An employer that negligently or recklessly punishes an employee as a proximate result of a discrimination complaint filed by a third party may be liable under Title VII

In this appeal from a federal district court's adverse decision flowing from a student's allegation of sexual misconduct by a member of the school's faculty [Plaintiff], the U.S. Circuit Court of Appeals, 2nd Circuit, found that the Plaintiff in this action had alleged facts from which it may plausibly be inferred that the employer [University] served as a conduit for the student’s discriminatory intent and that this discriminatory intent may be imputed to the University.

The Circuit Court opined:

"(1) Where a university (a) takes an adverse employment action against an employee, (b) in response to allegations of sexual misconduct, (c) following a clearly irregular investigative or (d) amid criticism for reacting inadequately to allegations of sexual misconduct by members of one sex, these circumstances support a prima facie case of sex discrimination; [and]

"(2) When contesting an inference of bias based on procedural irregularity, an employer cannot justify its abandonment of promised procedural protections by recharacterizing specific accusations in more generic terms; [and]

"(3) Where (a) a student files a complaint against a university employee, (b) the student is motivated, at least in part, by invidious discrimination, (c) the student intends that the employee suffer an adverse employment action as a result, and (d) the university negligently or recklessly punishes the employee as a proximate result of that complaint, the university may be liable under Title VII."

Accordingly the Circuit Court held that the Plaintiff’s amended complaint stated a claim for unlawful sex discrimination by the University and vacated the district court's judgment. The court then "remanded the cause to the District Court for further proceedings consistent with this opinion."

In so doing the Circuit Court also suggested that the district court “consider Plaintiff's 'cat's paw' theory" with respect to the University's liability. 

This theory, said the 2nd Circuit Court, was derived "from a fable conceived by Aesop, put into verse by La Fontaine in 1679, and injected into United States employment discrimination law" by  Seventh U.S. Circuit Court of Appeals Judge Richard Posner in his 1990 decision in Shager v Upjohn Co., 913 F.2d 398. In this instance the 2nd Circuit Court commented that the district court "should consider [Plaintiff’s] allegations under such a theory as ... [a]t its core, a 'cat’s paw' case simply reflects a slight variation on the standard principles of vicarious liability."

The 2nd Circuit Court further noted that "[i]n the Title VII context, it is well-settled that employers may be held vicariously liable for the conduct of their agents" if a plaintiff establishes "(1) that the employer’s agent (a) was motivated by the requisite discriminatory intent, and (b) effected the relevant adverse employment action; and (2) that the agent’s conduct is imputable to the employer under general agency principles."

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/995fa96b-8187-4ec9-9079-2c17cf2ae632/1/doc/18-3089_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/995fa96b-8187-4ec9-9079-2c17cf2ae632/1/hilite/

Using drone aircraft in law enforcement

In response to a number of requests for legal information on the use of drones, also known as unmanned aerial vehicles (UAVs) or unmanned aircraft systems (UAS), in law enforcement, AELE established a new web page in response to those requests at

 http://www.aele.org/drones.html.

The page contains discussion of, and links to, case law relevant to the use of drones in law enforcement and relevant federal regulations and state statutes and regulations (as currently adopted by 41 states), useful secondary material, and select sample agency policies.

Determining prevailing party damages and attorney's fees awards

Plaintiff filed a §1983 complaint against the City of New York and certain individual police officers [Defendants] for alleged deprivations of his constitutional rights.

Defendants presented Plaintiff with an offer of judgment pursuant to Federal Rule of Civil Procedure §68 in the amount of $10,001 and reasonable attorney’s fees, expenses, and costs incurred “to the date of [the] offer.” Plaintiff accepted the offer, but the Defendants were unable to agree upon the sum of attorney’s fees, expenses, and costs to be paid.

Plaintiff filed a motion with the district court for an award of reasonable attorney’s fees, expenses, and costs that included the hours Plaintiff’s solo practitioner attorney spent on clerical tasks and incurred preparing the fee application. The federal district court granted the application but reduced the requested hourly rate because of the simple, “relatively straightforward” nature of the case, and imposed a ten percent across-the-board reduction to the fee award to account for clerical tasks performed by the attorney.

The U.S Circuit Court of Appeals, Second Circuit, affirmed the district court’s decision to reduce Plaintiff’s attorney’s reasonable hourly rate in light of the simple nature of this case, as well as the district court’s decision to reduce the hours claimed through an across-the-board reduction to reflect the clerical work performed.

The Circuit Court, however, reduced and vacated the district court’s decision to award Plaintiff's attorney’s fees for the work incurred preparing the fee application because the express terms of the accepted Rule 68 offer of judgment limit the fees recoverable to those incurred “to the date of [the] offer.”

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/ebab1879-2677-413e-ac0d-a7c11adc7f01/3/doc/17-2823_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/ebab1879-2677-413e-ac0d-a7c11adc7f01/3/hilite/

Name clearing hearings

From time to time a public employee who has been dismissed from his or her position and who is not entitled to a pre-termination hearing as a matter of law or pursuant to the terms of a collective bargaining agreement demands a "name-clearing hearing." The instant case involves such a situation.

The Petitioner was terminated from his position with the New York City School District [School District] following allegations he was involved in incidents of  "fiscal improprieties, gross mismanagement and outright theft." After a "confidential draft" report concerning the matter by the "Auditor General" was given to, and reported by, a newspaper, Petitioner demanded a "name-clearing hearing."

On its face, this satisfied the two basic requirements courts consider in determining if a name-clearing hearing is required:

(1)  allegations that if untrue, tend to defame an individual; and

(2) publication or dissemination of such information by the employer to the public.

Finding that in the Petitioner's case a name-clearing hearing was warranted, a New York State Supreme Court judge summarized the rationale underlying  a public officer's or public employee's right to a name-clearing hearing as follows:

"A government employee is deprived of a liberty interest where his or her employment has been terminated based on allegations which place, at stake, his name, reputation, honor and integrity."

The Court ruled that Petitioner was entitled to a name-clearing hearing at which he could be represented by an attorney if he wished and was to be "given an opportunity to examine all reports, face his accusers and, if possible, refute the charges."

The decision also notes that an employee is not required to establish the falsity of the charges in order to be entitled to a name-clearing hearing because that is the function of the hearing itself. The School District had contended that in order to be entitled to a name-clearing hearing, the individual had to first demonstrate that the charges alleged by the employer were untrue.

Courts, however, have ruled that even though an individual is successful in "clearing" his name, that, standing alone, does not automatically result in the Petitioner's reinstatement to his former position.

The decision is posted on the Internet at:

https://www.leagle.com/decision/19961175167misc2d100811018

Some reasons why motions to dismiss an Article 78 action relying on the doctrines of res judicata, collateral estoppel or an alleged "failure to exhaust administrative remedies" may be rejected by a court

Among the issues addressed by the Appellate Division in its review of an appeal from an Article 78 decision by Supreme Court was the authority of a school superintendent to suspend a high school principal.

Noting that Education Law §2566(6) grants a superintendent limited authority "to suspend a ... principal ... until the next regular meeting of the board, when all facts relating to the case shall be submitted to the board for its consideration and action,"  the Principal alleged that the City School District's Board of Education [Board] never ratified or approved her suspension at "the next regular meeting of the board," and therefore there was no authority for her continued suspension.

In rebuttal, the Board contended that the issue was considered in the course of an earlier arbitration* and thus judicial review of the Principal's claim was barred by the doctrines of res judicata and collateral estoppel.** 

The Appellate Division disagreed with the Board's argument, explaining that the issues raised in this litigation by the Principal were not identical to those raised during the prior arbitration. Accordingly, the court ruled that neither doctrine served as a bar to judicial review of the issue under the circumstances.

Another argument advanced by the Board was that Principal had failed to exhaust her administrative remedies prior to commencing this Article 78 action. Principal, however, argued that "exhaustion of administrative remedies" was not a condition precedent to initiating litigation in this instance.

Noting that the Principal had, in fact, filed a "contract grievance" based on an alleged violation of the relevant collective bargaining agreement, the Appellate Division opined that this was of no moment because "[t]he issues presented and the remedies sought in each forum were separate and distinct." Thus, explained the court, exhaustion of administrative remedies provided by a collective bargaining agreement is not necessary "where, as here, the [Principal] alleges violations of the Education Law, not violations of the agreement."

Further, said the court, although Education Law §310 provides, in relevant part, that any party aggrieved by an official act or decision of school authorities "may appeal by petition to the [C]ommissioner of [E]ducation," the Commissioner exercises primary jurisdiction only where the matter involves an issue requiring his or her specialized knowledge and expertise. Here, however, the Appellate Division concluded that Principal's contention with respect to §2566 of the Education Law "requires no more than the interpretation and application of the plain language of that statute for which no deference to the [Commissioner of Education] is required."

Finally, the Appellate Division found that the Article 78 petition had not been rendered moot as the result of a subsequent investigation into additional alleged improprieties by the Principal as the Board had neither alleged nor submitted evidence that the Board, in contrast to the Superintendent, had suspended the Principal in compliance with Education Law §2566(6) in connection with such new allegations.

The Appellate Division reversed the Supreme Court's judgment [1] "insofar as appealed from," [2] reinstated Principals' petition, and [3] gave the Board "20 days from service of the order of this Court with notice of entry to serve and file an answer" to Principal's Article 78 action.

* The arbitration resolved whether the placement of an employee on paid administrative leave pending an investigation into allegations of misconduct constituted a violation of Article 4A of the controlling collective bargaining agreement. Article 4A provided that "no administrator shall be disciplined, reprimanded, reduced in rank or compensation or deprived of any professional advantage without cause."

** The doctrines of res judicata and collateral estoppel, sometimes referred to as "issue preclusion,"  bar the relitigation of a "cause of action" once there has been judicial or quasi-judicial decision concerning the issue on its merits.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_05895.htm