Wednesday, October 26, 2016

Title VII: the cover up is worse than the crime

It often happens that employees who complain about workplace discrimination don't actually have a viable discrimination claim, but the employer's vindictive response to the internal discrimination complaint hands the plaintiff a retaliation case on a silver platter. That is what happened here.

The case is Vogel v. CA, Inc., a summary order issued on October 25. Vogel worked for a computer software company. At some point, he was recruited by Kozak to join the company's India Service Provider Team, eventually answering to Perlman. In early 2010, Vogel complained that he was being treated differently because of his race. Afterward, Perlman treated him badly and Vogel was fired because he did not meet his sales quotas. Here is what the Second Circuit (Lohier, Livingston and Rakoff [D.J.]) does with the case:

1. Vogel has no underlying discrimination claim even though supervisors uttered racial comments. While Kozak said that "Indians would rather work with Indians," Kozak said this shortly before he recruited Vogel to work on the India Service Provider Team, undercutting any inference of discriminatory intent. And it was Perlman and not Kozak who allegedly treated Vogel like garbage until the date Vogel was fired. While Perlman said that "Vogel does not work well and play well with the guys in India," that proves nothing because the record shows that Vogel had a tense working relationship with his team members in India. Summary judgment is affirmed on the discrimination claim.

2. The retaliation claim is a horse of a different colour. This is what I mean when I say the cover up is worse than the crime. Think of Watergate. Nixon's people broke into the Democratic headquarters. That was bad. But it was the cover-up -- where Nixon obstructed the criminal investigation into the break-in -- that led to Nixon's resignation, spending the final years of his life in New Jersey. What happened to Vogel was no Watergate, but there will be a trial in this case, and that's bad for the defendant. The issue is whether Vogel can prove an adverse employment action, which exists if the employer's response to his good-faith discrimination complaint would dissuade a reasonable employee from complaining about discrimination in the future. Perlman singled out Vogel for hostile treatment, harassing him on conference calls, making jokes about him in front of colleagues, removing him from meetings, yelled at him, called him names, told him his actual performance was irrelevant and repeatedly said he did not want Vogel on his team. Vogel was fired 11 months after complaining about discrimination. The Court of Appeals says this is enough for a retaliation claim, as Vogel testified that Perlman kicked him around shortly after he complained about the discrimination.

This is interesting reasoning, as many claims that management hounded the plaintiff following a discrimination claim fail on the adverse action element of the prima facie case. But if you put an employee through the wringer, that can be enough to dissuade a reasonable employee from complaining.

Wednesday, October 19, 2016

Court of Appeals affirms City's sign law restriction

Political signs remain the easiest and cheapest way to promote your views. We know that during election season, when lawn and roadside signs pop up like dandelions. But while this is pure First Amendment speech, the government does have some authority to regulate them, particularly if the regulations are content-neutral. That principle dooms a lawsuit filed by a woman who posted an illuminated peace sign in her 17th floor condominium window in New York City.

The case is Vosse v. City of New York, a summary order decided on October 14. Under the City's rules, illuminated signs cannot be posted more than 40 feet off the ground. The issue is whether the restrictions constitute a legitimate "time, place or manner" speech restriction. Under T-P-M restrictions, the government can regulate speech in a content-neutral way (without regard to the message conveyed by the sign) if the regulation is narrowly-tailored and leaves the speaker ample room to communicate that message in other ways. The T-P-M standard gives the government much leeway to regulate speech, in my experience.

Plaintiff says the restriction is not narrowly tailored to serve a significant government interest. Finding otherwise, the Second Circuit (Lynch, Droney and Reiss [D.J.]) says the City has a legitimate interest in maintaining an aesthetically pleasing landscape and preserving neighborhood character. The primary argument on appeal is that the City's rules are not narrowly tailored because the rules exempt other signs, like flags, banners and pennants, which therefore get favorable treatment. The Court accuses the plaintiff of making a content-based discrimination argument, that is, that, the rules favor some signs over others based on the content of the sign. But the issue of content discrimination is not actually before the Second Circuit on appeal. Instead, the rules are narrowly tailored, the Court says, because "a statute or ordinance need not address all aspects of a problem in one fell swoop; policymakers may focus on their most pressing concerns.. The Court further explains:

If Vosse is correct that the ordinance exempts civic organizations from the general non-illumination requirement, that would show that the city could regulate more speech to further its aesthetic goals, but not that the ordinance was so underinclusive as to violate the First Amendment. The district court therefore correctly decided that the relevant provisions of the Zoning Resolution are narrowly tailored to serve a significant governmental interest.
Plaintiff also says the City's rules deny her ample alternative means to promote her message, because the Supreme Court in 1994 said that residential signs are sacrosanct. That argument doesn't work, the Circuit says, because plaintiff can post her sign without lights. While plaintiff says an non-illuminated sign would be hard for passers-by to see, that argument fails, the Court says, because "the First Amendment does not guarantee the right to communicate one's views at all times and places or in any manner that may be desired."

I wondered why the issue of content-based discrimination is not before the Second Circuit in this appeal. The answer is that the Court of Appeals resolved that issue in an earlier appeal, affirming the district court's holding that plaintiff has no standing to challenge the rules on that basis. Here is the district court's reasoning from 2013 on that issue:

if the Court found the exemption in Section 32-62 unconstitutional, the Court could remedy the violation in only one of two ways. First, the Court could simply strike the exemption as a whole, meaning that the law would penalize everyone for displaying flags, banners, or pennants at certain heights. Second, the Court could strike only the limitations on the types of lots that benefit from the exemption — "any zoning lot used primarily for community facility uses of a civic, philanthropic, educational or religious nature." Z.R. § 32-62. Choosing this option would grant everyone the benefit of the exemption relating to flags, banners, and pennants. Regardless of the Court's choice, the plaintiff here would receive no relief with respect to the monetary injury that she claims to have suffered. The first potential remedy — simply removing the exemption for the kind of lots that currently are exempt — would not negate the plaintiff's statutory violation, so she would still have to pay the fine assessed. Alternatively, expanding the exemption for the display of flags, banners, and pennants to all lots would similarly not negate the plaintiff's violation since she did not display a flag, banner, or pennant. Instead, she posted an illuminated sign. Plaintiff has never contended that her sign is a flag, banner, or pennant, and no evidence in the record suggests that the plaintiff's sign was a flag, banner, or pennant. Therefore, plaintiff lacks standing on redressability grounds.
2013 U.S. Dist. LEXIS 169098, at *6-7 (S.D.N.Y. Nov. 6, 2013).
Is this reasoning correct? Courts strike down sign laws all the time as content-based, requiring the government to return to the drawing board to get it right through an amended law that does not discriminate based on content. Striking down a law as unconstitutional under the First Amendment does not mean anyone can post whatever sign they want, unless the municipality wants it that way by declining to amend the law. As for the financial penalty, striking down the law would negate the penalty as a content-based punishment. As for the argument that plaintiff did not post a banner or pennant, courts have held that they are comparable to noncommercial signs (like peace signs) because they all convey a message. If anything, doesn't a peace sign enjoy greater First Amendment rights than a Yankees banner?

Monday, October 17, 2016

Court rejects amended complaint challenging 2011 Occupy Wall Street arrests

The protesters tried to cross the Brooklyn Bridge as part of the 2011 Occupy Wall Street protest. This resulted in mass arrests for disorderly conduct. The case has already been the Court of Appeals, which held in 2015 that certain police officers were entitled to qualified immunity because they had probable cause to make the arrests. The case returns to the Second Circuit as plaintiffs try to name additional police defendants to the case. The Court of Appeals rejects that effort.

The case is Garcia v. City of New York, a summary order decided on October 13. In the first appeal, the Court of Appeals said the officers were immune from suit because a lawful order was given for the protesters not to cross the bridge. Not all the protesters heard this directive. The protesters further claimed the officers encouraged them to cross the bridge, and then arrested them anyway. The Court held that it was not for the officers to speculate about the state of mind of the protesters. It was enough for the officers to reasonably believe the protesters had committed disorderly conduct, even if there was a misunderstanding about what the police did and said.

This time around, the plaintiffs say that other officers, Purtell and Esposito, can be held liable because they "did not deploy appropriate police tactics to prevent marchers from following the line of officers down the roadway portion of the Bridge," and that Esposito directly participated in the false arrests, and that the Police Commissioner did not properly supervise him.

Plaintiffs’ main contentions are (1) that Chief Esposito was on the scene and knew that many of the marchers did not hear the instructions to disperse, yet made the decision to arrest anyway, (2) that actions of Esposito and other officers conveyed implicit permission to march on the roadway, (3) that Esposito, the City, and the NYPD had other methods to prevent Plaintiffs from proceeding on the bridge and chose not to use them, and (4) that the City and NYPD had policy of escorting unpermitted protests but then arresting the participants without notice. But none of these allegations defeats probable cause for the arrests.
These allegations are not enough to amend the Complaint to name these officers. The Court of Appeals (Lynch, Droney and Reiss [D.J.]) says that plaintiffs did not plausibly plead that Esposito deliberately ignored facts that justified the marchers' takeover of the roadway.  As the Court of Appeals has previously explained, "the scene was chaotic, the retreat of police officers on the Bridge was not an unambiguous invitation to follow, and many marchers continued to funnel onto the sidewalk path." While plaintiffs now say that Esposito was aware of the protesters' state of mind, i.e., that they did not intend to violate the law, the Second Circuit reaffirms the principle that the state of mind of the demonstrators is irrelevant to the question of probable cause, even if it might be a defense to the underlying criminal charge.

Thursday, October 13, 2016

How to plead an ADA discrimination claim

This case teaches us a thing or two about pleading standards and jurisdiction. Boring, I know, but important.

The case is Soules v. Town of Oxford, a summary order decided on October 6. Plaintiff is a young police officer who claims to have PTSD from service in the Army. He also has a bad knee. Plaintiff sued his employer after he was placed on paid administrative leave following his employer's directive that he undergo a mental fitness examination. Additionally alleging his employer solicited false complaints from citizens about his job performance plaintiff claims the State discriminated against him because of his disability and also subjected him to intentional infliction of emotional distress (IIED), a state law claim.

The district court said the complaint does not state an ADA claim because plaintiff did not allege his his disability substantially affected any major life activities, a necessary element for any ADA claim. The Court of Appeals (Newman, Winter and Cabranes) affirms on that point. I would think that PTSD would impair any number of life activities, but assumptions are not evidence, and in the post-Iqbal world of particularized and plausible pleading standards, you'd better throw everything you've got into the Complaint.

The district court also said plaintiff does not have an IIED claim. As any law student knows, these are difficult claims to win. Only the most outrageous actions may predicate an IIED claim. Otherwise, the courts fear, everyone would be suing everyone else for offensive conduct. The district court did say that it had no subject matter jurisdiction over the state law IIED claim because it had already dismissed the federal claims. The trial court proceeded to analyze the IIED claim on the merits, ruling that the employer's actions, including belittling and physically intimidating plaintiff and placing him on administrative leave, are not sufficiently extreme and outrageous enough for liability. The district court then dismissed the IIED claim.

This case would make for a good bar exam question: what did the district court do wrong on the IIED claim? What went wrong is that once the district court decided it had no subject matter jurisdiction over the state law claim, it had no authority to dismiss it on the merits. It had to dismiss the IIED claim without prejudice, allowing plaintiff to bring that claim in state court. The district court's analysis of the IIED claim is meaningless and has no legal effect. 

Friday, October 7, 2016

Circuit extends "amusement or recreational establishment" overtime exception to stadium concessionaires

The Fair Labor Standards Act entitles you to overtime pay if you work more than 40 hours. But the FLSA recognizes a slew of exceptions. One of them exempts employers from the overtime rules if they operate an "amusement or recreational establishment." This case says the exception applies to a company that contracts with a baseball stadium to sell concessions, souvenirs and the other overpriced crap they sell during the game, the very crap that costs $40.00 at the stadium but only $14.99 at the mall. Since the company is exempt, the employees are denied overtime.

The case is Hill v. Delaware North Companies Sportservice, Inc., decided on October 3. The concessions are mostly sold during Baltimore Orioles baseball games at Camden Yards in Baltimore, where up until a few years ago you could watch utility infielders pound 50 home runs a season because they were juiced on steroids. The baseball season only lasts six months or so. So the "amusement and recreational establishment" exception is an obvious candidate for the overtime exception. But he FLSA does not define that phrase, so the Court of Appeals (Parker, Pooler and Livingston) reviews legislative history and Department of Labor guidance to resolve this case.

In 1961, a Congressional report said concessionaires at places of amusement or recreation had the amusement or recreational character required for the exception. After consulting the dictionary, the Second Circuit says "we are comfortable in concluding that the essence of serving as a concessionaire is having a contractual arrangement with a host to operate on the host's premises to sell gods to the host's customer for them to use or consume, also on the host's premises, during the host's amusement or recreational activities." So you know where this case is going.

The Court holds that since Maryland Sportservice operates entirely within the stadium and caters to ticketholders by selling them merchandise during baseball games, the company possesses the characteristics of a concessionaire under the FLSA. While the company also sells stuff to people on non-game days, most of its sales are done on game days, when it utilizes most of its employees.

Thursday, October 6, 2016

Court upholds Section 1983 fabricated evidence verdict

The Fourth Amendment allows you to sue the police on a fair trial violation over fabricated evidence, even if the police otherwise had probable cause to arrest you. This rule is intended to keep the police honest. This case asks whether the courts may extend that legal principle when the police fabricate evidence that they then furnish to the prosecutor.

The case is Garnett v. Undercover Officer 39, decided on September 30. The Second Circuit ruled in Ricciuti v New York City Transit Authority, 124 F.3d 123 (2d Cir. 1997), that the police may be sued under Section 1983 if the fabricated information denies someone a fair trial. That holding is extended to the facts of this case, where a jury found that an officer faked evidence intended to implicate a man who supposedly acted suspiciously outside a bodega where the police were conducting a buy-and-bust drug deal.

After seeing Garnett standing outside the bodega, the officer told the arresting officer and the prosecutor that he heard Garnett say, "Yo, hurry up. Y'all ain't done yet? Get that money. I'm not looking to get locked up tonight. Let's go." If true, this statement would prove Garnett's guilt. The police used this "statement" to prove Garnett was a lookout man for the drug sale. Garnett spent eight months in jail because he could not pay bail. The criminal court jury acquitted Garnett of the drug charges. At the federal Section 1983 trial, the police introduced this statement in evidence. But Garnett put on detailed evidence that he was just a bystander that night and was standing outside the bodega after getting some fast food and visiting friends. For the false arrest, the jury gave Garnett $1.00 in nominal damages and $20,000 in punitive damages.

The Court of Appeals (Pooler, Sack and Lynch) upholds the verdict and extend Riccuiti's reasoning to cases where the police fabricate evidence and then give it to the prosecutor "Ricciuti's reasoning applies as much to a situation where, as here, the falsified information was the officer's account, conveyed to prosecutors of what he heard the defendant say and do during the alleged offense, as it did in Ricciuti, where the officer was describing what he had heard the defendant say during an interview after his arrest."

Wednesday, October 5, 2016

Circuit upholds plaintiff's verdict in Section 1983 child removal case

The Southerland child abuse/Section 1983 case has been going on for years. It was filed in 1999 and went to the Court of Appeals twice before going to trial in 2015, resulting in a plaintiff's verdict. The Court of Appeals has upheld the verdict.

The case is Southerland v. Woo, a summary order decided on September 26. It started when DSS caseworkers removed Southerland's children from the home without a Family Court order. Believing the children were in danger, the Administration for Childrens' Services (ACS) removed five kids in all. Children are rarely removed from the home without a court order. The children were placed in foster care, where they remained until they reached the age of majority. At trial, plaintiffs put on evidence that the children were not in danger. On the removal claims, the jury gave Southerland $10,000. The five children each won $75,000 verdicts.

In upholding the verdicts, the trial court judge said the defendant Woo was not entitled to qualified immunity, which protects governmental defendants when they act in good faith, even if in hindsight it appears they screwed up. Judge Cogan said Woo could not objectively rely on the "exigent circumstances" exception to the Fourth Amendment in seizing the children. "The problems that the jury found Woo had observed at the Southerland home -- the extension cords, electrical equipment stacked haphazardly in one of the bedrooms, and lamp without a shade near the mates and/or blankets where the boys were sleeping, and the lack of food in the refrigerator -- could not lead a reasonable caseworker to believe that there was an immediate danger to the plaintiff children." There was no reason to think there was risk of sexual or physical abuse. "At most, the problems in the Southerland home ...  presented a 'possibility of danger,' which the Second Circuit [has] clearly stated was not enough for removal without a court order." The detailed trial court opinion is found at 2014 U.S. Dist. LEXIS 126305 (EDNY 2014).

The Second Circuit (Sack, Lohier and Carney) does not disturb this verdict, essentially adopting the trial court's reasoning. After more than 15 years, it looks like the Southerland case is over.