomayor's analysis in Lamar Advert. of Penn., LLC v. Town of Orchard Park, 356 F.3d 365 (2d Cir. 2004).

Friday, July 7, 2017

Circuit says plaintiff may have "serious medical condition" under FMLA

Under the Family and Medical Leave Act of 1993, certain employers (that employ more than 50 people) must allow people time off to care for "serious medical conditions." In this case, the Second Circuit explores what exactly constitutes a serious medical condition, vacating the grant of summary judgment and allowing the plaintiff to roll the dice before a jury.

The case is Pollard v. New York Methodist Hospital, decided on June 30. Plaintiff was a medical files clerk who stood on her feet for most of the day. Her doctor determined that the painful growth on plaintiff's foot might be precancerous and needed to be removed, and he set a surgery date of March 28, 2013. The doctor told plaintiff's employer that her foot situation was a "serious health condition" and that she needed medical leave from March 28 through April 18, 2013. The hospital objected and said FMLA leave cannot be granted unless the employee gives 30 days notice, which plaintiff did not. Plaintiff had the surgery as scheduled and was fired a few days later. Afterward, the doctor performed certain postsurgery tasks, like examining the wound and changing the dressing.

Rejecting the district court's analysis, the Second Circuit (Leval, Lohier and Koeltl [D.J.]), says plaintiff had a serious medical condition under the FMLA. Under the Act, “serious health condition” as including “an illness, injury, impairment, or physical or mental condition that involves ...  continuing treatment by a health care provider.” “Treatment” is defined as including “examinations to determine if a serious health condition exists and evaluations of the condition.” 29 C.F.R. § 825.113(c).

The district court said plaintiff did not have a serious health condition because her condition was eliminated by the surgery and that her two post-surgical follow-up visits, at which the doctor examined the wound, changed the dressing and removed the sutures, did not constitute treatment of the growth, but rather treatment of the wound created by the surgery. The Circuit disagrees.

We see no reason why post‐surgical change of dressing and removal of sutures does not qualify as part of the treatment of the condition that occasioned the surgery—at least if such postoperative treatment was medically predictable from the outset. The Hospital made no showing that such follow‐up visits for treatment of Pollard’s wound were not a routinely‐expected, reasonably‐required part of the surgical treatment of the growth. Accordingly, at least for purposes of the Hospital’s motion for summary judgment, Pollard satisfied 29 C.F.R. § 825.115(e)’s requirements of  “[c]onditions requiring multiple treatments,” and a ”period of absence to receive multiple treatments (including any period 1 of recovery therefrom) by a health care provider.” 29 C.F.R. § 825.115(e).

The Court of Appeals says in a footnote that "A different conclusion might conceivably follow if the surgery did not predictably call for follow-up, but instead, the need for subsequent visits arose from unexpected complications caused by the surgery." In this case, however, "This course of multiple treatments thus would qualify as a 'serious health condition' under the terms of the regulation if the condition 'would likely result in a period of incapacity of more than three consecutive, full calendar days in the absence of medical intervention or treatment.' 29 C.F.R. § 825.115(e)(2)."

So what about the hospital's argument that plaintiff was fired because she did not give proper notice of her FMLA? That issue is remanded for the district court.

Wednesday, July 5, 2017

Court strikes down law barring sex offenders from the Internt

North Carolina had a law that said convicted sex offenders could not use any social media that the offender knows might be used by children. The Supreme Court strikes down this law as unconstitutional.

The case is Packingham v. North Carolina, decided on June 19. The defendant was convicted of having relations with a 13 year old when he was 21. Later on, he posted an unrelated message on Facebook about his positive experience in traffic court. That Facebook message broke the law because children use Facebook. Writing for the majority, Justice Kennedy as usual employs sweeping language about constitutional freedoms (if you want proof of this, Google "sweet mystery of life"  and "Justice Kennedy"). Here, the Court notes how the First Amendment protects speech in the public forum:

A fundamental principle of the First Amendment is that all persons have access to places where they can speak and listen, and then, after reflection, speak and listen once more. The Court has sought to protect the right to speak in this spatial context. A basic rule, for example, is that a street or a park is a quintessential forum for the exercise of First Amendment rights. Even in the modern era, these places are still essential venues for public gatherings to celebrate some views, to protest others, or simply to learn and inquire.
The public forum cases were decided long before anyone had ever thought of the Internet and social media. But social media today is sort of like the Town Square of the olden days, except that on social media no one speaks to each other face to face. Justice Kennedy is trying to bring the Court into the modern age, writing, "While in the past there may have been difficulty in identifying the most important places (in a spatial sense) for the exchange of views, today the answer is clear. It is cyberspace—the 'vast democratic forums of the Internet' in general, and social media in particular. Seven in ten American adults use at least one Internet social networking service. One of the most popular of these sites is Facebook, the site used by petitioner leading to his conviction in this case. ... 
Social media offers 'relatively unlimited, low-cost capacity for communication of all kinds.' ... '[S]ocial media users employ these websites to engage in a wide array of protected First Amendment activity on topics 'as diverse as human thought.'”

Continuing with the sweeping language, Justice Kennedy writes:

The nature of a revolution in thought can be that, in its early stages, even its participants may be unaware of it. And when awareness comes, they still may be unable to know or foresee where its changes lead. So too here. While we now may be coming to the realization that the Cyber Age is a revolution of historic proportions, we cannot appreciate yet its full dimensions and vast potential to alter how we think, express ourselves, and define who we want to be. The forces and directions of the Internet are so new, so protean, and so far reaching that courts must be conscious that what they say today might be obsolete tomorrow.

This case is one of the first this Court has taken to address the relationship between the First Amendment and the modern Internet. As a result, the Court must exercise extreme caution before suggesting that the First Amendment provides scant protection for access to vast networks in that medium.
The Court recognizes the dangers associated with sexual abuse of minors. The Court notes that danger in this ruling. But that does not outweigh the First Amendment violation posed by this law. The Court notes that "the statute here enacts a prohibition unprecedented in the scope of First Amendment speech it burdens. Social media allows users to gain access to information and communicate with one another about it on any subject that might come to mind. By prohibiting sex offenders from using those websites, North Carolina with one broad stroke bars access to what for many are the principal sources for knowing current events, checking ads for employment, speaking and listening in the modern public square, and otherwise exploring the vast realms of human thought and knowledge. These websites can provide perhaps the most powerful mechanisms available to a private citizen to make his or her voice heard. They allow a person with an Internet connection to “become a town crier with a voice that resonates farther than it could from any soapbox.” 

In sum, to foreclose access to social media altogether is to prevent the user from engaging in the legitimate exercise of First Amendment rights. It is unsettling to suggest that only a limited set of websites can be used even by persons who have completed their sentences. Even convicted criminals—and in some instances especially convicted criminals—might receive legitimate benefits from these means for access to the world of ideas, in particular if they seek to reform and to pursue lawful and rewarding lives.
Justice Alito concurs in the result of this case but he also warns against any ruling that would mean that the Internet is a true Public Square for First Amendment purposes. He writes (with Chief Justice Roberts and Justice Thomas signing along) as follows:

I am troubled by the Court’s loose rhetoric. After noting that “a street or a park is a quintessential forum for the exercise of First Amendment rights,” the Court states that “cyberspace” and “social media in particular” are now “the most important places (in a spatial sense) for the exchange of views.” The Court declines to explain what this means with respect to free speech law, and the Court holds no more than that the North Carolina law fails the test for content-neutral “time, place, and manner” restrictions. But if the entirety of the internet or even just “social media” sites are the 21st century equivalent of public streets and parks, then States may have little ability to restrict the sites that may be visited by even the most dangerous sex offenders. May a State preclude an adult previously convicted of molesting children from visiting a dating site for teenagers? Or a site where minors communicate with each other about personal problems? The Court should be more attentive to the implications of its rhetoric for, contrary to the Court’s suggestion, there are important differences between cyberspace and the physical world.

Thursday, June 29, 2017

Supreme Court strikes down "happy talk' trademark statute under the First Amendment

The Supreme Court continues its forward march into First Amendment absolutism. Over the last decade or so, the Court has held that the First Amendment protects (1) unlimited corporate money into elections; (2) offensive anti-gay protests at military funerals; (3) videos depicting cruelty to animals; and (4) stolen military valor. This time around, the Court holds that the First Amendment prohibits the Patent and Trademark Office from denying patents that may disparage or bring into contempt or disrepute any persons, living or dead.

The case is Matal v. Tam, decided on June 19. The plaintiff is lead singer for a rock group, The Slants. Thar word is regarded as an insult to Asians, but the band uses that name to "reclaim" the term and dilute its denigrating force as a derogatory term. Writing for the Court, Justice Alito notes that government-sponsored speech is not subject to constitutional restrictions, citing as an example the government's pro-war posters and other materials during World War II which did not require equal time from war opponents. But the patents are not government speech, the Court says, and any contrary argument would bring too much speech into that category. "If the registration of trademarks constituted government speech, other systems of government registration could easily be characterized in the same way." Nor is this a commercial speech case, where the government has more leeway in regulating content

Getting to the heart of the matter, the Court summarizes the pro-government position in this case as follows: "The Government has an interest in preventing speech expressing ideas that offend." That will not cut it, Justice Alito says. "As we have explained, that idea strikes at the heart of the First Amendment.  Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express 'the thought that we hate.' United States v. Schwimmer, 279 U. S. 644, 655 (1929) (Holmes, J., dissenting). That language really sums it up. The government cannot take sides when it comes to offensive speech. You can say whatever you want.

The parties that don't like trademark protection for bands like The Slants also argue that denying the patent will protect the orderly flow of commerce, which is disrupted by trademarks that disparage on the basis of race, ethnicity, religion, etc. The Court rejects that argument also, further offering language that is bound to turn up in future speech cases:

A simple answer to this argument is that the disparagement clause is not “narrowly drawn” to drive out trademarks that support invidious discrimination. The clause reaches any trademark that disparages any person, group, or institution. It applies to trademarks like the following: “Down with racists,” “Down with sexists,” “Down with homophobes.” It is not an anti-discrimination clause; it is a happy-talk clause. In this way, it goes much further than is necessary to serve the interest asserted.

The clause is far too broad in other ways as well. The clause protects every person living or dead as well as every institution. Is it conceivable that commerce would be disrupted by a trademark saying: “James Buchanan was a disastrous president” or “Slavery is an evil institution”?

There is also a deeper problem with the argument that commercial speech may be cleansed of any expression likely to cause offense. The commercial market is well stocked with merchandise that disparages prominent figures and groups, and the line between commercial and non-commercial speech is not always clear, as this case illustrates. If affixing the commercial label permits the suppression of any speech that may lead to political or social “volatility,” free speech would be endangered.

Tuesday, June 27, 2017

Military service retaliation case survives summary judgment

You cannot retaliate against employees because of their military commitments. The governing law is the Uniformed Services Employment & Reemployment Rights Act, or USERRA. We treat these cases like employment discrimination claims, in that plaintiff must make out a prima facie case and show the employer's articulated reason for the negative decision was a pretext for retaliation. This plaintiff has a trial-worthy case.

The case is Dilfanian v. New York City Dept. of Education, a summary order issued on June 13. The district court dismissed the case, but the Court of Appeals (Jacobs, Parker and Livingston) brings it back, though it deems this a "close call."

On the prima facie case, it looks like management (in the form of a supervisor named Goldfarb) was simply frustrated that plaintiff was deployed to Afghanistan. When she saw the deployment letter, Goldfarb threw it on her desk and asked, "You're going to leave a broken department behind. How can you do that to me? I am stuck with cleaning up ... the mess." As a jury may think Goldfarb had personalized the deployment as something plaintiff was doing to her, that's evidence of retaliatory intent. As well, when plaintiff missed work for a pre-deployment obligation, Goldfarb filed a disciplinary letter (threatening termination) over plaintiff's inadvertent absence from a meeting seven weeks earlier. This unusual timing is further evidence of bad intent. Similarly, while plaintiff got good reviews for three years as an assistant principal, in the eight months after he notified defendant of the deployment, you would have thought plaintiff had thrown in the towel as defendant issued him an unsatisfactory rating and issued three disciplinary letters and was fired.

Additional evidence of discriminatory intent: Plaintiff was the only assistant principal who got a negative performance review during Goldfarb's six year tenure. What is more, after plaintiff got the deployment letter, Goldfarb "stopped being friendly and ceased informal communications with him." And, at a high school cabinet meeting, Goldfarb said she was "cleaning house" and stared and pointed a wand at plaintiff and said, "poof, be gone." You read that right: "poof, be gone." Finally, Goldfarb did not get around to signing a form that would have allowed plaintiff to receive training to become a principal.

This does not look like a "close call" to me, but it's enough for the Second Circuit to hold plaintiff satisfied his minimal prima facie burden. So what is the defense here? Defendant says that, in the end, plaintiff did not deploy to Afghanistan after all. But that does not negate the evidence that Goldfarb was upset that she thought that plaintiff was going to deploy. Defendants also claim plaintiff was not a good worker no matter what his deployment plans were, and it cites three incidents to back up this claim in an effort to refute any inference of discrimination. This includes plaintiff's failure to attend a meeting in Goldfarb's office and plaintiff's failure to notice that the state had sent the wrong examination booklets for a test while preparing for an an Advanced Placement English test.

Defendant further says plaintiff did not provide adequate guidance to teachers on a number of occasions (an allegation that plaintiff refuted "in a detailed and thoughtful response" and that plaintiff had missed school, when he was to play a key role in a professional development session) because he received military orders to report to Fort Dix. For that incident, plaintiff made arrangements with his military superior to get together on a Friday so plaintiff would not miss work on a Thursday. But plaintiff did not notify the school of his Friday absence until that Friday morning because a one-star general told him to give a briefing on Friday morning, too late to reschedule the professional development session at the school, "which had to be reorganized in Dilfanian's absence."

The school regarded these derelictions as misconduct, justifying plaintiff's termination. But the Court of Appeals sees it differently, concluding "these alleged performance problems were not so egregious that a rational juror must conclude that his termination would have occurred regardless of his military service." This holding is buried at the last page of the opinion, but it is actually remarkable. Defendants will often claim the plaintiff cannot win a wrongful discharge claim because of some performance deficiency or other. Rarely do I see the Court of Appeals say that, even if the deficiencies are true, they are not serious enough to force a jury to hold the termination was justified.. The Court says so in this case, however. While that is good news for plaintiffs, since this ruling is a summary order, its precedential value is limited. Still, you are allowed to cite summary orders, so if you need it, use it.

Monday, June 26, 2017

Oral argument does make a difference!

Many appellate courts do not bother with oral argument these days, preferring to take the case on submission. But the Second Circuit still hears argument in most cases, and one listen to the oral argument audio confirms that these proceedings are quite lively. But does oral argument really make a difference? By the time the lawyers step to the podium, the court has already reviewed the briefs and the record, and it probably has a sense of where it wants to go in the case. But sometimes the lawyers say something at argument that makes a difference.

The case is Allen v. City of New York, a summary order decided on June 13. Plaintiff alleges he was denied a promotion and suffered retaliation because of his race and national origin. The district court dismissed the case on summary judgment, reasoning that plaintiff was not qualified for his position and there was no evidence of discriminatory intent.

Plaintiff wanted the Supervisor Watershed Maintenance I position. Whatever the district court had concluded to the contrary, the Chief of Eastern Operations for the Department of Environmental Protection said he was in fact qualified for the position. Plaintiff's affidavit on the summary judgment motion refuted management's claim that plaintiff had withdrawn his application for the position. So we have a fact issue for trial on the retaliation claim.

Here is where the oral argument admissions kick in. A coworker testified at deposition that the Acting Chief of Operations told this coworker that plaintiff had been discriminated against. While the district court said this testimony was hearsay, at oral argument on appeal, defendant's lawyer conceded that the Chief's statement to the coworker was not hearsay but was instead an admission. That is because a high-ranking supervisor made the statement. Moreover, the Court of Appeals (Raggi, Lohier Droney) says, "a reasonable jury could find that such a statement from one DEP supervisor to another was not speculation but a communication about an important employment matters within the scope of his agency." The Court cites Walsh v. NYC Housing Auth., 828 F.3d 70 (2d Cir. 2016), for this proposition. Oral argument also got another admission from the City's lawyer: that no admissible evidence shows that the person chosen for the position over plaintiff was more qualified than plaintiff.

I rarely see this in Second Circuit opinions. Most decisions make no reference to oral argument at all. Maybe this is one reason the Court still hears argument. A few years ago, the Court announced that it would decide sua sponte that certain cases would be taken on submission even if the parties wanted argument. But in practice, most cases get argued, including pro se cases where the plaintiff does not know the law and makes an emotional plea to the judge who listen silently.

Are there other reasons why the Second Circuit likes oral argument? Maybe it's the beautiful courtroom at the United States courthouse. The 17th floor courtroom was recently refurbished and looks like an appellate courtroom right out of central casting. On some days, the Court assigns two different 3-judge panels to hear cases. The second panel sits in the 19th floor courtroom, which is an almost exact replicate of the 17th floor courtroom, except that the wood is a little darker. Maybe the Court wants us to experience these beautiful rooms. What's the point of having a beautiful courtroom if no one sees it?

Another reason for oral arguments in most cases is that the Court may want continued human interaction. Appellate judges spend most of their time reading briefs, pouring through the record on appeal, writing decisions and sharing them with their colleagues on the bench. All of this work is done in private chambers. Judges are not allowed to engage in political activity and probably watch what they do in the outside world, always endeavoring to maintain the appearance of neutrality. While district court judges interact with lawyers on a regular basis -- at pretrial conferences and at trial -- appellate judges only get to interact with lawyers at oral argument.