Thursday, April 16, 2015

Officer cannot appeal adverse excessive force verdict

The jury ruled for the plaintiff in this excessive force case against a Nassau County police officer. The officer then sought judgment as a matter of law (which would vacate the verdict) on qualified immunity grounds, arguing that "Officer Rogich is entitled to ... qualified immunity when his version of events is credited." The district court denied the motion and the officer took up an appeal before the court could even award damages. The appeal is dismissed because the officer is not allowed to pursue an appeal like this.

The case is Taylor v. Rogich, decided on March 30. Normally, you cannot appeal a district court ruling or verdict until all issues in the district court are resolved, including damages. An exception to that rule applies when the officer seeks qualified immunity, which shields him from suit if his actions were objectively reasonable. But even that exception has exceptions. You cannot take up an interlocutory appeal "to the extent that the denial [of qualified immunity] involves only a question of evidence sufficiency," i.e., the jury can see it my way and not the officer's way. That rule applies in the summary judgment world, and the Court of Appeals extends it to post-trial appeals under Rule 50.

The exception to the exception applies here. The officer's appeal is premature because he frames the issue as a factual dispute on the evidence that the jury was not entitled to (and did not) adopt. The Court of Appeals ruling does not tell us what happened in this case, but this comes from the district's post-trial ruling:

On September 26, 2009, Rogich, a member of the Bureau of Special Operations (BSO), participated in the arrest of the defendant.  Prior to the arrest, Rogich had been advised that plaintiff was wanted on a parole warrant and for questioning in connection with a homicide, and that he might be armed and had threatened his parole officer. Immediately prior to the arrest, a group of BSO officers, driving unmarked vehicles, surrounded plaintiff’s vehicle as he was leaving a residence in Hempstead, NY. Rogich and his partner were in a silver Jeep Grand Cherokee SUV which pulled in front of plaintiff’s vehicle when plaintiff had stopped at a stop sign. It was undisputed at trial that Rogich fired three shots at plaintiff. Each time, he aimed for “center mass,” meaning the plaintiff’s chest. All three struck plaintiff’s vehicle; one passed through the windshield and struck plaintiff in the stomach. The third shot fired lodged in the passenger door of plaintiff’s vehicle.

While "Plaintiff testified that while he was stopped at the stop sign, the defendant fired the first shot while still inside the SUV," the officer "testified he got out of the Jeep before firing his weapon. He further testified that, once he was in front of plaintiff’s car, the plaintiff had backed up and 'charged' toward him. As such, Rogich testified, he fired because he believed it was 'the only way I could stop the car from running me over.'” Each side had some corroborating witnesses, but that is the conflicting evidence that underscored the officer's appeal. 

Monday, April 13, 2015

Above the law

Did you know that Title VII does not apply to Indian reservations? I was unaware of this. But it's true. It's also true that some casinos therefore fall outside the scope of Title VII.

The case Tremblay v. Mohegan Sun Casino, a summary order decided on April 7. Here is the reasoning, short and sweet:

Title VII expressly excludes American Indian tribes from its definition of covered employers. 42 U.S.C. § 2000e(b). The exclusion extends to the arms and agencies of an American Indian tribe. Because the defendant here is a corporation owned by an agency of a federally recognized American Indian tribe, it is not an employer under Title VII.
The Age Discrimination in Employment Act does not exclude Indian reservations from its coverage. But the casinos are exempt from ADEA coverage as well "as a matter of federal common law." The Court of Appeals (Pooler, Carney and Gleeson [D.J.]) says that "an Indian tribe enjoys sovereign immunity from suit except where ‘Congress has authorized the suit or the tribe has waived its immunity.” In addition, "Agencies of a tribe enjoy the same presumption of immunity in a suit for damages."

Tremblay handled the appeal pro se, so either no lawyer wanted to touch it or some lawyer actually knew about these coverage exemptions. I wonder if she has any recourse under any other statutes, but she gets none under Title VII and the ADEA. If you want to see what a pro se appellate brief looks like, click here. According to the brief filed by Mohegan Sun, "As the District Court properly noted, the forum for raising this claim was in the Mohegan Gaming Disputes Court."

Friday, April 10, 2015

$200,000 discrimination verdict is gone

The Court of Appeals has vacated a $200,000 jury award in a discrimination case brought against the Nassau County Sheriff's Department, ruling that plaintiff could not prevail on an implied contract theory of discrimination.

The case is Saeed v. Kreutz, a summary order decided on April 3. I represented the plaintiff on appeal. The jury heard evidence that Saeed, who worked in the Sheriff's Department, was subjected to anti-gay and racist comments from fellow law enforcement officers, including his Sergeant. The jury had two sets of claims before it: (1) implied contract arising from the County's EEO policy, which prohibited discrimination and (2) federal and state antidiscrimination statutory violations, including Title VII. The jury ruled in plaintiff's favor on the contract theory but rejected his federal and state discrimination claims. The County appealed from the contract verdict and plaintiff cross-appealed, arguing that the verdict was inconsistent because the favorable verdict on the contract claim meant that defendants also violated Title VII.

The Court of Appeals (Jacobs, Lohier and Geraci [D.J.]) vacates the contract verdict and denies the cross appeal. On the contract claim, the Court ruled, "The district court erred in submitting the implied contract claim to the jury. That claim rests on the theory that the Department and the County were bound--as a matter of contract--to the terms of the County’s Equal Employment Opportunity Policy. But under New York law, '[a] contract cannot be implied in fact where there is an express contract covering the subject matter involved.'” The express contract was the Collective Bargaining Agreement, which contained an anti-discrimination clause. "Because the CBA and the alleged implied-in-fact contract concerned the same subject matter--i.e., the terms and conditions of employment--the implied contract claim fails as a matter of law."

The cross-appeal for a new trial is also rejected. The verdict was not inconsistent, the Court of Appeals says. "The verdicts were not irreconcilably inconsistent. The jury was instructed that Saeed should prevail on the implied contract claim if defendants 'breached the contract by discriminating against the plaintiff or treating the plaintiff unfairly.' The jury could have understood this instruction to mean that defendants had a contractual obligation to treat Saeed 'fairly' that was not based on any obligation to abstain from discrimination and retaliation. If the jury interpreted the instruction this way, it could have found for Saeed on the implied contract claim without also finding for him on the statutory claims."

Thursday, April 9, 2015

Bergstein & Ullrich prevail in quashing non-party subpoena in developer's religious discrimination case

When does a non-party subpoena go too far? And when does it implicate First Amendment values? In this case, a federal court quashed non-party subpoenas served on community activists in connection with a developer's civil rights lawsuit against an upstate New York community.

The case is Bloomingburg Jewish Center v. Village of Bloomingburg, decided on April 6. The plaintiffs argue that certain development projects were rejected because the Town and Village acquiesced in alleged anti-Hasidic sentiment in the community. Plaintiff served non-party subpoenas on community activists for records and other communications among themselves and public officials to help prove the case. Judge Forrest quashed the subpoenas as to the non-party activists. I represented one of the activists, Weinstein, who filed the motion to quash along with other non-parties.

Here is how the court summarizes the dispute:

Plaintiffs allege that defendants, along with a number of individuals from the community, have engaged in a consistent pattern of religious discrimination and undertaken actions to thwart plaintiffs’ planned developments. Important to the subpoenas at issue on this motion is that plaintiffs assert that the RCC, and individuals associated with the RCC, form a vocal core of the opposition to their development efforts. Plaintiffs assert that the RCC has proposed and worked for the election of candidates sympathetic to the anti-development position (which, according to plaintiffs, is based on an anti-Semitic and anti-Hasidic views).
The demands were wide-ranging. Here is a flavor:

Request No. 1: All documents and communications on any topic at all, with a variety of representatives, employees, or agents of the Town of Mamakating (the “Town”) or the Village.

Request No. 2: All documents and communications concerning (1) plaintiffs’ proposed developments, (2) any plaintiff, (3) Hasidic Jews, (4) or any organization affiliated with the Hasidic Jewish community.

Request No. 3: All documents and communications on any topic at all, with any person affiliated with the RCC, the Rural Heritage Party, Hoppe, Weinstein, Persaud, or David Berg.

Request No. 4: All documents and communications on any topic at all concerning the RCC and the Rural Heritage Party.

Request No. 5: All documents and communications concerning any actions taken or statements made by any defendant or any employee, official, or representative of the Village or Town concerning Hasidic Jews, plaintiffs or their affiliates, or that might lead to the discovery of evidence of disparate treatment.

Request No. 6: All documents and communications concerning any complaints made in connection with plaintiffs’ proposed developments, or any property thought to be associated with Shalom Lamm, Kenneth Nakdimen, and/or any Hasidic person in the Village or Town.

Request No. 7: All documents and communications concerning any complaints made in connection with any other property than those referenced in No. 6 above.
The subpoenas are premature, overbroad and implicate First Amendment concerns. They are premature because plaintiff might get similar information from public officials before burdening non-parties with these demands. They are overbroad for a variety of reasons, including the fact that the demands seek information that may be unrelated to the disputes in this case. As the court writes, "It is unfair to suggest that emails that could relate to nothing more than a birthday party but that involves one of the identified people would become discoverable material in this lawsuit. Similarly, a complaint regarding snow-plowing down Main Street would likewise be discoverable. This asks too much of third parties. They implicate the First Amendment because the demands may chill activist speech." The First Amendment is also implicated, Judge Forrest, writes:

In practice, rights guaranteed by the First Amendment enable people to hold diverse political and religious views, to voice their opposition to the views and beliefs of others in written and spoken communication, and to seek to elect those whom they believe will represent their views—even when those views are not shared and sometimes condemned by others.

Tuesday, April 7, 2015

Judicial estoppel undercuts employment discrimination claim

I doubt Congress thought about this when it enacted the Civil Rights Act of 1964, but the courts have determined that something you say in lawsuit number 1 cannot be contradicted by what you say in lawsuit number 2, especially if the contradictions would make a difference in the outcome. We call it "judicial estoppel."

The case is Robinson v. Concentra Health Services, decided on March 24. After plaintiff was fired, she put in for disability benefits, claiming that multiple sclerosis made it impossible for her to work. She then filed a lawsuit claiming her termination was discriminatory. What do we do about this?

Under the civil rights laws, you make out a prima facie case in part by showing you were qualified for the position. Under the rules governing Social Security disability benefits, a claimant must show she cannot engage in substantial gainful activity for medical reasons. Here is how the Court of Appeals (Parker, Hall and Lohier) frames the issue:

At issue in this case is whether Robinson’s application for, and receipt of, Social Security disability benefits on the ground that she is fully disabled due to multiple sclerosis, renders her unable to make a prima facie showing that she was qualified for the position she held at the time of termination. At the summary judgment stage, a plaintiff may satisfy this burden by showing that she “possesses the basic skills necessary for performance of [the] job.”
Plaintiff loses the case. Under judicial estoppel, you cannot assert a factual position in a legal proceeding that contradicts a position taken in a prior legal proceeding. "A party invoking judicial estoppel must show that (1) the party against whom the estoppel is asserted took an inconsistent position in a prior proceeding and (2) that position was adopted by the first tribunal in some manner, such as by rendering a favorable judgment.” Under Supreme Court authority,

a successful disability application does not automatically preclude a later claim under the ADA, because a representation of complete disability in a Social Security proceeding is not necessarily contradicted by the same person’s ADA claim that he could perform essential job functions with reasonable accommodation where the former proceeding did not consider the effect that reasonable workplace accommodations would have on the claimant’s ability to work. Nevertheless, the Court acknowledged that an “ADA plaintiff cannot simply ignore the apparent contradiction that arises out of the earlier . . . total disability claim,” and held that in such circumstances, a plaintiff “must proffer a sufficient explanation” for the conflicting statements in order to survive summary judgment.
That logic applies in non ADA claims. While plaintiff argues that the district court merely assumed that she told the Administrative Law Judge that she was totally disabled from working, the ALJ's decision summarized her position in seeking SSD benefits. Plaintiff also does not deny that she previous told the SSA and ALJ that she was fully disabled as of June 2010. three months before she was terminated. And she does not "deny that such a statement is inconsistent with her current litigation position." Indeed, "Robinson’s job as a medical assistant required her to work in both the ‘front’ at the reception desk and in the ‘back’ performing tasks like drug tests and assisting doctors with suturing, which she could not complete if she were fully disabled." The Second Circuit wraps it up thusly:

Although Robinson may have continued to work at Concentra until September 2010, this fact demonstrates only that her statements to the SSA and the ALJ may have been false, but does not sufficiently explain the contradiction between the statements and her current litigation position.

Monday, April 6, 2015

Supreme Court clarifies Pregnancy Discrimination Act

After the Supreme Court in 1976 issued a notorious Title VII ruling that denied rights to certain pregnant plaintiffs, Congress two years later enacted the Pregnancy Discrimination Act, which said you cannot discriminate against pregnant woman in the workplace. The Supreme Court has not had much occasion to interpret the PDA. It did so this term.

The case is Young v. United Parcel Service, decided on March 25. Young was a UPS driver who got pregnant and was unable to lift heavy packages. UPS told Young she could not work while under a lifting restriction. But her male co-workers were given light duty assignments for on-the-job injuries. She sued under the PDA, which includes this language:

women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes . . . as other persons not so affected but similar in their ability or inability to work.
Congress in 1978 may have gotten on the stick in amending Title VII to protect pregnant woman, but this clause is particularly clunky and needs to be read at least 6 or 7 times to fully understand its meaning. Even then, it's not clear. That is why this case reached the Supreme Court. Writing for the Court, Justice Breyer reviews the interpretations offered by all sides. He rejects those interpretations and says the traditional McDonnell-Douglas burden-shifting model applies in determining whether an employer failed to reasonably accommodate pregnant women. Here is the evidentiary model now governing these claims:

If plaintiff shows that the employer did not accommodate her, and that management did accommodate others "similar in their ability or inability to work," the employer than has to articulate a neutral reason for this disparate treatment. "But, consistent with the Act’s basic objective, that reason normally cannot consist simply of a claim that it is more expensive or less convenient to add pregnant women to the category of those ('similar in their ability or inability to work') whom the employer accommodates." Plaintiff must then show that the employer's proffered reasons are a pretext. The plaintiff may reach a jury on this issue by providing sufficient evidence that the employer’s policies impose a significant burden on pregnant workers, and that the employer’s “legitimate, nondiscriminatory” reasons are not sufficiently strong to justify the burden, but rather—when considered along with the burden imposed—give rise to an inference of intentional discrimination."

In the end, the 6-3 majority says, "The plaintiff can create a genuine issue of material fact as to whether a significant burden exists by providing evidence that the employer accommodates a large percentage of non-pregnant workers while failing to accommodate a large percentage of pregnant workers."

This evidentiary model applies McDonnell-Douglas in the context of pregnancy. That's why some of the factors here are unique to pregnancy and accommodations. Sort of like importing the Americans with Disabilities Act's reasonable accommodation framework into Title VII. As anyone who handles ADA cases can tell you, reasonable accommodations cases are more complicated than wrongful discharge cases under Title VII, primarily because of that accommodation angle. Under the new framework adopted by the Supreme Court in this case, summary judgment for UPS is vacated and the case is remanded for the Fourth Circuit to worry about it.


Friday, April 3, 2015

A jury of your peers? Not always.

Non-lawyers sometimes think the jury pool will look like them, but often that is not the case. What you get is jurors who don't know the parties or the lawyers, who can swear they can be fair and impartial. There are ways to challenge jury selection, but it's not easy. The plaintiff failed in this case.

The case is DeVorce v. Phillips, a summary order decided on March 25. This is a habeas corpus action. Plaintiff was found guilty of God knows what crime. At jury selection in state court, the prosecution tried to exclude a black juror, resulting in a challenge rate of 3 out of 7 jurors, or 42.8 percent. Five of the 26 prospective jurors were black, a 19.2 percent ratio. While the trial court could have ruled that DeVorce made out a prima facie case of jury selection discrimination, it was not required to do so, the Court of Appeals (Jacobs, Lohier and Geraci [D.J.]) says. Besides, the Second Circuit says, there is not enough information in the record to really know if the jury process was infected by racism. We don't know the composition of the entire jury venire, or a clear indication of which strikes were challenged and on what ground.

DeVorce did make a Batson challenge at the criminal trial. The Supreme Court's Batson case prohibits the removal of black jurors for racial reasons. If the prosecutor tries to exclude a black juror and cannot give a race-neutral reason, then the challenge is rejected, and the defendant has a potential issue on appeal. When the prosecutor tried to remove a black juror, he said it was because (1) she was a Jehovah's Witness; (2) she was not comfortable sitting in judgement of someone else and (3) she lived in Mount Vernon. The Mount Vernon answer sounds suspicious to me, but the prosecutor got away with this based on excuse number (2). As the trial court has broad discretion to assess prosecutor credibility in Batson challenges, this habeas challenge fails, and DeVorce remains in jail.