Tuesday, April 25, 2017

Win some, lose some

This plaintiff has been in litigation against her employer for over a decade. That litigation will continue, thanks to the Court of Appeals, which finds her second lawsuit against the City of Syracuse states a plausible claim for discrimination.

The case is Dotson v. City of Syracuse, a summary order decided on April 24. Dotson is a Community Service Worker who originally sued her employer in 2004, alleging discrimination and retaliation. In 2011, a jury awarded her $225,000 in damages, finding that she suffered retaliation for complaining about pornography in the workplace.

The second lawsuit -- and the subject of this appeal -- was filed in connection with things that happened after the first lawsuit was filed. She claims her suspended in 2012 was discriminatory. The district court rejected that claim from the outset, but the Court of Appeals (Wesley, Kearse and Livingston) reinstates it. The Court of Appeals reminds us that "when evaluating pretext [under Title VII], a court must consider the plaintiff's evidence as a whole, including evidence evidence of discriminatory or disparaging language." The cases in support of these propositions are Walsh v. NYC Housing Authority,. 828 F.3d 70 (2d Cir. 2016), and Danzer v. Norden Systems, 151 F.3d 50 (2d Cir. 1998). Under this standard, plaintiff has a case. The two people who played a role in plaintiff's discipline in 2008 both made stupid comments that reflected hostility toward women. One said that "broads can't work together" because "they'll just be calling for back up all the time." The other said "he could not take hiring another woman" because "he was tired of dealing with their problems." Statements like this will give you a case, and the City of Syracuse now has to either get around these admissions or show that plaintiff can't win her case for other reasons.

But you can't win them all. Plaintiff also says she was suspended in 2012 for complaining about pornography in 2003. That's a nine-year gap. Courts will usually find a nine-month gap too long for retaliation cases. Plaintiff tries to get around this by arguing that the jury verdict in her first lawsuit happened in November 2011 and the discipline took place in February 2012. That certainly narrows the gap, but the Court of Appeals says the verdict is not "protected activity" under Title VII (although it probably threw the City into a rage and gave them an incentive to take it out against plaintiff). The Second Circuit says "the more relevant starting point is the time of the employee's protected activity -- here, the filing of the lawsuit, not its ultimate resolution." That eight-year gap will not cut it, so the retaliation claim is gone.

I can see a jury accepting the timeline proposed by plaintiff. The jury verdict is not protected activity, but it's a major event in the first lawsuit. It is probably enough to trigger a retaliatory impulse, since the City probably thinks it should won the case. But Title VII does not say verdicts constitute protected activity. A loophole that, I'm sure, the drafters of Title VII never thought about.

Friday, April 21, 2017

Yeah, it's legal

The police entered the apartment building with the owner's consent in order to keep the common areas free from drugs and crime. They found the defendant drinking alcohol on the third floor, so they decided to give him a summons for violating New York's open containers law, which prohibits alcoholic beverages in any "public place." The officer frisked defendant and found an illegal firearm. Should the courts suppress the firearm as the fruit of an unlawful search?

The case is United States v. Diaz, decided on April 18. There are two issues here: did the officer have probable cause to search Diaz? And was the warrantless search illegal if the officer did not intend to arrest defendant when he began the search? The Court of Appeals (Sack, Walker and Chim) upholds the search.

Issue number 1 asks if the officer had probable cause to arrest defendant for violating the open container law. This is tricky because the apartment building stairwell is arguably not a public place under the New York City penal code, which defines public place as "a place to which the public or a substantial group of persons has access, including, but not limited to, any highway, street, road, sidewalk, parking area, shopping area, place of amusement, playground, park or beach located within the city." Since the law says nothing about locked residential buildings or common areas, did the officer reasonably believe it was a public place under the law? The Court of Appeals says Yes. The Supreme Court said a few years ago (Heien v. North Carolina) that the police are able to arrest someone based on their reasonable misunderstanding of the law that authorized the arrest. Judge Sack says the City law is ambiguous and the courts have not yet clarified its scope. Some trial courts in New York have interpreted the City law to include apartment building lobbies. For these reasons, the officer acted reasonably under Supreme Court authority, even if the City law did not expressly authorize this search.

Issue number 2 asks whether the police can legally search someone if, at the time of the search, he did not intend to arrest the defendant, and makes the arrest after he finds something illegal, in this case, a gun. The Second Circuit took up this issue in 1977, ruling that a search was legal because the officer had probable cause to arrest the defendant for speeding, regardless of whether or nor the officer intended to arrest the defendant before finding drugs in the car. 1977 was a long time ago, but cases from 1977 can still be good law. While the defendant argues that the 1977 precedent has been repudiated by subsequent precedent, the Second Circuit is not buying it. This arrest was legal.  

Thursday, April 20, 2017

Misplaced chair no basis for prisoners' rights suit

I sometimes wonder what federal judges think of the weaker cases that come before them. This is such a case. The plaintiff is an inmate who "alleged that the prison employee violated his Eighth
Amendment rights by failing to remove a chair from a baseball field. Cintron later ran into the
chair during a game and broke his arm." The Court of Appeals says plaintiff has no case.

The case is Cintron v. Doldo, a summary order decided on April 19. Inmates are allowed to file their own lawsuits. They do have constitutional rights, and without those protections, just imagine what the jails would look like. But if an inmate files too many frivolous suits, the courts can require him to seek pre-filing clearing before bringing another action. Even if the cases are quite weak, someone representing the government still has to do the work, and the courts have to review the matter, taking time away from other cases.

This plaintiff sues under the Eighth Amendment, which prohibits cruel and inhumane jail punishments. The courts have interpreted the Eighth Amendment to cover conditions of confinements inside the jail. Usually, these cases involve bad medical treatment or abusive prison guards. The legal standard is this: "a court should assess whether society considers the risk that the prisoner complains of to be so grave that it violates contemporary standards of decency to expose anyone unwillingly to such a risk.”

The Second Circuit (Katzmann, Jacobs and Leval) says there is no case here. "The placement of the chair on the baseball field did not constitute a 'deprivation . . . sufficiently serious that [Cintron] was denied the minimal civilized measure of life’s necessities,' nor did treatment by prison staff member Mattraw 'deprive [Cintron] of his basic human needs.'” Nor did plaintiff allege that prison staff acted with deliberate indifference.

Wednesday, April 19, 2017

2d Circuit declines to hold that Title VII prohbits sexual orientation discrimination

The Second Circuit has once again declined to rule that Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of sexual orientation, ruling that it cannot overrule a Second Circuit ruling from 2000 that said "sex discrimination" does not extend to gays and lesbians.

The case is Zarda v. Altitude Express, decided on April 18. I helped write the brief with lead counsel, Gregory Antollino, who argued the appeal. Zarda was a skydiver who was fired after a customer complained that he told her about his sexual orientation. A straight skydiver was not terminated after telling a customer about his own sexual orientation. The case went to trial in federal on a state-law discrimination claim after the district court ruled that plaintiff could not seek any relief under Title VII. The jury returned a defense verdict and plaintiff appealed the trial court's Title VII ruling, arguing that the EEOC's recent directive that Title VII prohibits sexual orientation discrimination renders the Second Circuit's decision in Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000), obsolete.

A few weeks ago, the Second Circuit took up this issue, holding in Christianson v. Omnicom that one Second Circuit panel cannot overrule the decision of a prior panel. Two judges in Christianson issued a concurrence stating the time may be right to bring the Court of Appeals into the modern age and recognize that sexual orientation is in fact sex discrimination. Citing Christianson, the Zarda Court says it cannot overturn Simonton. The Second Circuit is essentially inviting Zarda to seek en banc review on this issue. Astute Title VII aficionados know that the Seventh Circuit recently overruled a prior decision in ruling en banc that Title VII prohibits sexual orientation discrimination. Will the Second Circuit do the same?

An interesting side note. The plaintiff in Zarda lost his sexual orientation claim at trial under state law. Defendant argued that Zarda cannot win his Title VII appeal because the jury has already said there was no discrimination. Zarda got around this by pointing out that the jury charge on the state law claim asked whether Zarda could prove "but for" causation. That is not the standard under Title VII, which asks whether the plaintiff's protected characteristic -- gender, race, etc. -- was a motivating factor in his termination. "Motivating factor" is a more plaintiff-friendly standard than "but-for" causation, so Zarda's Title VII challenge is not mooted by the adverse state-law verdict in federal court.

Monday, April 17, 2017

Supremes rule for plaintiff in Fourth Amendment seizure case

The plaintiff in this case was pulled over for a traffic stop when the police found a bottle in his car containing pills. The police claimed it was drugs, but tests proved otherwise. Still, plaintiff spent 48 days in pretrial detention. He sues for false arrest. The case was dismissed as untimely. It was also dismissed because the court said you can't challenge your pretrial detention under the Fourth Amendment . The Supreme Court finds otherwise and rules in his favor.

The case is Manuel v. City of Joliet, decided by the Supreme Court on March 21. This constitutional case actually looks at our nation's founding document in the most technical manner possible. We start with the Fourth Amendment's protection against "unreasonable seizures." Is that 48-day detention a seizure? If it is, then Manuel can sue.

Writing for the Court, Justice Kagan notes that the Supreme Court said four decades ago that a claim challenging pretrial detention falls within the scope of the Fourth Amendment. Subsequent Supreme Court cases say that pretrial detention can violate the Fourth Amendment not only when it precedes but when it follows the start of legal process in the criminal case. Manuel's criminal case had already started he spent all that time in the slammer. Here is where the technicality comes in. Manuel has a case under the Fourth Amendment and not -- as the Seventh Circuit held -- under the Due Process Clause. Here is the analysis:

Pretrial detention can violate the Fourth Amendment not only when it precedes, but also when it follows, the start of legal process in a criminal case. The Fourth Amendment prohibits government officials from detaining a person in the absence of probable cause. That can happen when the police hold someone without any reason before the formal onset of a criminal proceeding. But it also can occur when legal process itself goes wrong—when,for example, a judge’s probable-cause determination is predicated solely on a police officer’s false statements. Then, too, a person is confined without constitutionally adequate justification. Legal process has gone forward,but it has done nothing to satisfy the Fourth Amendment’s probable-cause requirement. And for that reason, it cannot extinguish the detainee’s Fourth Amendment claim—or somehow, as the Seventh Circuit has held, convert that claim into one founded on the Due Process Clause. If the complaint is that a form of legal process resulted in pretrial detention unsupported by probable cause, then the right allegedly infringed lies in the Fourth Amendment.
In other words, it was an unlawful seizure even after the criminal process began because there was no probable cause to detain Manuel. As Justice Kagan writes, "Legal process did not expunge Manuel’s Fourth Amendment claim because the process he received failed to establish what that Amendment makes essential for pretrial detention—probable cause to believe he committed a crime."

The remaining question involves the statute of limitations. The Supreme Court does not take up that issue, instead sending it back for the Seventh Circuit to worry about it. The Supreme Court does summarize the different points of view on this issue. If we treat Manuel's seizure like a malicious prosecution case, then his lawsuit is timely because the statute of limitations would begin on the day the charges were dismissed. But if we treat Manuel's case like a false arrest, then the statute of limitations began the day he was arrested, and this case is untimely.

Sunday, April 16, 2017

Circuit finds black-car drivers are not employees under the FLSA

A huge number of "black-car drivers" bring this Fair Labor Standards Act case against corporate entities that either own a "base license" that allows them to operate a black-car dispatch base in New York City or provide administrative support for the operation of the franchisor's dispatch bases. In other words, the drivers -- who operate a type of for-hire vehicles that provide ground transportation for people -- sue the defendants for unpaid wages. The issue here: did the defendants employ the plaintiffs under the FLSA and state law? The Court of Appeals says the defendants are not employers.

The case is Saleem v. Corporate Transportation Group, decided on April 12. Only employers are liable under the FLSA. If the plaintiffs are independent contractors, they cannot sue for lost wages under the Act. The plaintiffs' black-car franchises are affiliated with defendants, some of whom provide administrative support for the operations. The plaintiffs mostly purchased their franchises from the franchisor defendants, and the franchise agreement has a non-compete clause that prevents them from driving CTG customers without processing payment through CTG. But these agreements do not prevent the drivers from transporting non-CTG customers. While the franchise agreements come with a rule book governing standards of conduct, plaintiffs still enjoyed considerable autonomy in their day-to-day affairs, such as deciding when and how often to drive, where they worked and to accept or decline jobs that were offered. The drivers could also work for other entities.

This back-and forth with respect to driver autonomy and defendant control over them lies at the heart of this case. An employer under state and federal law is able to control the plaintiff. Without sufficient control over the plaintiff, the defendant is not an employer and the plaintiff is merely an independent contractor who cannot invoke the FLSA and state law wage protections. This is a totality of the circumstances test, and the facts are typically quite involved, so much that these decisions can be lengthy and complicated, as reflected in the 14 month time period the Court of Appeals (Livingston, Leval and Carney) took to issue this decision. The Court finds that plaintiffs were independent contractors.

Despite the broad sweep of the FLSA’s definition of “employee,” the record here does not permit the conclusion that Plaintiffs were employees, but instead establishes that they were in business for themselves. As discussed below, Plaintiffs independently determined (1) the manner and extent of their affiliation with CTG; (2) whether to work exclusively for CTG accounts or provide rides for CTG’s rivals’ clients and/or develop business of their own; (3) the degree to which they would invest in their driving businesses; and (4) when, where, and how regularly to provide rides for CTG clients. While none of these facts is determinative on its own, considered as a whole with the goal of discerning the underlying economic reality of the relationship here, the district court correctly determined that Plaintiffs are, as a matter of law, “properly classified as independent contractors rather than employees for purposes of the FLSA.” 

Wednesday, April 12, 2017

Are Rule 68 offers covered by Cheeks v. Pancake House?

Normally, parties settle lawsuits in private and tell the judge the case is over. The judge then "so orders" a stipulation of discontinuance, someone writes a check and we all move on with our lives. That does not apply to cases brought under the Fair Labor Standards Act. In 2015, the Second Circuit held that courts must approve FLSA settlements "to avoid the “potential for abuse,” including “highly restrictive confidentiality provisions in strong tension with the remedial purposes of the FLSA,” “overbroad release[s],” excessive attorney’s fee awards, and inadequate awards. Does this apply to settlements reached under Rule 68?

The case is Yu v. Hasaki Rest., Inc., No. 16-CV-6094 (JMF), 2017 U.S. Dist. LEXIS 54597 (S.D.N.Y. Apr. 10, 2017), a SDNY case decided on April 10. Under Rule 68, the defendant serves an Offer of Judgment on the plaintiff. That offer would pay the plaintiff a sum of money. The plaintiff has a limited time to accept that offer. If the plaintiff rejects the offer and wins less money at trial, then plaintiff has to pay the defendant's post-offer costs. Plaintiff also forfeits attorneys' fees incurred after the offer was sent. In return, the plaintiff gets money and a judgment against defendant.

In this case, Judge Furman holds that Rule 68 settlements are subject to the requirements set forth by the Second Circuit in Cheeks v. Freeport Pancake House, 796 F.3d 199, 200 (2d Cir. 2015), which says the courts must approve FLSA settlements. The judge writes:

In the wake of Cheeks, litigants have increasingly tried to evade the requirement for judicial or DOL approval by entering into settlements pursuant to Rule 68. These litigants have argued — as the parties do in this case — that approval is not required for such settlements because Rule 68 provides that “[t]he clerk must . . . enter judgment” of an accepted offer of judgment and lacks any language comparable to Rule 41’s “applicable federal statute” exception that figured prominently in Cheeks. Fed. R. Civ. P. 68.
Some courts in the Second Circuit say that Rule 68 settlements are not covered by Cheeks. Judge Furman sees it differently. While the judge notes that the clerk "must" enter judgment for the plaintiff upon accepting a Rule 68 offer, allowing parties to avoid Cheeks oversight makes no sense. He writes:

But that foundation — namely, that Rule 68 is, by its terms, mandatory and leaves no room for judicial scrutiny of an accepted offer — crumbles under closer scrutiny. That is, although it is sometimes said that a court “has no choice about entering” a Rule 68 judgment, “this general statement is too broad to encompass all instances in which Rule 68 offers are made.” 12 Charles Alan Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice and Procedure § 3005 (2d ed. 1996)). Indeed, as one judge on the Eleventh Circuit observed, “[t]here are myriad settings in which a court has an independent duty . . . to review the terms of a settlement offer; Rule 68’s operation does not relieve the court of that duty.” Util. Automation 2000, Inc. v. Choctawhatchee Elec. Co-op., Inc., 298 F.3d 1238, 1250-51 (11th Cir. 2002) (Marcus, C.J., specially concurring). “[I]n the context of class actions,” for example, “Rule 68 offers of judgment are routinely employed despite the fact that all agreements must subsequently be approved by the court after a fairness hearing.” Gordon v. Gouline, 81 F.3d 235, 239 (D.C. Cir. 1996) (citing cases). And as the D.C. Circuit has held, in bankruptcy cases, Rule 68 does not override the requirement that compromises or settlements must be approved by the court. See id. at 239-40. In fact, there are a host of situations in which parties may not, without approval of either or both a government agency and a court, enter into a settlement.
For now, there is a split in the Second Circuit on this issue. The Court of Appeals will no doubt straighten this out some day. Until that happens, each Rule 68 settlement under the FLSA will be handled differently from judge to judge.