Friday, May 26, 2017

Don't forget to plead those disparate impact claims

This case had potential to be interesting, but it fizzles out. Plaintiff was denied a job at Sam's Club after he failed the background check, which showed he was convicted of a drug offense. He claims the job denial violates the antidiscrimination laws because the hiring policy that prohibits the company from hiring certain drug offenses has a disparate impact on certain job applicants. The Court of Appeals rejects the claim.

The case is Karagozian v. Sam's East, Inc., a summary order decided on May 22. Plaintiff is a licensed optician who disclosed his felony conviction on the hiring application. But company policy says you cannot work in the department for which plaintiff was applying. Plaintiff says that EEOC statistics show that people are convicted of drug offenses at different rates, causing a disparate impact upon male job applicants. In a disparate impact case, the plaintiff can win if the facially neutral company policy falls heavily against people based on race or gender and the company cannot show a sufficient business necessity for the policy.

Is disparate impact a forgotten cause of action? It was last in the news a few years ago when Sonia Sotomayor was nominated to the Supreme Court. As a Second Circuit judge, she ruled against New Haven firefighters who had failed an exam that had a disparate impact on racial minorities. The case went to the Supreme Court, which ruled in favor of the firefighters. Before that, in 1990-91, when Congress was trying to amend the Civil Rights Act of 1964, the first President Bush objected to the disparate impact language, claiming it would force employers to adopt a quota policy to avoid getting sued for discrimination. He eventually signed the bill, and disparate impact -- originally created by the Supreme Court in 1971 -- is now codified in the Act.

Plaintiff loses this case because he does not actually bring a disparate impact claim. He brings a disparate treatment claim, which is resolved under a different set of standards and requires proof that the employer intended to discriminate. Under disparate impact, the employer can lose the case even if he did not harbor discriminatory intent.

Plaintiff tries to get around this by arguing that the policy bears no relationship to the position. But "that argument fails because disputes as to the wisdom of the employment policy cannot alone raise an inference of employment discrimination." The Court (Winter, Raggi and Hellerstein [D.J.]) then reminds us (as it often does) that it does not sit as a super-personnel department.

Thursday, May 25, 2017

Second Circuit certifies New York City Human Rights Law issue to State Court of Appeals

The New York City Human Rights law is a self-contained statute that provides employees greater protections that its state and federal counterparts. In 2005 and again in 2016, the City Council emphasized that the City law was intended to be more pro-plaintiff than Title VII, the ADEA, the Americans with Disabilities Act and the State Human Rights Law. This means the courts are still working through the City law to determine what it means.

The case is Makinen v. City of New York, decided on May 22. The issue here is whether the City law's disability discrimination provision makes it illegal to discriminate against untreated alcoholics, that is, people who are not in recovery. This case went to trial, and both plaintiffs prevailed. The jury awarded Makinen $16,100 in compensatory damages and $30,000 in punitives. The second plaintiff won $75,000 in compensatory damages and $30,000 in punitives.

This appeal concerns the proper interpretation of the City law. If the courts accept the City's narrow interpretation, the plaintiff may end up losing the case. Under the plain language of the City law, alcoholics who are not in recovery are not protected from discrimination. The statute says that "In the case of alcoholism," the definition of "disability" only applies "to a person who (1) is recovering or has recovered and (2) currently is free of such abuse." But under federal and state law, alcoholics are protected from discrimination even if they are not in recovery. The Court of Appeals says that "[n]either statute is limited to recovering or recovered alcoholics."

We interpret statutes by examining their plain language and their context. The City of New York argues that plaintiffs cannot win their case because they were perceived as alcoholics (they were not actually alcoholics) and were therefore not in recovery. In response, plaintiffs note that the City Council has emphasized that the City law provides broader protections than its state and federal counterparts in every way. Under this theory of statutory interpretation, the City law cannot provide alcoholics (or perceived alcoholics) fewer protections than the Americans with Disabilities Act and the New York Human Rights Law.

The Second Circuit (Lohier, Sack and Livingston) decide to certify this case to the New York Court of Appeals to determine to scope of the City law with respect to protections afforded to alcoholics who are not in treatment. Certification is a way to ensure that the state courts have the first opportunity to definitively interpret state and local laws before the federal court of appeals weighs in on the issue. This is the second time in a year that the Second Circuit has certified a City law issue to the State Court of Appeals. Last September, the Circuit sent Chauca v. Abraham, 841 F.3d 86 (2d Cir. 2016) (a case I am handling), to the State Court of Appeals to determine when plaintiffs in employment discrimination cases may recover punitive damages.


Wednesday, May 24, 2017

Court of Appeals takes away habeas victory

You will not find a more depressing statement of facts than this case, in which an intoxicated man shot and either injured or killed members of his girlfriend's family after his girlfriend told him he was drinking too much. It all happened at the man's birthday party. Of course, the jury convicted him of murder. And, of course, while in jail, the defendant blamed his lawyer, filing a habeas petition claiming ineffective assistance of counsel. A respected federal judge granted that motion, ruling that the defendant received ineffective assistance. The Court of Appeals disagrees, killing off the habeas petition.

The case is Waiters v. Lee, decided on May 22. Waiters' blood-alcohol content was sky-high. His trial counsel argued that Waiters was so intoxicated that he could not form the necessary intent to kill and injure his victims. Legally, this is a legitimate defense. You not only have to prove the defendant committed the unlawful act, but that he intended to do so. Diminished capacity means no intent, or at least diminished intent to cause harm.

Waiters brought the habeas petition pro se, arguing that his trial lawyer was ineffective because he did not call an expert witness to tell the jury that his intoxication was a mitigating factor in the shootings. Ineffective assistance claims can be won post-trial, but those victories are rare. You have to show counsel's performance fell below accepted standards and that that poor performance prejudiced the defense, or caused him to lose. Under federal habeas standards, you also have to show the state courts -- which get first crack on the ineffective assistance claim -- interpreted the Constitution unreasonably. Misinterpreting the Constitution by itself is not enough to win a habeas petition. The state court's interpretation has to be unreasonable. So the state courts can get it a little wrong. This is the state's rights theory of habeas corpus jurisprudence.

Writing for a 2-1 majority, Judge Livingston says Waiters cannot satisfy his burden in showing the state court had unreasonably denied his habeas petition. (Judge Jacobs dissents and would uphold the positive habeas ruling). The Court assumes for the sake of argument that Waiters' lawyer had unreasonably failed to hire an expert. It then says that, even so, that failure did not make a difference in the outcome of the criminal trial. The Court notes that that jury already knew that Waiters had been drinking all day and that he was intoxicated when he fired his gun at the victims. The jury also knew that his intoxication "had not rendered him incapable of purposeful action," including testimony that he went after his girlfriend's son because he was trying to break up the argument. The Court concludes, "we are not persuaded that, had the jury also heard from a medical expert and reviewed the full set of medical records, there is a sufficiently strong probability that it would have found differently such that the state trial court's determination to the contrary was unreasonable. While such evidence could have been proffered, it would not likely have made a difference in light of the strong, specific testimonial evidence indicating that Waiters formed the requisite intent to commit his crimes."

Thursday, May 18, 2017

SDNY judge allows sexual orientation discrimination case to proceed

The law is evolving quickly on the question whether Title VII makes it illegal to discriminate against employees based on their sexual orientation. While Second Circuit precedent continues to hold that Title VII does not prohibit this kind of discrimination, two en banc petitions are pending that would change that. In the meantime, a Southern District judge has refused to dismiss a sexual orientation discrimination case under Title VII.

The case is Philpott v. State of New York, 16 Civ. 6778, 2017 U.S. Dist. LEXIS 67591 (S.D.N.Y. May 3, 2017), decided by Judge Hellerstein. In 2000, the Second Circuit held in Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000), that sexual orientation discrimination is not sex discrimination, noting that Title VII says nothing about sexual orientation. Therefore, under Simonton, gay and lesbian employees had no recourse under Title VII. Since that time, the Supreme Court has recognized the right to same-sex marriage, and the Seventh Circuit Court of Appeals has (only recently) jettisoned its own Simonton-style precedent in ruling en banc that Title VII does in fact prohibit sexual orientation discrimination. See Hively v. Ivy Tech Cmty. Coll. of Indiana, 853 F.3d 339 (7th Cir. 2017). Hively arose in part because in 2015 the EEOC determined for the first time that Title VII makes this kind of discrimination illegal. 

Earlier this year, the Second Circuit resolved two cases that allege sexual orientation discrimination under Title VII. In Christianson v. Omnicom, 852 F.3d 195 (2d Cir. 2017), the Court of Appeals said it was bound by Simonton and rejected the plaintiff's claim that he was fired because of his sexual orientation (although it did sustain the plaintiff's claim for sex stereotyping under the Supreme Court's Price Waterhouse decision, holding that Title VII makes it illegal to stereotype people based on gender). Two judges concurred in Christianson, stating that it was time for the Second Circuit to take a hard look at Simonton en banc. Shortly thereafter, in Zarda v. Altitude Express, ___ F.3d ___,
2017 U.S. App. LEXIS 6578 (2d Cir. April 18, 2017), the Court of Appeals again declined to overturn Simonton. (I am co-counsel to the plaintiff in Zarda, along with lead counsel Gregory Antollino, Esq.). En banc petitions have been filed in both Christianson and Zarda, so the Court of Appeals now has an opportunity to change course and follow the Seventh Circuit in holding that Title VII prohibits sexual orientation discrimination.

Judge Hellerstein notes this recent Title VII activity in this sexual orientation discrimination case. In declining to dismiss the plaintiff's sexual orientation discrimination claim, Judge Hellerstein writes that "The law with respect to this legal question is clearly in a state of flux, and the Second Circuit, or perhaps the Supreme Court, may return to this question soon. In light of the evolving state of the law, dismissal of plaintiff's Title VII claim is improper." This means that, for now, Judge Hellerstein is bucking Second Circuit authority. He writes:

In Christiansen, Chief Judge Katzmann wrote a concurring opinion, which was joined by Judge Margo Brodie (who was sitting on the Second Circuit by designation). See Christiansen, 852 F.3d at 201 (Katzmann, C.J., concurring). Judge Katzmann's majority concurrence persuasively outlines why sexual orientation discrimination is a form of sex discrimination and should therefore be cognizable under Title VII. See id. 201-06. Judge Katzmann articulated three distinct justifications for this conclusion, but his central point was that "sexual orientation discrimination is sex discrimination for the simple reason that such discrimination treats otherwise similarly-situated people differently solely because of their sex." This is because "sexual orientation cannot be defined or understood without reference to sex." Id. at 202.

Judge Katzmann also explained that sexual orientation discrimination is a form of sex discrimination  because "such discrimination is inherently rooted in gender stereotypes." Id. at 205. In fact, the Second Circuit had previously suggested as much in Dawson [v. Bumble & Bumble, 2d Circuit 2005], when it observed that "[s]tereotypical notions about how men and women should behave will often necessarily blur into ideas about heterosexuality and homosexuality." ... In light of this prior observation, Judge Katzmann reasoned that "it is logically untenable for us to insist that this particular gender stereotype" — stereotyping on the basis of sexual orientation — "is outside of the gender stereotype discrimination prohibition articulated in Price Waterhouse." Id. at 205. Judge Katzmann concluded his concurrence by stating that "in the context of an appropriate case our Court should consider reexamining the holding that sexual orientation discrimination claims are not cognizable under Title VII." Id. at 207. Revisiting this question was warranted "especially in light of the changing legal landscape that has taken shape in the nearly two decades since Simonton issued." Id. at 202.
 

Monday, May 15, 2017

No smoking gun in academic discrimination case

This case acquaints us with two well-worn principles of employment discrimination cases. First, academic tenure cases are hard to win under the antidiscrimination laws. Second, evidence that looks like a smoking gun may fizzle out when motion practice rolls around.

The case is Baldwin v. State University of New York at Buffalo, a summary order decided on May 10. Baldwin was a lecturer in the health and wellness department. She was up for tenure. Under the university's standards, plaintiff had to show that she had published enough scholarly articles. The college was concerned that plaintiff had not in fact published enough. While this was all shaking out, plaintiff spoke with the head of her department, Roberts, about student complaints about allegedly inappropriate things that Roberts had said in class. Plaintiff also reported these student complaints elsewhere in the college hierarchy.

So we have two motives here for the tenure denial. Was it because plaintiff had not published enough? Or was it because plaintiff had exercised her rights under Title VI in reporting student complaints about Roberts' classroom comments? The Court of Appeals (Livingston, Lynch and Walker) upholds summary judgment. As a general matter, courts don't like to second-guess the academic judgments reached by the decisionmakers in making tenure decisions. The Court of Appeals says there is no pretext here because "Roberts's consistent perspective on Baldwin's publication record undermines the reasonableness of any inference that her complaints caused his negative recommendation." What this means for plaintiffs is that if management has harbored concerns about your job performance even before you engage in protected activity, the courts more likely than not are going to find that those concerns are not a pretext for discrimination or retaliation.

Plaintiff did present what would appear to be a smoking gun. The SUNY HR department sent plaintiff an email after she filed the discrimination complaint. The email says, "The College must continue ongoing review process for continuing appointment and promotion in order to meet contractual notification deadlines. However, if you file a discrimination complaint through our internal complaint process in the Office of Equity and Diversity, the outcome of the investigation into your complaint may impact on the ultimate decision regarding your appointment." The Court of Appeals, however, rejects the argument that this email represented a direct threat of retaliation if plaintiff pursued her complaint of discrimination. The Court of Appeals says:

The e-mail links the outcome—not the filing—of Baldwin’s complaint to the tenure decision. And, as the district court stated, the “full context makes plain” that this sentence was merely an explanation of how the timelines for a complaint and Baldwin’s tenure application would interact. Specifically, SUNY-Buffalo could not halt Baldwin’s tenure review because of contractual deadlines, but a finding of retaliation might affect SUNY-Buffalo’s ultimate decision on Baldwin’s application for tenure. Accordingly, the Earshen e-mail does not evidence retaliation and does not alter the conclusion, here, that the district court properly granted summary judgment to the Defendant-Appellee.

Friday, May 12, 2017

Victorious state court plaintiffs may recover attorneys' fees in employment discrimination cases against the state

The New York Court of Appeals has provided guidance on the Equal Access to Justice Act, a New York statute that allows certain victorious plaintiffs to recover attorneys' fees when they prevail against the state. The issue here: can the winning plaintiff recover fees if she wins a sexual harassment case under the Human Rights Law against the State of New York?

The case is Kimmel v. State of New York, decided on May 9. The plurality says the plaintiff can recover fees. This case resulted in a big win for the plaintiff, who received a jury award of more than $700,000, including 87,000 in past pain and suffering. At the time this case went to trial, unlike Title VII and other federal civil rights statutes, the Human Rights Law did not provide for attorneys' fees for victorious employment discrimination plaintiffs. (The HRL has since been amended to provide for fees for sex discrimination cases only).

What complicates this case is the wording of the statute, which says that prevailing plaintiffs can recover fees "in any civil action brought against the state, unless the court finds that the position of the state was substantially justified or that special circumstances make an award unjust." The CPLR defines "action" as "any civil action or proceeding brought to seek judicial review of any action of the state." Except for cases brought in the Court of Claims. The state in this case argues that "judicial review" under the statute modifies "any civil action" and "proceeding" and therefore restricts EAJA fees to Article 78 proceedings and other cases seeking review of a state administrative action.

The Court of Appeals rejects that narrow statutory construction. Chief Judge Fiore says that, under this interpretation, since Article 78 and injunctive relief actions the statutory exclusion for cases brought in the Court of Claims would have no meaning, as that Court cannot entertain Article 78 proceedings. We do not want to interpret statutes in a way that would leave its provisions superfluous. The Court of Appeals employs other methods of statutory interpretation (and looks to the legislative history of the EAJA) in finding that Human Rights Law claims against the state entitle the prevailing plaintiff to attorneys' fees.

Wednesday, May 10, 2017

Close call in religious harassment case goes to the jury

This case alleges the plaintiff was subjected to a hostile work environment because of her national origin. The trial court granted summary judgment for the employer, stating that this case is "right on the knife's edge of either granting summary judgment or allowing the case to go the jury." The Court of Appeals sends the case to the jury.

The case is Ahmed v. Astoria Bank, a summary order decided on May 9. When is a close case good enough for the jury? When is the close case not close enough for the jury? Do you have to ask? If it's a close case, it's probably best to let the jury decide what happened. That's what the Court of Appeals (Walker, Lohier and Lynch) concludes in stating that "a reasonable jury could find that Ahmed was subjected to discriminatory harassment that was 'sufficiently severe or pervasive to alter the conditions of [her] employment and create an abusive working environment, and that a specific basis exists for imputing the objectionable conduct to [Astoria Bank].'”

In particular, plaintiff put foward evidence that a senior supervisor, Figeroux had done the following:

(1) “constantly” told Ahmed to remove her hijab, which he referred to as a “rag,” (2) demeaned Ahmed’s race, ethnicity, and religion “[o]n several occasions,” and (3) made a comment during Ahmed’s interview on September 11, 2013 that Ahmed and two other Muslim employees were  “suspicious” and that he was thankful he was “in the other side of the building in case you guys do anything.” 

Along with evidence that another supervisor, Russo, had used inappropriate hand gestures in speaking with plaintiff and spoke to her "very slowly" could lead a reasonable jury to find that Ahmed was subjected to “a steady barrage of opprobrious racial” and anti‐Muslim comments and conduct constituting a hostile work environment.

Monday, May 8, 2017

Justice Sotomayor speaks out over failure to take up excessive force case

In a little-noticed exchange among Supreme Court Justices last month, Justice Sotomayor lamented how the Supreme Court rarely intervenes when lower courts wrongly give police officers the benefit of the doubt in excessive force cases. Justice Sotomayor says this practice harms "society as a whole."

The case is Salazar-Limon v. Houston, issued on April 24. In this case, a Houston police officer shot the plaintiff in the back. While the plaintiff claimed the officer shot him as he tried to walk away from a confrontation with the officer, in contrast, the officer said the plaintiff turned toward him and reached for his waistband, as if for a gun, before the officer fired a shot. The lower courts said the officer is entitled to qualified immunity, dismissing the suit. Justice Sotomayor says the lower courts had actually resolved disputed factual issues in favor of the officer, contrary to the rules governing summary judgment. She says the parties' accounts "flatly contradict each other," necessitating a trial.

The Supreme Court did not vote to take this case, exercising its discretion in denying certiorari. But this case did not escape Justice Sotomayor's notice, who dissents from the certiorari denial by laying out the disputed facts and reminding the Court about the rules governing summary judgment that require a trial when the facts are disputed. She writes:

Only Thompson and Salazar-Limon know what happened on that overpass on October 29, 2010. It is possible that Salazar-Limon did something that Thompson reasonably found threatening; it is also possible that Thompson shot an unarmed man in the back without justification. What is clear is that our legal system does not entrust the resolution of this dispute to a judge faced with competing affidavits. The evenhanded administration of justice does not permit such a shortcut.

Our failure to correct the error made by the courts below leaves in place a judgment that accepts the word of one party over the word of another. It also continues a disturbing trend regarding the use of this Court’s resources. We have not hesitated to summarily reverse courts for wrongly denying officers the protection of qualified immunity in cases involving the use of force. But we rarely intervene where courts wrongly afford officers the benefit of qualified immunity in these same cases. The erroneous grant of summary judgment in qualified-immunity cases imposes no less harm on “‘society as a whole,’" than does the erroneous denial of summary judgment in such cases.
Justices Thomas and Alito write in support of the Court's decision not to take the case, stating that "whether or not one agrees with the grant of summary judgment in favor of Officer Thompson, it is clear that the lower courts acted responsibly and attempted faithfully to apply the correct legal rule to what is at best a marginal set of facts" They add that "this Court applies uniform standards in determining whether to grant review in cases involving allegations that a law enforcement officer engaged in unconstitutional conduct." In the end, these Justices write: "regardless of whether the petitioner is an officer or an alleged victim of police misconduct, we rarely grant review where the thrust of the claim is that a lower court simply erred in applying a settled rule of law to the facts of a particular case. The case before us falls squarely in that category."

Friday, May 5, 2017

Managerial outburst following discrimination complaint is not retaliation

Not everything bad that happens at work is an adverse employment action allowing you to sue for discrimination under Title VII or the other employment discrimination laws. This case drives that point home.

The case is Dickens v. Hudson Sheraton Corp., a summary order decided on May 4. Plaintiff brings a retaliation claim. He says that after he participated in a union-sponsored meeting in which he "was attempting to oppose what he reasonably viewed as on-going discrimination," a supervisor, Mituza, engaged in "intimidation and threatening behavior" at the meeting and plaintiff was then denied bartending shifts. As plaintiff argues the case, these were the adverse employment actions.

Under the law, it's an adverse action if management's response to your good-faith discrimination complaints would dissuade a reasonably firm person for speaking out again. Sort of like icing out the whistleblower by doing something to him that will make him shut up in the future. The Supreme Court devised that test in the Burlington Northern case in 2006. What the Second Circuit (Hall, Lynch and Droney) reminds us, however, is that there must be "material adversity to separate significant from trivial harms" as "an employee's decision to report discriminatory behavior cannot immunize that employee from those petty slights or minor annoyances that often take place at work and that all employees experience," except, of course, for federal judges who really don't have to put up with any crap from anyone.

The outburst at the November 2013 union meeting is not an adverse action under Title VII, because "it did not concern or affect Dickens's employment status. Nor did it reach the level of dissuading a reasonable worker from making a complaint." As for the bartending denial, the Court says, there are not enough facts in the record to connect that to the November 2013 protected activity.

Thursday, May 4, 2017

Inmate's pro se appeal overturns prison disciplinary finding

As a law student, I interned for a prisoners' rights office that, among other things, challenged the discipline meted out to inmates who were engaged in misconduct inside the prison. I learned that these adverse findings are difficult to challenge and that the hearings themselves are not the due process endeavors we associate with the outside world. Still, some inmates won their cases.

The case is In the Matter of Jackson v. Annucci, an Appellate Division ruling dated April 26. Here's how it works. When prison officials charge inmates with misconduct -- such as insubordination, fighting, whatever -- they are served with a misbehavior report. The inmate then gets a hearing where they are confronted with only some of the evidence against them. The inmate can also call witnesses. The inmates' rights often give way to security concerns. You can't call certain witnesses because that would disrupt jail operations, and there may be a confidential informant whose information will be used against you. That CI will not testify at the hearing, but the hearing officer has to make a determination that the CI is reliable. The inmate does not get a lawyer for these hearings. He has to defend himself.

In this case, the inmate was charged with using marijuana inside the prison. The inmate failed two urinalysis tests that tested positive for cannabinoids. It was also agreed upon by all parties that the inmate's medication produces false positives for cannabinoids in urinalysis tests. In ruling against the inmate, the hearing officer noted the positive urinalysis tests and a correction officer's testimony that he smelled the odor of marijuana near the inmate, who acted nervous and fidgety when asked about the odor. Other inmates were present in the outdoor area when the correction officer approached the inmate.

The Appellate Division overturns the hearing officer's findings against the inmate. The inmate handled this appeal pro se, by the way. The findings are not supported by "substantial evidence," the standard necessary to sustain adverse findings in the prison disciplinary context. Here is the reasoning:

Since the hearing officer stipulated that the petitioner’s medication produces false positives for cannabinoids in urinalysis tests, and since no evidence was submitted to contradict the petitioner’s evidence, the positive urinalysis tests results were of little probative value in establishing that the petitioner used cannabinoids. While the correction officer’s observations were sufficient to raise suspicion that the petitioner had violated the prison disciplinary rule, they were not adequate to reasonably support the conclusion that the petitioner had, in fact, violated the rule, especially since the correction officer’s detection of the marijuana odor was made outdoors where there were other inmates in the immediate vicinity of the petitioner. Accordingly, we find that the hearing officer’s determination was not supported by substantial evidence.

Wednesday, May 3, 2017

New research on employment discrimination verdicts and damages awards

A scholarly article written by a mediator who teaches at Columbia Law School provides insight into who wins and who loses their employment discrimination trials, and how much money they get from the jury. This article is useful in sizing up the value of a plaintiff's case. Unfortunately for plaintiffs' attorneys, the article does not provide much good news.

The article is at this link. Vivian Berger examined all employment discrimination cases filed in the Southern and Eastern Districts of New York from 2004 through 2010. This includes retaliation cases. In the SDNY, 70 cases went to trial. In the EDNY, 90 went to trial. Since some cases have multiple plaintiffs, in all, there were 200 plaintiffs. What do the statistics tell us?

First, of the 160 cases that went to trial, 48 resulted in plaintiffs' verdicts, a 30 percent ratio. The defendants won 67.5 percent of the time. Post-verdict adjustments -- thanks to motion practice -- reduce these numbers even further: a 28.1 percent success rate for plaintiffs. Excluding pro se cases, the overall success rate for plaintiffs is 30.3 percent. These numbers are similar in the SDNY (28.6 percent) and the EDNY (31.1 percent).

If we look at the overall number of plaintiffs, which takes into account multi-plaintiff cases, 34.5 percent won at trial in the SDNY and EDNY. Post-trial, that number is reduced to 33.0 percent. These numbers are better than single-plaintiff cases, probably since multiple plaintiffs reinforce each others' cases.

The research also shows that plaintiffs suing private entities (37.0 percent victory rate) tend to fare better than plaintiffs who sue public entities (25.3 percent). However, Berger writes, "the apparent disadvantage suffered by plaintiffs suing the government largely vanishes when the results are examined according to number of plaintiffs." Multiple-plaintiff cases against the government prevail 34.5 percent of the time. That same number applies to multiple-plaintiff cases against the private sector. Overall, retaliation cases (40 percent) fare better than straight discrimination cases. Sex and race/national origin cases prevail 12 to 13 percent of the time. This "suggests the correctness of the common wisdom: it is often easier to win on [retaliation] ground[s] than on a discrimination charge."

As for damages awards, Berger examined damages for pain and suffering and not back pay. Pain and suffering awards are more difficult to predict and stem from the jury's overall sense of fairness as opposed to mathematical calculations about lost income and benefits. These are sobering numbers for plaintiffs. For those who win their trials in the SDNY, the median pain and suffering award is $40,000. In the EDNY, the median number is $69,375. The median number is more realistic than the average number ($200,682 for both districts), which is skewed by outlier verdicts.

Berger also looks at punitive damages. Only 13.8 of the 160 trials even offered the jury a chance to award punitives. The average award was $466,413. In the SDNY, that's $314,250. In the EDNY, that's $583,462. Only 11.3 of the cases that went to trial even resulted in punitive damages. The dollar value goes down post-verdict, to $113,500 in the EDNY and $375,498 in the SDNY. The median award for punitive damages is $125,000 for both districts combined, or $45,000 for the SDNY and $200,000 in the EDNY. Post-verdict, those numbers go down even further: $30,000 in the SDNY and $50,000 in the EDNY.

As Berger notes, the more "extreme" cases tend to settle. That is my experience. But since most cases settle, this research allows litigants to predict with some degree of certainty what their cases are worth. This comes in handy during settlement negotiations, and it gives attorneys some concrete basis in telling their clients what their chances might be at trial and what their cases might be worth. 

Tuesday, May 2, 2017

How do we apportion sanctions under the federal rules?

This little-noticed Supreme Court case examines how to arrive at a precise sanction when a lawyer pulls a fast one in litigation and the court decides to order the offending litigant to pay the other side's legal costs.

The case is Goodyear Tire v. Haeger, decided on April 18. This is a product liability case alleging that Goodyear manufactured a defective tire that caused someone's motor home to drive off the road and flip over, a scary image, no doubt. During contentious discovery, Goodyear dragged its feet in producing test results for the tire, and the case eventually settled. Afterwards, the plaintiff's attorney learned that Goodyear had produced those test results in another case. Those test results showed that the tire got unusually hot at highway speeds, posing a safety risk. Goodyear admitted withholding the test results in this case. The trial court ordered Goodyear to pay the plaintiffs $2.7 million, the entire sum they had spent in legal fees and costs since the moment Goodyear had made its first dishonest discovery response. The Supreme Court says that was too much money and the trial court used the wrong formula in fixing the sanction.

Bad faith litigation behavior will cost you money. But how much money? The Supreme Court has said these sanctions must be compensatory and not punitive. "The fee award may go no further than to redress the wrongful party 'for losses sustained.'" This is a but-for causation fee test that the Supreme Court used in Fox v. Vice, 563 U.S. 826 (2011), a Title VII case where the prevailing defendant in a frivolous case could only recover the fees that it expended directly because of the plaintiff's behavior, which excluded the fees that the defendant expended in dealing with the plaintiff's good-faith behavior, and that "when a defendant would have incurred an expense in any event, he has suffered no incremental harm from the frivolous claim, and so the court lacks a basis for shifting the expense."

Justice Kagan writes that the lower courts in this case did not use the correct legal standard in setting the fine. While the district court dispensed with the correct standard because this was a "truly egregious case," and the Ninth Circuit said the trial court could grant all the attorneys' fees incurred "during the time when Goodyear was acting in bad faith," that does not take into account the surgical test the Supreme Court has previously articulated in sanctioning bad behavior. For one thing, the Supreme Court says, the plaintiffs cannot show that Goodyear's non-disclosure had so permeated the suit that Goodyear was on the hook for all the fees that the plaintiffs had incurred thereafter.

The Court does say that in exceptional circumstances, the but-for standard allows the trial court to shift all of a party's fees.

In exceptional cases, the but-for standard even permits a trial court to shift all of a party’s fees, from either the start or some midpoint of a suit, in one fell swoop. Cham­bers v. NASCO offers one illustration. There, we approved such an award because literally everything the defendant did—“his entire course of conduct” throughout, and indeed preceding, the litigation—was “part of a sordid scheme” to defeat a valid claim. Thus, the district court could reasonably conclude that all legal expenses in the suit “were caused . . . solely by [his] fraudulent and brazenly unethical efforts.” Or to flip the example: If a plaintiff initiates a case in complete bad faith, so that every cost of defense is at­tributable only to sanctioned behavior, the court may again make a blanket award.

Monday, May 1, 2017

Racist tirade by drunk Mayor is not a hostile work environment

Is it a hostile work environment when you boss makes racist comments off-duty? What about when he makes racist comments off-duty, but he is physically inside the workplace? The Court of Appeals resolved these issues in a case involving the Mayor of the Village of Moncticello.

The case is Johnstone v. Village of Monticello, a summary order decided on April 28. I argued the appeal. Johnstone is a white police officer who arrested the Mayor, Jenkins, who is black, for for driving while intoxicated. While Johnstone was processing the Mayor at the police station, Jenkins launched a racial tirade against Johnstone and other white officers. The video of this incident is at this link. Johnstone alleges -- but the Second Circuit ruling does not mention -- that Jenkins also threatened the employment of the white officers. Johnstone sued the Mayor and the Village for a racially hostile work environment.

The district court says Johnstone cannot win the case, and the Court of Appeals (Parker, Jacobs and Walker) agrees. The Court says that "one consideration is the frequency of the alleged abuse, his reliance on a single incident over the course of a nearly 30-year career weighs heavily against
him, although that alone is not dispositive. More significant is that an abusive tirade by a person arrested for driving under the influence is not sufficient "to alter the conditions" of Johnstone's employment. The Court reasons:

Jenkins's alleged comments were severe, but they were not made in the context of an employer addressing an employee in the workplace; they were made by an apparently intoxicated citizen who was belligerent because he was being taken into custody and processed for violating the law. Being subjected to an intoxicated and verbally abusive perpetrator does not alter the conditions of a police officer's employment or create an actionably hostile work environment, even if the person arrested happens to be the mayor.