Wednesday, October 22, 2014

County employee's speech before Legislature not protected by First Amendment

In 1991, the Second Circuit held that a high-ranking New York City employee could not be fired in retaliation for giving subpoenaed testimony before a State Assembly Committee about the validity of civil service tests for police officers. In that case, Piesco v. City of New York, the Court said that you cannot fire someone over this because the testimony was on a matter of public concern and the Legislature cannot function without input from informed members of the public. Is Piesco still good law? Maybe not.

The case is Williams v. County of Nassau, a summary order decided on October 21. (I represented the plaintiff on appeal). Piesco provides an extensive discussion about the value of "public concern" speech in a legislative forum that requires candid feedback from the public. But in 2006, the Supreme Court ruled in Garcetti v. Ceballos that employees who speak pursuant to their official job duties have no First Amendment right against retaliation because they do not engage in citizen speech but unprotected employee speech that can get you fired in an at-will state like New York (and most of the rest of the country).

How do we square Garcetti with Piesco? The plaintiff in this case was the Executive Director of the Nassau County Civil Service Commission. He had heard that the County Legislature had received inaccurate information about a civil service matter. So he showed up at a legislative session to set the record straight. Plaintiff was then fired. He argues that he was fired in retaliation for publicly embarrassing the County Executive. Citing Piesco, Williams argued that his termination violated the First Amendment because, like Piesco, he addressed a public body on a matter of public concern. The Court of Appeals (Wesley, Straub and Livingston) disagrees.

The Second Circuit does not address the Piesco precedent. It instead applies Garcetti and Weintraub v. Board of Education, the Court's leading Garcetti precedent, which says that employee speech is not protected under the First Amendment if it is "part and parcel" of the plaintiff's ability to perform his job. As the Second Circuit sees it, even speech like this before a County Legislature is not citizen speech and is therefore unprotected. The Court reasons:

Because Williams spoke before the Nassau County Legislature not “as a citizen on a matter of public concern,” Garcetti v. Ceballos, 547 U.S. 410, 418 (2006), but rather “pursuant to his official duties” as defined by this Court in Weintraub v. Board of Education, 593 F.3d 196, 203 (2d Cir. 2010), we hold that Williams’s speech is not protected by the First Amendment and affirm the district court’s grant of summary judgment.
So here's the question: a public supervisor is asked to provide information to a Town or Village Board or the County Legislature. Or he wants to provide information on his own. He expresses concern about retaliation if he speaks on a controversial matter that derives from his employment. The public interest is served if he addresses the public body. But his employer could legally fire him if he says the wrong thing. What advice do you give him?

Tuesday, October 21, 2014

Circuit lays down the rules on sexual harassment claims under Section 1983

Employment discrimination cases usually proceed under Title VII and other statutes. But you can also sue public employers under 42 U.S.C. sec. 1983, which enforces the Equal Protection Clause, which in turn also prohibits employment discrimination. There are advantages to suing under Section 1983, but there are pitfalls as well. This case highlights the pitfalls.

The case is Raspardo v. Carlone, decided on October 6. This is one of the lengthiest cases I've seen from the Second Circuit in a while, as three plaintiffs are suing a slew of public defendants for sexual harassment. What complicates the case is that under Section 1983, you generally cannot sue the public employer unless Monell liability can attach, i.e., the discrimination was the result of a municipal policy or practice. This means you have to sue individuals under Section 1983, and they can assert qualified immunity from suit if the law was not clearly-established at the time. The other complication is that sexual harassment cases involve a variety of actors, i.e., harassers (who create the hostile environment) and supervisors (whose failure to stop the harassment actually create liability under Title VII).  Here are the basics when you sue under Section 1983 for sexual harassment:

1. You cannot sue individuals under Section 1983 unless they personally committed sexual harassment that was severe or pervasive. If the hostile work environment was created by several employees, and some of those employees merely contributed to the environment but their harassment was sporadic and was not enough to independently create a hostile work environment, then that employee cannot be sued personally under Section 1983. The Court of Appeals (Droney, Winter and Lynch) says, "our prior cases have established only that when a plaintiff alleges that multiple individual defendants have engaged in uncoordinated and unplanned acts of harassment, each defendant is only liable under Section 1983 when his own actions are independently sufficient to create a hostile work environment." This means that, for qualified immunity purposes, "we therefore cannot say that it is clearly established law that an individual defendant has violated a plaintiff's equal protection rights if he has not personally behaved in such a way as to create an atmosphere of severe or pervasive harassment."

2. In sexual harassment cases under Section 1983, supervisors can be liable for the harassment if they were grossly negligent in supervising the subordinates who committed the harassment. "The standard of gross negligence is satisfied where the plaintiff establishes that the defendant-supervisor was aware of a subordinate's prior substantial misconduct but failed to take appropriate action to prevent future similar misconduct before plaintiff was eventually injured." The Court adds, "A supervisor is not grossly negligent, however, where the plaintiff fails to demonstrate that the supervisor knew or should have known of a problematic pattern of employee actions where the supervisor took adequate remedial steps immediately upon learning of the challenged conduct."The standards for supervisor harassment under Section 1983 (gross negligence) are more difficult for plaintiffs to satisfy than under Title VII, where you need only show that management was negligent in handling the employee's sexual harassment allegations.

Since several plaintiffs are accusing several defendants of harassment, the Second Circuit's decision is quite lengthy, nearly 100 pages. Many of the defendants are let off the hook because the harassment is not severe or pervasive enough or because the bad behavior was not based on gender. The following excerpt, however, shows how one defendant did violate clearly-established sexual harassment law under Section 1983:

Raspardo cites four principal incidents to support her hostile work environment claim against Carlone. In 2007, Carlone asked Raspardo if she was “planning to go out drinking or have sex with [her] boyfriend,” another officer in the department, told Raspardo that her uniform should be more “form fitting,” and attempted to massage Raspardo’s shoulders. In early 2008, Carlone showed Raspardo a suggestive photograph of a woman wearing tactical gear in a magazine which was focused on the woman’s buttocks and passed the photo around to other male officers who were also present, saying that the woman’s buttocks looked like Raspardo’s.

Raspardo told Carlone that his comments were not funny or ignored him and left immediately during these incidents. Raspardo also stated in a sworn statement to the NBPD during its investigation of Carlone that Carlone, her direct supervisor at the time, “made references [of a sexual nature] to [her]  body parts on at least over ten occasions,” particularly concerning her buttocks, often in front of other officers, which made her “feel disrespected, angry, and embarrassed.” She reiterated these allegations in her later deposition testimony and interrogatory answers.

The four principal incidents, including unwanted touching and vulgar comments in front of other officers, when combined with the “over ten” additional comments about Raspardo’s body, all over a period of just one year, would be amply sufficient to permit a jury to find a sexually hostile work environment. The evidence presented by Raspardo, if true, demonstrates that Carlone violated her constitutional right to equal protection through this sexual harassment.




Wednesday, October 15, 2014

Second Circuit provides some gloss on religious land-use discrimination claims

Seems like every religious discrimination case involving the Religious Land Use and Institutionalized Person Act is overly complex. This case is no different, having taken the Court of Appeals more than a year to decide. The Second Circuit revives a case filed by a Jewish organization in Connecticut that wanted to expand its building.

The case is Chabad Lubavich v. Lichfield Historic District Commission, decided on September 19. Plaintiffs purchased property to serve as its new place of worship. This property is an historic building in what is probably a quaint New England community. They asked Town officials for permission to expand the building to suit their religious needs. Anyone who has sat through planning board meetings knows how complicated the land use process is, and this case was no different. In the end, the Town denied plaintiff's proposed modifications, explaining that they would destroy the residential character of the property's environs. Plaintiffs took their case to court.

Under RLUIPA, the plaintiffs win if planning officials imposed a substantial burden on their religious exercise without a compelling interest. If this sounds like a constitutional standard, it is, or at least, it was, before the Supreme Court got rid of it in 1990. RLUIPA was Congress's way of reviving that test in the land-use context. Here are the holdings:

1. The district court (which dismissed the case before trial) misapplied RLUIPA in stating that plaintiffs cannot win without showing the government imposed arbitrary land regulations or standards. Yes, the plaintiff can show the government acted arbitrarily, but it can also win if the government imposed a land use condition that created a substantial religious burden, and if feasible alternatives existed for the religious plaintiffs to meet their needs. So this claim is sent back to the district court to try again,

2. Plaintiffs also bring an "equal terms" claim arising from the municipal denial. The Second Circuit (Livingston, Walker and Chin) says that for plaintiffs to win this claim, they have to show the government imposed conditions or terms that differed from other comparable nonreligious  applications. Plaintiffs argue that a library in the historical district got a better deal from the town in 1965. But the library is not comparable to plaintiff's proposed modifications of the building. Not only was it 50 years ago, but a different land use commission made the decision in that instance. And the size of plaintiffs' modifications are not comparable to what the library did in 1965. That claim fails.

3. RLUIPA also has a non-discrimination provision, requiring that the plaintiff prove intentional discrimination. Courts use Equal Protection case law in resolving these disputes. Under Supreme Court case law, you can show intent if the government deviated from its usual procedures in denying you the benefit, or if added unforeseeable substantive requirements during the process, or if discriminatory impact was foreseeable, or if there was something unusual or strange about the sequence of events that led to the unhappy result. This is all part of the totality of the circumstances test. This claim is returned to the district court to take another crack at this claim.

Thursday, October 9, 2014

Volunteer ambulance corps is not a state actor under the Constitution

The Constitution does not regulate all behavior. It only regulates government activity. If I tell you to shut up, there is no First Amendment violation. If the Mayor tells you to shut up at a Village Board meeting, you might have a lawsuit. But the lines are not always clear-cut. How do we know when entities are "state actors" or private actors?

The case is Grogan v. Blooming Grove Volunteer Ambulance Corps, decided on September 29. As a Corps volunteer, Grogan was charged with misconduct and released from the organization. She sues for due process violations. She cannot proceed, the Court of Appeals (Hall, Chin and Cabranes) says, because the Corps is not a government entity.

There are two ways to show that an entity is a state actor: (1) if it performs a public function or (2) if government is entwined in the entity's management. Grogan cannot meet either test.

First, an entity performs a public function if the function that the government has traditionally performed, like medical care for prison inmates, animal control, fire protection and holding primary elections. Plaintiff says that ambulance services is also a traditional government function, but the Court of Appeals disagrees. New York law says that municipalities "may" provide for these services, but they are not required to do so. While the government has traditionally provided medical care to wounded soldiers, that does not mean similar services to the general population fall in the same category. And, even if ambulance services were a government function, Grogan still can't win because her lawsuit deals with a personnel matter, not the performance of those ambulance services.

Plaintiff also cannot show state action under the "entwinement" test. If the government is entwined with the entity's management or control, then the Constitution governs that entity's actions. While the ambulance corps is heavily regulated, that is not enough to show state action. Plaintiff "is required to show that the State is so entwined with [the Corps'] management that its personnel decisions are fairly attributable to the State." Since the government does not appoint members of the Corps' governing board or has any say in its personnel decisions, the Corps is not a state actor for purposes of this employment case.

Wednesday, October 8, 2014

Malicious prosecution claim comes back to life

We don't know exactly what happened in this case, but it looks like the plaintiff was arrested for assault after his rear-view mirror allegedly struck an officer when he drove away from the police. Plaintiff sued for malicious prosecution, and the district court threw out the case. The Court of Appeals revives the case.

The case is Coleman v. City of New York, a summary order decided on September 22. In dismissing the claim, the district court credited the testimony of two witnesses to the incident. But plaintiff testified that none of this happened the way the police said it did. And the officers' testimony about what happened contained several inconsistencies.

I guess this case is summary judgment 101. Most of us can recite the summary judgment standard in our sleep, and some judges do not even bother with a recitation of the standard in writing their opinions. But the summary judgment standard is violated all the time. Although many false arrest and malicious prosecution claims are dismissed before trial because the police need only show an objective basis to arrest the plaintiff, the summary judgment standard was violated here. The Court of Appeals (Walker, Wesley and Keenan [D.J.]) reinstates the malicious prosecution claim for the simple reason that plaintiff can win the case at trial if the jury sees the evidence in his favor..

Monday, October 6, 2014

EEOC loses Equal Pay Act claim against the Port Authority

The EEOC sued the Port Authority of New York under the Equal Pay Act, claiming that it was denying female attorneys equal pay. The Court of Appeals issues a resounding victory for the Port Authority, finding that the EEOC is merely arguing that "an attorney is an attorney is an attorney" without showing that Port Authority is unequally paying lawyers handing similar responsibilities.

The case is EEOC v. Port Authority of New York and New Jersey, decided on September 29. The Equal Pay Act codifies "equal pay for equal work." But EPA case are hard to win. You have to show that the men and women have similar responsibilities.The EEOC, though, did not highlight "the actual content of the work done by the dozens of attorneys either within or across practice areas at the Port Authority." Rather, the EEOC "alleged, in conclusory fashion, that all of the non-supervisory attorney jobs in the Port Authority's law department are substantially equivalent and require the same skill, effort, and responsibility."

The EEOC was not specific enough in suing Port Authority. The Court of Appeals (Livingston, Droney and Chen [D.J.]), says, "While the equal work inquiry does not demand evidence that a plaintiff's job is 'identical' to a higher-paid position, the standard is nonetheless demanding, requiring evidence that the jobs compared are 'substantially equal.'" We don't look at job classifications or titles or broad generalizations but actual job requirements and performance. The Court explains:

the EEOC alleged that the Port Authority required all of its nonsupervisory attorneys to have similar “experience, training, education, or ability,” bar admission, and the capacity to call upon “problem‐solving and analytical skills” as well as “professional judgment.” However, such bland abstractions – untethered from allegations regarding Port Authority attorneys’ actual job duties – say nothing about whether the attorneys were required to perform “substantially equal” work. Thus, the EEOC’s complaint provides no guidance as  to whether the attorneys handled complex commercial matters or minor slip‐and falls, negotiated sophisticated lease and financing arrangements or responded to employee complaints, conducted research for briefs or drafted multimillion‐dollar contracts. The EEOC asserts that such allegations are unnecessary because “all lawyers perform the same or similar function(s)” and that “most legal jobs involve the same ‘skill.’” Appellant’s Br. at 29. But accepting such a sweeping generalization as adequate to state a claim under the EPA might permit lawsuits against any law firm – or, conceivably, any type of employer – that does not employ a lockstep pay model. Without more, these facts cannot be read to raise the EEOC’s “substantially equal” work claim “above the speculative level.”
Along the way, the Court of Appeals reconciles recent Supreme Court rulings on Rule 12 pleading standards. In 2002, the Supreme Court said in the Swierkiewicz case that the federal rules do not require heightened pleading standards for employment discrimination cases, i.e., the plaintiff does not have to articulate a prima facie case in the complaint. But in 2007 and 2009, the Supreme Court said all plaintiffs (in any civil action) have to allege a plausible claim in the complaint, not merely a possible claim. We now call this Iqbal pleading, named after the 2009 case. The Court of Appeals states, "we recognize that Swierkiewicz has continuing viability, as modified by Twombly and Iqbal. Swierkiewicz held only that discrimination complaints are subject to the requirements of Rule 8, a rule now guided by the Court’s more recent holdings on the pleading standard." But, the Court adds, "we conclude that, while a discrimination complaint need not allege facts establishing each element of a prima facie case of discrimination to survive a motion to dismiss, it must at a minimum assert nonconclusory factual matter sufficient to 'nudge[] [its] claims’ ... ‘across the line from conceivable to plausible’ to proceed."

Friday, October 3, 2014

Get out of the house

What do you do when the police come to the house? Ask for a warrant. In this case, the police showed up at someone else's house without a warrant and searched plaintiff. Does she have any rights? Yes.

The case is Payne v. Galie, a summary order decided on September 10. The Fourth Amendment says the police need a warrant to search the house. The Supreme Court has said a non-resident has Fourth Amendment rights "if she is an overnight guest in that home or otherwise enjoys a similar degree of acceptance into the household." But those rights fall away if you are in the house for a business transaction and only remain there for "a matter of hours."

Payne alleges in her complaint that the police "entered her host's apartment without a warrant in order to arrest her." But her complaint does not allege that she had a reasonable expectation of privacy in the apartment. The Court of Appeals (Lynch, Katzmann and Sack) gives her a break. She can replead the case and start again. Normally, the Court does not give people this relief when they did not ask for it in the district court, but plaintiff did not have a lawyer at that time and probably didn't know what she was doing.

Finally, while defendants say that plaintiff has to affirmatively allege that she did not consent to the officers' warrantless entry into the apartment, the Second Circuit notes that plaintiff is not required to plead facts to negate an affirmative defense. That argument will have to await defendants' summary judgment motion, when discovery is complete.