Tuesday, August 19, 2014

Connecticut due process issue prompts judicial in-fighting

This case is unique to Connecticut, but it still raises a due process issue that the rest of us might appreciate. The plaintiff is a tenured culinary arts teacher who did not receive notice or a hearing before the school district reduced her hours and salary. Since she was not "terminated" under Connecticut law, she does not have a due process claim.

The case is Mirabilio v. Regional School District No. 16, decided on July 30. Under Connecticut law, prior to "terminating" a tenured teacher's contract, the teacher gets notice and a hearing. In other words, due process, enshrined in the Fourteenth Amendment. Connecticut courts have held that this protection "does not apply to plaintiffs whose positions were being eliminated but whose employment with the board continued." The Second Circuit (Jacobs and Livingston) adds, 'an employee reassigned to a paying position is not considered 'terminated' for purposes of the statute even fi the pay cut is 'substantial.'" This means that plaintiff was not deprived of her right to continued employment and therefore does not get notice or a hearing to challenge the personnel action.

Judge Calabresi dissents, accusing the majority of judicial activism, prompting a response from Judge Jacobs. He says the Court of Appeals should certify this issue to the Connecticut Supreme Court for a definitive state law ruling on whether plaintiff's position "terminated," triggering the due process protections. As Judge Calabresi sees it, this issue is not settled in Connecticut, which means the Second Circuit has no business ruling on it without guidance from the Connecticut Supreme Court. He writes:

Judicial activism comes in many forms. One of the most unjustified is when a federal court, for no good reason, reaches out and answers an undetermined question of state law.1 Doing this, rather than certifying the question to the state’s highest court, impedes the state from determining the course of its own law, and subjects the parties to a decision that may be wrong and cannot subsequently be corrected even if later the state has an opportunity to make its law clear. This is especially unfortunate when the party against whom the federal court rules had sought a judgment in state court, presumably because that party believed state law to be in her favor; the other party had exercised its right to remove the case to federal court; and the party seeking a state law ruling followed this with a request for certification. These are precisely the circumstances in the case before us.
In an interesting footnote, Judge Calabresi notes that, shortly after he became an appellate judge in the 1990s, the Court of Appeals was unable to correct one of its rulings that the State Court of Appeals had resolved differently in another case. In DeWeerth v. Baldinger, 8365 F.2d 103 (2d Cir. 1987), the Second Circuit resolved an issue of New York law on its own. When the State Court of Appeals decided the same issue differently four years later, "the party against whom we had ruled in DeWeerth brought a motion before us to recall our mandate and vacate the judgment. Since we concluded that we lacked the authority to do so because the district court had resumed jurisdiction, we denied the motion without opinion on May 17, 1991. And when the district court found that relief was due to the party we ruled against pursuant to Federal Rules of Civil Procedure 60(b)(5) and (6), we reversed it, finding that awarding relief was beyond its discretion. In short, our error in interpreting New York law was one we were unable to remedy."

Friday, August 15, 2014

Entry-level accounts are not entitled to overtime pay under FLSA

The Fair Labor Standards Act entitles you to overtime if you work more than 40 hours per week. There are many exceptions, though, including one for people employed "in a bona fide ... professional capacity." Professionals can work late into the evening and all weekend long and not get overtime. The question raised in this case is whether certain entry-level accounts are entitled to overtime.

The case is Pippins v. KPMG, LLP, decided on July 22. Under the regulations, "learned professionals" don't get overtime. "To qualify for the 'learned professionals' exemption, 'an employee’s primary duty must be the performance of work requiring advanced knowledge in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction.'”

The learned professionals exemption has three elements: "the work must be (1) 'predominantly intellectual in character, and . . . requir[e] the consistent exercise of discretion and judgment,' (2) in a 'field of science or learning,' which includes accounting; and (3) of a type where 'specialized academic training is a standard prerequisite for entrance into the profession.'" Since the plaintiffs worked in the field of accounting, the second element disfavors their position in this case. What about elements 1 and 3? The Court of Appeals (Leval, Calabresi and Lynch) says those elements also work against the plaintiffs, and they lose this overtime case.

First, while plaintiffs argue that they do not exercise advanced judgment in performing their duties and that their work is merely routine, the Court of Appeals sees it differently: "learned professionals ... particularly those working for firms that provide professional services to other businesses, need not exercise management authority to operate as professionals; what matters is whether they exercise intellectual judgment within the domain of their particular exercise." Framed that way, plaintiffs lose on this issue. Reviewing other Circuit court rulings for guidance, the Second Circuit concludes that "the learned professions exemption applies if workers rely on advanced knowledge of their specialty to exercise discretion and judgment that is characteristic of their field of intellectual endeavor."

The rest of the decision falls in line with the Court's understanding that accountants, even entry-level ones, fall within the overtime exception. They exercise discretion and professional judgment in performing their work. While plaintiffs claim their work is routine, with heavy emphasis on guidelines and templates and extensive supervision, the Court finds they still exercise judgment and rely on advanced knowledge of accountancy. The Court further explains,

Plaintiffs’ fundamental error is to confuse being an entry‐level member of a profession with not being a professional at all. Audit Associates are the most junior members of the team, and it is hardly surprising that they do not make high‐level decisions central to KPMG’s business. Yet unlike the administrative worker or executive exemptions to the FLSA, the learned profession exemption does not require that the professional reach conclusions that guide or alter the course of business. The critical question is whether the workers act in a manner that reflects knowledge and requires judgments characteristic of a worker practicing that particular profession. Here, by testing controls, performing inventory reviews, and ultimately replicating the audit process in each work paper, Audit Associates clearly did so by engaging with the audit process in a critical manner.
Finally, plaintiffs lose because they require a prolonged course of specialized intellectual instruction. Since the Court finds that the accountants exercise judgment and discretion in performing their work, the only way their can further show they are not "learned professionals" is if they "gain the necessary knowledge to act as accountants through a one-week introductory training course, followed by on-the-job training." But that won't fly. "An examination of the training materials in the record makes sufficiently plain that the average classics or biochemistry major could not understand the materials, or develop the requisite understanding of the audit function, on the basis of a brief training period."

Wednesday, August 13, 2014

No Title VII retaliation where employer investigates false EEOC charge

In this Title VII retaliation case, the Court of Appeals takes on a weird fact pattern: the plaintiffs filed an EEOC charge alleging racial discrimination, and the employer then conducted a departmental investigation because of the EEOC charge. It sounds like retaliation, but it's not.

The case is Cox v. Onondaga County Sheriff's Department, decided on July 23. The plaintiffs are white law enforcement officers who shaved their heads in solidarity with a cancer patient. The plaintiffs filed an internal complaint of racial harassment after rumors circulated in the department that they were racist skinheads. While black officers approached the bald white officers, the plaintiff did not allege in the internal complaint that the black officers were confrontational. Later on, the plaintiffs filed charges of discrimination with the EEOC. In these sworn charges, they did allege that a black officer was confrontational with them.

This lawsuit does not stem directly from that EEOC charge. Rather, plaintiffs claim retaliation under Title VII because management investigated them because of the discrepancy between the internal discrimination charge which did not allege confrontation and the EEOC charge which suggested that a black officer, Willis, gave them a hard time over being skinheads. The department investigated plaintiffs for allegedly filing a false report with the EEOC.

Normally, an employer who goes after an employee in connection with an EEOC charge would be guilty of retaliation. But this case is more complicated, which is why it took the Second Circuit (Winter, Chin and Droney) more than a year to issue a decision. The employer was justified in investigating the discrepancy between the internal harassment complaint and the more provocative EEOC charge arising from the same event. Title VII does not confer an absolute privilege immunizing the conscious filing of a false EEOC charge. While the Circuit courts and even some district courts in the Second Circuit have offered different views on whether such an investigation creates a prima facie case, the Second Circuit holds that "once the plaintiff has proffered sufficient evidence that a threat of discipline triggered by a claim of discrimination was made, a prima facie case of retaliation will usually have been established."

The existence of a prima facie case does not mean the plaintiffs can win the case. If the employer has a solid justification for investigating the plaintiffs, then the employer wins. The Second Circuit says the employer is entitled to summary judgment. The Court says the EEOC charge was "false, and seemingly intentionally so" in alleging that a particular black officer confronted the plaintiffs about being skinheads. In the context of existing racial tension in the department, an allegation like this could constitute racial harassment against the black officer. And, the Court says, "law enforcement officials are required to file reports accurately. The Department, therefore, has a greater interest in disciplining officers who do not take that obligation seriously than do most employers." In light of this, the case is dismissed.

Monday, August 11, 2014

2d Cir. affirms large sanctions award in civil rights case

The Court of Appeals has sustained a rare sanctions award against a plaintiff for pursuing a frivolous civil rights case against Nassau County.

The case is Carter v. Village of Ocean Beach, decided on July 21. The plaintiffs are police officers who worked for the Village. They filed suit in federal court against a variety of defendants on a variety of claims, including First Amendment retaliation, Equal Protection and state Labor Law and Civil Service Law violations. On the eve of trial, plaintiffs withdrew a variety of claims, leaving only claims under the First Amendment, the Due Process Clause and state law. Before trial started, the district court dismissed the federal claims on summary judgment, and the state law claims went to state court, which dismissed the claims at the pleadings stage.

The County defendants then moved for sanctions, claiming that plaintiffs had no right to sue them. Sanctions are rarely awarded against plaintiffs, but the district court agreed with the County and awarded more than $60,000 in sanctions under Section 1988. Plaintiffs had no business suing the County defendants, who did not employ plaintiffs and did not take any adverse action against them. Plaintiffs tried to connect the County with their misfortune by arguing that a civil service analyst, Sanchez, said and did bad things to them when they complained that the Police Chief was not properly certified under Civil Service Law. As the Court of Appeals (Jacobs, Calabresi and Livingston) sees it:

Allegations against all four County Defendants center on Sanchez. But the factual allegations regarding her role are immaterial to Plaintiffs’ legal theories: After Plaintiffs had already been terminated by the Village Defendants, Sanchez allegedly (1) listened to Plaintiffs’ complaints, defended Hesse, and told him about the conversation; and (2) posted on an Internet board, without naming anyone, that the posts complaining about Hesse were “revenge posting” and “crap.” This is not the stuff of litigation. All of Plaintiffs’ claims center around two basic wrongs, improper termination and (to a lesser degree) defamation; Sanchez had no meaningful role in either.

For you civil procedure junkies, there is an interesting holding in this case. Plaintiffs argued that the County was not entitled to sanctions because they voluntarily dismissed frivolous claims and the County therefore was not a prevailing party on those claims and was thus not entitled to sanctions. Their argument relies on a Second Circuit ruling from 1980 that no longer seems to be good law, silently overturned by other federal Circuits and the Supreme Court. In 2000, the Supreme Court said in Buckhannon v. West Virginia that a judgment is necessary to win attorneys' fees. The defendants here got that judgment when plaintiffs voluntarily withdrew their claims with prejudice, which constitutes "an adjudication on the merits." While Buckhannon did not say that in the context of sanctions under Section 1988, the Court of Appeals applies it in this context.

Friday, August 8, 2014

Muslim inmate has First Amendment claim in urine-testing dispute

If the rights of inmates were put up for a majority vote, the American public would probably say that if you are guilty of a crime, you have no religious freedoms left. Inmates do have religious freedom, though, under statutory and constitutional law, which is why a Muslim inmate prevails on his claim that prison officials violated his religious rights in the course of a drug testing procedure.

The case is Holland v. Goord,decided on July 10. Holland is a practicing Muslim who is serving time in prison. Under a drug-testing procedure, Holland had to provide a urine sample within a three-hour window. But since Holland was fasting during Ramadan, he could not comply with the order or drink water to facilitate the process. He offered to do all this after sunset, when Ramadan ended, but the jail refused that accommodation, and Holland was therefore sent to keeplock for 77 days as punishment. The district court threw out the case, but the Court of Appeals (Jacobs, Calabresi and Livingston) reinstates it.

The Second Circuit revives the claim under the First Amendment's Free Exercise Clause. "Ordering Holland to provide a urine sample -- and drink water in violation of his fast -- or face confinement in keeplock substantially burdened Holland's free exercise right." A core tenet of Holland's religion is that he cannot ingest food or water during Ramadan. And, since Holland could not drink water, he was unable to discharge any urine. While the state argued in the district court that "it is common knowledge that people that do not eat or drink for a day are still able to produce urine," the state does not advance that argument on appeal.

Since Holland has shown that the hard-and-fast three-hour window substantially burdens his religious practices, to win the case, the state has to show that its policy is "reasonably related to legitimate penological interests," a lenient standard adopted by the Supreme Court many moons ago. The Court of Appeals leaves this question for the district court to resolve, though the Second Circuit has its doubts about whether the state can win this, since the jail superintendent at some point decided that the urinalysis could have taken place after sunset and the policy was later amended to accommodate Muslim inmates who fast during Ramadan.  

Wednesday, August 6, 2014

Atheists lose religious challenge to Ground Zero Museum cross

During the clean-up at Ground Zero in 2001, somebody discovered a 17-foot high column and cross-beam that looked like a Latin cross. That artifact is now displayed at the National September 11 museum as The Cross at Ground Zero. That Cross is now the subject of a constitutional challenge by a national atheist group.

The case is American Atheists, Inc. v. Port Authority of New York and New Jersey, decided on July 28. I don't know how the American public would react if the Atheists won this lawsuit, but the Court of Appeals (Raggi, Lynch and Chin) reject their challenge and find that the Museum is not required to post a statement that says that atheists also helped to clean up Ground Zero. This is what the Cross looked like after the attacks:

The First Amendment includes the Establishment Clause, which prohibits any government establishment of religion. Most of us know the Clause as the source of the "separation of church and state" doctrine. Government action violates the Clause if favors one religion over another or even religion generally over non-religion. The government action must also have a secular purpose, neither advance nor inhibit religion nor excessively entangle itself with religion. There are no easy answers to an Establishment Clause problem. The case law creates too many moving parts to predict the outcome. Here is how the Court of Appeals summarizes the plaintiffs' claims:

American Atheists contend that the Port Authority and the Foundation impermissibly promote Christianity in violation of the Establishment Clause and deny atheists equal protection of the laws by displaying The Cross at Ground Zero in the Museum unaccompanied by some item acknowledging that atheists were among the victims and rescuers on September 11.

Certainly the Latin Cross found at Ground Zero looks religious. But as a matter of constitutional law, it does not violate the Establishment Clause. It was not placed in the Museum for religions purposes. It was instead placed there "to recount the history of the terrorists attacks of September 11, 2001, and their aftermath." Recall that finding this artifact at Ground Zero had great meaning for the cleanup workers. The Court of Appeals says, "American Atheists point to no precedent holding that when a religious symbol or artifact with genuine historical significance is included in a public historical display, the actual purpose is necessarily religious promotion." A great deal of what our culture celebrates "is saturated with religious influences." Moreover, at the Museum, the textual panel that accompanies the Cross "is plainly historical rather than theological in recounting the facts of discovery and subsequent use by '[i]ndividuals of many faiths and belief systems . . . as a symbol of hope, faith, and healing.'”

A similar analysis governs whether the Museum features the Cross for secular or religious reasons. An objective observer who is familiar with the whole story would perceive this as a non-religious display, i.e., one that accurately depicts the Ground Zero cleanup.

What about the fact that the Museum display does not explicitly say that atheists helped at the Ground Zero cleanup? I know of no case that says the Atheists should win on this basis, and the Court of Appeals does not know of any, either. As Judge Raggi writes:

The observer would know that the absence of any reference to “atheists” in the Museum’s “Finding Meaning” exhibition derives from the fact that, as American Atheists themselves acknowledge, there is no artifact showing a particular way that atheists, as distinguished from persons generally, tried to find meaning in the events of September 11. Insofar as American Atheists propose a plaque that would acknowledge that atheists were among the victims and rescuers on September 11, an objective observer would know both that such a plaque was not an “artifact,” and that it did not speak to the point of the exhibition section, i.e., how people found meaning at Ground Zero. He would further know that every victim of the September 11 and 1993 attacks is identified by name on the Memorial plaques without regard to religious affiliation, and depicted both visually and textually in the Museum’s commemorative display.

Monday, August 4, 2014

"Ill-advised" comments by trial judge does not entitle losing plaintiff to a new trial

Taking a case to trial is always a challenge. Get your witnesses and exhibits together. Get your direct and cross examinations together. Draft proposed jury instructions. Prepare for evidentiary objections. And worry about the trial judge.

The case is Henderson v. City of New York, a summary order decided on July 1. This police misconduct case went to trial. The plaintiff lost, and takes up an appeal, arguing that the judge denied him a fair trial because of his conduct on the bench in front of the jury.

The Court of Appeals (Calabresi, Chin and Lohier) says that "Henderson contends that the district court denied him a fair trial by: repeatedly taking over the questioning of witnesses; eliciting testimony that supported the defendantʹs arguments; affirming the testimony of defense witnesses as true; and mocking and chastising his counsel in the juryʹs presence."

In a footnote, the Court of Appeals gives us a taste of what happened in trial: "For instance, in the juryʹs presence, the district court asked Hendersonʹs counsel why he was 'afraid' to directly ask former Commissioner Raymond Kelly why it took so long to reinstate Henderson to full duty: 'Why donʹt you just ask him why did it take so long, I will let you ask that question if he knows the answer. Are you afraid to ask that question for some reason? Do it.'"

The judge told the jury during trial that it should not hold it against plaintiff's lawyer that he "was tough" on him. He told the jury that he was simply trying to manage the trial. This kind of curative instruction can protect the trial court when the losing party takes up an appeal and places the judge's behavior under a microscope. While it says there were "a few perhaps ill-advised comments" by the trial court, the Court of Appeals says the judge's behavior was not enough to grant a new trial. "While the district court was an active participant in the trial, we are not persuaded that it overstepped its bounds to the extent that Henderson was denied a fair trial. The district courtʹs frequent interventions to pose questions to witnesses were, as a whole, attempts to clarify factual issues for the jury or to move counsel along."