Wednesday, October 06, 2021

Fire Inspector's claim for First Amendment retaliation reinstated

 A fire inspector for the Fire Department of New York was instructed to file a false fire report by certain of his superiors (allegedly -- this case involves a motion to dismiss; nothing has yet been decided by a trier of fact).  The fire inspector refused to do so.  He later brought the actions of his superiors to the attention of the New York City Department of Investigations and the District Attorney's Office.  As a result of his actions, he suffered adverse job actions.  He sued the City and his superiors in Federal Court, alleging a First Amendment retaliation claim, a New York whistleblower claims and a claim for intentional infliction of emotional distress.  

The defendants moved to dismiss the complaint, and the District Court granted the motion.  The fire inspector appealed.

The Second Circuit reversed in part and affirmed in part the District Court's decision.  It held that the District Court had erred in dismissing the First Amendment retaliation claim.  Based on the facts in the complaitn, the Second Circuit held that (1) the fire inspector's speech was of public interest, (2) in making such statements, he was not acting as a fire inspector but as a private citizen and (3) as a result of his actions, he suffered from adverse job inspections.  In particular, the court noted that speech was not job-related becaused it concerned his job duties.  The speech has to be within the scope of the employee's job duties, which was not the case here.  The court further stated that an inference that an adverse job action was taken as a result of the speech could be made based on the proximity of time between the speech and the action.  Based on this, the court reinstated this cause of action.

The Second Circuit, however, held that the New York State whistleblower claim could not go forward because the fire inspector had not exhausted his administrative remedies.  It also affirmed the intentional infliction of emotional distress claim because the actions taken by the defendants were not sufficiently egregious.

The decision in Specht v. City of New York can be found here.

Tuesday, June 16, 2020

Fluctuating Work Week

In Thomas v. Bed Bath & Beyond, Inc., the plaintiffs, employees of  Bed Bath & Beyond Inc. ("BBB"), claimed that their employer had underpaid overtime pay that was owed them.  BBB claimed that because the employees work week fluctuated from week to week, it was entitled to calculate such overtime pay under the fluctuating work week method, which is permitted under Supreme Court precedent and Department of Labor Rules,  Under this method, if an employee is receiving a guaranteed weekly salary, which he or she will be paid even if he or she works fewer than 40 hours a week, overtime is calculated as follows: (1) the weekly guaranteed salary is divided by the actual number of hours worked that week, setting the regular hourly rate for that week, (2) the regular hourly rate is divided in half and (3) this amount is added to all overtime hours.  The reason that such a method is allowed is because the employer is paying a guaranteed weekly salary regardless of whether the employee works 40 hours on any particular week.

The plaintiffs claimed that BBB was not entitled to use the fluctuating work week method because there were weeks where they had worked fewer than 40 hours and was not paid the guaranteed amount.  However, both the district court, on BBB's motion for summary judgment, which was granted, and on appeal, held that the reasons for such deviations had been adequately explained by BBB and did not warrant preventing BBB from using the fluctuating work week method.

The plaintiffs also argued that the fluctuating work week method could only be used when the employees' time fluctuated regularly, rather than occasionally.  The Second Circuit pointed out that the reason for the method was because the employer was paying a guaranteed amount and not because of regular fluctuation;.

The plaintiffs further argued that BB's policy of allowing employees who worked on a holiday or other day off to take such time off at a date of their choosing was inconsistent with the fluctuating work week method.  The Court rejected this argument.

The decision in this case can be found here.

Thursday, August 01, 2019

Works for hire

Stanley Kaufman contributed numerous film reviews to The New Republic ("TNR").  Kaufman was not an employee of TNR and there was evidence going both ways as to whether he or TNR owned the copyrights on his pieces.  There was no written agreement until in 2004, the literary editor sent Kaufman a letter saying it had always been their understanding that the works were works for hire.  Kaufman checked "Agreed" on the letter above his counter-signature.  After Kaufman's death, the Rochester Institute of Technology ("RIT") published an anthology of Kaufman's reviews, including the TNR reviews.  Kaufman's executor sued, claiming copyright infringement.  RIT moved for summary judgment based on the letter and the executor cross-appealed for summary judgment against RIT as to liability.  The district court, based on the letter, granted summary judgment to RIT.

The Second Circuit reversed, holding that because the letter was not signed until years after the works were published, it did not transform the reviews into works for hire.  The case was remanded to the district court for further proceedings (presumably a trial as to damages).

The decision in Kaufman v. Rochester Institute of Technology can be found here.

Thursday, July 11, 2019

Jurisdiction Divested under CAFA when class action allegations are removed

An attorney sued a group of title insurance companies for violating a Connecticut statute, which requires that  real estate title agents be attorneys licensed to practice in Connecticut.  After 12 years of litigation, the plaintiff-attorney amended his complaint to remove all class-action allegations.  The district court dismissed the action without prejudice because, by removing the class-action allegations,  the plaintiff had divested the court of jurisdiction under the Class Action Fairness Act.

On appeal, the Second Circuit affirmed, rejecting the plaintiff's assertion that the time-of-filing rule would allow it to continue to have jurisdiction.  That rule allows a court to retain jurisdiction if it had jurisdiction when the complaint was commenced. The Court held that the rule did not apply.  The Court had to look at the new amended complaint to ascertain what the facts were at the time of filing, but taking out the class action allegations, the complaint showed no basis for jurisdiction at the time of the commencement of the action. 

The decision in Gale v. Chicago Title Insurance Co. can be found here.

Tuesday, July 09, 2019

Trump Can't Block on Twitter

It's pretty well known that Trump does not like to be criticized.  And it's also well known that he really loves Twitter.  So to get the best of both worlds, he decided to block certain people from his Twitter feed -- people who criticized him, of course -- allowing him to tweet to his heart's content without these critics being able to respond.

And this being 21st Century America, he was sued for doing this.  The plaintiffs alleged that blocking them from his Twitter feed constituted a violation of their First Amendment rights.  The District Court granted summary judgment in favor of the plaintiffs and entered a declaratory judgment to the effect that Trump's actions had violated the First Amendment.

Trump appealed claims that he blocked the plaintiffs from a private, personal account.  The government did not argue that the account was independent of Trump's presidency, but that the act of blocking was not state action.  Trump contended that his Twitter account is exclusively a vehicle for his own speech to which the plaintiffs had no right of access, and, accordingly, the First Amendment did not apply.

The Second Circuit held that the Twitter account was not just personal, but official and concluded  that once Trump had chosen a platform and opened up its interactive space to millions of users and participants, he could not selectively exclude those whose views he disagrees with.

The decision in Dnight First Amendment Institute at Columbia University v. Trump can be found here.

Wednesday, March 06, 2019

Landlord can be liable under the Fair Housing Act for harassment on a tenant by another tenant.

A tenant was being racially harassed by another tenant.  The harassed tenant complained to his landlord who did nothing.  The landlord told its managing company not to get involved and refused to address the tenant's letters.  The harassing tenant was allowed to stay in the building until his lease expired.  The harassed tenant sued the landlord under the Fair Housing Act, but the district court dismissed the complaint.  On appeal, the Second Circuit reversed.

The Court, agreeing with the Seventh Circuit, held that "the FHA’s use of the terms 'privileges' and 'conditions' refers not just to the sale or rental itself, but to certain benefits or protections flowing from and following the sale or rental."  And, agreeing with the Ninth Circuit, the Court noted "that '[t]he inclusion of the word ‘privileges’ implicates continuing rights,' indicating that the 'natural reading' of the statute 'encompasses claims regarding services or facilities perceived to be wanting after the owner or tenant has acquired possession of the dwelling.'"  Based on this, the Court held that the post-acquisition claims (claims not related to discrimination in deciding whether to rent premises to an individual and which take place after the individual has acquired a lease for the premises) were actionable under the FHA.

The Second Circuit, agreeing with the Seventh Circuit, held that a landlord who knows of ongoing harassment and is in a position to take action against it, but does nothing can be found liable under the FHA.

Judge Raymond J. Lohier, Jr.  authored the decision and was joined by Judge Rosemary S. Pooler.  Judge Debra Ann Livingston dissented.

The decision (and the dissent) in Francis v. Kings Park Manor, Inc. can be found here.

Monday, February 11, 2019

Inculpatory testimony by police officer as to the statement of a third party is not admissible

The Second Circuit, in Orlando v. Nassau County District Attorney’s Office, a habeas action, the Second Circuit held that the state trial court had erred in allowing a police officer to testify that the defendant in a related case had told him that Orlando had hired him to kill Bobby Calabrese.  The defendant in the related case had not testified in Orlando’s case.  Orlando had argued that allowing the police officer to testify violated his rights under the Confrontation Clause.  The district court had held that because the testimony was not offered for the truth, but for a collateral reason (to explain a change in Orlando’s story), allowing the police officer did not violate Orlando’s Sixth and Fourteenth Amendment right.  (The district court had issued an instruction to the jury that the testimony should not be considered to show that Orlando had hired the other defendant to kill Calabrese.)  The district court issued a certificate of appealability.  The Second Circuit held that the limiting instruction was not sufficient when testimony directing incriminating Orlando was given.

The Second Circuit's decision can be found here.