Monday, August 3, 2015

When can Title VII plaintiffs file suit without an EEOC charge?

Title VII has a built-in mechanism that delays the lawsuit until everyone brings their arguments to the Equal Employment Opportunity Commission, which has to investigate the claim and try to resolve it if the claim has any merit. After six months, though, the plaintiff can withdraw the claim from the EEOC and file suit in federal court. What happens if the plaintiff does not bring his claims to that federal agency before filing the lawsuit?

The case is Fowlkes v. Ironworkers Local 40, decided on June 19. Fowlkes -- born biologically female but now self-identifying as a man -- worked for a union that denied him work on account of his gender. His pro se lawsuit did not allege that he had filed an action with the EEOC before suing in federal court. The Supreme Court said in 1982 that a timely EEOC filing is not a jurisdictional requirement but instead a requirement that is subject to defendant's waiver, estoppel and equitable tolling. In other words, plaintiffs can sometimes get away with not filing first with the EEOC.

The district court overlooked this case law in dismissing plaintiff's lawsuit for failure to file with the EEOC. "By treating the issue of subject matter jurisdiction as a threshold matter here, the District Court did not consider any potential equitable defenses that Fowlkes might present to excuse his failure to exhaust his administrative remedies." So the Court of Appeals (Leval, Chin and Carney) considers whether plaintiff can get around the failure to file an EEOC action, and remands the case to the district court to address these questions in the first instance.

First, the Court of Appeals notes that "when an agency has previously 'taken a firm stand' against a plaintiff's position, the plaintiff's failure to exhaust administrative remedies may be excused on the ground that exhaustion would be futile." The Second Circuit says, "Though our Circuit has not had occasion to consider this particular equitable defense in the context of EEOC Title VII exhaustion, Fowlkes may have a colorable argument that filing a charge alleging discrimination based on his transgender status would have been futile. When Fowlkes filed his 2011 complaint, the EEOC had developed a consistent body of decisions that did not recognize Title VII claims based on the complainant's transgender status." Since plaintiff's EEOC charge on this ground would  have gotten nowhere, his "failure to exhaust could potentially be excused on the grounds that, in 2011, the EEOC had 'taken a firm stand' against recognizing his Title VII discrimination claims." (The Court of Appeals notes that, after Fowlkes filed this case, the EEOC did recognize that Title VII prohibited transgender discrimination).

Second, failure to exhaust may be excused because plaintiff's "more recent allegations of discrimination may be 'reasonable related' to the discrimination about which he had filed an earlier charge with the EEOC." In plaintiff's federal lawsuit, he alleged that the union denied him work in retaliation for an earlier EEOC charge"Given the contents of Fowlke's amended complaint and the close resemblance that it bore to his earlier EEOC charge, his more recent allegations may be 'reasonably related' to those included in his earlier administrative filing with the EEOC."

Fowlkes also plead a Duty of Fair Representation claim against the union, and that claim is also reinstated. The pro se claim is not well drafted (few are), but the Court of Appeals gives him the benefit of the doubt and finds that plaintiff alleged the union denied him work because of his transgender status and because he had previously sued the union for discrimination.

Wednesday, July 29, 2015

Don't make flippant comments about bombs at the airport

If I told you the facts of this case, could you predict the outcome? The plaintiff was late for her flight, and when the airport people told her her luggage was already on board, she got upset. "By Baez’s own account, Baez then made cryptic reference to the possibility of a bomb in her luggage: 'Isn’t it a security risk to let a bag go on a plane without a passenger, what if there was a bomb in the bag?'" When someone mentioned that “TSA agents would know if there was a bomb in the bag,” Baez retorted “TSA‐‐my ass” and walked away. Baez was charged with making a false bomb threat and sued for false arrest.

The case is Baez v. JetBlue Airways Corp., decided on July 16. Baez loses the case. The law allows air carriers to provide the TSA with information necessary to respond to potential bomb threats. This immunity is pierced if employees make false, inaccurate or misleading statements or with reckless disregard to the truth. She invokes that exception, but the Second Circuit (Jacobs, Raggi and Lynch) is not buying it. The Court reasons:

Baez claims she raised only a hypothetical question about the security risk posed by a checked bag unaccompanied by its owner, which might contain a bomb. But since Baez’s luggage was indisputably a checked bag unaccompanied by its owner, “a reasonable [law enforcement] officer . . . would have wanted to investigate." ... At an airport, a bare reference to a bomb may be enough to set off the chain of events that resulted in Baez’s detention, interrogation, and arrest by the FBI. ... A gate agent or airline manager may not confidently distinguish between a veiled threat and a comment expressing genuine concerns about security. That is why, once a report is made, it is for the TSA and other law enforcement officers “to determine and
execute a response.”
Baez offers some creative arguments to get around all of this, i.e., that someone at the airport did not regard her as a real security threat, but this is the post-9/11 world. Her comments grounded the plane and FBI detained and questioned Baez for several hours.You cannot joke or make flippant comments about a bomb in your bag. Talk about something else, like baseball. 

Tuesday, July 28, 2015

Court tells us how to make out a prima facie case of racial discrimination in employment

The Second Circuit does not reverse summary judgment in racial discrimination cases too often. It does so in this case, finding that plaintiff makes out a prima facie case of discrimination.

The case is Tolbert v. Smith, decided on June 24. Tolbert was a culinary arts teacher who was up for tenure and received classroom evaluations from his superiors. Along the way, Principal Smith made racist remarks. When plaintiff offered to cook the homecoming breakfast, Smith said, "Do you only know how to cook black, or can you cook American too?" Smith also asked one of plaintiff's students if she was learning anything from plaintiff, asking "how she expected to learn if all she was learning to cook was black food." Another student said Smith said "black kids can't learn in a cooking class because all they want to do is eat." When plaintiff told Smith that janitorial staff were not cleaning parts of his classroom, possibly referencing the demographics of the student body, Smith replied, "the kids we get to this school are not from much better than this." Also referencing the student body, Smith also told a school counselor, "my friends, they are not like us."

As Tolbert was denied tenure after the school altered the procedures leading up to that adverse action, these statements support plaintiff's prima facie case of racial discrimination. Here are the issues resolved by the Court of Appeals (Lynch, Carney and Koeltl [D.J.]):

1. Although the denial of tenure is an adverse action under Title VII (one of the elements of a prima facie case), defendants argue that plaintiff suffered none here because they offered (and plaintiff denied) a fourth year of probationary employment (tenure usually follows after three years), which means plaintiff's "employment situation would have been no worse had he accepted the offer." Nice try, the Court of Appeals says. In rejecting defendants' argument, the Court fleshes out what it means to have an adverse employment action:
The defendants ignore the fact that the offer of a fourth year of probation was intertwined with the denial of tenure. Had the plaintiff received tenure, he could have been terminated only for cause. But had he remained a probationary teacher, he could have been terminated for any lawful reason. The denial of tenure therefore was the denial of a material improvement in the conditions of the plaintiff’s employment.
Not only did the school deny plaintiff tenure (and all the job security that comes with it), it also declined to award him a contract, allegedly because of his race. "Refusing to award a contract or a material employment benefit for a discriminatory reason violates" the civil rights laws.

Were we to accept the defendants’ interpretation, then failure to promote claims—or any claims alleging the denial of an employment benefit—would be non-actionable. And that cannot be the case. “A benefit that is part and parcel of the employment relationship may not be doled out in a discriminatory fashion, even if the employer would be free under the employment contract simply not to provide the benefit at all.” Hishon v. King & Spalding, 467 U.S. 69, 75 (1984). Extending an employment relationship by one year by itself may not qualify as an adverse employment action. But when coupled with the denial of tenure, it is assuredly an adverse employment action. During the fourth year of probationary employment, a teacher can be fired at any time for any lawful reason. But if granted tenure, the teacher may be fired only for cause. The denial of tenure after three years, when a teacher was otherwise eligible for tenure, does not become any less an adverse action because the teacher is provided with another year of probationary employment.
2. The Second Circuit also finds the jury could find plaintiff was denied tenure under circumstances creating an inference of discrimination, also an element of the prima facie case. The principal's comments about the student body sound sufficiently racial to suggest that race played a role in plaintiff's tenure denial. These comments were not stray remarks or too remote from the adverse decision; they were uttered by a de facto decisionmaker close in time to the tenure denial. "And Principal Smith’s comment to a student that 'black kids can’t learn in a cooking class because all they want to do is eat,' could be viewed as evidence of a discriminatory intent on Principal Smith’s part in dismantling John Marshall’s culinary arts program. The fate of that program, for which Mr. Tolbert was the only teacher at John Marshall, was directly relevant to the decision whether to grant him tenure."

3. You can also make out of a prima facie case if the adverse action resulted from management's failure to follow the usual procedures in making that decision. Plaintiff's year-end evaluation which led to his tenure denial was conducted by a surprise evaluator without plaintiff's advance knowledge. The principal also relied on a negative evaluation in isolation. "These irregularities, when combined with Principal Smith's alleged remarks, are sufficient to establish a prima facie case of discrimination."

Tolbert does not win it all on this appeal. The Court of Appeals rejects his hostile work environment claim. While the principal made offensive comments, only two were made in plaintiff's presence. One comment was ambiguous. There was not enough racial comments thrown in plaintiff's direction to create a hostile environment.  

Monday, July 27, 2015

Food Stamp law can be enforced through Section 1983

Under the Food Stamp Act, the government must give benefits within 30 days of the application and within seven days for especially needy households. Can plaintiffs sue a state to enforce these time limits under Section 1983? The Court of Appeals says Yes.

The case is Briggs v. Bremby, decided on July 6. The  court entered a preliminary injunction against the State of Connecticut after finding the State was not timely issuing benefits.The issue here is whether the Food Stamp Act can be enforced through Section 1983, the federal civil rights law that allows you to seek relief for the violation of federal civil rights. Not every federal statute can be enforced through Section 1983. Under Supreme Court authority, the statute can predicate a Section 1983 action (which allows for compensatory and punitive damages and attorneys fees) under the following circumstances:

1) “Congress must have intended that the provision in question benefit the plaintiff,” 2) “the plaintiff must demonstrate that the right assertedly protected by the statute is not so vague and amorphous that its enforcement would strain judicial competence,” and 3) “the statute must unambiguously impose a binding obligation on the States.”
All three prongs are satisfied here. The Food Stamp time limits establish a right that is neither vague nor amorphous and they impose binding obligations on the states. The Second Circuit (Calabresi, Hall and Carney) also finds that Congress intended these provisions to benefit Food Stamp applicants. (Connecticut argued that the law was intended only to guide states in how to marshal their resources when administrating the Food Stamp program). And, although the law grants enforcement authority to the Secretary of Agriculture, the Court further finds that Congress did not expressly or impliedly signal that it did not want people to enforce the statute through Section 1983.

For plaintiffs, suing to enforce a statute under Section 1983 is quite desirable. That statute gets you all the damages you want, plus attorneys' fees. It also gets you into federal court. What strikes me about this case is that the modern Supreme Court has scaled back on the statutes that can predicate a Section 1983 claim. I wonder if the government will ask the Supreme Court to take on this case.

Friday, July 24, 2015

Contract lawyers who review documents may be entitled to FLSA overtime

Here's an interesting Fair Labor Standards Act case that says that contract attorneys who perform document review for large law firms are entitled to overtime pay.

The case is Lola v. Skadden Arps, decided on July 23. Skadden Arps is one the largest law firms in the world. Like many large firms, it hires lawyers to review the thousands of documents that might be relevant in the high-stakes litigation that these firms engage in. He was not paid overtime, however. This is a potential class action suit, by the way.

Under the FLSA, employers have to give you overtime if you work more than 40 hours per week. But the FLSA has many exceptions, including one that says professionals are not entitled to overtime. Are contract attorneys like Lola who review documents entitled to overtime? Here is how the Court of Appeals (Pooler, Lohier and Droney) summarizes plaintiff's position:

Lola alleges that his work was closely supervised by the Defendants, and his “entire responsibility . . . consisted of (a) looking at documents to see what search terms, if any, appeared in the documents, (b) marking those documents into the categories predetermined by Defendants, and (c) at times drawing black boxes to redact portions of certain documents based on specific protocols that Defendants provided.” Lola further alleges that Defendants provided him with the documents he reviewed, the search terms he was to use in connection with those documents, and the procedures he was to follow if the search terms appeared. Lola was paid $25 an hour for his work, and worked roughly forty‐five to fifty‐five hours a week. He was paid at the same rate for any hours he worked in excess of forty hours per week. Lola was told that he was an employee of Tower, but he was also told that he needed to follow any procedures set by Skadden attorneys, and he worked under the supervision of Skadden attorneys. Other attorneys employed to work on the same project performed similar work and were likewise paid hourly rates that remained the same for any hours worked in excess of forty hours per week.
Lola did not perform much in the way of "professional" services, did he? Defendant says he was a licensed attorney engaged in the practice of law. The Second Circuit sides with Lola, saying that, as a matter of North Carolina law, where Lola lived and worked, he really was not exercising legal judgment in reviewing documents under Skadden Arps' direction. The Court says:

The gravamen of Lola’s complaint is that he performed document review under such tight constraints that he exercised no legal judgment whatsoever—he alleges that he used criteria developed by others to simply sort documents into different categories. Accepting those allegations as true, as we must on a motion to dismiss, we find that Lola adequately alleged in his complaint that he failed to exercise any legal judgment in performing his duties for Defendants. A fair reading of the complaint in the light most favorable to Lola is that he provided services that a machine could have provided. The parties themselves agreed at oral argument that an individual who, in the course of reviewing discovery documents, undertakes tasks that could otherwise be performed entirely by a machine cannot be said to engage in the practice of law.
Did you catch that? The Court of Appeals says a machine could have performed Lola's duties. That's gotta hurt. These contract lawyers would probably rather be actually practicing law, not sitting in a windowless room reviewing boxes of documents. But the work is sufficiently unexciting and tedious that no one at the law firm wants to do it. So they hire lawyers to do the work on an hourly basis. While these lawyers may feel like they are not living up to their potential, they may be entitled to overtime under the FLSA.

Thursday, July 23, 2015

Inmate's prison advocacy is protected by the First Amendment

The plaintiff in this case was an inmate at Fishkill Correctional Facility, where he was a member of the prison's Inmate Liaison Committee, advocating on behalf of other inmates. He claims he suffered retaliation for his advocacy in the prison. Although the district court dismissed the case under Rule 12, the Court of Appeals says he has a case.

The case is Dolan v. Connelly, decided on July 23. Dolan wins this appeal pro se. He says that, because of his advocacy, the guards "searched and confiscated Dolan’s prison law library computer" and "filed a false misbehavior report against Dolan for use of unauthorized password‐protected files." This landed Dolan in solitary confinement, where he stared at the wall. In the end, Dolan was cleared of this misconduct, prompting this Section 1983 lawsuit.

The question here is whether plaintiff's advocacy as a member of the Inmate Liaison Committee is protected First Amendment activity for which he cannot suffer retaliation. The Court of Appeals (Pooler, Hall and Jacobs) puts it this way:

While we have not held specifically that a prisoner engages in constitutionally protected conduct by carrying out the duties of a member of an ILC, it is well established that “retaliation against a prisoner for pursuing a grievance violates the right to petition government for the redress of grievances guaranteed by the First and Fourteenth Amendments and is actionable under § 1983.”
The Court rules in plaintiff's favor on this issue. "Dolan’s alleged actions as an ILC representative are similar, if not identical, to the grievance‐related activity already established as constitutionally protected conduct. Accordingly, we now hold that retaliation against a prisoner for filing or voicing
grievances on behalf of a prison population as a member of an inmate grievance body, such as the ILC, 'violates the right to petition government for the redress of grievances guaranteed by the First and Fourteenth Amendments.'”

The case is therefore remanded to the district court. The Court of Appeals also says plaintiff is entitled to counsel to litigate his claims. 

Wednesday, July 22, 2015

Pro se inmate wins appeal against U.S. Department of Justice

The Court of Appeals has ruled that a federal inmate has enough evidence for trial on the claim that jail officials were deliberately indifferent to his serious medical needs. The inmate wins his appeal pro se against the big guns in Washington, D.C.

The case is Rodriguez v. Maneti, a summary order decided on July 10. Plaintiff had a knee injury. The district court said plaintiff had enough evidence for trial and that defendant was not entitled to qualified immunity. That qualified immunity ruling allows defendant to file an immediate appeal to the Second Circuit, which sides with the plaintiff.

We look at the inmate's version of the facts in deciding if he has enough evidence for trial, and if the defendant has a legitimate qualified immunity argument. As stated by the Court of Appeals (Pooler, Lohier and Carney), "Defendant was aware that Plaintiff’s knee injury caused him chronic pain and that intermittent knee locking led to a periodic inability to walk. Plaintiff also produced evidence that Defendant denied or delayed surgery approval for over a year after learning that Plaintiff’s treating physician, at least, recommended surgery to alleviate Plaintiff’s symptoms."

The Court notes that "At the time of the alleged violation, it was clearly established that 'that the
Eighth Amendment forbids not only deprivations of medical care that produce physical torture
and lingering death, but also less serious denials which cause or perpetuate pain.' Taking the record in the light most favorable to Plaintiff, we therefore conclude that a reasonable juror might find that a reasonable official would have realized that denying Plaintiff’s surgery request would 'cause or perpetuate [his] pain' for an intolerably long period."

Finally, the Court of Appeals says, the jury could find that defendant knew about but disregarded an excessive risk to plaintiff's health by denying his surgery request. The Jail acted contrary to the recommendation of the orthopedic surgeon to whom the Bureau of Prisons had referred plaintiff. This was not a mere disagreement with plaintiff about the appropriate course of action. Instead, the jury could find that medical professionals would "find it obvious" that plaintiff needed the treatment.