Posted by Gale Burns on Thu, Feb 02, 2012 @ 04:09 PM
The Lawletter Vol 36 No 7
Matthew McDavitt, Senior Attorney, National Legal Research Group
It is sometimes unclear whether particular governmental bodies enjoy the broad-based blanket immunity afforded to political subdivisions of states, such as counties, or whether the more limited "governmental function" immunity applies, granting protection from tort suit regarding only political, discretionary, or legislative functions.
"A function is governmental if it is directly tied to the health, safety, and welfare of the citizens." Niese v. City of Alexandria, 264 Va. 230, 239, 564 S.E.2d 127, 132 (2002) (citation omitted) (internal quotation marks omitted). Where governmental function immunity applies, any actions deemed to be "proprietary" in nature, i.e., those performed for the private benefit of the governmental bodyClikened to for-profit activities of private corporations such as distributing water to households for a feeCare not immune from suit.
Case law confirms that the water authorities generally do not enjoy the blanket immunity from tort suit that counties do, but merely the limited "governmental function" immunity afforded to municipal corporations.
A characteristic example of a function undertaken by cities and towns in their private or proprietary capacity is the distribution of water to their inhabitants for domestic purposes. Such a function is one that is often performed by private water companies, and when assumed by a municipal corporation it is a purely commercial transaction between the municipality as a dealer and the citizen as a customer. While an ample supply of fine water doubtless enhances the public health, this result is merely incidental, and the primary object of a city or town in securing a water supply is to increase the comfort and convenience of its own inhabitants. It is accordingly well settled that a municipal corporation is liable for the negligence of its employees in connection with its water department to the same extent as a private company.
City of Richmond v. Va. Bonded Warehouse Corp., 148 Va. 60, 71, 138 S.E. 503, 506 (1927) (citation omitted) (internal quotation marks omitted). Additionally, an unpublished trial order of the Circuit Court of Virginia, City of Roanoke, similarly held that public water authorities created pursuant to the Virginia Water and Waste Authorities Act, Va. Code Ann. '' 15.2-5100 through -5158, constitute municipal corporations, even where created under the auspices of counties. "[T]he General Assembly intentionally withheld full sovereign immunity from entities chartered under the Water and Waste Authorities Act. As a municipal corporation, the Authority is entitled to assert, and to try to prove, that it is entitled to governmental-function immunity [only]." Robertson v. W. Va. Water Auth., No. CL07-1316, 2011 WL 3295668 (Va. Cir. Ct. City of Roanoke July 25, 2011). Finally, in a recent opinion, an Attorney General concluded that
It is my opinion that a water authority created pursuant to the Virginia Water and Waste Authorities Act is a public body, specifically, a municipal corporation. . . . As a municipal corporation, sovereign immunity shields a water authority from liability for its governmental functions, but not its proprietary functions.
Op. Va. Att'y Gen. 06-060, 2006 WL 4286453, at *3 (Oct. 31, 2006). As a result, proprietary functions performed by Virginia water authorities, such as installing or removing meters in private homes or terminating water service, are acts not immune from tort suit, and such water authorities are fully liable for the negligence of their employees, just as a private person or corporation would be.
Posted by Gale Burns on Tue, Jan 17, 2012 @ 04:24 PM
The Lawletter Vol 36 No 6
John Stone, Senior Attorney, National Legal Research Group
The California Invasion of Privacy Act ("Act"), Cal. Penal Code § 632, prohibits unconsented-to recording or monitoring, regardless of the content of the conversation or the purpose of the monitoring. The law is intended to protect rights that are separate and distinct from the right to prevent the disclosure of improperly obtained private information, and it requires the assent of all parties to a communication before another person may listen. An actionable violation of the Act occurs the moment a surreptitious recording or eavesdropping takes place, regardless of whether it is later disclosed.
In Kight v. CashCall, Inc., 200 Cal. App. 4th 1377, 2011 WL 5829678 (Nov. 21, 2011), the court reversed a summary judgment for the defendant company, finding that a lending corporation was potentially liable for violating the Act's prohibition against eavesdropping on telephone calls, without the consent of all parties, if it had directed one or more of its employees to secretly listen to a telephone conversation between a borrower and another employee. The legislature enacted the Act prohibiting the recording of confidential communications to ensure an individual's right to control the firsthand dissemination of a "confidential communication," and the legislature further expressed its intent to strongly protect an individual's privacy rights in electronic communications.
During the relevant period for the class action, CashCall randomly monitored 547 calls to and from the servicing department: 225 inbound calls and 322 outbound calls. The calls were monitored for quality control purposes to ensure that CashCall employees were following CashCall's policies and procedures and applicable laws governing debt collections. Supervisors monitored calls either electronically by using software or by physically sitting next to the representative and "plugging" in to the call. For purposes of the summary adjudication motion, it was assumed that the calls were not recorded; the supervisor would listen to the call while the conversation was occurring.
While in many cases of incoming calls the customer heard the familiar recording that "[t]his call may be monitored or recorded for quality control purposes," it was not always the case, and it was never the case on outgoing calls. At the beginning of the borrower relationship, CashCall generally provided written notice to all borrowers that information disclosed to CashCall would be disseminated to "those employees who need to know that information to provide products or services to you."
A "person" is defined in the Act broadly to include business entities like the defendant in Kight. Based on the facts before it, the appellate court ruled that the lender corporation had potentially violated the Act's prohibition against eavesdropping on telephone calls if the borrowers had had a reasonable expectation that their telephone conversations with its employees were not being secretly overheard by other employees, even if the borrowers knew that the information in their calls would eventually be disseminated to other employees.
A communication is "confidential" under the Act if a party to the conversation has an objectively reasonable expectation that the conversation is not being overheard or recorded, Flanagan v. Flanagan, 27 Cal. 4th 766, 41 P.3d 575 (2002), and that is generally a question of fact in an action under the Act. (This standard is to be distinguished from any requirement that a party to the conversation had a reasonable expectation that the contents of the conversation would be kept secret.) In the case before the court, CashCall argued that the telephone conversations were not confidential as a matter of law, because the undisputed evidence established that all callers had been informed, at least at the outset of the borrower/lender relationship, that calls might be monitored. However, there was a genuine issue of material fact as to whether notice of monitoring had been disclosed to borrowers during all telephone calls, regardless of what the company might have said to a customer at an earlier point in time. The presence of this issue should have precluded summary adjudication for the lender on the borrowers' class action claims for violations of the Act, so the case was remanded to the lower court for further proceedings.
Posted by Gale Burns on Thu, Dec 29, 2011 @ 03:32 PM
January 3, 2012
John Stone, Senior Attorney, National Legal Research Group
It should not come as a surprise to most people that when an individual gets a driver's license from a State, he or she necessarily gives the State some personal information that is then stored in a database for use by the Division of Motor Vehicles ("DMV"). Typically this information includes name, address, telephone number, vehicle description, Social Security number, some medical information, and a photograph. What may not be so commonly known is that the States legally can and do turn around and sell that information to individuals, businesses, and other governmental entities.
There are some federal statutory limits on the States' ability to sell DMV driver record information. In a recent case, Howard v. Criminal Information Services, 654 F.3d 887 (9th Cir. 2011), the Ninth Circuit heard appeals from two essentially identical class actions that had been filed in two different states, by different groups of plaintiffs, seeking damages on the ground that their personal information had been obtained by defendant companies in violation of the Driver's Privacy Protection Act ("DPPA"), 18 U.S.C. §§ 2721–2725. That statute provides that personal information from state driver's license databases can be obtained, disclosed, or used only for certain specified purposes. The 14 enumerated permissible purposes include, in addition to those directly related to motor vehicles, such purposes as court or law enforcement functions; verification of information by businesses, including employers; research activities; and insurance purposes. All in all, the list and scope of permissible purposes for obtaining DMV information on drivers is rather broad, and it is little wonder that companies decide to mine these databases.
In the case before the Ninth Circuit, a newspaper company had used the information in reporting stories involving the operation or safety of motor vehicles. Another company had found the information helpful in performing background checks; it used the information to verify personal information submitted by the person about whom the background check was being performed. Another of the defendants had used the information to perform research about motor vehicles. A parking lot management business had used the information to check information provided by its customers and to provide notice to owners of towed or impounded vehicles. These businesses had determined that it is neither efficient nor cost‑effective to request records piecemeal—that is, individually, each time they had a need for the information—or to be limited to getting the information during business hours when the state agency is open. Instead, they purchased the entire database from the State "in bulk" so as to be able to access specific information as and when the need arose.
Thus, in the consolidated cases, each of the defendants had purchased driver record information in advance and in bulk so that it would have the information available for its possible future use. The plaintiffs did not complain that the ultimate use of the information by any of the defendants had been for a purpose not permitted under the DPPA. They argued, however, that the DPPA forbids bulk purchasing of drivers' personal information for future use, because obtaining the information for future use is not itself a permitted purpose under the DPPA. Joining other courts that had dealt with similar claims, the Ninth Circuit concluded that the defendants' actions, sometimes referred to as "stockpiling" information, were not unlawful under the DPPA, and it affirmed the dismissal of the actions by the federal district courts.
The plaintiffs' allegation that the defendants had obtained the information for the improper purpose of stockpiling misconstrued the meaning of "purpose." "Purpose" is defined as something that one sets before oneself as an object to be attained, an end or aim to be kept in view. Stockpiling was plainly not the defendants' "purpose" for obtaining the information, as that term is used in the statute. The object or end to be attained by the defendants in obtaining the driver record information—the reason they wanted the information—was not just to have it available: The defendants had obtained the information so that they would be able to use it for eventual or ultimate purposes that the plaintiffs conceded were allowed by the statute.
The plaintiffs' argument also confused the defendants' purposes for obtaining the information with their reasons for obtaining the information in bulk form. By purchasing the entire database in bulk rather than waiting to obtain individual records when they were needed, the defendants no doubt wanted to make their access to the information easier when the time came to use it, and they also probably hoped to get the information at a lower cost than would be incurred by requesting one record at a time. But those were not, in any real sense, the "purposes" for obtaining the information. At this point in its reasoning, the court employed an unusual, though apt, analogy:
Someone who buys toilet paper in a package of 48 rolls from a warehouse store, for example, ordinarily buys it for the same purpose as the person who buys it one roll at a time. That it might save money or extra trips to the store to buy in bulk isn't why the toilet paper is bought in the first place.
Id. at 890.
The court observed that if Congress had meant to prohibit the sale of a State's driver record database in bulk, the statute could have, and presumably would have, said as much. Instead, the legislation was written in a way that logically put the focus on the purposes for which the information would eventually be used—on the "end" sought by the purchaserCnot on the reason for buying it in bulk.
It also did not save the plaintiffs' case that the acquired personal information had been obtained for its potential for future use and, as to the majority of records, might never actually be used. The DPPA does not contain a time requirement for when the information obtained must be used for the permitted purpose. Nor is there a requirement that the information actually be used at all once it has been obtained for a permitted purpose.
The Ninth Circuit drew upon precedents reaching the same outcome on similar challenges under the DPPA in other federal circuits. See Taylor 10833 v. Acxiom Corp., 612 F.3d 325, 340 (5th Cir. 2010) ("A person who buys DMV records in bulk does so for the purpose of making permissible actual use of information therein under [the DPPA], even if that person does not actually use every single item of information therein."), cert. denied, 131 S. Ct. 908 (2011); Roth v. Guzman, 650 F.3d 603, 614-17 (6th Cir. 2011) (citing Taylor, 612 F.3d 325).
Posted by Gale Burns on Wed, Dec 28, 2011 @ 07:49 AM
The Lawletter Vol 36, No 5
Charlene Hicks, Senior Attorney, National Legal Research Group
Professional medical employees are subject to such a wide variety of laws and regulations that it has become increasingly difficult for such professionals to both treat patients effectively and navigate through the legal maze. With the passage of time, the problem seems to be deepening. In 2009, California adopted an unprecedented program of medical privacy oversight by enacting laws that increase the financial penalties for a medical professional's unauthorized access of a patient's medical records. This legislation was a direct response to a series of high-profile privacy breach cases at UCLA Medical Center. In anticipation of the strong likelihood that the new state laws would conflict with existing federal laws, the State also established a new agency, the California Office of Health Information Integrity ("CalOHII"), to oversee the State's new medical privacy program.
Studies showed that in 2009, the first year California's new medical privacy laws were in effect, a total of 2,490 breaches were reported to the Department of Public Health. That Department, in turn, referred approximately 320 individuals to CalOHII for investigation. To date, CalOHII has demonstrated a willingness to investigate and fine medical professionals who did not actively intend to breach the law: Instead of interpreting the State's medical privacy laws as requiring a medical professional's specific knowledge that his or her action constituting the offense violates state law, CalOHII has interpreted the laws as requiring only the professional's knowledge that he or she performed the action.
To avoid federal preemption problems, CalOHII is in the process of completing preemption analyses of every California medical privacy statute. If the agency determines that a specific state law concerning personal medical information is preempted, that state law shall not be applicable to the extent of the preemption. Cal. Health & Safety Code § 130311.5(b). However, the extent to which a medical professional may view a patient's private medical information in contexts that do not directly relate to the treatment of that patient (such as administrative or even whistle-blowing activities) under the State's new legal scheme is unclear.
Where personal (medical) privacy interests clash with medical professionals' performance and workplace rights, the current trend is for legislators to favor the individual's privacy interests. Whether and to what extent this action may impede the future advancement of the medical field and/or infringe upon the employment rights of medical professionals remains to be seen.
Posted by Gale Burns on Tue, Dec 27, 2011 @ 04:19 PM
The Lawletter Vol 36 No 5
Steve Friedman, Senior Attorney, National Legal Research Group
In pertinent part, the First Amendment to the U.S. Constitution provides that "Congress shall make no law respecting an establishment of religion." The Establishment Clause, applicable to the states and their political subdivisions through the Fourteenth Amendment, thus prohibits the Government from promoting or affiliating itself with any religious doctrine or organization, discriminating among persons on the basis of their religious beliefs and practices, or otherwise involving itself too deeply in the affairs of religious institutions. See County of Allegheny v. Am. Civil Liberties Union Greater Pittsburgh Chapter, 492 U.S. 573, 590-91 (1989).
However, the Supreme Court has carved out an exception to its traditional Establishment Clause jurisprudence for so-called "legislative prayer." In Marsh v. Chambers, 463 U.S. 783 (1983), the Court held "that the practice of opening legislative sessions with prayer has become part of the fabric of our society" in that its roots can be traced back to the beginnings of this nation. See id. at 792. Accordingly, legislative prayer has more of a civic than a religious overtone in this context, see id. at 792-93, provided that such prayer is not used "to proselytize or advance any one, or to disparage any other, faith or belief," see id. at 794-95.
In subsequent years, Marsh's "legislative prayer" exception to the Establishment Clause has been applied to analogous legislative or deliberative bodies at the local level as well. See, e.g., Pelphrey v. Cobb County, 547 F.3d 1263, 1276 (11th Cir. 2008) (county commission). However, juxtaposed to Marsh and its progeny is another line of "school prayer" cases.
In Lee v. Weisman, 505 U.S. 577 (1992), the Supreme Court declared unconstitutional a school policy of having clergymen give nonsectarian prayers at school graduations. A major focus in Lee was the "heightened concerns" of "indirect coercion," given the impressionable youth in the public schools. Indeed, the Court emphasized that "[i]nherent differences between the public school system and a session of a state legislature distinguish this case from [Marsh]." Id. at 596. The mere fact that students had the option of remaining silent during the prayer or of skipping the graduation ceremony altogether did not cure the constitutional defect. See id. at 593-94.
So the question is, which case provides the applicable law in the school board context—Marsh or Lee? Recently, the U.S. Court of Appeals for the Third Circuit took up this issue head-on. See Doe v. Indian River Sch. Dist., 653 F.3d 256 (3d Cir. 2011).
In Doe, the plaintiffs challenged the school board's practice of beginning each public meeting with a prayer as being unconstitutional under the Establishment Clause. The school board contended, and the district court agreed, that the school board was akin to a legislative or deliberative body and, thus, that its practice was akin to the legislative prayer approved of in Marsh. See id. at 259. Rejecting that argument, the Third Circuit reasoned that "[t]o conclude that, merely because the Board has duties and powers similar to a legislative body[,] Marsh applies, is to ignore the Board's role in [the] system of public school education." Id. at 279.
"Although the school board, like many other legislative bodies, is composed of publicly elected officials drawn from the local community, that is where the similarity ends. . . . Simply stated, the fact that the function of the school board is uniquely directed toward school‑related matters gives it a different type of 'constituency' than those of other legislative bodiesCnamely, students."
Id. (quoting
Coles v. Cleveland Bd. of Educ., 171 F.3d 369, 381-82 (6th Cir. 1999) (holding under similar circumstances that school boards are distinct from legislative bodies and, thus, that school board prayers should be analyzed under
Lee, not
Marsh)).
Posted by Gale Burns on Thu, Sep 29, 2011 @ 02:51 PM
September 27, 2011
John Stone, Senior Attorney
According to a federal district court that was recently considering a case of alleged bullying of a disabled adolescent girl at school, if bullying were a medical issue, it would be characterized as a disease affecting America's youth, and a team from the Centers for Disease Control charged with investigating epidemics would be called in to study it. The problem is pervasive and serious, particularly in the middle school years. It is the most common type of violence in our schools. T.K. v. N.Y.C. Dep't of Educ., No. 10-CV-00752, 2011 WL 1549243, at *5 (E.D.N.Y. Apr. 25, 2011). (T.K. is one of the parents of the student, who is referred to in the case only as "L.K.")
As the court considered in T.K., when the student victim of bullying is also disabled within the meaning of the federal Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. §§ 1400-1482, a school district's response, or its lack thereof, can raise the prospect that the student has been deprived of the "free appropriate public education" to which he or she is entitled under the IDEA. In a lengthy memorandum and order, the court in T.K. set out to answer this "largely unresolved issue." Id. at *1. Not only did the court find in principle that the IDEA can be violated in such circumstances, but it also found that the particular school district in the case before it was not entitled to summary judgment on the IDEA claim brought by the disabled student's parents.
In T.K., the bullying took the form of repeated instances of the student's being ostracized, isolated, and teased by fellow students. In addition, she was sometimes pushed or intentionally tripped by other students. Other specific incidents of bullying included a classmate's drawing depicting L.K. in a disparaging light; a student's chasing L.K. with what he claimed was blood but was in fact ketchup; other students' refusing to touch things once L.K. had; and a prank phone call made to L.K.'s home, which the school was informed about.
To be sure, "bullying" is a somewhat subjective term, and it must be distinguished from less serious or harmful conduct, such as horseplay. Every disagreement or conflict among children does not amount to bullying. What distinguishes bullying from other forms of childhood aggression is unequal and coercive power. Referring to authorities on the subject, the court observed that the bully/victim connection can be viewed as the opposite of a healthy peer relationship. Peers are equals on the same social standing, while a bullying nexus lacks equality of standing. It is the inequality, abuse, and unfairness associated with bullying that makes it unacceptable in law as well as in education. Id. at *9.
In determining whether school bullying has deprived a disabled child of a free appropriate public education under the IDEA, the question to be asked is whether school personnel were deliberately indifferent to, or failed to take reasonable steps to prevent, bullying that substantially restricted a child in his or her educational opportunities. The applicable standard takes into account administrative advice that has long been given to schools in how to apply the IDEA and other child-protective legislation. Referencing a document from the U.S. Department of Education, Office of Civil Rights, the court stated that for at least 10 years, schools have been on notice of their obligations in this area:
"A school is responsible for addressing harassment incidents about which it knows or reasonably should have known. In some situations, harassment may be in plain sight, widespread or well‑known to students and staff, such as harassment occurring in hallways, during academic or physical education classes, during extracurricular activities, at recess, on a school bus, or through graffiti in public areas. In these cases, the obvious signs of the harassment are sufficient to put the school on notice. In other situations, the school may become aware of misconduct, triggering an investigation that could lead to the discovery of additional incidents that, taken together, may constitute a hostile environment."
Id. at *26 (quoting U.S. Dep't of Educ., Office of Civil Rights, Dear Colleague Letter: Bullying and Harassment, at 2 (Oct. 26, 2010), available at http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201010.pdf).
Conduct need not be outrageous to fit within the category of harassment that rises to a level of deprivation of a disabled student's rights. The conduct must, however, be sufficiently severe, persistent, or pervasive that it creates a hostile environment. Where a student is repeatedly verbally abused and suffers other indignities, such as having his or her property taken or being struck by fellow students, and a school does nothing to discipline the offending students despite its knowledge that the actions have occurred, the student has been deprived of substantial educational opportunities. It is not necessary to show that the bullying prevented all opportunity for an appropriate education, but only that it is likely to affect the opportunity of the student for an appropriate education. The bullying also need not be a reaction to, or related to, a particular disability.
As for the T.K. case itself, the parents of L.K. had evidence that school personnel had been deliberately indifferent to, or failed to take reasonable steps to prevent, the bullying of L.K., as required to maintain the parents' claim under the IDEA. The child had been isolated from, and repeatedly made a victim of harassment by, her peers. There was also evidence that her parents had sent letters and tried to speak to the principal about the issue, that the school had failed to take reasonable steps to address the harassment, and that the child had suffered emotional and social scars as a result of the bullying.
Finally, addressing and rejecting broader concerns raised by the defendant school district, the court stated:
The suggestion that the rule applied here will open the floodgates to litigation since bullying is so pervasive in our schools is rejected. First, this test requires that a student have a disability since recovery is under the IDEA. Second, this test merely requires schools do what the Department of Education has told them to do for years. Application of the test is unlikely to substantially increase the cost of special education.
Id. at *28.
Posted by Gale Burns on Fri, Jun 17, 2011 @ 03:25 PM
June 21, 2011
John Stone, Senior Attorney, National Legal Research Group
As a rule, the State's failure to protect an individual from private violence does not amount to a violation of the Due Process Clause of the Fourteenth Amendment as a deprivation of life or of a liberty interest. See DeShaney v. Winnebago County Dep't of Soc. Servs., 489 U.S. 189, 197 (1989) (State owed no duty to child whose abuse it was investigating to protect him from beating by his father, despite claim that special relationship existed between the child and the State). The rationale for this principle is that the duty owed by the Government, especially in the realm of law enforcement, is to the public at large rather than to any particular individual.
An exception to this general rule exists where public officials have in some way assisted in creating or increasing the danger to the victim. For example, repeated and sustained inaction by Government officials in the face of potential acts of violence might constitute prior assurances to an offender that rise to the level of an affirmative condoning of private violence such as would amount to a violation of the Due Process Clause of the Fourteenth Amendment, even if there is no explicit approval or encouragement. In other words, under the right set of facts, Government officials can commit a substantive due process violation by implicit encouragement of the offender's actions.
In a recent tragic case in which both the perpetrator of violence and his victim died, a federal district court denied a motion to dismiss claims against governmental defendants brought under 42 U.S.C. § 1983, based on a violation of the victim's right to substantive due process. Pearce v. Estate of Longo, No. 6:10-CV-1569, 2011 WL 691377 (N.D.N.Y. Mar. 1, 2011). In Pearce, the connection between the Government and the "private violence" was present because the perpetrator was a city police officer who had had a history of verbally and physically abusing his wife and young children. More than once, the husband, service revolver in hand and in the presence of his wife and/or children, had threatened to kill himself and his family.
Despite having been discouraged by the husband's superiors at the police department from reporting the abusive treatment that she and her children were suffering on the ground that it could hurt the family's finances if the husband were to be disciplined, the wife had reported the abuse after the most threatening incidents. In response, a supervisor had acknowledged that the husband was "not okay," assured the wife that the police department was "all over this," and told her that the department would take away the husband's guns and otherwise protect her and her children. At about this time, the husband was disciplined for another incident, in which he had pointed his gun at a woman while he was working as a security guard at a school.
At least one fellow officer did urge the chief of police to confiscate the husband's weapons. The plea fell on deaf ears. In fact, the chief, a close friend of the husband's, ordered that the husband be permitted to keep his guns and remain on duty. The tragic end came soon thereafter. On the same day that the wife had been awarded exclusive possession of the family home in divorce proceedings, the husband, while on duty, entered the home and fatally stabbed his wife and then himself. Their eight-year-old son discovered the terrible scene when he returned home from school.
The court in Pearce found that when the husband police officer killed his wife, he had not been acting "under color of state law" within the meaning of § 1983, as he was not at that time performing police duties or using his powers as a police officer. However, the court ruled that the effect of this finding was to defeat only the claims brought under the Fourth and Eighth Amendments, not the due process claim brought against the City defendants under the Fourteenth Amendment.
Individual defendants against whom the § 1983 claim survived included a supervisor of the husband police officer, the chief of police, and the mayor of the City. The allegations against the supervisor—that he had been aware of his fellow officer's ongoing abuse and threatening behavior toward the wife, that he had discouraged the wife from making reports or seeking an order of protection, and that he had failed to discipline or suspend the officer, confiscate the officer's guns, or have the officer's mental condition evaluatedCall supported the claim against the supervisor under the "State-created danger" theory. Similarly, the allegations against the police chief—that he had had direct knowledge of his police officer's ongoing and escalating abusive behavior toward the wife, that he had known that the officer had been accused of wrongly pointing a loaded weapon at a citizen, that at least one of the chief's subordinates had verbalized concerns about the officer and had urged the confiscating of the officer's guns, and that the chief had done nothing in response—established a causal link between the chief's conduct and the officer's murder of his wife.
As for the mayor, whose office might typically be considered too remote from such an incident to warrant personal liability, the court found enough of a connection to keep him as a defendant. It was alleged that the mayor had surreptitiously and improperly appointed as chief of police his close friend, who had then allegedly inadequately handled the reports that a police officer was abusing his wife. By these actions, reasoned the court, the mayor had implicated himself in the policies and customs that ultimately led to the deprivation of the wife's civil rights.
It is settled law that even when municipal employees or officials are found to have violated federal constitutional rights, the municipality for whom they were then working is not vicariously liable under § 1983 for those violations. Nonetheless, under recognized theories for municipal liability, the plaintiff in
Pearce was also found to have stated a viable claim against the City for liability to the estate of the murdered wife of the City's police officer. The allegations against the officer's supervisor and the police chief sufficiently supported a § 1983 claim against the City under both a "custom" and a "failure to train" theory, in that the City had "manifested deliberate indifference by failing to adequately train the police officers involved in this matter."
Id. at *7-8.
Posted by Gale Burns on Thu, Mar 17, 2011 @ 10:01 AM
March 15, 2011
John Stone, Senior Attorney, National Legal Research Group
A recent decision by the U.S. Court of Appeals for the First Circuit suggests that requiring a teacher to have a relatively large class size may not merely adversely impact the effectiveness of the teacher and the learning by the students—it may also constitute discrimination against teachers who have been determined to be disabled. Sepúlveda‑Villarini v. P.R. Dep't of Educ., 628 F.3d 25 (1st Cir. 2010). The author of the opinion in Sepúlveda‑Villarini was retired Associate Justice of the Supreme Court of the United States, The Honorable David Souter, sitting by designation.
The plaintiffs in the case were two public school teachers in Puerto Rico. Despite some different details, the teachers' circumstances were largely similar. Sepúlveda alleged that he had suffered a stroke while teaching, requiring heart bypass surgery, and that his doctor had ordered him to apply for accommodations upon returning to work. For five school years, the school accommodated Sepúlveda by providing him a classroom on the first floor, a reduced class size of 15 pupils in most of those years, and a rest period. Then, after the Secretary for the Puerto Rico Department of Education had issued instructions to keep class size at a minimum of 20, the school director enlarged Sepúlveda's class to 30 but provided an inexperienced teacher to share his duties. Sepúlveda claimed that the new arrangement was an unreasonable refusal to accommodate his disability, resulting in emotional consequences with physical symptoms requiring treatment, and he sought monetary and equitable relief.
The second teacher, Velázquez, alleged that she suffered from a throat condition, with symptoms including excessive coughing and shortness of breath, which had allegedly been aggravated by dust and debris stemming from construction at the school some years ago. Like Sepúlveda, on doctor's orders she sought accommodations for her disability. For four school years she was provided with accommodations virtually identical to Sepúlveda's, although her maximum class size was generally 20 rather than 15. When the Secretary's instructions were circulated, her class size was also increased, up to 30 students, without a team teacher to help. She, too, alleged that ensuing emotional and physical stress required treatment.
The issue in each of these consolidated cases was the sufficiency of the complaint to state a claim for failure to accommodate an employee's disability, as required by Title I of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12111–12117, and § 504 of the Rehabilitation Act, 29 U.S.C. § 794. The district court had dismissed each case under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. The First Circuit vacated the district court decision and remanded the cases.
As determined by the district court, the particular deficiency in each of the teachers' claims under the ADA and the Rehabilitation Act was a failure to allege in the pleadings how the smaller class-size accommodation that had been requested would enable the teachers to teach, but the larger class size would not. The manner in which the lower court dismissed the complaints required the First Circuit to address the more general matter of how much must be pleaded in a complaint to satisfy the requirement in Federal Rule of Civil Procedure 8(a)(2) for "a short and plain statement of the claim showing that the pleader is entitled to relief."
As determined in two fairly recent U.S. Supreme Court decisions, the combined allegations of a complaint, taken as true, must state a plausible, not merely a conceivable, case for relief. Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Twombly, 550 U.S. at 555 ("Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." (footnote omitted) (citations omitted)). Under these precedents, a claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not the same as a "probability requirement," but it asks for more than a sheer possibility that a defendant has acted unlawfully.
In light of this guidance from the Supreme Court, the First Circuit ruled that in dismissing the disability discrimination claims in Sepúlveda‑Villarini, the district court had erred by demanding more than plausibility. Each set of pleadings included two significant sets of allegations that should have been seen as sufficient to survive the motion to dismiss. First, for a period of years the school administration had provided the reduced class size in response to the respective plaintiff's request, supported by some sort of medical certification attesting to its legitimacy. That accommodation established, in effect, a "baseline" of adequacy in response to an implicit acknowledgment that a statutory disability had required the provisions that were made. Second, each complaint described the raising of the class size to 30 and alleged that the plaintiffs' emotional and physical health subsequently deteriorated to the point of requiring treatment. It was not necessary for the complaints to describe a causal connection in terms of the exact psychological or physiological mechanism by which each plaintiff's capacity was overwhelmed. Reading the factual allegations as true should have meant accepting the changes in class size as the only variable, from which one would infer that there probably is some causal connection between the work of a doubled class size and the physical and emotional deterioration of the disabled teacher. As the court put it, "it does not seem remarkable that a teacher would be worn down by doubling the size, even with a young helper, who will need to be supervised." 628 F.3d at 29.
In short, requiring allegations that explained "how" class size was significant and the change in size was actionable impermissibly amounted to a call for pleading the details of medical evidence in order to increase the likelihood that a causal connection would prove out as fact. The "plausibility" standard in a complaint does not require such a demonstration of likely success on the merits; rather, the standard is plausibility, assuming the pleaded facts to be true and read in a plaintiff's favor. Stripped down to its essence, the principle to be derived from
Sepúlveda‑Villarini is that "[a] plausible but inconclusive inference from pleaded facts will survive a motion to dismiss[.]"
Id. at 30.
Posted by Gale Burns on Wed, Jan 12, 2011 @ 04:04 PM
October 26, 2010
John Stone, Senior Attorney, National Legal Research Group
In the typical case in which an employee sues under federal or state employment discrimination laws for a racially hostile environment in the workplace, the racially charged conduct emanates only from fellow employees or supervisors. A recent case demonstrates, however, that an employer may be found liable under such provisions even if the harassing atmosphere is caused by the employer's having honored or acquiesced in the racial preferences and biases stated by the employer's customers, with whom the plaintiff employee normally would interact as part of a job. What might be called the "customer made us do it" defense has not been well received by most courts. See, e.g., Johnson v. Zema Sys. Corp., 170 F.3d 734, 744 (7th Cir. 1999) (evidence of segregated sales force supported Title VII claim); Ferrill v. Parker Group, Inc., 168 F.3d 468, 477 (11th Cir. 1999) (employer's practice of assigning "get‑out‑the‑vote" phone calls based on race violated Title VII); see also Fernandez v. Wynn Co., 653 F.2d 1273, 1276‑77 (9th Cir. 1981) (rejecting customer- preference defense in sex discrimination context and relying on EEOC holding that Title VII does not permit the accommodation of the racially discriminatory policies of foreign nations).
The situation in Chaney v. Plainfield Healthcare Ctr., 612 F.3d 908 (7th Cir. 2010), pitted a health‑care worker's right to a nondiscriminatory workplace against a patient's demand for white‑only health-care providers. The defendant nursing home housed a resident who was unabashed in stating that she did not want assistance from a black certified nursing assistant ("CNA"). The nursing home complied with this racial preference, telling Chaney, a black CNA, in writing every day that no black assistants should enter that resident's room or provide her with care.
This policy was followed so rigidly that on occasion it put the nursing home at risk of violating duties of medical care owed to its residents. For example, on one occasion, Chaney, who went along with the policy for fear of losing her job, reluctantly left the resident with the "whites only" directive on the floor after a fall, while she searched the building for a white CNA rather than immediately attending to the resident's needs herself. The effect on Chaney of the honoring of racial preferences was compounded by the fact that coworkers frequently reminded her of, and warned her about, the policy. Some of these same fellow employees also directed racial epithets at Chaney, as is more common in racially hostile atmosphere cases, but the Seventh Circuit clearly treated application of the racial-preference policy as the most important part of the nursing home's conduct creating the unlawful work environment:
Most importantly, Plainfield acted to foster and engender a racially‑charged environment through its assignment sheet that unambiguously, and daily, reminded Chaney and her co‑workers that certain residents preferred no black CNAs. Unlike white aides, Chaney was restricted in the rooms she could enter, the care that she could provide, and the patients she could assist.
Id. at 912. All in all, this atmosphere at work took an emotional toll on Chaney, who routinely left work "teary-eyed."
Chaney brought an action against the nursing home under Title VII of the 1964 Civil Rights Act, 42 U.S.C. §§ 2000e to 2000e-4. She claimed that the practice of acceding to the racial biases of nursing home residents is illegal and creates a hostile work environment. (She also asserted, in a separate race discrimination claim, that the nursing home fired her, only three months into the job, because she was black.) The federal district judge granted the defendant's motion for summary judgment, but the Seventh Circuit reversed and remanded the case for further proceedings.
The nursing home's defense was more nuanced than simply saying that it did not want to annoy or offend the resident with the "whites only" instructions. It argued that a policy of acquiescing in such preferences was necessary if the nursing home was to comply with state regulations concerning patient care. However, this defense was found to be lacking both factually and legally.
The state regulations at issue required that the nursing home allow its residents access to health-care providers of their choice, but this was not at all the same as a requirement that the nursing home instruct its employees to accede to the racial preferences of residents. If a racially biased resident wished to employ, at her expense, a white aide, state law may have required the nursing home to allow reasonable access to that aide. But the regulations could not be read to say that a resident's preference for whites among the nursing home's own staff should control over the nursing home's obligation to its employees to refrain from race-based work assignments. Moreover, even if the nursing home's reading of the effect of the state regulations was correct, the result would have been a conflict between such state regulations and Title VII. In that event, the federal law would be controlling, under the Supremacy Clause.
The defendant nursing home in Chaney attempted to compare the case against it with those cases in which, also in a health-care setting, courts have recognized that the gender of an employee may be a legitimate criterion, or job qualification, for purposes of accommodating the privacy interests of patients. In this context, however, the distinction between race and gender preferences makes all the difference:
The privacy interest that is offended when one undresses in front of a doctor or nurse of the opposite sex does not apply to race. Just as the law tolerates same‑sex restrooms or same‑sex dressing rooms, but not white‑only rooms, to accommodate privacy needs, Title VII allows an employer to respect a preference for same‑sex heath providers, but not same‑race providers.
Id. at 913.
In summarizing its reasoning for remanding the hostile atmosphere claim for consideration by a jury, the Seventh Circuit stated:
Plainfield never corrected the princip[al] source of the racial hostility in the workplaceCits willingness to accede to a patient's racial preferences. The hostility that Chaney described came from daily reminders that Plainfield was employing her on materially different terms than her white co‑workers. Fueling this pattern was the racial preference policy, both a source of humiliation for Chaney and fodder for her co‑workers, who invoked it regularly. It was, in short, a racially hostile environment, and the evidence presented at summary judgment allows a jury to conclude that Plainfield took insufficient measures to address it.
Id. at 915.
Posted by Gale Burns on Fri, Jan 07, 2011 @ 11:46 AM
December 21, 2010
John Stone—Senior Attorney, National Legal Research Group
In 1999, a jury convicted Clarence Elkins of the 1998 crimes of raping and murdering his mother-in-law, and assaulting and raping his six-year-old niece. The jury then sentenced him to life in prison with no eligibility for parole. Seven years later, Elkins obtained DNA evidence that proved that Earl Mann, the mother-in-law's neighbor at the time of the murder, had committed the crimes, and Elkins was exonerated.
Elkins brought suit on a variety of state and federal claims in the federal district court against the City of Barberton, Ohio, and against multiple officers and detectives who had investigated the murder. Elkins claimed that the officers had failed to disclose to the prosecution a memorandum that would have exonerated him. The officers and the City moved for summary judgment on all the claims, asserting that they were entitled to qualified immunity and state sovereign immunity. As for the federal claims brought under 42 U.S.C. § 1983, the court dismissed the claims against the City but denied the officers qualified immunity on the claims based on the violation of Elkins's constitutional right to due process. Elkins v. Summit County, No. 5:06-CV-3004, 2009 WL 1150114 (N.D. Ohio Apr. 28, 2009) (not reported), aff'd, 615 F.3d 671 (6th Cir. 2010).
At Elkins's trial, the niece identified Elkins as the perpetrator, but Elkins presented substantial evidence that someone else had committed the crime. Elkins's then wife, Melinda Elkins, the murder victim's daughter, testified that Elkins had been at home with her, 40 miles away from the victim's house, at the time of the crime. Other witnesses testified to having spent time with Elkins during the evening until shortly before the murder occurred. Most significantly, the officers had recovered hairs from the crime scene that, when subjected to DNA analysis, did not match Elkins's hair. In their further attempts to find a DNA match, the officers obtained hair samples from several other individuals but found no match. Ultimately a jury convicted Elkins on all charges.
In 2002, the niece recanted her testimony, but the State did not reverse its conviction. That same year, through what the appellate court called "a series of breathtakingly improbable coincidences," id. at 674, Elkins began to suspect that Mann was the real murderer. First, Elkins became aware of a news report stating that Mann had been arrested and convicted of molesting his three young daughters while living next door to Elkins's mother-in-law. As luck would have it, Mann was sentenced to prison and transferred to the same facility where Elkins was housed. Then Elkins noticed one day that Mann had left a cigarette butt on a table in the recreational area. Elkins asked another prisoner to stand guard over the butt while he located some toilet paper to wrap the cigarette in, so as not to taint any DNA evidence. Elkins then spent the next two weeks illicitly trying to get a plastic bag through the prison black market so that he could smuggle the cigarette out of prison for his attorney to test—which he eventually did.
Subsequent testing revealed that Mann's DNA matched the DNA found at the murder scene, and, after an investigation, Elkins was released from prison after having served seven years. Mann ultimately pleaded guilty to the murder, and the criminal case against Elkins was dismissed.
In Elkins's civil suit, the district court held that, in a summary judgment posture, it must infer or assume that the detectives had both received and failed to disclose the exculpatory memorandum and that the failure to disclose the memorandum violated Elkins's right to due process in the criminal case against him. (It further held that Elkins had presented sufficient evidence to show that the officers had acted in bad faith or been reckless in failing to disclose the memorandum, and that he had therefore provided sufficient evidence to support a state law malicious prosecution claim.)
In the appeal by the defendant police officers, the Sixth Circuit affirmed the lower court's denial of their claim to a qualified immunity defense. When the defendants failed to disclose to the prosecution or to the defense the memorandum memorializing Mann's statement suggesting his involvement in the murder for which Elkins was being prosecuted, they violated a clearly established constitutional right to the disclosure of favorable evidence. Moreover, the exculpatory value of the memorandum was apparent, and there was obvious merit to Elkins's contention that disclosure of the memorandum would likely have made a substantial difference to the outcome of his criminal trial. See California v. Trombetta, 467 U.S. 479 (1984) (Due Process Clause of the Fourteenth Amendment requires State to disclose to criminal defendants favorable evidence that is material either to guilt or to punishment); Moldowan v. City of Warren, 578 F.3d 351 (6th Cir. 2009) (obligation of police, under Due Process Clause, to disclose exculpatory evidence was clearly established as of date of detective's alleged violation of that duty, as required to overcome detective's qualified immunity claim in arrestee's § 1983 action; decisions from other circuits had recognized that type of Brady [v. Maryland, 373 U.S. 83 (1963)] claim prior to earliest possible date for detective's involvement in the case, and any reasonable police officer would have known that suppressing exculpatory evidence was a violation of the arrestee's constitutional rights).
Based on the six-year-old niece's statement that the rapist looked like her uncle, the Barberton police had arrested Elkins, and shortly thereafter he was indicted on charges of aggravated murder, attempted aggravated murder, rape, and felonious assault. While the Elkins investigation was ongoing, Mann was arrested by the Barberton police for two "strong-arm" robberies. During the course of that arrest, Mann, who was drunk, asked a patrol officer, "Why don't you charge me with the Judy Johnson murder?" 615 F.3d at 673. In compliance with his training mandating that officers report anything they believe the Detective Bureau should know about, the patrol officer wrote an interdepartmental memorandum memorializing Mann's statement and directed it that same day to the department investigating the murder. The patrol officer later testified that after he had written the memorandum, he placed it in a mail box that, according to department procedures, was emptied each day by a member of the Detective Bureau and disseminated to the detectives working on the specific case. However, the Mann memorandum was not disclosed to Elkins or to the prosecution and was never produced.