Tuesday, March 3, 2015

Circuit Court changes its mind in Occupy Wall Street protesters, dismissing case

Occupy Wall Street protesters who marched across the Brooklyn Bridge sued the police who arrested them for disorderly conduct. The protesters said the arrests were unwarranted because some officers actually invited them to cross the bridge. The Court of Appeals originally held that the plaintiffs could proceed with their case. The Court has now changed its mind and says the officers are entitled to qualified immunity.

The case is Doe v. Garcia, decided on February 24. The Occupy people had just about had it with the wealth disparity in America. So they launched a series of protests in NYC and elsewhere. In October 2011, thousands of them wanted to cross the bridge into Prospect Park in Brooklyn. As the marchers began to cross the bridge, an officer used a bullhorn to tell the protesters to get on the bridge's sidewalk. Plaintiffs alleged that the officers knew this directive was inaudible for most protesters. The plaintiffs also interpreted the officers' actions as inviting them to cross the bridge, especially since the officers at the roadway entrance did not tell them not to walk along the road and the officers instead turned away from the protesters and walked toward Brooklyn, seeming leading the protesters along. Halfway across the bridge, an officer again announced that the protesters were risking a disorderly conduct arrest. While plaintiffs say this was also inaudible, the police began arresting them, more than 700 of 'em.

This case applies qualified immunity, which allows public officials to escape litigation if the law at the time was not clearly-established or they acted reasonably under the circumstances, even if in hindsight they technically broke the law. The officers get immunity here because it was a confusing situation. The Court of Appeals (Lynch, Calabresi and Livingston) conclude:

It cannot be said that the officers here disregarded known facts clearly establishing a defense. In the confused and boisterous situation confronting the officers, the police were aware that the demonstrators were blocking the roadway in violation of [the disorderly conduct law]. They were also certainly aware that no official had expressly authorized the protesters to cross the Bridge via the roadway. To the contrary, the officers would have known that a police official had attempted to advise the protestors through a bullhorn that they were required to disperse. While reasonable officers might perhaps have recognized that much or most of the crowd would be unable to hear the warning due to the noise created by the chanting protesters, it was also apparent that the front rank of demonstrators who presumably were able to hear exhibited no signs of dispersing. The Complaint and videotapes are devoid of any evidence that any police officer made any gesture or spoke any word that unambiguously authorized the protesters to continue to block traffic, and indeed the Complaint does not allege that any of the plaintiffs observed any such gesture.
Plaintiffs argued that the officers knew the arrests were improper because they did not stop them from advancing onto the roadway and then turned and walked toward Brooklyn, implicitly allowing them to proceed. This argument carried the day back in August 2014, when plaintiffs won this appeal. Now that the Court of Appeals has changed its mind, this argument fails. 

The essential flaw in plaintiffs’ logic, and in that of the prior panel opinion, is the extent to which it requires police officers to engage in an essentially speculative inquiry into the potential state of mind of (at least some of) the demonstrators. Neither the law of probable cause nor the law of qualified immunity requires such speculation. Whether or not a suspect ultimately turns out to have a defense, or even whether a reasonable officer might have some idea that such a defense could exist, is not the question. ...The most that is plausibly alleged by the Complaint and the supporting materials is that the police, having already permitted some minor traffic violations along the marchers’ route, and after first attempting to block the protesters from obstructing the vehicular roadway, retreated before the demonstrators in a way that some of the demonstrators may have interpreted as affirmatively permitting their advance. Whether or not such an interpretation was reasonable on their part, it cannot be said that the police’s behavior was anything more than – at best for plaintiffs – ambiguous, or that a reasonable officer would necessarily have understood that the demonstrators would reasonably interpret the retreat as permission to use the roadway.

Monday, March 2, 2015

First Amendment protects NYC police officer who spoke out against quotas

The Court of Appeals has ruled that the First Amendment prohibits the City of New York from retaliating against a police officer who spoke out against a precinct-wide quota policy. This is a rare victory under the First Amendment for public employees who speak out on matters of public concern.

The case is Matthews v. City of New York, decided on February 26. Matthews alleged that his precinct in The Bronx had implemented a quota system mandating the number of arrests, summons and stop and frisks that police officers must conduct. After complaining about this to superior officers, plaintiff suffered retaliation.

Straightforward facts, but the law in this area is complicated under the Supreme Court's Garcetti precedent (2006), which says the First Amendment does not protect speech made in the course of the plaintiff's official job duties. Under Second Circuit authority, Garcetti cases are dismissed if the plaintiff's speech was part-and-parcel of his ability to effectively perform his job. In other words, to have a case, the plaintiff has to speak as a citizen, not as a public employee. As most speech retaliation cases involve job-related speech, this legal standard kills off most First Amendment retaliation cases, making Matthews just the second published Second Circuit opinion in favor of a Garcetti plaintiff. The last one was in 2011.

Summary judgment is reversed in Matthews because the jury may find that he did not speak pursuant to his job duties. He was not employed to speak out on the quota policy. Nor was this speech "part and parcel of his regular job." Rather, "Matthews's speech addressed a precinct-wide policy. Such policy-oriented speech was neither part of his job description nor part of the practical reality of his everyday work." None of the duties in Matthews's job description involve "provid[ing] feedback on precinct policy or any other policy-related duty." He also did not set policy and was not expected to speak on (and was not consulted about) policy matters. The Court of Appeals (Walker, Hall and Murtha [D.J.]) concludes,

We hold that when a public employee whose duties do not involve formulating, implementing, or providing feedback on a policy that implicates a matter of public concern engages in speech concerning that policy, and does so in a manner in which ordinary citizens would be expected to engage, he or she speaks as a citizen, not as a public employee.
Matthews also wins the appeal because his speech had a civilian analogue, that is, it was made through "channels available to citizens generally." In speaking out to his commanders, "Matthews chose a path that was available to ordinary citizens who are regularly provided the opportunity to raise issues with the Precinct commanders." While the public does not get to communicate with commanders as frequently as Matthews can, that does not mean he did not speak through a civilian analogue. "If courts were to confine their focus to the degree of access, then internal public employee speech on matters of public concern not made as part of regular job duties would be unlikely to receive First Amendment protection because, presumably, employees always have better access to senior supervisors within their place of employment."

What does this decision mean for public employee speech cases? Does it allow more plaintiffs to survive summary judgment and proceed to trial? My guess is that it does not. An argument can be made that the Supreme Court's recent decision, Lane v. Franks (2014) loosened the standards governing Garcetti claims, making it easier for plaintiffs to win their cases. But the Matthews Court cites Lane in passing, and the pre-Lane standard in the Second Circuit -- that speech is not protected if it is part-and-parcel of the plaintiff's ability to perform his duties -- is alive and well and expressly relied upon in this ruling. That is a broad net through which First Amendment cases have been snagged. Consider the narrow holding here: Matthews spoke out on overall policy. The Court of Appeals emphasizes that he "was not reporting suspected violations of law that might have required him to exercise his authority to to arrest a fellow police officer or turn in an officer for breach of protocol," duties set forth in his job description. Bear in mind, also, that the two published cases in favor of Garcetti plaintiffs, Matthews and Jackler v. Byrne (a case I argued), involved police officers speaking out against indefensible abuses. Matthews spoke up against quotas; no one likes quotas. Jackler refused to alter a police report that implicated a Sergeant's police brutality.

Thursday, February 26, 2015

You can sue community colleges in federal court

If ever there was a convoluted constitutional doctrine, it's the Eleventh Amendment, which says, "The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." It seems to say that someone from New York cannot sue Pennsylvania in federal court, but that's not how the courts have interpreted it.

The case is Leitner v. Westchester Community College, decided on February 25. The plaintiff taught at WCC and was disciplined for saying something offensive in class. When she sued WCC in federal court, the college argued that she could not do so because WCC is an arm of the state. Despite what the Eleventh Amendment actually says, the Supreme Court holds that you can't sue any state in federal court, even if you're a New Yorker who wants to sue New York. There are exceptions to this rule, i.e., if the state waives sovereign immunity, like under Title VII.

Anyway, the Court of Appeals notes that, over the years, the Second Circuit has devised two separate multi-part tests in determining whether a public entity is an arm of the state for purposes of Eleventh Amendment immunity. That's right, two separate tests, the Mancuso test (1996) and the Clissuras test (2004), both of which are still in operation in our Circuit. Rather than favor one test over the other, the Second Circuit (Leval, Chin and Carney) says that under either standard, WCC and community colleges in New York in general are not arms of the state and may still be sued in federal court.

Under the more elaborate Mancuso test, here are the relevant factors:

(1) how the entity is referred to in the documents that created it; (2) how the governing members of the entity are appointed; (3) how the entity is funded; (4) whether the entityʹs function is traditionally one of local or state government; (5) whether the state has a veto power over the entityʹs actions; and (6) whether the entityʹs obligations are binding upon the state.

But the ultimate question considers "the two main aims of the Eleventh Amendment, as identified by the Supreme Court: preserving the stateʹs treasury and protecting the integrity of the state." While the state gives WCC one-third of its budget, the state is not responsible for satisfying WCC's debts or judgments. The college is also not substantially controlled by the state; the governor only appoints four WCC board members. The remaining six board members are appointed by the County and a student body election. The state does not control WCC's day-to-day affairs. Under this analysis, although SUNY colleges are arms of the state, and WCC is a part of SUNY, since WCC operates different from a four-year SUNY college, WCC is not an arm of the state and may be sued in federal court.


Tuesday, February 24, 2015

The police blotter will follow you around forever

Smaller local newspapers still have a police blotter page, where you can see who was pulled over for DWI or other offenses. These blotters only tell you that someone got arrested. And for some people, this is the only time their names will ever appear in the paper. In the age of Google, this is a problem, which is why the plaintiff in this case sued various media companies for libel when the criminal charges against her were dropped.

The case is Martin v. Hearst Corporation, decided on January 28. Plaintiff was arrested for drug-related offenses in Connecticut. When the articles about her appeared in the newspaper, they were true; plaintiff was arrested. But the charges were eventually nolled. In Connecticut, that means the records of her arrest and prosecution are erased under the "Erasure Statute," which says that "any person who shall have been the subject of such an erasure shall be deemed to have never been arrested ... and may so swear under oath." This happens when the individual is found not guilty or the charges are dismissed. Plaintiff claims now that the news of her arrest are now false and misleading.

Plaintiff makes an interesting argument. For all eternity, news of her arrest remains in the newspaper, and a Google search will tell the world that she was arrested for drug-related offenses. It's unfair because the charges were dropped and nolled under the Erasure Statute. As Judge Wesley writes,

The consequences of a criminal arrest are wide-ranging and long-lasting, even where an individual is subsequently found not guilty or the charges against him are dismissed. Employers or landlords might, for example, discriminate against prospective employees or tenants who have arrest records without distinguishing those merely arrested from those arrested and subsequently convicted.

The Court of Appeals (Wesley, Walker and Jacobs) rejects plaintiff's creative argument. The Court writes that there is no getting around the fact that plaintiff was arrested and that the newspaper accurately reported that at the time.

The Erasure Statute requires the state to erase certain official records of an arrest and grants the defendant the legal status of one who has not been arrested. But the Erasure Statute’s effects end there. The statute creates legal fictions, but it does not and cannot undo historical facts or convert once-true facts into falsehoods. Just as the Erasure Statute does not prevent the government from presenting witness testimony at a later trial that describes the conduct that underlies an erased arrest, the statute does not render historically accurate news accounts of an arrest tortious merely because the defendant is later deemed as a matter of legal fiction never to have been arrested.
As the news reports do not state or imply any facts that are not true, plaintiff has no defamation case. The Court says that reasonable readers know that some people who are arrested are guilty and some are not. "Reasonable readers understand that some people who are arrested are guilty and that others are not. Reasonable readers also know that in some cases individuals who are arrested will eventually have charges against them dropped. Reporting Martin’s arrest without an update may not be as complete a story as Martin would like, but it implies nothing false about her."

The New York Times published a piece on this issue a few years ago. Police blotter and other unflattering news articles are often the subject of reader requests to purge the articles from online databases. In case you're wondering, it would violate the First Amendment to pass a law requiring that newspapers publish a follow-up article to reflect the arrestee's exoneration. You can't force the paper to write something. The medial companies can if they want run a little corrective article to place the initial piece in context. But that is up to the paper, not the courts.

Wednesday, February 18, 2015

Class action plaintiffs get around hostile Supreme Court precedent

The Supreme Court has been scaling back the scope of class action litigation in recent years, but a recent wage and hour case in the Second Circuit shows that there is still some life in these cases.

The case is Roach v. T.L. Cannon Corp., decided on February 10. The plaintiffs used to work for Applebee's restaurants. They claim defendants did not pay hourly employees an extra hour of pay when working a ten-hour day, as required under New York law. Cases like this are ripe for class actions, because if management is engaging this practice, it is probably affecting many employees the same way.

But the Northern District of New York said recent Supreme Court (the Comcast ruling) authority prevents a class action because the plaintiffs are unable to "offer a damages model that is susceptible of measurement across the entire class." In other words, the district court said, the damages for each class member are too individualized for there to be a workable class action.

Wrong, wrong, wrong, says the Court of Appeals (Droney, Jacobs and Kaplan [D.J.]). Comcast did not reach that far. "Comcast ... did not hold that a class cannot be certified under Rule 23(b)(3) simply because damages cannot be measured on a classwide basis. ... Comcast's holding was narrower. Comcast held that a model for determining classwide damages relied upon to certify a class under Rule 23(b)(3) must actually measure damages that result from the class's asserted theory of injury; but the Court did not hold that proponents of class certification must rely upon a classwide damages model."

Since Comcast did not address the issue in this case, the Court of Appeals looks to Second Circuit precedent, which has long held that "the fact that damages may have be ascertained on an individual basis is not sufficient to defeat class certification." That remains good law until the Supreme Court finds a way around it. The case is sent back to the Northern District for a new ruling on class certification.

Tuesday, February 17, 2015

The City anti-discrimination law does what Federal law does not

If you handle employment discrimination cases in New York City, you have to navigate two separate legal models: federal and city law. While federal and city law used to be interpreted similarly, that changed in 2005, when the City Council rewrote city law to more broadly protect plaintiffs. Every now and then the Court of Appeals has to remind the district judges of this.

The case is Velazco v. Columbus Citizens Foundation, decided on February 13. This is an age discrimination case. On the federal claim, the district court ruled on summary judgment that plaintiff did not show that the "but for" cause of his termination, that is, his age, was the determining factor in his discharge. The district court dismissed the city claim, but it is not clear if the court analyzed the city law under the more lenient standard. So the case returns to the district court for that analysis.

Under federal law, it is not enough to show that age was simply a motivating factor in the plaintiff's termination. Under recent Supreme Court authority, Gross v. FBL Financial Services, plaintiffs have to prove "but for" causation. This is a higher standard of proof, making it easier for defendants to win. But the city law is more nuanced, recognizing that "it is not uncommon for covered entities to have multiple or mixed motives for their action, and the [city law] proscribes such 'partial' discrimination." For that proposition, the Second Circuit cites Bennett v. Health Mgt. Sys., Inc., 936 N.Y.S.2d 112 (1st Dept. 2011).

Bennett says more than that. It notes that, under city law, "discrimination shall play no role in decisions relating to employment, housing or public accommodations." Bennett reviews the state of Supreme Court authority in discrimination cases, noting that summary judgment may be appropriate even if the plaintiff makes out a prima facie case of discrimination and the employer offers a false reason for the plaintiff's discharge. As the Supreme Court said in Reeves v. Sanderson Plumbing, 530 U.S. 133 (2000),

Whether judgment as a matter of law is appropriate in any particular case will depend on a number of factors. Those include the strength of the plaintiff's prima facie case, the probative value of the proof that the employer's explanation is false, and any other evidence that supports the employer's case and that properly may be considered on a motion for judgment as a matter of law."
But in Bennett, the First Department said that the city law does not allow summary judgment if the employer offers a false reason. The case must then go to trial.

Once there is some evidence that at least one of the reasons proffered by defendant is false, misleading, or incomplete, a host of determinations properly made only by a jury come into play, such as whether a false explanation constitutes evidence of consciousness of guilt, an attempt to cover up the alleged discriminatory conduct, or an improper discriminatory motive coexisting with other legitimate reasons. These will be jury questions except in the most extreme and unusual circumstances. Proceeding in this way reaffirms the principle that "trial courts must be especially chary in handing out summary judgment in discrimination cases, because in such cases the employer's intent is ordinarily at issue."
The gap between Bennett and Reeves may not seem like much, but the Second Circuit in fact routinely grants summary judgment in employment discrimination cases under federal law, and the Court of Appeals is a "pretext plus" court, requiring the plaintiff to do more than simply prove the employer has offered a false or pretextual reason. Plaintiff also needs affirmative evidence of age or racial discrimination (or other illegal motive), such as ageist comments or a mass layoff of older employees. Some plaintiffs get around this, but that's rare

District courts do not have to retain jurisdiction over city claims if they dismiss the federal claims. But if they decide to hold onto the city claims, they must decide them under a standard that differs from federal case law. That's what the Court of Appeals is telling us in Velazco.

Friday, February 13, 2015

New Title VII legal standard entitles losing defendant to a new trial

This is the second time in a month that a plaintiff suffers the consequences of the Supreme Court's new legal standard guiding Title VII retaliation cases. This time around, plaintiff won his trial under the more lenient standard. Now that the Supreme Court has rewritten the rules for these cases, the case returns to trial.

The case is Zhou v. State University of New York, a summary order decided on February 5. This case has been kicking around for quite some time. In 2011, the Court of Appeals ruled that plaintiff had enough evidence to win his retaliation claim. At the time, the legal standard under Title VII was the plaintiff can win if retaliatory motive played a "substantial or motivating" role in the adverse employment decision. In May 2013, the case proceeded to trial in the Northern District of New York, and plaintiff won his case, winning $600,000 in damages.

Shortly after plaintiff won the trial, the Supreme Court came down with the Nassar decision, which interpreted Title VII to mean that plaintiff wins if "the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer." We call that "but-for" causation. It is no longer enough for plaintiff to show that retaliatory motive played a substantial role in the decisionmaking. Plaintiff now has to show that this motive actually made the difference. This may seem like a subtle change, but it is enough for the Court of Appeals (Jacobs, Calabresi and Wesley) to order that SUNY gets a new trial under the revised legal standard. 

On January 14, the Court of Appeals handled a similar issue. In Cassotto v. Donahoe, the plaintiff won his retaliation trial under the old legal standard. The defendant then got a new trial because Nassar had revised the standard. On retrial, plaintiff lost the case, a devastating reminder that the Supreme Court's rulings have retroactive effect, and that a slight change in the jury instructions can make all the difference.