Court of Appeals reinstates inmate rights verdict

The jury in this case found that the prison warden had denied an inmate his Eighth Amendment rights in knowingly allowing him to "exercise" in full body restraints for six months such that the inmate was not able to exercise at all. The trial judge had vacated the verdict, the Court of Appeals brings it back, determining the jury had a basis to find the warden was aware of the civil rights violation.

The case is Edwards v. Quiros, issued on January 27. I briefed and argued the appeal. The plaintiff is in a maximum security prison in Connecticut. Case law holds that inmates have the right under the Eighth Amendment (which prohibits cruel and unusual punishment) to exercise, including outdoor exercise. The prison does have exercise yards that allow high-security inmates to exercise outside without restraints, but that part of the prison was overcrowded, so plaintiff was in a different unit, whose exercise yards did not have the infrastructure (trap doors, etc.) that allowed the guards to safely remove the restraints so the inmate could go about his exercise routine, usually walking or jogging.

At trial, the warden said he did not know about plaintiff's restricted exercise for the duration of the six-month period in which plaintiff was standing around the exercise yard without movement. The warden said he only knew for eight days, which is not long enough to hold him liable for a constitutional violation. The warden said once he found out about plaintiff's exercise situation (which happened when plaintiff sent him a written grievance), he took action to permit plaintiff additional exercise. The jury, however, found the warden liable and awarded plaintiff $500,000 for pain and suffering and $250,000 in punitive damages.

The trial judge rejected the verdict post-trial, holding that the warden did not have sufficient personal knowledge of the rights violation to hold him liable. The Court of Appeals (Walker, Wesley and Katzmann) reinstates the verdict, holding that circumstantial evidence supports the jury's finding that the warden must have known all along what was going on. This evidence includes the fact that the warden knew that inmates in the overflow section of the jail were not able to fully exercise because that portion of the jail did not have the high-security infrastructure necessary to make that happen, and that the warden boasted at trial that he was the eyes and ears of the facility and paid close attention to what going on at the jail, in part through surveillance cameras. In sum, the Court of Appeals says,

Quiros  presented  himself  to  the  jury  as  a  hands-on warden who kept close tabs on the inmates on restrictive status under his purview. The jury was entitled to credit Quiros’s testimony in those respects and infer that in fact he did know that Edwards was in Unit Three, exercising in full restraints, until his transfer to AS Phase II status. We therefore respectfully find that the district court erred by drawing inferences against the verdict  and   by  discrediting Quiros’s own testimony when it found that no evidence supported Quiros’s knowledge of Edwards’s recreation status prior to March 8, 2011, the date he received Edwards’s inmate request form.

In a follow-up post, I will talk about the merits of the case and why the Court of Appeals also found that plaintiff's rights were in fact violated. The oral argument is at this link. News coverage on the case is at this link.

 

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Female basketball referee was not an "employee" and can't sue under Title VII for sex discrimination

One barrier to winning a Title VII employment discrimination case is proving that you were an actual "employee" of the company that discriminated against you. This may be an easy call for most plaintiffs, but under Title VII, independent contractors are not entitled to any relief under Title VII because they are not employees. That is what happened here.

The case is Girard v. International Association of Approved Basketball Officials, a summary order issued on January 22. Plaintiff was a female middle and high school basketball referee who claims the Association's subjective methods for assessing referees resulted in her assignments to less lucrative sub-varsity games. Most of the referees are men. When plaintiff complained about this gender discrimination, she suffered retaliation in the form of a reduction in the number of games she was assigned to. 

While plaintiff sues the International Association and the School Board in Connecticut where she worked, the problem is that plaintiff was not an employee of either entity. She claims the employers are "employment agencies" and may therefore be sued under Title VII.The Court says that, for plaintiff to prevail, she must "plausibly plead an employer-employee relationship with the schools for defendants to have acted as employment agencies." She cannot prove that, and the Court finds she was instead an independent contractor. Under the multi-part test that court have devised in determining whether an employee is an employee or contractor, we consider the following:

[1] the hiring party's right to control the manner and means by which the product is accomplished . . . . [;] [2] the skill required; [3] the source of the instrumentalities and tools; [4] the location of the work; [5] the duration of the relationship between the parties; [6] whether the hiring party has the right to assign additional projects to the hired party; [7] the extent of the hired party's discretion over when and how long to work; [8] the method of payment; [9] the hired party's role in hiring and paying assistants; [10] whether the work is part of the regular business of the hiring party; [11] whether the hiring party is in business; [12] the provision of employee benefits; and [13] the tax treatment of the hired party.

The Court of Appeals cites Gulino v. N.Y. State Educ. Dept, 460 F.3d 361 (2d Cir,. 2006), for these factors. This may seem too complicated, but the ultimate question in these cases is the degree of control the defendant had over the plaintiff's employment. Normally, the "control" factor makes things a little easier, but this case identifies another wrinkle in the analysis: whether the plaintiff was hired in the first instance. "In determining whether a person has been 'hired,' we look primarily to 'whether [a plaintiff] has received direct or indirect remuneration from the alleged employer.'" The Court cites Gulino for that proposition as well.

While plaintiff on this Rule 12(b)(6) motion "clears the renumeration hurdle with respect to the schools because she alleges that the schools, school districts and league of schools pay her on a per-game basis," she cannot show, even on the face of her complaint, that the Association had the necessary control over her employment, among other things. The Court says:

Girard has not plausibly alleged that she was an employee of the schools in her capacity as a referee. She does not allege that the schools exercised meaningful control over how games are officiated.  She also fails to allege the duration of the relationship between a referee and a school. While the complaint alleges that Girard refereed a total of 37 games in the 2008–2009 season, the complaint does not indicate whether she  did so for the same or different schools or whether she refereed for the same school on more than one occasion or whether she had a relationship with any school that would suggest an employer-employee relationship. And Girard does not allege she received any employment benefits
from the schools other than pay for games she officiated. As the district court observed, these facts do not distinguish Girard's relationship with the schools from that of an independent contractor where the schools otherwise lack the right or ability to control how the services are performed.

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No damages claim for inmate who remained in jail after his release date

This case tells us something about qualified immunity. The Court of Appeals finds that an inmates Eighth Amendment rights were violated because he remained incarcerated beyond his release date. But the Court also finds that the defendant cannot be sued because the inmate's rights were not clearly established at the time.

The case is Hurd v. Fredenburgh, issued on January 12. Plaintiff was sentenced for various misdemeanors. A complex formula governs prison sentences, taking into account concurrent sentences and possible early release depending on whether the inmate served time on the charge while awaiting trial. Inmates may also be eligible for "good time," which allows for early release for good behavior. In this case, even after plaintiff got a release date for April 19, 2016, he remained incarcerated for nearly a year. Plaintiff claims that prison officials reduced his jail-time credit to prevent his release. The Court of Appeals notes that plaintiff did not provide a motive for this.

The district court dismissed the case, holding that plaintiff did not identify an Eighth Amendment violation. The Court of Appeals disagrees. "Unauthorized detention of just one day past an inmate's mandatory release date qualifies as a harm of constitutional magnitude under the first prong of the Eighth Amendment analysis. Hurd's unauthorized imprisonment for almost one year certainly qualifies under that standard." This is because Hurd's release was mandatory under New York law. So why doesn't Hurd win the appeal?

Hurd loses on qualified immunity grounds, which lets government defendants off the hook if they do not violate clearly-established case law that specifically held their actions were illegal. The Court begins is analysis by noting that if prolonged detention in jail results from mistakes made in good faith, mistake, or processing or other administrative delays made in good faith, then there is no deliberate indifference under the Eighth Amendment. After pausing to consider (1) the defendant in this case was deliberately indifferent to Hurd's rights or whether she was powerless to do anything about it (since the City made the calculations), or (2) whether there was a due process liberty-interest violation, the Second Circuit holds that she is entitled to qualified immunity"it was not clearly established during the period of Hurd's prolonged detention that an inmate suffers harm of a constitutional magnitude under the Eighth Amendment when they are imprisoned past their mandatory conditional release date, nor was it clearly established that an inmate has a liberty interest in mandatory conditional release protected by the Fourteenth Amendment's substantive due process clause." 

Plaintiff tried to get around the qualified immunity hurdle by arguing that existing cases "confirm a uniform legal principle that no federal, state, or local authority can keep an inmate detained past the expiration of the sentence imposed on them." But those case provide a general rule. "None of the cases upon which Hurd relies addresses a conditional release scheme, let alone one in which an inmate is entitled to mandatory release prior to the expiration of their maximum sentence. More to the point, none of them confirm that prolonging an inmate's detention past their conditional release date might violate the inmate's rights under the Eighth Amendment."

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Court of Appeals revives inmate's due process claim

This case has been kicking around forever. The plaintiff-inmate claims that prison officials retaliated against him for speaking out against the prison grievance system. The retaliation took the form of contraband planted in his cell. He also has a due process claim that relates to the retaliation claim. After the district court dismissed the case prior to trial, the Court of Appeals reinstated it, and the plaintiff lost the retaliation claim at trial. The case returns to the Second Circuit, which affirms the jury verdict but remands the case to the district court again, this time in finding the plaintiff has a due process claim that the district court had overlooked.

The case is Kotler v. Jubert, issued on January 19. In this appeal, we have some procedural issues that would mostly be of interest to federal practitioners, but they should also interest anyone who marvels at how slowly the system of justice mete out justice. For the practitioners, though, this case clarifies (1) what the party must do when an opposing party dies during litigation, and (2) when a party has abandoned a claim on appeal such that the district court may ignore that claim on remand. Our plaintiff here wins on the second issue but loses on the first.

Issue 1: when the Jail Superintendent died mid-litigation, plaintiff did not move the district court to name the estate's executor as the defendant. Under the rules, when a party dies, the decedent's attorney lets the other side know about it, and the latter party has 90 days to make that motion. If that motion is not made within 90 days, the case against that "defendant" is dismissed. Plaintiff says that deadline does not really count because the Superintendent's attorney did not let him know who the estate's executor was. Plus plaintiff notes that inmates are sometimes given a break in complying with the procedural rules. Not this case. The Court of Appeals (Pooler, Lohier, and Nardini) says this rule applies across-the-board, even for inmates, and that there is no requirement that the Superintendent's attorney identify the executor. If plaintiff needed more time to make that motion in order to identify the executor, he could have done so, but he did not, the Court observes. While a case from 1969 out of the D.C. Circuit might support plaintiff's position, the Second Circuit declines to follow that case, Rende v. Kay, 415 F.2d 983 (D.C. Cir. 1969).

Issue 2: when the district court originally dismissed plaintiff's case in its entirety, he went to the Court of Appeals, which to get it reinstated. One of plaintiff's claims was a due process action, which was premised in part on his retaliation claim. The Court of Appeals remanded the case back to the district court, specifically addressing the retaliation claim but not affirming the dismissal of the due process claim either. The due process was sort of impliedly revived on appeal. But the district court overlooked that implied ruling and said the due process claim was gone for good because plaintiff had abandoned it on appeal. The Second Circuit, in this second appeal, says the due process claim never actually died and that plaintiff did not actually abandon it. Although plaintiff focused on the retaliation claim during the first appeal, he noted that his due process claim was related to the retaliation claim. And when the Court of Appeals in the first appeal reinstated the retaliation claim, it vacated the entire district court judgment, which necessarily included the due process claim. So while the jury rejected the retaliation claim on remand, it will now take up the due process claim on the second remand.

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Circuit forecloses post-trial appeals from summary judgment denials

The Second Circuit has conclusively ruled that you cannot appeal an order denying summary judgment when the case proceeds to trial. This issue may be of no interest to lawyers, but federal practitioners will take note the summary judgment denials are mere interlocutory orders for which a subsequent appeal is improper.

The case is Omega SA v. 375 Canal, LLC, issued on January 6. This a trademark infringement case in which a $1.1 judgment was entered following trial, after the jury found that counterfeit watches were being sold at defendant's property. Prior to trial, defendant moved for summary judgment, claiming the evidence did not support the plaintiff's claim as a matter of law. That motion was denied, and the case proceeded to trial. Post trial, defendant argues in part that the case never should have gone to trial because it was entitled to summary judgment.

This issue would never arise in state court, because under the state system, you can appeal any ruling by a judge at the time she issues the ruling. So you can have multiple appeals at the same time in the same case. This is one reason why the state appellate courts have a huge backlog. But in federal court, there is only one appeal per case, when the judgment is entered. That appeal can encompass issues that the district court resolved prior to entry of judgment, such as when a few claims are dismissed on the summary judgment motion and the case proceeds to trial on the remaining issues. In that scenario, the plaintiff can appeal the summary judgment order that dismissed the claims, even if that order issued a year ago.

Defendant in this case wants to appeal the district court's order denying summary judgment on the case. That procedural tactic was foreclosed by the Supreme Court in Ortiz v. Jordan, 562 U.S. 180 (2011), the Second Circuit (Menashi, Raggi and Lohier) says. In Ortiz, the Court said a party cannot "appeal an order denying summary judgment after a full trial on the merits." Such an order, Ortiz said, "retains its interlocutory character," which in plain English means it cannot be appealed because no final judgment has entered on that order.

The Second Circuit explains that "a motion for summary judgment does not preserve an issue for appellate review of a final judgment entered after trial because 'once the case proceeds to trial, the full record developed in court supersedes the record existing at the time of the summary judgment motion.'" That language derives from Ortiz. An exception to this rule is when the issue decided on the summary judgment is a purely legal issue, but even then, a post-trial appeal is not proper if (1) the party had the opportunity to petition the trial court for permission to take an immediate appeal under 28 U.S.C. 1292(b), or (2) the party can file a motion during trial under Rule 50(a) for judgment as a matter of law and appeal the district court's denial of that motion. Since litigants nearly always file Rule 50(a) motions during trial, this reasoning forecloses most post-trial appeals from the denial of a summary judgment motion.

Judge Lohier dissents from the summary judgment appealability issue, stating that the Second Circuit held in Rothstein v. Carriere, 373 F.3d 275 (2d Cir. 2004), that "where the trial court's denial of a summary judgment motion is not based on the sufficiency of the evidence, but on a question of law, the rationale behind Rule 50 does not apply, and the need for such an objection is absent." Judge Lohier writes, 

Until now, we have never deviated from this easily administered rule: "In general, where summary judgment is denied and the movant subsequently loses after a full trial on the merits, the denial of summary judgment may not be appealed . . . . We have recognized an exception to this rule and permitted appeals from the denial of summary judgment after a full trial on the merits where the district court's error was purely one of law." Period. We have never suggested, as the majority opinion does today, that the "pure issue of law" exception is confined to cases where the "two alternative paths to review"—interlocutory appeal and a Rule 50 motion—"[are not] available."

In fact, in Rothstein, we held the opposite. So even if the majority were right that requiring appellants to appeal a Rule 50 motion is more "desirable" than permitting parties to appeal a denial of summary judgment after trial where the purported error is one of law, "[w]e cannot steer around binding precedent even were we not to agree with it."Only our Court sitting in banc, not a three-judge panel, can do that. By ignoring this important restriction and barreling forward with a decision that contradicts binding precedent, my colleagues in the majority have created an intra-circuit split that will ultimately need to be resolved. See Fed. R. App. P. 35(a)(1).

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Oneida County Jail's unequal treatment of female inmates may violate Constitution

This case alleges that the Oneida County Jail is violating the Constitution by placing women in inferior cells that do not compare with the roomier and living conditions enjoyed by male inmates. The district court denied the plaintiffs' motion for a preliminary injunction, but the Court of Appeals reverses and returns the case to the district court to reconsider the case.

The case is Williamson v. Maciol, a summary order issued on January 11. In January 2020, all female inmates were moved to housing units that are smaller than the units they were previously living in. Since plaintiffs claim this new living arrangement denied them access to certain privileges and programs, they argue that this treatment violates the Equal Protection Clause, which applies in the jail context, though courts will defer to the judgment of jail officials in how to manage their inmates. 

But deference is not a rubber-stamp. While the district court said that plaintiffs cannot show these women did not receive substantially equivalent treatment to the man, the Court of Appeals (Kearse, Livingston and Sullivan) is not so sure about this. 

The record is clear that a cell in the linear housing units is half the size of a cell in the pods, lacks a window to the outdoors, and has bars, rather than a door with a small window, at the front of the cell, which arguably diminishes privacy. Moreover, the roomy common areas available in pods likewise contrast sharply with the six-foot-wide corridor where  inmates  can  gather  in  linear  housing  units.  Making  matters  worse,  female  inmates  are provided with only two hours of outside recreation while comparable male inmates receive up to six, depending on the number of men who wish to avail themselves of the outdoor space. Further development of the record may demonstrate that Plaintiffs are indeed treated equally based on a full  assessment  of  the  benefits  and  drawbacks  of  the  different  housing  units.  Absent  more, however, the present record does not support a denial of relief on the ground that Plaintiffs failed to show the required difference in treatment.

To avoid liability, the County has to show that this unequal treatment is justified by a substantial reason. We call that "intermediate scrutiny," giving jail officials some leeway to manage their affairs but also protecting the rights of these inmates, many of whom were probably not yet convicted of anything since this is a county jail. The district court said that a Chief Deputy's affidavit satisfied intermediate scrutiny because he said that it's harder to manage inmates when the housing units are less populated. The Court of Appeals wants to district court to take another look at this issue. It seems counterintuitive to believe that it's harder to manage fewer inmates. The appellate court thinks the Chief Deputy's affidavit is not specific enough about why this unequal treatment is necessary. 

The case heads back to the district court so the County can further develop this record, with a warning from the Court of Appeals that "Defendants must explain to the reviewing court why it would be more difficult to provide Plaintiffs with equal treatment and must assure the district court that these are not post hoc (or after-the-fact) rationalizations."

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East Ramapo's at-large school district voting process is struck down under the Voting Rights Act

The Court of Appeals has upheld a trial court ruling that said the at-large voting process in the East Ramapo Central School District dilutes the votes of the minority community in violation of the Voting Rights Act. The Second Circuit holds that plaintiffs in these cases are not required to prove intentional racial discrimination to prove a vote-dilution claim. 

The case is Clerveaux v. East Ramapo Central School District, issued on January 6. At-large voting means the entire community selected the school board, unlike voting mechanisms where people in each voting district select their own representatives. East Ramapo is unique in that it has about 8,800 public school students and nearly 30,000 private school students, mostly going to white Orthodox and Hasidic Jewish private schools. Ninety-two percent of the students in the public schools are black or Latino, and 98 percent of the private school students are white. The problem with East Ramapo's voting system was that influential members of the white private school community chose the candidates for the school board elections, and their candidates usually win election. Candidates were chosen based on who the slating team knew personally. The elected school board seems to favor the private schools over the public schools, based on statistics relating to budget cuts and other acts of favoritism. 

After the district court, following a lengthy bench trial, ruled against the district, the defendants appealed to the Second Circuit, which affirms. The Supreme Court has devised a complicated framework for analyzing these cases, found in Thornburg v. Gingles, 478 U.S. 30 (1986). Here is what the Second Circuit (Pooler, Hall and Chin) did:

1. Evidence of racial animus is not necessary to prove a violation of the Section 2 of the Voting Rights Act. While the absence of racial animus is a factor to be considered under the "totality of the circumstances" of the case, it is not dispositive. It does not appear that Congress required proof of intentional discrimination when it amended the Act in 1982. 

2. One relevant factor guiding these cases is whether the minority community votes as a cohesive unit such that the whites could vote as a block to defeat minority-preferred candidates. Plaintiffs were able to prove that through expert testimony. Another factor is whether the elections in the community are racially-polarized; plaintiff proved that, the Court of Appeals says, rejecting the district's claim that the elections are driven by policy disagreements (like lower taxes), not race. The record shows a "near-perfect correlation between race and school type," and "the circumstances indicate that schooltype [private vs. public] is a proxy for race" and "policies favorable tot the private-school community come at the cost of the public-school community." There is little evidence that candidates campaign on the basis of specific policies and many candidates are not chosen by the slating committee based on their policy positions. It is also difficult for minority candidates to be slated by the committee. And the elected school board members are largely unresponsive to public school concerns (which impact its mostly minority student body).

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Time-Warner's investigation into cable-guy demonstration may not have violated labor law

Time Warner has won its challenge to an NLRB ruling that said the cable company violated federal labor law in questioning employees who took part in a strike that the collective bargaining agreement had prohibited. Well, the company kind of won, as the case is remanded to the NLRB.

The case is Time Warner v. NLRB, issued on December 10. The contract said that employees cannot go on strike. That ensures that the cable guy can make it to your house on time when the cable goes out. But employees struck after the company suspended several foreman who violated a company directive regarding when and where employees were allowed to carry tools. The strike led to a disruption that trapped service trucks in the Time Warner facility for an hour-an-a-half, causing a "ripple effect" of delayed or missed service appointments. Time Warner then investigated the strike by questioning employees who were responsible for the demonstration and resulting disruption.

The union challenged Time Warner's post-demonstration investigation, claiming the interrogations were coercive in violation of the National Labor Relations Act and that the suspensions arising from the strike constituted improper punishment for protected union activity. The NLRB agreed with the union in part, finding that while the strike was unprotected activity and the resulting suspensions were unlawful, the company had asked coercive questions, including "who told you about this gathering," "when did you receive notification about the gathering," and "how was this event communicated to you." The Board said there was no reason for the company to ask about pre-demonstration events except to identify people who had participated in the demonstration.

The Second Circuit (Leval, Livingston and Wesley) reverses and finds for Time Warner, remanding the case to the NLRB to reconsider the case. It seems the Board did not apply the right legal standard in assessing these questions. The Second Circuit says the following:

the Board's standard barred Time Warner from seeking information of very high pertinence to its investigation of the unprotected demonstration. By allowing no inquiry into any conduct preceding the demonstration except to identify "actual participants," the Board disallowed highly relevant inquiry into identification of those deserving of discipline and into making appropriate distinctions among them. For example, it prohibited Time Warner from seeking to identify those most responsible for the unauthorized stoppage because they suggested it, argued in its favor, or solicited or directed others to participate in it, regardless of whether those persons also participated in the stoppage. It also barred Time Warner from seeking information that would distinguish between those employees whose presence at the demonstration was less culpable, because they had attended based on a belief that it was a meeting about workplace safety and Weingarten rights, from those who were more culpable, because they attended for the purpose of participating in the unprotected stoppage.

In sum, the company had a legitimate interests in learning more about who exactly were the actual participants in the demonstration.

Employment of a standard that so narrowly constrained Time Warner's inquiry as to bar questions seeking any information other than who were actual participants in the unprotected work stoppage compelled the conclusion that Time Warner's more open-ended questions interfered improperly with Section 7 rights. Because that conclusion was arrived at through use of an unsubstantiated standard, we hereby set aside the Board's conclusion, not because we have reached any determination about the correctness of its result, but because the result was determined through use of an unjustified standard (at least as narrowly interpreted by the Board here). The mere fact that planning of the unprotected work stoppage may have occurred in conjunction with and alongside planning for a protected meeting (or other protected communications) does not necessarily compel the conclusion that the inquiry was an unlawful interference into protected activity.

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First Department reinstates sexual orientation discrimination case

Everybody knows the New York City Human Rights Law provides broader protections for employees than federal law. That is why some plaintiffs choose to file their lawsuits in state and not federal court. The drawback is that cases move more slowly in state court. Like this one, though the plaintiff wins his appeal in claiming he was discriminated against because of his sexual orientation. Plaintiff also sues under the state law prohibiting discrimination, though it does not distinguish between the state and city laws in its analysis.

The case is Doe v. New York City Police Dept., issued on January 5. This case was filed in 2009. Back then, courts did not interpret Title VII to prohibit discrimination on the basis of sexual orientation. That changed in 2020, when the Supreme Court in Bostock v. Clayton County said that that form of discrimination is form of sex discrimination. 

Doe is a gay police detective who alleges that other officers ridiculed and harassed him because of his sexual orientation, and that he suffered retaliation for complaining about it. The harassment led to his resignation. The First Department ruling provides little detail about how plaintiff was treated, but the trial court decision says coworkers verbally abused him and made derogatory comments about gay men. As the First Department says, 

beginning within a short time after he joined defendant New York City Police Department (NYPD), it became widely known that he was gay, because, among other factors, homophobic colleagues vindictively published that fact by calling officers wherever plaintiff was stationed and telling them to harass plaintiff because he was gay. When plaintiff began his assignment at NYPD’s Internal Affairs Bureau’s (IAB) Command Center beginning in the summer of 2007, plaintiff was immediately exposed to two sergeants who quickly surmised, based on his responses to their constant homophobic slurs directed at civilians and gay officers, that plaintiff was gay. Other officers joined in, condoned and encouraged by the sergeants, and plaintiff thereafter endured over a year of homophobic derision, harassment, and verbal abuse.

This evidence establishes a claim for hostile work environment on account of Doe's sexual orientation, the First Department says. Similar comments that were directed toward plaintiff when he worked in a different department, the IAB's Vehicle Identification Unit, are also relevant to this claim.

We also have disparate treatment because of sexual orientation. Plaintiff was sent alone to work in holding cells with prisoners still inside; since plaintiff was carrying wooden and metal cleaning implements, he was at risk of assault from inmates. Other officers were not required to do this, and this was normally an assignment for the maintenance crew. This gives plaintiff a discrimination claim. Similarly, plaintiff was singled out in being sent to work the midnight shift by himself. The First Department says "[t]hese midnight solo patrols were dangerous and actionable as adverse employment actions effected under circumstances supporting an inference of discrimination." It also supports his constructive discharge claim. We don't have much analysis on this claim, but I point out that constructive discharge claims are quite difficult to win under federal law, as the plaintiff must show the work environment was so intolerable that the plaintiff was forced to resign. The First Department sees this as an easy call: sending someone to work in a dangerous work environment supports a constructive discharge claim.

Finally, plaintiff has a legitimate retaliation claim. Again, no details in the First Department ruling, but the City argued there is no retaliation because any adverse treatment that followed his complaints about the work environment predated those complaints. While cases hold there is no retaliation under those circumstances, the First Department points out that the complaint "alleges at least some 'new' or escalated conduct after the protected activities took place." That places the employer's motivation in issue, which makes it unripe for summary judgment.

 

 

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Plaintiff falls short in trying to prove employment discrimination

In this employment discrimination case, the plaintiff claims her employer fired her because of gender and age. Management, of course, denies that and says plaintiff was fired because she had falsified time and temperature logs for good that she cooked and set out for sale in her role as a food service clerk at a food court owned by defendant. Plaintiff loses the case.

The case is Bjorklund v. Golub, a summary order issued on January 5. Many employment discrimination plaintiffs will argue that their termination must have been discriminatory because they were treated so unfairly that no other explanation makes any sense for their termination. The plaintiff's lawyer has to screen these cases to ensure that the case is worth her time. But if the plaintiff convinces the lawyer that the employer's reason for the termination is false, the lawyer might take the case, only to discover later that the case is not that strong. It's a judgment call at the outset of the case whether to proceed on the plaintiff's behalf. The biggest obstacle is the at-will employment rule in New York and every other state in these United States of America. That rule says the employee can be fired for any reason or even no reason at all unless the plaintiff can prove the termination violates a statutory right, like Title VII of the Civil Rights Act of 1964, which prohibits discrimination on the basis of sex, race, national origin, color, or religion.

Plaintiff says the employer's reason for her termination was pretextual and that the real reason was discrimination because she did not falsify the time and temperature logs. But, the Court of Appeals (Cabranes, Park and Nardini) says the record tells us something else:

Before the District Court, however, Bjorklund conceded that she failed to enter times and temperatures contemporaneously into her official log and that she belatedly entered times and temperatures into her log while off the clock, in violation of Golub’s policy. On appeal, she points to evidence that she wrote down times and temperatures on  “a piece of paper” rather than her official log and that she was unable to update her official log contemporaneously “because she was too busy to do so.” But Bjorklund has never presented any evidence that this non-contemporaneous informal logging approach could satisfy Golub’s well-documented formal food safety policy.

What also kills the case is the principle that it is not enough to show the employer's reason for the termination is false. The plaintiff has to show the employer actually discriminated against her. That's two separate concepts. The evidence simply falls short on proving management's discriminatory intent. The Court says:

Bjorklund does not do enough to show that her firing was based on discrimination. Bjorklund conceded in the District Court that her supervisors, who reported her logging failures to Human Resources, subjectively believed that she had violated Golub’s food safety policy by failing to even check food temperatures. Further, Bjorklund does not contest that the Human Resources department made the decision to fire her, and that Human Resources was not involved in any of the discriminatory conduct she alleges. And, even if she is right that she did not falsify the logs, she has not demonstrated that Human Resources’ decision to fire her for failing to follow Golub policy by not entering times and temperatures in the log book contemporaneously was pretextual.
 

 

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2d Circuit issues new rules for supervisory liability under Section 1983

When the Supreme Court issued Ashcroft v. Iqbal in 2009, it drew attention for its new rules guiding motions to dismiss, requiring plaintiffs to make "plausible" claims for relief, a standard that is not found in the Federal Rules of Civil Procedure. That significantly changed the landscape for Rule 12 pleading, which had only required plaintiffs to state a claim. But Iqbal had a lesser-known holding relating to how plaintiffs can hold municipal supervisors liable under Section 1983. The Second Circuit has interpreted Iqbal to make supervisory liability more difficult to prove.

The case is Tangreti v. Bachmann, issued on December 28. Plaintiff was a prison inmate who claimed she was sexually abused and that prison officials were deliberately indifferent to her serious medical needs in violation of the Eighth Amendment. One of these defendants is Bachmann. Plaintiff claimed that Bachmann had reason to know about the sexual abuse but did nothing about it. The district court denied Bachmann's motion for summary judgment, citing Second Circuit authority that holds that public supervisors can be liable for their gross negligence in supervising subordinates. That authority was Colon v. Coughlin, 58 F.3d 865 (2d Cir. 1995). The Court of Appeals (Menashi, Park and Livingston) holds that Colon conflicts with Iqbal and that Iqbal requires Section 1983 plaintiffs to show the supervisor was personally involved in the constitutional violation. Colon is now overruled. This is big news for lawyers who handle Section 1983 cases and probably know the Colon factors by heart. If not by heart, they certainly know about them and have cited Colon many times.

The Second Circuit notes that "Before the Supreme Court decided Iqbal, we identified five categories of evidence that may establish the liability of a supervisory official for a subordinate's conduct under § 1983." Those factors are as follows: 

 

The personal involvement of a supervisory defendant may be shown by evidence that: (1) the defendant participated directly in the alleged constitutional violation, (2) the defendant, after being informed of the violation through a report or appeal, failed to remedy the wrong, (3) the defendant created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom, (4) the defendant was grossly negligent in supervising subordinates who committed the wrongful acts, or (5) the defendant exhibited deliberate indifference to the rights of [the plaintiffs] by failing to act on information indicating that unconstitutional acts were occurring.

Language in Iqbal placed these standards in question. The Second Circuit states that "Iqbal  holds  that  a  plaintiff may  not  rely  on  a  special  test  for  supervisory  liability." Iqbal also said that "the factors necessary to establish a [Section 1983] violation vary with the constitutional provision at issue. When, as in Iqbal, 'the claim is invidious discrimination in contravention of the First and Fifth Amendments ... the plaintiff must plead and prove that the defendant acted with discriminatory purpose,' regardless of whether the defendant is a subordinate or a supervisor." Therefore, Iqbal stated, a supervisor's "mere knowledge of his subordinate's discriminatory purpose" is not sufficient because that knowledge does not "amount[] to the supervisor's violating the Constitution." Despite this language, trial courts in the Second Circuit continued to hold that Colon v. Coughlin was still good law depending on the nature of the plaintiff's claim. Those cases are no longer good law. The Court of Appeals holds:

after Iqbal, there is no special rule for supervisory liability. Instead, a plaintiff must plead and prove "that each Government-official defendant, through the official's own individual actions, has violated the Constitution." "The factors necessary to establish a [§ 1983] violation will vary with the constitutional provision at issue" because the elements of different constitutional violations vary. The violation must be established against the supervisory official directly.

. . . 

Tangreti must therefore establish that Bachmann violated the Eighth Amendment by Bachmann's own conduct, not by reason of Bachmann's supervision of others who committed the violation. She must show that Bachmann herself "acted with `deliberate indifference'"—meaning that Bachmann personally knew of and disregarded an excessive risk to Tangreti's health or safety. 

Since the plaintiff cannot meet the new standard guiding supervisory liability, the Court of Appeals holds that she cannot prevail against Bachmann, and that defendant is dismissed from the case. 

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Court of Appeals strikes down Cuomo's restrictions on religious gatherings

Covid-19 caselaw is developing at a brisk pace. The Constitution says nothing about pandemics, and it does not speak to emergencies in general, at least not in the context of civil rights such as equal protection or religious freedom. That's the theme of the latest ruling from the Second Circuit, which strikes down Gov. Cuomo's executive order that restricted the size of church and other religious congregations.

The case is Agudath Israel of America v. Cuomo, issued on December 28, only 10 days following oral argument. In October 2020, Cuomo issued an order that identified three zones, determined by the rate of Covid-19 infections. At issue in this case are the red and orange zones. In the red zones, non-essential gatherings are prohibited, restaurants can remain open for take-out only, and schools may continue with in-person instruction. Houses of worship have a 25% capacity limit or 10 people, whichever is fewer. In orange zones, non-essential gatherings can have up to 10 people, and gyms and tattoo parlors are closed. Restaurants can provide outdoor service, other businesses may operate without additional restrictions, and schools may remain open. But houses of worship have a 33% capacity limit or 25 people, whichever is fewer.

The Supreme Court has already entertained this issue on a couple of occasions, including in this case, holding the government to strict limits on how it can restrict religious gatherings. Following that lead, the Second Circuit (Livingston, Menashi and Park) hold the Governor to "strict scrutiny," which is a legal phrase that means the government cannot get away with certain restrictions without a compelling reason, and the challenged rule or order must be narrowly-tailored to satisfy that compelling interest. The Governor's order in this case fails strict scrutiny because it singles out houses of worship for restrictive in-person gatherings that do not apply to other establishments, including so-called essential services like liquor stores. While a facially-neutral limit on public gatherings might be constitutional, even if they have the effect of restricting religious observances, that's not on the table in this case. And, while some businesses (such as news media and certain retail stores) are deemed "essential," non-essential activities, such as religious worship, have greater restrictions.

The unequal treatment of religious and non-religious services creates a presumption that the distinction violates the Free Exercise Clause of the First Amendment, which protects the right to worship.  But the Court of Appeals also says the restrictions are not sufficiently narrowly-tailored to get around the strict rules against these restrictions. The court says the restrictions stem from broad generalizations about church-going behavior, such as the assumption that people enter and leave the building together and remain in the building for long periods of time. But even if these generalizations are true, the Governor's order does not require masks or distancing, which might also reduce infections. The Court of Appeals notes that we cannot assume that churchgoers will ignore these alternative protective measures. For one of the two cases that are the subject of this appeal, the narrow-tailoring issue is sent back to the trial court to take that up in the first instance. But it looks like the Second Circuit has foreshadowed how that issue should turn out: against the Governor's order.

The Second Circuit wraps up with a discussion about the role of the courts in a public health emergency.  I wonder if the court anticipates other judges borrowing this language in their own pandemic cases. The Second Circuit quotes from a recent Supreme Court ruling stating that the Constitution cannot be "cut . . .  loose during a pandemic." While the court recognizes that regulating public health during a pandemic is a compelling government interest that would justify a strict governmental response, it also says the response must be carefully tailored in order to prevent any unnecessary infringement on constitutional rights. 

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Arbitrator properly handled dispute involving the hiring of temporary, non-union workers

The whole point of arbitration is to keep labor-management disputes out of court. This means that when a party challenges an adverse arbitration ruling in court, they face an uphill battle. In this case, after losing the arbitration, management took the issue to court, which rules that the arbitrator did not violate the rules and that the arbitration ruling will stand.

The case is A&A Maintenance v. Ramnarian, issued on December 16. A&A provides janitorial and maintenance services to commercial real estate and educational institutions. Its workforce is unionized and the parties must therefore comply with a collective bargaining agreement that addresses when A&A may employ "substitute employees" to fill in for people who are out on disability or worker's compensation or extended leaves. When the union noticed an unusual number of new, non-union employees at a college one day, it tried to resolve that issue without arbitration, but the dispute eventually went to an arbitrator, who ruled in the union's favor, finding that A&A had hired and rehired these people to perform bargaining unit work, and it did so to save money and to effectively keep them on as probationary employees with fewer rights in the workplace.

We have two issues here. First the employer says the arbitrator improperly allowed the union to frame the arbitration issue differently throughout the process. The first issue statement was in the original grievance, claiming the employer violated the CBA in hiring these "substitute employees." The union later framed the issue for the arbitrator as whether the employer violated the CBA by using "temporary employees," "a term undefined in the CBA and broader in scope than substitute employees," to perform bargaining unit work. The difference between the two issue statements was that the first one mentioned substitute employees, and the second mentioned temporary employees. Management said the first issue statement was proper, not the second, because "substitute employees" carries a narrower definition than "temporary employees."

The arbitrator said the union could frame the issue the second time around this way, and the Court of Appeals (Sullivan, Katzmann and Calabresi) agrees, finding the arbitrator did not resolve an issue that was not properly before him. The Court says that management's argument elevates form over substance, as the substance of the union's initial grievance was its contention that non-union workers were improperly performing bargaining unit work, a dispute which covers A&A's use of temporary employees. The union's grievance was based on facts that were known to management when the union filed the grievance, even though the grievance did not explicitly use the terms "temporary employees" and "probationary employees."

Relatedly, the Court says, the arbitrator did not rewrite the CBA in ruling that A&A violated the contract by hiring temporary employees even though the CBA does not mention "temporary employees. This technical argument is also rejected, as the dispute arose when A&A tried to hire non-union temporary workers "by means of a strained interpretation of the probationary period [under the CBA]." Since the issue resolved by the arbitrator concerned the interpretation, application, or claimed violation" of the contract, the arbitrator was able to resolve this issue and did not exceed his authority in doing so.

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No retaliation claim for teacher who filed an EEOC charge

Proving causation in retaliation claims under Title VII and the First Amendment remans a tricky proposition without direct evidence ("we are firing you because you complained about XYZ") and the plaintiff has to rely on circumstantial evidence ("management loved me until I spoke out and then they issued a paper trial to fire me"). This case highlights that difficulty.

The case is Agosto v. New York City Dept. of Education, issued on December 4. I have written about the First Amendment part of the case at this link. But plaintiff (a teacher) also had a Title VII claim. He says that 3.5 months after filing the EEOC charge in March 2017, a "letter to file" was placed in his personnel folder in June 2017. Is that time-gap enough to prove retaliatory intent? The Court of Appeals (Menashi, Lohier and Cabranes) says it is not enough.

The Second Circuit notes that "this court has not imposed a strict time limitation when a retaliation claim relies exclusively on temporal proximity." Some cases extend it to eight months. Others limit it to three months. Really, the cases in this area are all over the place. Of course, plaintiff's lawyers will highlight the eight-month rule. Management lawyers will cite the two-month rule that turns up in cases from time to time. But in this case, the plaintiff "acknowledges that the gap of more than several months is typically too like by itself to survive summary judgment." 

That concession hurts plaintiff in this case, but what also hurts him is evidence that the letter to file was triggered by an independent actor, the Parent Chairperson of the School Leadership Team, who complained that plaintiff had made a threat after a meeting. This indicates that the letter to file "was not a contrived excuse to penalize Agosto for prior protected activity." We call that the independent causation principle, which allows courts to exercise their judgment in determining what a jury can legally accept in finding causation. At some point, the court will decide that an independent event in the chain of events will absolutely kill the retaliation case. This is one of those cases. 

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Court clarifies retaliation standards for Federal Railroad Safety Act cases

A relatively obscure federal statute protects railroad workers from retaliation for certain protected activity. The statute is the Federal Railroad Safety Act. In this case, the Court of Appeals clarifies how the Act applies in practice, issuing this ruling a full year after oral argument.

The case is Tompkins v. Metro-North Commuter Railroad, issued on December 17. The Act says the railroad cannot retaliate against employees "for refusing to work when confronted by a hazardous safety or security condition related to the performance of the employee's duties." Plaintiff was disciplined because he refused to walk to a wheel shop at his work location, claiming it was too icy and dangerous, as evidenced by other workers slipping on their way to the wheel shop. 

To win a case like this, the plaintiff has to show the hazardous condition presented an "imminent danger of death or serious injury" and "the urgency of the situation did not allow sufficient time to eliminate the danger without such refusal." The Second Circuit (Walker, Sullivan and Nathan [D.J.]) says for the first time in this Circuit that the plaintiff must objectively prove such a danger, and that his subjective belief of a dangerous condition is not enough. Other Circuits have applied this formulation, and now it applies in the Second Circuit. Under the rule, plaintiff loses. The Court says he submits no evidence to support his generalized statement that the walkways at the rail yard were unsafe, other than that other employees had slipped when they walked. In addition, "it is not necessarily true that an employee slipping on a walkway indicates that the trip as a whole presented a hazardous condition." Other employees did not refuse to make that walk to the wheel shop, and while they ultimately drove to the wheel shop, that could mean it they were tired or cold. The foremen also believed the walk was safe. While plaintiff could have argued that the foremen reached this conclusion as a means to convince the workers to get to the wheel shop and continue working, plaintiff did not make such an argument. 

Plaintiff also claims that management retaliated against him for reporting the unsafe walkway condition. This issue also allows the Court of Appeals to clarify the standards for these cases, holding for the first time that plaintiffs must provide some evidence of retaliatory intent. As other Circuits have held, the statute expressly requires the plaintiff to show that management "discriminated" against him for engaging in protected activity. That implies a requirement that the plaintiff show retaliatory intent. While the plaintiff need not show that retaliatory intent was the sole factor behind the discipline, or that management acted only with retaliatory motive, "the plaintiff must . . . show more than a temporal connection between the protected conduct and the adverse employment action" to win the case. This standard is in line with that reached in other Circuits, from which the Second Circuit devises the following guidelines: 

we will consider the following factors: (1) whether and to what extent the disciplinary measures were related to the protected activity, (2) the temporal relationship between the protected activity and the disciplinary measures, including whether any intervening incidents occurred that could independently justify the discipline, (3) whether the disciplined employee was represented by counsel or a similar representative in the disciplinary proceedings, and whether the disciplinary measures were upheld on appeal, (4) whether, if applicable, the disciplinary measures were upheld following Department of Labor proceedings, and (5) whether the persons accused of hostility towards the employee’s protected activity participated in the disciplinary decision.

Under the retaliation test, plaintiff loses. Factors 3 and 5 favor Metro-North. Factor 4 is inapplicable because DOL did not get involved, and factors 1 and 2 favor plaintiff, but only slightly. "Rather, the record supports that Tompkins was disciplined for failing to meet a legitimate expectation by an employer that when orders are given employees will comply." 

Plaintiff further claims retaliation because he was disciplined for conduct unbecoming an employee after speaking to his foreman in the lunchroom about the discipline and discrepancies between the foreman's account and that provided by other witnesses (a conversation that made the foreman feel threatened). Plaintiff says this discipline was also motivated by his safety complaint. While factor 3 favors plaintiff because an arbitrator overturned the discipline from that incident, factors 1 and 2 strongly favor management; the lunchroom incident with the foreman was an intervening event that killed off the causation between the protected activity relating to safety and the discipline. The fact that the discipline was overturned does not support plaintiff's argument.

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You can sue government defendants for religious discrimination under the Religious Freedom Restoration Act

The Supreme Court has held that plaintiffs in religious discrimination cases against the government can name individual governmental supervisors in their lawsuit. This is the rare unanimous Supreme Court ruling in favor of civil rights plaintiffs. 

The case is Tanzin v. Tanvir, issued on December 10. Plaintiffs claim the federal government violated the Religious Freedom Restoration Act by placing them on the no-fly list solely because they are practicing Muslims who would not act as informants against against their religious communities. The Second Circuit interpreted RFRA to allow plaintiffs to sue individual defendants, and the Supreme Court agrees.

RFRA was enacted by Congress in the 1990s after the Supreme Court, in Employment Division v. Smith (1990), made it more difficult for plaintiffs to sue the government under the Free Exercise Clause. The Smith court said that neutral governmental policies or rules that incidentally disadvantage people on the basis of their religious practices do not violate the Establishment Clause. This controversial ruling deviated from prior Supreme Court cases, so Congress (back in the days when Congress still worked together) made passing RFRA a priority. The questions is how do we interpret RFRA and does it allows plaintiffs to sue individuals or only the government.

Statutory analysis is not the most exciting topic in the legal world, but it's actually pretty important, because if the court views the statute in a particular way, that is how the statute will be applied in the future unless Congress deals with the misinterpretation. Here, the Court finds that since the statute says plaintiffs can sue "the government," defined as "a branch, department, agency, instrumentality, and official (or other person acting under color of law) of the United States." That language seems clear, that you can sue an individual in his personal capacity. The federal government had its own interpretation, though, which the Court rejected: that you can only sue governmental officials in their official capacities. The feds said this interpretation makes sense because the statute references "official[s]" as among the appropriate defendants. Writing for the Court, Justice Thomas says this argument may be "plausible," but it does not work here in part because the statute also says you can sue an official "or other person." This language "clarifies that 'a government' includes both individuals who are officials acting under color or law and other, additional individuals who are nonofficial acting under color of law." In Section 1983 litigation, suing people acting under color of law means suing them in their individual capacities. Congress presumably had that principle in mind when it enacted RFRA.

The final question in this case is what can plaintiffs under RFRA sue for? The statute says you can recover "appropriate relief." What does that even mean? The Court says that phrase encompasses damages claims. The Court notes that such relief has always been available under Section 1983, and it seems that Congress wanted plaintiffs under RFRA to recover the relief that had been available to them under the Smith ruling that RFRA was intended to correct.

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No Cat's Paw for plaintiff claiming retaliation for filing safety objections at the railroad

Every now and then the Court of Appeals decides a retaliation case brought under the Federal Railroad Safety Act (FRSA). This is a little-known statute that provides relief for employees who suffered retaliation for speaking out against safety violations on the railroad. These cases are normally resolved under the same legal principles that guide cases under Title VII and the other well-known anti-retaliation laws. And like those cases, lawsuits brought under the FRSA often lose under the complex evidentiary model covering all retaliation claims.

The case is Petronio v. National Railroad Passenger Corp., a summary order issued on December 2. Plaintiff says he was fired after sending emails to Amtrak management requesting trainings and reporting safety concerns. But this claim fails, the Second Circuit says, because there is no evidence that the Amtrak officers who charged and terminated plaintiff even knew about his protected activity. To get around this, plaintiff relies on the Cat's Paw theory of liability, which holds that even if the decision makers did not know about the protected activity, the organization is liable if a lower-level supervisor who did know about the retaliatory activity played a meaningful role in the plaintiff's termination. (If you are wondering what this has to do with the cat's paw, it has something to do with Edgar Allen Poe and a story he wrote about a monkey who fooled the cat with a chestnut near the fireplace).

The Cat's Paw is a nice evidentiary tool for plaintiffs who need to connect their protected activity with their termination, but it will not work in every case, like this one. Plaintiff says that Collins, who knew about his safety reports, played a meaningful role in his termination because he suspended plaintiff and testified at his disciplinary hearing. But someone else, Obey, was responsible for filing the charges, and it was Obey who advised Collins on how to proceed against plaintiff. While Collins testified at the hearing, others testified against plaintiff also, and decision makers relied on that testimony as well in finding that plaintiff had violated company policies. 

Plaintiff tried to show that Collins was biased against him because Collins said that he thought it was odd that a new employee like plaintiff would complain about safety violations outside the chain of command. But this testimony does not show bias against plaintiff; it only shows that Collins thought plaintiff's conduct was unusual. A fine distinction, but a distinction nonetheless.

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Pretext not enough to avoid summary judgment in discrimination case

Here is another case demonstrating that even if the plaintiff can show the employer lied about the reason for his termination, the court can still dismiss the case on a summary judgment motion if that lie is not enough to prove discriminatory intent.

The case is Palencar v. New York Power Authority, a summary order issued on December 8. Prior to 1997, the Second Circuit usually held that if the employee makes out a prima facie case of discrimination and can prove the employer's articulated reason for his termination (or demotion, etc.) was knowingly false, the case will go to the jury on the discrimination claim. That changed in 1997, when the Circuit issued Fisher v. Vassar College, an en banc ruling that said pretext is not always enough to prove discrimination, and that plaintiff may still have to proffer other evidence of discriminatory intent. We call that the "pretext plus" theory. Although the Supreme Court in Reeves v. Sanderson Plumbing (2000) suggested that pretext alone is usually enough and that pretext plus is the exception, the Second Circuit continued to adhere to a pretext-plus evidentiary model, though every few years it reverses the grant of summary judgment on pretext alone. That's rare, though.

The Court of Appeals in this case assumes plaintiff has made out a prima facie case. It focuses on whether plaintiff can prove he was fired for discriminatory reasons. In doing so, the Court (Sullivan, Park and Nardini) reminds us that this requires a totality-of-the-circumstances approach, drawing from cases that were decided in the last 1990s and early 2000s. 

From that angle, the Court says, plaintiff has no case because the record shows that plaintiff's subordinates "lodged repeated complaints against him over the course of several years, that he was consistently combative and defiant toward his supervisors, and that he was unwilling to incorporate constructive feedback in response to his reviews over that time." What it all means is that even if plaintiff can show "some evidence of pretext," that evidence cannot override the evidence of plaintiff's performance deficiencies. The Court finds that plaintiff cannot prevail on his sexual orientation discrimination claim.

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Sexual harassment and assault at Suffolk County jail may violate Section 1983

This case is disturbing on several levels. It involves inmates at the Suffolk County jail who claim one of the correction officers got away with sexually harassing and assaulting them for years because jail management knew about it but looked the other way. The primary question raised on appeal involves whether the plaintiffs can prove municipal liability under Section 1983. The Court of Appeals says they can.

The case is Lucente v. County of Suffolk, issued on November 17. The offending officer's name is Joseph Foti. The Court of Appeals (Kearse, Carney and Bianco) lays out the allegations. After Internal Affairs investigated, it found that Foti had violated departmental guidelines in the course of sexually assaulting the inmates. But prior to Foti's ultimate retirement (which he claimed had nothing to do with the Internal Affairs report), none of his supervisors ever spoke to him about this. Yet, the district court dismissed this Section 1983 case against the County, holding that Foti was merely a rogue officer whose actions cannot give rise to the "policy and practice" that plaintiffs need to prove municipal liability under Monell v. Dept. of Social Services, the seminal Supreme Court ruling on this issue from 1978. The district court also excluded allegations of Foti's misconduct from the 1990s as time-barred, and ruled that no county policymaker had knowledge of Foti's actions. The district court also ruled that plaintiffs cannot sue the county, focusing on whether management knew about the assaults rather than the allegations of sexual harassment. The Court of Appeals reverses, rejecting the district court's analysis in its entirety.

First, there was nothing isolated about Foti's misconduct, the Court says, because "the record is replete with evidence of inappropriate touching and/or other sexual harassment of female inmates on a regular basis by Foti" over the course of 18 months. And it was not limited to the six plaintiffs in this case. The evidence suggests this harassment was "open and notorious" as others at the jail saw Foti as an "accident waiting to happen." Foti also created opportunities for himself to get the female inmates alone so he could engage in the inappropriate behavior. This was not isolated behavior but severe, persistent, and pervasive, "executed in a manner that would have been difficult to conceal from supervisory personnel at the Riverhead facility, including policymakers."

Plaintiffs' case is strengthened by evidence that the Sheriff knew about Foti's sexual misconduct from the 1990s outside the jail. Off-duty conduct may be relevant in proving a Monell claim, as per Vann v. City of New York, 72 F.3d 1040 (2d Cir. 1995). Internal affairs reports from the 1990s involving jail-related sexual misconduct also support plaintiffs' claims. While some supervisors were aware of sexual harassment but not sexual assault, their knowledge of the harassment can hold the County liable for the overall sexual misconduct because even sexual harassment violates the Equal Protection Clause. These officials knew about Foti's unconstitutional misconduct, and that is enough under Monell. 

Finally, we have a statute of limitations issue. The district court rejected evidence that fell outside the three-year limitations period, but the Court of Appeals finds the older harassment constitutes the kind of continuing violation that is unique to sexual harassment claims, as the harassment as a whole was part of the overall policy and practice. We associate this principle with employment discrimination claims, but the Court of Appeals notes that it applies in other contexts as well, including land-use claims under Section 1983.

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Can You Serve Legal Documents Via Pigeon?

It's been a while, but I'm back to answer the important questions. Today's pigeon-themed inquiry is not inspired by any news stories or current events. Instead, it popped into my head and demanded an immediate answer. Those who would like to know the answer, and learn some trivia about pigeons and related laws should read on.

As a bit of background, carrier pigeons (or homing pigeons) are pigeons that have been bred to find their way back to a fixed point even after being transported over long distances. Pigeons may be trained to carry small packages containing messages or other items. Because pigeons can only return to a fixed point, the person sending the message must have a pigeon that will return to the recipient's location. As this New York Times article details, pigeons have been used for sending messages, samples of blood, and other items over long distances, and have been employed in multiple wars to send communications from the field. In the John Wick universe, the Bowery King uses pigeons to send messages and small objects.

Naturally, this prompts the question of whether pigeons may be used to effectuate service of pleadings or documents in litigation. Case law on whether sending a document by pigeon constitutes valid service is limited. From what I could find in a cursory search, no US court has directly addressed a situation where a party has attempted to serve a legal document on someone using a pigeon. A couple courts have considered pigeon-service as a hypothetical scenario, but both appear to disapprove of the practice. 

In Geiling v. Wirt Financial Services, Inc., No. 14-11027; 2014 WL 8473822 (E.D. Mich. Dec. 31. 2014), the plaintiffs took issue with documents that had been produced in discovery that contained the plaintiffs' social security numbers, claiming that the mailing of these documents violated a Michigan state law against transmitting full social security numbers through the mail. The court noted an exception to this rule for documents sent by mail pursuant to legal discovery or process. The plaintiffs argued that this exception should not apply and the court disagreed, noting that the Michigan Court Rules envisioned that parties would produce documents in discovery through first-class mail. The court further suggested that "parties sending documents by untrustworthy means, carrier pigeon for example, could be faulted for operating outside normal discovery bounds," but not parties using standard methods to mail documents. (emphasis added). This suggests that the court would view service by carrier pigeon as a method of service outside of normal discovery practices, but a direct ruling on the issue must wait for another day.

In Seibold v. Commissioner of Dept. of Motor Vehicles, No. HHBCV136019840S; 2014 WL 565905 (Ct. Sup. Ct., Jan. 9, 2014), the court addressed whether a party had properly served an appeal by fax on the Office of the Attorney General, even though the rules required service by certified mail or personal delivery. The party claimed that because the Attorney General had actual notice of the appeal and had not been prejudiced by the failure to make proper service, her case should not be dismissed. The court rejected the plaintiff's argument, noting that at "its logical extreme" the argument would allow "service of the appeal on the agency by any means, including by a carrier pigeon, as long as the agency actually receives the appeal and is not prejudiced." (emphasis added). This, the court concluded, was not supported by statute or case law.

In summary, while courts have not directly addressed a situation where a party has attempted service using a pigeon, the disapproval of the method expressed by the few courts that have contemplated such a scenario means that it is probably is not advisable to do so.

Practically, service by pigeon is unlikely to catch on. The most apparent barrier to wide usage of homing pigeons is the fact that the person sending a document via pigeon must already have a pigeon in their possession that will return to the recipient. This suggests that a network of homing pigeons trained to deliver documents to law firms and courts must be supported by a secondary network of delivery personnel who take the pigeons from the recipients to the senders. Pigeons may be seen as redundant if a system for their physical delivery is already in place.

Another potential criticism of the practice is that even the smallest filing or item of correspondence is too large to be carried by a pigeon. The answer to this, however, is that these documents could be loaded onto tiny flash drives that could, in turn, be deposited into a pack that the pigeon can carry.

States considering permitting service via pigeon may be encouraged to learn that there are already legal barriers in place to prohibit interference with homing pigeons. In Pennsylvania, for instance, it is a summary offense to shoot, maim, or kill a homing pigeon. Similar restrictions exist in Michigan, Virginia, and Wisconsin. Laws like these may assuage concerns that interlopers will interfere with pigeons used for legal service.

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