Friday, October 20, 2017

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

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

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

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

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

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

Thursday, October 19, 2017

Retaliation claim fails under Title VII

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

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

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

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

Wednesday, October 18, 2017

Hostile work environment claim fails -- not enough offensive comments

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

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

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

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

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

Tuesday, October 17, 2017

Speculation is not enough under Title VII

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

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

The reason she does not have a case is that plaintiff cannot prove the decisionmaker, Antinelli, even knew about the EEO complaints. Any such argument is speculation, especially since the EEO complaints are not in the personnel file. The Court reasons it out this way:
no reasonable jury could find for Meyer on this issue. No rational finder of fact could conclude that Antinelli even knew about Meyer’s EEO activity when he decided to terminate her offer. Meyer’s sole pieces of evidence to support this claim are that: (1) she believes that she saw references to her EEO activity when she reviewed her OPF in preparing for litigation, and (2) she speculates that the chief of human resources at the New Jersey VA Center informed Antinelli about her EEO activity. But she offers no evidence to back up either of these claims. Antinelli swore under penalty of perjury that he was not aware of Meyer’s EEO complaints. And the record contains a “true and correct copy” of Meyer’s entire OPF. Meyer does not point to a single page in this copy that references her EEO activity, and after a thorough review we could not find such a reference. In short, Meyer’s evidence consists solely of the “unsubstantiated speculation,” and “conjecture,” that we have held do not suffice to defeat a motion for summary judgment.
Plaintiff tries to get around this reasoning by arguing that Syracuse had already known about the reviews in New Jersey and that nothing in the personnel file could have been a surprise to them, so that the EEO charges must have been the real reason for the job revocation. But not only did the personnel files not include the EEO charges, but plaintiff did not tell Syracuse about the poor marks she received for her interpersonal skills. 

Monday, October 16, 2017

Res ipsa loquitur wins plaintiff her negligence case

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

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

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

Under that doctrine, a fact‐finder may infer negligence merely from the happening of the event that caused the harm if: (1) the event is of a type that ordinarily would not occur in the absence of  negligence; (2) it is caused by an agency or instrumentality under the exclusive control of the party charged with negligence; and (3) it is not due to any voluntary action or contribution on the part of injured party. 
The Court says that res ipsa loquitur is not limited to accidents that could occur only because of negligence. Rather, the plaintiff must show the event is the kind that ordinarily does not occur in the absence of negligence. In this case, plaintiff showed that what had happened to her would ordinarily not happen without negligence. The defendant did not rebut her evidence. "While no doubt things can happen at sea that could cause an extended halyard to slip out of a seaman’s grasp without negligence, Tagle’s evidence was sufficient to show that this does not ordinarily happen without negligence." Simply put, if the workers did their job properly, this accident would not have happened. While you can blame it on the wind or some other external factor, there was no evidence of any such external force. The Court reasons:

A deckhand who carefully exercises the skills required for the seaman’s job will not ordinarily lose hold of an extended weighted halyard—all the more so when passengers are seated in the halyard’s swing‐path. Waves and wind, and the consequent shifting and rolling of the deck, are the normal conditions of the sea, in which seamen must work protecting the safety of passengers and crew. While it is no doubt true that sudden unexpected turbulence can be of such force that a seamen’s loss of control of a line could be deemed non‐negligent, there was no evidence in the record of any such abnormal circumstance that caused the halyard to slip from Biggins’s grasp. As Johnson made clear, the mere possibility that “some external force”—here, perhaps an unusual wave or gust—“might conceivably compel” a seamen to let go of a dangerous halyard is not sufficient reason to reject the application of res ipsa loquitur if this would ordinarily not happen in the absence of negligence, and there was no evidence of any such unusual external force.
Even without res ispa loqutur, plaintiff still wins, as she has established negligence without that theory. The Court says there is no other way to view the evidence, which means plaintiff wins the case.

Thursday, October 12, 2017

The inmate wins his appeal

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

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

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

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

Wednesday, October 11, 2017

No First Amendment claim for teacher who objected to cheating students

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

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

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

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

Friday, October 6, 2017

Unfair treatment is not discrimination

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

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

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

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

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

Thursday, October 5, 2017

No due process violation for tenured ex-City employee

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

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

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

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

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

Monday, October 2, 2017

Trainspotting plaintiff cannot pursue false arrest claim

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

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

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

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

Friday, September 29, 2017

En banc court takes up Title VII and sexual orientation

The Second Circuit this week heard argument in a rare en banc proceeding, asking whether sexual orientation discrimination is a form of sex discrimination under Title VII of the Civil Rights Act of 1964. Along with Gregory Antollino, I represent the plaintiff.

The case is Zarda v. Altitude Express. The oral argument link is here. The panel decision from April 2017 is at this link. Zarda was a skydiver who was fired after he told a customer that he was gay. The lawsuit asserted claims under Title VII and the state human rights law, which explicitly prohibits discrimination on the basis of sexual orientation. The trial court dismissed the Title VII claim on the basis that the Second Circuit in 2000 held that this form of discrimination is not prohibited under Title VII. That case is Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000). The state law claim went to a jury, which rejected the claim and entered a defense verdict. The reason the Title VII issue survives is the trial court on the state law claim charged the jury under "determining factor" standard, which is more favorable to the defendant than the "motivating factor" test under Title VII.

A 13-judge panel of the Second Circuit -- all active judges plus two senior judges who sat on the panel decision -- heard argument on Sept. 26. Argument lasted two hours, with three lawyers arguing for plaintiff (including to amicus parties) and three lawyers arguing for defendant (including two amicus parties). The federal government argued both sides of the issue, with EEOC arguing for plaintiff and the Department of Justice arguing for defendant. Nearly every judge on the en banc court asked questions, and things got lively when the judges asked the Department of Justice lawyer how exactly it was determined that the federal government would oppose the plaintiff after the EEOC had already filed a brief in favor of the plaintiff.

What are the bases for claiming sexual orientation discrimination is a form of gender discrimination? As the EEOC said in an administrative ruling a few years ago, when a gay male is fired because of his sexual orientation, that's "but-for" discrimination because if the plaintiff were a female, she would not have been fired. In addition, plaintiffs have argued, sexual orientation discrimination derives from the ultimate sex stereotype: men are attracted to women and vice versa. Title VII already rejects gender stereotypes under Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). In addition, when a gay man is fired, he is being punished over his protected gender association. Other cases hold that Title VII prohibits the termination of a white man over his association with a female fiance. Defendants respond to these arguments by claiming, in part, that Congress did not have sexual orientation in mind when it enacted the Civil Rights Act of 1964 and that Congress had declined to extend protections under Title VII to gays and lesbians. We call this the "legislative inaction" argument.

The Seventh Circuit in 2017 reversed one of its prior cases in holding that Title VII prohibits sexual orientation discrimination. That case is Hively v. Ivy Tech., 853 F.3d 339 (7th Cir. 2017). The Eleventh Circuit this year stood by its older precedents that reject the new thinking. Evans v. Georga Regional Hospital, 850 F.3d 1248 (11th Cir. 2017). The Zarda Court will be the third appellate court to take up this issue since the EEOC decided in 2015 to expand Title VII protections. Someday,  this issue will reach the Supreme Court.

The New York Times covered this argument, reprinted below.

Discrimination Based on Sex Is Debated in Case of Gay Sky Diver



About seven years ago, Donald Zarda, a Long Island sky-diving instructor, shared a bit of personal information with a female student as they prepared for a jump. He was, he told the woman, “100 percent gay.”

He made the disclosure, he later explained, because the woman had seemed uncomfortable with the close physical contact. Her boyfriend was watching and a friend had been teasing her about being strapped in so tightly to another man.

After the woman’s boyfriend called the sky-diving school to complain about the encounter, Mr. Zarda was fired. He sued, setting in motion a legal case that has grown more consequential as it has worked its way through the courts over the past several years.

On Tuesday, Mr. Zarda’s firing was dissected before a panel of 13 federal appellate judges in Manhattan, who were wrestling with whether federal discrimination law provided protection for employees facing discrimination on the basis of their sexual orientation.

But the most curious division was not among the judges, but between lawyers for the federal government who, over two hours of arguments, staked out opposing positions on the reach of federal discrimination law.
A lawyer for the federal Equal Employment Opportunity Commission, Jeremy Horowitz, sided with the sky diver, arguing that federal law did prohibit employers from discriminating against employees because they are gay.

But a deputy assistant attorney general with the Justice Department, Hashim M. Mooppan, explained that, under federal law, employers were absolutely free “to regulate employees’ off-the-job sexual behavior,” meaning they could discriminate against employees for adultery, promiscuity or sexual orientation.

Even as the judges were struggling with the underlying legal question, they seemed unsure of what to make of the two government lawyers, each vigorously arguing opposite points.

The divide within the government emerged in July, when the Justice Department filed a brief in the case, breaking with the E.E.O.C. and telling the court that the commission was “not speaking for the United States.” Filed on the same day President Trump announced on Twitter that transgender people would be banned from serving in the military, the brief fueled concerns among civil rights activists that the Trump administration was trying to roll back lesbian, gay, bisexual and transgender rights secured under previous administrations.

“It’s a little awkward for us to have the federal government on both sides of a case,” one judge, Rosemary S. Pooler, noted, while other judges asked questions about how the rift had developed and whether the Justice Department had originally approved the E.E.O.C. brief. Mr. Mooppan refused to answer, saying, “I don’t believe it’s appropriate” to disclose.

Much of the debate on Tuesday afternoon, before the full United States Court of Appeals for the Second Circuit, revolved around a single word in Title VII of the 1964 Civil Rights Act, which generally prohibits employers from discriminating against employees on the basis of “race, color, religion, sex or national origin.” At issue was the word “sex,” which courts had long understood to mean it was illegal to discriminate against employees because they were male or female, or failed to conform to male or female stereotypes.
During the oral arguments on Tuesday, one judge, Reena Raggi, sounded skeptical of the more expansive reading of the law, wondering at one point what would have happened had Mr. Zarda been a lesbian rather than a gay man? If both scenarios would have resulted in a firing, “I’m having trouble understanding how that’s discrimination between men and women,” she said, as opposed to another type of discrimination that was not barred by Title VII protections.

A lawyer for Mr. Zarda, however, said that discrimination on the basis of sexual orientation inherently involved sex distinctions in a way that violated federal law.

“Sexual orientation cannot be extricated from sex, the two are one and the same,” said a lawyer for Mr. Zarda, Gregory Antollino. It was an argument that Mr. Horowitz, the E.E.O.C. lawyer developed further, explaining that “if you change the sex of the individual and the outcome would be different, that’s discrimination.” What he meant, he said, was that if Mr. Zarda had been a heterosexual female sky-diving instructor and had disclosed her sexual orientation, would she have been fired? If the answer was no, then Mr. Zarda had been the victim of sex discrimination.

Mr. Horowitz also argued that gay employees were protected under Title VII because discrimination they faced was for transgressing gender stereotypes, namely that people of one sex should be attracted to members of the opposite sex.

Mr. Mooppan, the Justice Department lawyer, dismissed the notion that sexual orientation was included in the meaning of sex, asking judges to engage in an exercise in name-calling.
If someone opposed interracial marriages, that person would be termed a racist, Mr. Mooppan said. But what about someone opposed to same sex-relationships? “You might call them a lot of things, but you would not call them a sexist,” he said.

New York state law outlaws discrimination on the basis of sexual orientation.

Mr. Zarda died in 2014 on a wingsuit BASE jumping trip in Europe. The lawsuit is being pushed forward by his sister and Bill Moore, a close friend and former partner of Mr. Zarda’s.
In a brief interview before the court hearing on Tuesday, Mr. Moore said that Mr. Zarda had been devastated when Skydive Long Island had fired him and that it led him to lose hope that he would be hired as a commercial pilot, a goal he had long been working toward. “Don always said he felt he had no purpose in the world,” Mr. Moore said. “He now has a major purpose.”

Monday, September 25, 2017

"On the cover of the Rolling Stone" -- sometimes a bad thing

Rolling Stone used to be the leading pop culture magazine in the country, so much that someone wrote a song about making it to the cover. Times have changed. Now the magazine is facing a libel suit over a false campus rape article. The Court of Appeals finds the lawsuit plausibly claims Rolling Stone libeled two students whom the article implied had raped a female classmate.

The case is Elias v. Rolling Stone, LLC, decided on September 22. The article quoted a female student who said that university fraternity brothers had gang raped her in a frat house. The article did not identify the students by name, but the students claim the article was "of and concerning" them because it described the layout of the frat house and quoted a frat brother as suggesting the rape was part of a fraternity initiation process. The article also claimed that one of the rapists was a guy who rode his bike around on campus. Rolling Stone later retracted the story, stating that the female student was untrustworthy in light of discrepancies in her account. Hence, the defamation case.

A quick flip through any defamation treatise will show that libel and slander doctrine has nooks and crannies that can doom any case. One problem is when the defamation victim is not named in the article. He can still sue for libel if the article was "of and concerning" him. That alone has yielded volumes of case law. Count this case among those cases. The Court of Appeals (Cabranes and Forrest [D.J.]) says two of the three male plaintiffs have plausibly alleged in the complaint that the Rolling Stone article was about them. One, Elias, notes that he lived in the frat house and his bedroom where the incident arose was sufficiently described in the article. You and I would not know the article was about Elias, but anyone familiar with the frat house would identify the room as Elias's room. A similar analysis applies to a second plaintiff, Fowler, who was the rush chair during that academic year and was presumably the one who egged on the other "rapists." Drew also used the campus pool regularly, which is where the female "victim" was said to have met him prior to the incident.

The third plaintiff, Hadford, cannot proceed with his claim, however, even though the article said one of the rapists was an alum who rode his bike around campus. That does describe Hadford. But while it is "possible" the article referred to Hadford, it is not "plausible." That distinction arises from the Iqbal pleading case that the Supreme Court issued in 2009, making it more difficult to survive motions to dismiss under Rule 12. There is no allegation that it was unusual for an alum to bike through campus "such that a reasonable reader familiar with Hadford's biking habits would conclude that the Article plausibly referred to him."

We also have a "small group" defamation claim, which exists if the statement defames members of a small group. "An individual belonging to a small group may maintain an action for individual injury resulting from a defamatory comment about the group, by showing he is a member of the group." This fraternity -- with 53 members -- is not too large that it cannot bring this claim. The complaint plausibly asserts that "many or all fraternity members participated in alleged gang rape as an initiation ritual and all members knowingly turned a blind eye to the brutal crimes." The plaintiffs may proceed with this claim.

Judge Lohier dissents in part, stating that "publishers should beware" now that the Second Circuit has resolved the small group defamation claim against Rolling Stone. He says the article does not allege that all fraternity members were complicit in the rape. "To the extent that the article implicates 'some' or even 'many' rather than 'all' of the members as rapists, we suggested in Algarin v. Town of Wallkill, 421 F.3d 137 (2d Cir. 2005) [a case I argued and lost], that it not actionable under the small group defamation doctrine." Were it up to Judge Lohier, this case would be certified to the New York Court of Appeals to clarify this issue.

Friday, September 22, 2017

Another Garcetti case bites the dust

It's been a while since I've seen a Second Circuit ruling on a First Amendment Garectti issue. Garcetti issues raise public employee speech retaliation issues. The plaintiff usually loses these cases because only a narrow band of public employee speech is protected under the First Amendment. This case is a good example of that.

The case is Cohn v. Department of Education of the City of New York, a summary order decided on September 20. Under the First Amendment, public employees cannot suffer retaliation for speaking out as citizens on matters of public concern. The Supreme Court's Garcetti decision (2006) holds that public employee speech is not protected if the plaintiff uttered the speech pursuant to his job duties. This means the comptroller of a municipality has no First Amendment protection if he blows the whistle on embezzlement, as that whistleblowing is his job.

Cohn was an Earth Science teacher in the New York City school system. He was required to set up the laboratory portion of the Regents Examination and help grade it. After discovering that about a dozen students in another teacher's class had received perfect scores, and suspecting that the teacher had coached the kids prior to the test, Cohn raised his concerns to the principal and to the New York Department of Education. Afterward, Cohn got shafted at work.

To the uninitiated, Cohn has a case, right? He spoke on a matter of public concern -- a corrupt Regents process -- and was retaliated against for that speech. In the real world, Cohn has no  case. He did not speak out as a citizen. Speaking up about the corrupt testing process in his school was part and parcel of his job duties, that is, "ensuring the fair and proper administration of a test for which he he had some responsibility. The alert to school officials that another teacher may have helped students cheat was therefore 'pursuant to his official duties."

Tuesday, September 19, 2017

Plaintiff unlawfully fired for signing unlawful confidentiality document

In this case brought under the National Labor Relations Act, the employee wins his grievance because he was fired over his refusal to sign an unlawful employment document that prohibited him from discussing his salary with other employees.

The case is NLRB v. Acosta, decided on August 31. Early in his employment at Long Island Association for AIDS Care, Acosta had time management problems, and he even objected to completing a remedial time log, expressing his displeasure by "enter[ing] the ingredients of his lunch into his time log '80 percent to help himself'' with an eating disorder and '20 percent' to be 'snippy with his supervisor.'" I am not sure why the Court of Appeals emphasizes this incident in the opinion, but it sure is memorable. Anyway, Acosta's performance later improved. At some point, the local newspaper reported that the company's CEO had misappropriated public funds intended for employees. At some point, the company had everyone sign a confidentiality statement that precluded them from discussing wages. They also could not talk with the media. When Acosta signed it "under duress," he was fired on the spot.

Acosta filed his charge with the National Labor Relations Board, which found in his favor "because 'an employer unlawfully intrudes into its employees’ Section 7 rights when it prohibits employees, without justification, from discussing among themselves their wages and other terms and conditions of employment.'” Not only had Acosta discussed wages with co-workers, but his comments were protected because the confidentiality statement was facially invalid. The ALJ ordered management to reinstate and compensate Acosta.

The Court of Appeals (Newman, Leval and Pooler) affirms the NLRB. Here is the reasoning:

We hold that the NLRB was correct in deciding that an employer violates Section 8(a)(1) of the NLRA, 29 U.S.C. § 158(a)(1), when an employer terminates an employee for refusing to agree to an unlawful confidentiality agreement. An employer may not require even one individual employee to agree to abide by unlawful restrictions as a condition of employment. That the employees have not  yet organized in order to protest the unlawful nature of the restriction at issue does not make it any less unlawful. The contrary rule urged by LIAAC, that an employee can be required to comply with an unlawful policy and the employee is only protected from the unlawful policy if he or she actively organizes with other employees against it, is illogical and untenable. An unchallenged unlawful document can cause the chilling effect that Section 8(a)(1) seeks to prevent just as much as one that has been challenged by concerted action.
Since the confidentiality statement was illegal and Acosta was fired for protesting it, his termination was unlawful. While the employer said the real reason for Acosta's termination was his poor job performance, the NLRB found -- and the Second Circuit affirms -- that job performance was not the real reason. Here, the Court of Appeals provides some useful pretext analysis for plaintiffs' lawyers handling Title VII cases. Acosta's job performance had improved over time, and on the day of his termination, he met with a supervisor to discuss "future events that Acosta would be participating in at LIAAC, "thus suggesting that [the supervisor] did not believe Acosta would be fired later that day based on his performance." And, at the final meeting, the supervisor told Acosta "that he had improved." On this evidence, the NLRB had an evidentiary basis to find that Acosta's job performance was not the real reason for his termination.

Monday, September 18, 2017

Drug search legal as probable cause did not dissipate

If you do not handle Fourth Amendment cases, you are probably unfamiliar with the notion that probable cause can "dissipate" over time. It can. This case -- a drug case out of Vermont -- raises that issue.

The case is United States v. Pabon, decided on September 11. The police had information that Pabon was smuggling drugs from Vermont to Connecticut by using rental cars at certain times of day. When they stopped him on the road for a traffic violation (after having trailed him), Pabon would not identify himself, and he gave vague answers as to his travel itinerary. The police searched the car and found nothing, and at the barracks, Pabon would not give a clear answer on whether he would consent to a search. The police then got a search warrant to more closely search the rental vehicle and to search Pabon's clothing and to x-ray his lower abdomen. The drug-sniffing dog got suspicious when it went into Pabon's cell and his vehicle. Meanwhile, at the hospital, where Pabon would be x-rayed, he went to use the bathroom, but was told he could not flush as the police suspected he had swallowed drug packets for later distribution. He tried to flush the toilet anyway, but the officers would not allow him to, though they found nothing incriminating in the toilet. The x-ray showed no drug packets. Later on, when Pabon returned to the hospital after hurting himself at the holding cell, the police got a warrant for a CT scan, which revealed materials in Pabon's body that suggested he was in fact packing drugs.After taking oral laxatives, Pabon passed all the drugs, nearly 100 grams of cocaine and heroin.

So what's it all about? Pabon does not really contest the police had probable cause to initially detain him. He does argue that the probable cause dissipated over time and that the search that produced the drugs was illegal. The Court of Appeals (Livingston, Cabranes and Pauly [D.J.]) disagrees and upholds Pabon's conviction. The police may not disregard facts tending to dissipate probable cause when confronted with such facts before the arrest is made. In this case, the Court considers for the first time "dissipation in the context of new information emerging after a warrantless arrest based on probable cause." Without squarely addressing that issue, however, the Court holds that "it is clear from an assessment of the record that police at all times possessed a reasonable basis for concluding that Pabon had committed -- indeed, was committing -- a crime."

The Court says things had remained suspicious even after Pabon was taken to the police station. While the police initially saw nothing in his body during the initial x-rays, doctors did note that x-rays provided limited insight into what's really going on.

In such circumstances, the probable cause to believe that Pabon was transporting narcotics had not dissipated, even taking into account the x‐ray examination results. By the time Pabon was discharged from the hospital, the state police not only had the information they had collected prior to Pabon’s arrest, but they were also privy to Pabon’s objectively suspicious behavior, canine alerts to places where Pabon was either sitting or had been held, and Dr. Rademacher’s explanation of the import of the x‐ray images and the relative effectiveness of that search method. The officers continued to have a reasonable basis for detaining Pabon, such that, even assuming arguendo that an obligation to release a suspect could, in some circumstances, arise, it did not do so here. Properly framed, the central question in this case is thus the one Gerstein and further elaborated on this view in his written assessment, Dr. Rademacher explained that he felt it was unnecessary because he had already conveyed the relevant information to Hatch. probable cause to detain.

Wednesday, September 13, 2017

Defamation case involving extortion allegations can proceed

Defamation cases are a way to reclaim your reputation. The problem is that the court system is an unwieldy way to accomplish that, and defamation cases are often met with motion practice that will prolong the agony and cost you money and even more anguish.

The case is Friedman v. Bloomberg LP, decided on September 13. Friedman was recruited to work as "head of risk" for a purported hedge fund and moved to the Netherlands, where the company was based. He then came to believe the company had fraudulently induced him to work there and that the company was actually a "kickback and money laundering operation" for Libyan dictator, Ghaddafi. Friedman says he was inexplicably fired shortly after he voiced concerns about the company's practices. He then sued the company for fraudulent inducement, seeking $499,401,000 in damages, back pay and bonuses. Bloomberg, LP, then published a story about the lawsuit, and Friedman next sued Bloomberg for defamation because (1) the article said he was suing for $500 million and (2) the article quoted his former employer stating that Friedman had repeatedly tried to extort money from the company and that he was fired for gross misconduct.

Here are the issues. First, Connecticut allows plaintiffs to sue nonresidents and foreign companies in Connecticut if the lawsuit has some connection to that state, except for defamation cases. This means plaintiff cannot sue the foreign company in this case. Friedman says the defamation exception violates the First Amendment's right to petition the government for grievances. The Court of Appeals (Walker, Hall and Chin) says:

A plaintiff’s right of access to courts is not violated when, as here, a state’s long‐arm statute does not provide for jurisdiction over certain out‐of‐state defendants. Indeed, “[t]here is nothing to compel a state to exercise jurisdiction over a foreign [defendant] unless it chooses to do so, and the extent to which it so chooses is a matter for the law of the state as made by its legislature.”
Nor is there an equal protection violation. New York has a similar law. The Second Circuit has already blessed that law. "One rational basis for excluding defamation actions against out‐of‐state defendants is “to avoid unnecessary inhibitions on freedom of speech” and that '[t]hese important civil liberties are entitled to special protections lest procedural burdens shackle them.'” In addition, the New York exception for defamation actions was initially intended, at least in part, to ensure that “newspapers published in other states [would not be forced] to defend themselves in states where they had no substantial interests.”

The Court does have authority to decide the case against Bloomberg, however. Friedman does not state a claim that Bloomberg had defamed him in stating he was suing his former employer for "as much as $500 million," as the lawsuit pretty much seeks that amount in damages/relief. As for the statement in the article that plaintiff had repeatedly tried to extort money from his former employer, that statement is actionable because it suggests plaintiff had committed a crime. This is not rhetorical hyperbole. A reasonable reader could also think that Friedman's "gross misconduct" consisted of those multiple extortion attempts.

Friday, September 8, 2017

Lethal police shooting case met with qualified immunity

The facts here do no bode well for the wrongful death claim brought by the decedent's family. The decedent (Jaquez), came after the police with a knife even after they Tased him upon showing up at a domestic dispute at his home. More Tasers ensured, to no avail. Jaquez continued to attack the officers until they shot and him with rubber bullets, which did not stop Jaquez. Eventually, they killed him with live bullets, knife still in hand.

The case is Estate of Jaquez v. City of New York, a summary order issued on September 8. So, on these facts, what case is available to the Jaquez estate? He sues under Section 1983, which prohibits the unlawful use of excessive force. Plaintiff's expert says "Jaquez was in a psychotic state and that when the officers entered the apartment with weapons and body armor, this escalated Jaquez’s reactions." The assistant medical examiner contradicted the officers' version of events, stating that "because the autopsy report indicated that the bullets entered Jaquez’s body from above, the bullets’ trajectory indicated that the officers were above Jaquez when he was shot, which Appellants contend would contradict the officers’ claim that Jaquez was standing and attacking them at the time they deployed live ammunition." The examiner also "proposed to testify that it would have been impossible, based on the injuries suffered, for Jaquez to push himself off the floor and continue attacking the officers after the first gunshot wounds."

The trial court dismissed some of the claims on qualified immunity grounds. On appeal, the Second Circuit (Hall, Lynch and Droney) affirms the grant of qualified immunity, which shields officers from suit when they did not violate clearly-established law. Even if Jaquez did not have a knife in his hand, the officers said they did not see his hand at that time and could not determine if he was unarmed when they shot the Taser. "Thus, in the moments that Jaquez was walking down the hallway 'officers of reasonable competence could disagree' as to whether Jaquez was a threat because the officers knew Jaquez had easy access to a fillet knife, was acting erratically, and was refusing to obey the officers’ commands."

As for Jaquez's other claims, again, qualified immunity. While the estate says there was an issue for the jury as to whether he was attacking the officers when they later used lethal and non-lethal force following the first deployment of the Taser, the Court says there is no real dispute whether he was attacking the officers with a knife. "Moreover, because of Jaquez’s refusal to follow commands, his close proximity to a lethal weapon, and his behavior up to that point, the arresting officers reasonably could have believed that Jaquez posed a threat." A similar analysis follows on the estate's claim that the initial use of force was a jury-worthy incident. Any disputes about the trajectory of the bullets and whether Jaquez was physically able to reach for a knife are not trialworthy because "the limited circumstantial evidence indicating the possible positions of the officers and Jaquez at the time that they initially fired live ammunition is insufficient to defeat summary judgment on qualified immunity. There is no dispute that immediately prior to the officers’ use of lethal force Jaquez
threatened the officers with a knife—thus engaging in the use of lethal force himself."

Other claims went to trial but were met with a defendants' verdict. The trial court did not abuse its discretion on the evidentiary rulings that the estate challenges on appeal. For example, as for expert testimony about Jaquez's psychological state and the propriety of the police officers' actions, that was properly excluded because the doctor was not shown to have expertise in psychiatric diagnosis or in police practices.

Thursday, September 7, 2017

West Point rape case is dismissed

This case teaches us two lessons: first, courts are loathe to impose Bivens liability against federal defendants, and second, courts are loathe to impose any liability against military institutions. This case arises from a rape and sexual harassment at the U.S. Military Academy at West Point.

The case is Doe v. Hagenbeck, decided on August 30. The plaintiff was a West Point cadet, training to become a military officer. That means she was enrolled at West Point, which is also a college, albeit one with a military emphasis. If you go to West Point, you are a member of the army. She claims the culture at West Point was misogynistic and male-oriented, with constant sexism not only among the male students but its faculty. The examples of this sexism as set forth in the opinion are not pleasant. One night, Doe was raped by a male student. The health clinic on campus did not properly respond to the sexual assault. She claims that West Point leadership mishandled the incident as well. She sues them under Bivens over the equal protection violations.

Two constitutional principles are at stake here. First, you can sue federal defendants under Bivens (named after a Supreme Court case from 1971), but -- as courts repeatedly tell us -- Bivens claims are far and few in between and almost non-existent these days, though Bivens is not dead yet. The other principle, which we call the Feres doctrine -- named after a Supreme Court case from many years ago -- says the courts should not entertain lawsuits that would challenge military discipline. Constitutional claims, in other words, are quite difficult to bring against places like West Point, which I learned 10 years ago when I represented anti-war protesters who wanted to assemble on the campus. What it all means is that Doe cannot bring this lawsuit. The majority (Livingston and Wesley) states:

This Supreme Court precedent frames our inquiry and leads ineluctably to the conclusion that Doe cannot maintain her Bivens claim. Doe was a member of the military at the time the events giving rise to her claim occurred, and the claim concerns superior officers. Further, her claim calls into question "basic choices about the discipline, supervision, and control" of service personnel and would "require[ ] the civilian court to second-guess military decisions," thus triggering the incident-to-service rule. United States v. Shearer, 473 U.S. 52, 57-58 (1985) (noting that allegations "go[ing] directly to the `management' of the military" that "might impair essential military discipline" lie at the "core" of rule's concerns). In such circumstances, her Bivens claim must be dismissed.
In dissent, Judge Chin provides further detail into the sexist culture at West Point. He notes that while West Point is a military facility, "it is quintessentially an educational institution." There are two sides to the Feres and Bivens doctrine, Judge Chin suggests, summarizing his analysis this way:

In my view, the Feres doctrine does not bar Doe's Bivens claim that she was denied her constitutional right to equal access to education, for her injuries did not arise "incident to service." First, as to the activities immediately preceding Doe's rape, her ultimate injury, she was engaged in purely recreational activity: she was out for an evening walk on a college campus, after curfew, with another student who was a friend. Second, as to her broader activities at West Point, she was a student attending college: she was taking classes, participating in extracurricular activities, and learning to grow up and to be a self-sufficient and healthy individual. She was not a soldier on a battlefield or military base. She was not traveling in a military car or boat or plane or pursuant to military orders. She was not being treated by military doctors. She was not on duty or in active service or on active status, and she was not yet obliged to enter into military service. There was "nothing characteristically military" about what she was doing, and her injuries did not arise out of military employment.

Wednesday, September 6, 2017

We all love baseball

The Sherman Antitrust Act makes it illegal for businesses to conspire with each other to fix prices and to otherwise control the market. But in 1922, the Supreme Court ruled that the Act does not apply to Major League Baseball. I believe that MLB is the only major industry that is exempt from the antitrust laws. This case asks the Second Circuit to get around that exemption, but the Circuit will not do so.

The case is Wyckoff v. Office of the Commissioner of Baseball, a summary order issued on August 31. When the Supreme Court in 1922 said MLB was exempt from the antitrust laws, it supported that reasoning with some hackneyed analysis having to do with baseball as entertainment and not really an industry. Of course, MLB is in fact an industry, so the Supreme Court's reasoning has been criticized ever since. My sense is the Court did this because we all love baseball and it's a way of life and not merely an money-making enterprise. Anyone who ever played catch with his dad or remembers seeing a major league baseball field for the first time can relate to this.

In 1972, the Court reaffirmed the principle that MLB is exempt from the Sherman Antitrust Act, in a case brought by Curt Flood, an outfielder who did not want to be traded from St. Louis to Philadelphia and claimed the trade was against his will and allowed to happen because the teams were able to make unreviewable decisions among themselves about the players that no other industry could ever get away with. Think about it. Could IBM "trade" one of its employees to Microsoft and blackball the employee from the industry if he does not want to relocate to the State of Washington? What make the Curt Flood case even worse was Justice Blackman's opening paragraph, in which he extolled the beauty of baseball by listing his favorite all-time players. This stunt only further confirmed that emotions were getting in the way of rational legal analysis.

This case is brought by major league scouts who claim that MLB conspired to decrease competition in the labor market for professional baseball scouts. As it happens, in 1998, Congress passed the Curt Flood Act, which created an exception to baseball's antitrust exemption for MLB players. But that Act does not apply to scouts.

Friday, September 1, 2017

This one is pretty nasty

I am sure this would change were this ever put up for a popular vote, but inmates -- even those convicted of felonies -- have rights to a dignified existence. The Constitution says so in the Eighth Amendment,which prohibits cruel and inhumane treatment. This case tells us how it all works.

The case is Garraway v. Griffin, a summary order decided on August 31. Garraway is in the care, custody and control of the New York State Department of Correctional Services, housed in its facility in Malone, New York. In July 2011, he complained in writing that his mattress was soiled with human feces. Nobody did anything about it until he filed a formal grievance in October 2011. The Court of Appeals (Raggi, Leval and Lohier) says plaintiff has a case.

As with all provisions of the Bill of Rights, we have multi-part balancing tests governing these disputes. To win a conditions-of-confinement case under the Eighth Amendment, the inmate must show his living conditions were "sufficiently serious that he was denied the minimal civilized measure of life's necessities" and that the defendants "acted with a sufficiently culpable state of mind, such as deliberate indifference to inmate health or safety." In other words, the inmate has to show his living conditions were completely uncivilized and that no one at the jail gave a damn. These cases are not easy to win. Oftentimes the inmate's objections are not serious enough or he cannot prove deliberate indifference.

The Court says the feces-soiled mattress is disgusting enough to show that plaintiff's living conditions violated the Constitution. He was also able to show that jail officials looked the other way when he complained. Not only was the cell's previous occupant disciplined for throwing feces the day before plaintiff was moved into the cell, but, as set forth below, plaintiff's complaints fell on deaf ears:

Garraway asserts that he verbally informed each of defendants Shumaker, Edger, Brink, Erway, Belz, and Pulsifer about the condition of his mattress at least once and that he informed defendant Smith of the problem several times, both in writing and verbally. Shumaker and Edger, who initially placed Garraway in the cell with the obviously soiled mattress, allegedly mockingly told him “good luck,” and then failed to follow the protocol for having the cell cleaned. Other defendants told Garraway that they would look into his complaint but failed to do so. Still others told Garraway to direct his
request elsewhere.1 In short, no defendant advised of the mattress condition took any action until October 2011, when Garraway filed his formal grievance.
In the end, summary judgment in favor of the state is reversed and this case is remanded. Plaintiff, for now, does not have a lawyer. He handled this appeal pro se. 

Tuesday, August 29, 2017

Another false arrest case bites the dust

The police arrested this guy because he was standing near police activity and ignored police directives to move away from the scene. He was arrested for obstructing governmental administration and later took an ACD, a probationary dismissal. Plaintiff next sued the police for false arrest. The Court of Appeals says there is no case.

The case is Basinski v. City of New York, a summary order decided on August 24. The Second Circuit is the place where false arrest claims go to die. It's not that people don't have a case. It's that qualified immunity draws the case into a gray area that allows the Court to hold that a reasonable police officer would have made the arrest under the circumstances, even if the arrest is found to be unlawful through the benefit of 20/20 hindsight.

Plaintiff came upon a food vendor who had set up shop outside a police station, an unusual situation. Plaintiff waited for the police to exit the station to see what they would do upon seeing the vendor. As the police went about their business upon approaching the vendor, they told plaintiff to move away. Plaintiff moved away a few feet but the police asked him to move away even further. This back and forth went on for a few minutes, as plaintiff told the police he was not doing anything wrong. All the while, the police had directed other passersby to move away as well. The police eventually arrested plaintiff for obstructing governmental administration, which prohibits people from obstructing police activity by means of intimidation, physical force or interference. Was there probable cause to nail plaintiff for this? And was it objectively reasonable for the police to think there was probable cause? That's what qualified immunity is all about.

The Court of Appeals (Jacobs, Livingston and Daniels [D.J.]) notes that New York courts have interpreted the "physical interference" element of the obstructing law broadly. You don't have to make physical contact with the police to obstruct.

Here, a reasonable officer could conclude that Basinski engaged in disruptive conduct at the scene of the performance of an official function. Browne put Basinski on “specific, direct” notice multiple times, telling him that he was “standing in an area that [he was] not allowed to be standing in.” In addition, the police activity area was arguably “confined and defined.” For instance, when Browne asked another individual standing nearby to move, Basinski acknowledged that Browne wanted him to move to the same place where that individual moved. Basinski intentionally remained in the specific area of police activity despite Browne’s repeated requests for him to move away, as Kass did before his arrest. Finally, Basinski verbally interjected and reengaged with Browne once Browne had turned his back to Basinski and was speaking to other individuals.
To the uninitiated, plaintiff was not doing anything wrong. The police told him to move away, but there is no indication that he was actually interfering with the police officer's job. It appears the police needed some space to interact with the food vendor. In ordering plaintiff to move away, the police created the opportunity for plaintiff to "obstruct" in refusing to do so and in moving away just a bit. It may be that, had the police proceeded with the criminal case against plaintiff, no jury would have convicted plaintiff for obstructing. But that's not the issue in this civil case. The Court of Appeals holds the the police could have reasonably thought plaintiff was obstructing governmental administration, and that is enough to make the case disappear.



Monday, August 28, 2017

A lesson in how to provide a reasonable accommodation

This reasonable accommodation case brought under the Americans with Disabilities Act holds that a schoolteacher does not state a claim in arguing that the school district violated the ADA in failing timely to grant his accommodation request to teach sixth grade rather than first grade.

The case is Wenc v. New London Board of Education, a summary order decided on August 21. Disabled employees are entitled to a reasonable accommodation if that accommodation allows them to perform the essential functions of their job. This case covers two separate school years.

For the 2011-12 school year, plaintiff's doctor wrote a note stating that it was in plaintiff's "best interest" not to return to work that year because of his medical condition. While the doctor stated that a sixth grade classroom would "be more suitable" for him, that same note stated that it remained in plaintiff's "best interest to be out of work." The Court of Appeals (Raggi, Pooler and Hall) holds that the district did not have a legal responsibility to be more proactive in opening a dialogue with plaintiff over his return to work. This is because an employer is not liable for failing to engage in the interactive process when the employee cannot perform the essential duties of his position.

For the 2012-13 school year, a neutral doctor said plaintiff could work with the assistance of two classroom aides. Since the district gave plaintiff a second classroom aide, it reasonably accommodated his disability in helping him to attend to the "higher physical demands of the first grade students" who, I am sure, were difficult if not completely out of control and possibly even out of their minds. Plaintiff argues that the doctor's opinion means the district should have given him two additional classroom aides rather than the two aides that he received. The Court of Appeals rejects this nuanced argument. "The assigned additional aide was intended to substitute for the physical efforts of only one person, and Wenc himself agreed that the aide was satisfactory."

This holding reminds us that the ADA does not require the defendant to provide plaintiff with the best possible accommodation. It is enough for the accommodation to be good enough for the plaintiff to perform the essential job functions.

Friday, August 25, 2017

Circuit strikes down day-laborer sidewalk speech law

The Court of Appeals holds that a Long Island ordinance that prohibited people from soliciting work on the side of the road violates the First Amendment. The Town of Oyster Bay enacted this law to restrict immigrants from seeking work as day laborers.

The case is Centro De La Comunidad v. Town of Oyster Bay, decided on August 22. In 2009, the Town passed a law that said:

It shall be unlawful for any person standing within or adjacent to any public right-of-way within the Town of Oyster Bay to stop or attempt to stop any motor vehicle utilizing said public right-of-way for the purpose of soliciting employment of any kind from the occupants of said motor vehicle.
The law does not explicitly reference immigrants, but the law was enacted to regulate day laborers seeking employment in the town. Plaintiffs challenged this law under the First Amendment, which provides the government some leeway in regulating commercial speech. But even the commercial speech doctrine will not allow localities to regulate speech if the laws are not drafted properly. As this law was not drafted properly, the Court strikes it down.

The government can regulate commercial speech if (1) the law regulates lawful activity; (2) the town asserts substantial reasons for enacting the law; (3) the law directly advances that interest; and (4) the law is not more extensive than necessary to advance that interest. We call this the Central Hudson doctrine.

The Second Circuit (Parker, Restani [sitting by designation] and Jacobs [who dissents]) starts off by holding the law does in fact regulate speech-related conduct, as day-laborers looking for work are soliciting employment; that expresses a message. The majority goes on to say that the ordinance regulates lawful activity, since not all persons seeking work on the side of the road are illegal workers who don't pay their taxes and are otherwise unauthorized to work in the U.S. "The solicitation of employment ... is not in and of itself illegal," the Court says. After reviewing comparable cases from around the country, the Court concludes, "the First Amendment offers no protection to speech that proposes a commercial transaction if consummation of that transaction would necessarily constitute an illegal act. However, if, as here, there are plausible ways to complete a proposed transaction lawfully, speech proposing that transaction “concerns lawful activity and is therefore protected commercial speech." Since the law extends to U.S. citizens who are looking for work, it regulates legal activity and is subject to First Amendment standards.

After concluding that the law advances a substantial government interest in protecting the health, safety and welfare of motorists and pedestrians using public roads, the Court proceeds to a more complicated analysis: does the law restrict more speech than necessary to achieve its aims? The answer is yes. This is a far-reaching ordinance, the Court says, because it prohibits speech that poses no threat to safety in the town's streets and parks. In addition, the town had less burdensome ways to address public safety than to restrict speech; it could have simply enforced state and local public safety laws. As Judge Parker writes, "there are numerous ways in which an individual, adjacent to any public right-of-way, might attempt to stop a motor vehicle utilizing said public right-of-way for the purpose of soliciting employment that would cause no threat whatever to public safety." Noting that people can stand on the side of the road soliciting employment without stopping the car or simply holding a sign that reads, "Will Work for Food," the Court notes that in the "great majority of situations, stopping a vehicle on a public right-of-way creates no inherent safety issue. Entirely prohibiting one speech-based subset of an activity that is not inherently disruptive raises the question whether the Town's actual motivation was to prevent speech having a particular content, rather than address an actual traffic and pedestrian congestion issue."


Thursday, August 24, 2017

Firing female employee because she is "too cute" violates state and city law

A debate is slowly emerging in the federal courts about what constitutes gender discrimination. Language in Title VII prohibiting discrimination "because of sex" is subject to different interpretations. In September 2017, the Second Circuit will hear oral argument on whether discrimination against gay and lesbian employees constitutes discrimination because of sex. In the meantime, the courts are working through less celebrated cases, like this one decided by the Appellate Division First Department.

The case is Edwards v. Nicolai, decided on August 22. This case is brought under the New York State and New York City Human Rights Laws. Plaintiff worked as a yoga and massage therapist for the Wall Street Chiropractic and Wellness office. Nicolai is the head chiropractor. His wife is the chief operating officer. While plaintiff had a professional relationship with Nicolai, his wife did not like plaintiff. Here are the facts set forth in the complaint:

In June 2013, . . . Nicolai allegedly "informed Plaintiff that his wife might become jealous of Plaintiff, because Plaintiff was too cute.'" Approximately four months later, on October 29, 2013, at 1:31 a.m., Adams sent Edwards a text message stating, "You are NOT welcome any longer at Wall Street Chiropractic, DO NOT ever step foot in there again, and stay the [expletive] away from my husband and family!!!!!!! And remember I warned you." A few hours later, at 8:53 a.m., plaintiff allegedly received an email from Nicolai stating, " You are fired and no longer welcome in our office. If you call or try to come back, we will call the police.'" The complaint further alleges that, on October 30, 2013, Adams filed a complaint with the New York City Police Department (NYPD) alleging - falsely - that Adams had received "threatening" phone calls from plaintiff that so frightened her as to cause her to change the locks at her home and business.
Does plaintiff's termination count as sex discrimination? Yes, says the Appellate Division. "It is well established that adverse employment actions motivated by sexual attraction are gender-based and, therefore, constitute unlawful gender discrimination." But plaintiff does not allege any sexual harassment. No matter. "While plaintiff does not allege that she was ever subjected to sexual harassment at WSCW, she alleges facts from which it can be inferred that Nicolai was motivated to discharge her by his desire to appease his wife's unjustified jealousy, and that Adams was motivated to discharge plaintiff by that same jealousy. Thus, each defendant's motivation to terminate plaintiff's employment was sexual in nature."

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.