December 4, 2012

John Stone, Senior Attorney, National Legal Research Group

Severe psychological disorders that plagued Josephine led to a stormy relationship between her and her employer, the California Department of Transportation ("Caltrans").  Caltrans wanted to terminate Josephine, and, according to her, it passed her over in promotions and harassed her because of her mental disability. These matters were resolved by a settlement that put her on disability retirement status, with the option of seeking reinstatement to active employment. When Josephine took that step, litigation ensued in which Caltrans contended that despite her "praiseworthy" attempts to get well, her disorders left her unable to perform duties as an accounting officer.

After her state court challenge to an administrative decision in favor of Caltrans failed, Josephine sued the responsible state officials in federal court. These claims failed as well, and in ways that suggest that state employees may sometimes need to resort to state law remedies, where they are available, to get full relief for alleged disability discrimination. Okwu v. McKim, 682 F.3d 841 (9th Cir. 2012). The reasons for dismissal of Josephine's federal claims were mostly legal rather than stemming from the facts of her particular case.

Josephine's claim under Title I of the Americans with Disabilities Act ("ADA"), which covers employment discrimination, was properly dismissed because the U.S. Supreme Court has ruled that when Congress enacted that provision, it did not intend to abrogate the States' Eleventh Amendment immunity. See Univ. of Ala. Bd. of Trs. v. Garrett, 531 U.S. 356, 360 (2001). The Court in Garrett stated that the legislative record of the ADA failed to show that Congress had identified a pattern of irrational state discrimination in employment against the disabled and that the record thus did not support abrogation of the States' Eleventh Amendment immunity from suits for money damages under Title I of the ADA; in any event, said the Court, the rights and remedies created by the ADA against the States raised concerns as to "congruence and proportionality," supporting the determination that Congress did not validly abrogate the States' immunity.

With no claim directly available to her under Title I of the ADA, Josephine's next theory was based on asserting the substantive rights provided by that statute in a claim brought under the broad civil rights statute, 42 U.S.C. § 1983. Section 1983 is more commonly used to obtain redress for violation of federal constitutional rights, but in some cases it can be the remedial vehicle for violation of federal statutory rights. Not so here. This claim collapsed under the principle that Congress's inclusion of a comprehensive remedial scheme, such as is set forth in Title I of the ADA, precludes any attempt to bootstrap a claim under that provision in a separate § 1983 cause of action. This is the required result, even though the State's immunity foreclosed a direct action under Title I of the ADA to get the benefits of that "comprehensive remedial scheme."  The Supreme Court's decision in Garrett, which "defanged" the Title I scheme for state employees, did nothing to change the legislative intent to preclude asserting Title I rights by means of  § 1983. As the Okwu court put it, "We are not free to interpret § 1983 in a way that provides a substitute remedy that Congress never provided." 682 F.3d at 846.

The Lawletter Vol 37 No 8

Tim Snider, Senior Attorney, National Legal Research Group

The litigation involving liability resulting from damage caused by Hurricane Katrina to New Orleans and its environs in 2005 has taken an unexpected turn.  More than 400 plaintiffs sued in federal court to recover for Katrina‑related damages, many naming the federal Government as a defendant.  Seven plaintiffs from that number went to trial.  The court found that neither the Flood Control Act of 1928 ("FCA"), 33 U.S.C. § 702, nor the discretionary‑function exception ("DFE") to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2680(a), immunized the Government from suit.  In re Katrina Canal Breaches Consol. Litig., 533 F. Supp. 2d 615 (E.D. La. 2008).  After 19 days of trial, the court found that three plaintiffs had proven the Government's full liability and four had not. Another group of plaintiffs had their cases dismissed on the Government's motion, the court having found both immunities applicable.  Still a different group are now preparing for trial of their own case against the Government.

The Lawletter Vol 37 No 8

Dora Vivaz, Senior Attorney, National Legal Research Group

A hot topic in politics as well as in the courts these days is the extent to which same-sex couples may be treated differently from heterosexual couples.  While much of the focus has been on the right to marry, there have been other questions, distinct from the marriage issue, such as rights to government, employment, or other benefits offered to otherwise similarly situated couples but withheld from same-sex couples.  Not surprisingly, the decisions have not been uniform, even within the same circuit.

The Lawletter Vol 37 No 6

Paul Ferrer, Senior Attorney, National Legal Research Group

We have written often in The Lawletter about what is now required for a plaintiff to plead claims in federal court that will survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) in light of the Supreme Court's decisions in Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009).  But do the heightened pleading standards formulated in Twombly and Iqbal also apply to affirmative defenses asserted by the defendant against those claims?  That issue has split the federal courts that have addressed it.

Part of the Supreme Court's rationale for adopting the more exacting "plausibility" standard for reviewing the sufficiency of a plaintiff's complaint was found in the language of Rule 8(a)(2), which requires "[a] pleading that states a claim for relief" to contain, among other things, "a short and plain statement of the claim showing that the pleader is entitled to relief[.]"  Fed. R. Civ. P. 8(a)(2) (emphasis added); see Iqbal, 556 U.S. at 679 ("But where the well‑pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has allegedCbut it has not 'show[n]'C'that the pleader is entitled to relief.'" (quoting Fed. R. Civ. P. 8(a)(2))).  By contrast, the portion of Rule 8 dealing with defenses generally requires only that a party, in responding to a pleading, "state in short and plain terms its defenses to each claim asserted against it[.]"  Fed. R. Civ. P. 8(b)(1).  Likewise, Rule 8(c), which deals specifically with affirmative defenses, requires the party to "affirmatively state any avoidance or affirmative defense[.]"  Fed. R. Civ. P. 8(c)(1).

Some of the district courts have relied, in part, on the differences in the language of these subsections in holding that the Twombly/Iqbal standard does not apply to the pleading of affirmative defenses.  See, e.g., Falley v. Friends Univ., 787 F. Supp. 2d 1255, 1258 (D. Kan. 2011) (finding these differences "significant," in that the "showing" requirement in subsection (a) does not appear in subsections (b) and (c) governing defenses).  These courts have also considered that the issue arises in the context of a motion to strike an "insufficient defense" under Rule 12(f), see id. at 1257, and such motions are "highly disfavored" because they are often used by the movant "simply as a dilatory tactic," FTC v. Hope Now Modifications, LLC, No. 09-1204, 2011 WL 883202, at *1 (D.N.J. Mar. 20, 2011) (internal quotation marks omitted).  In addition, another one of the considerations underlying the adoption of a higher pleading standard for complaintsCnot subjecting a defendant to discovery in favor of "a plaintiff armed with nothing more than conclusions," Iqbal, 556 U.S. at 679Cdoes not apply to a defendant who is "already subjected to discovery."  Hope Now, 2011 WL 883202, at *3.

The Lawletter Vol 37 No 5

Steve Friedman, Senior Attorney, National Legal Research Group

The Establishment Clause of the First Amendment, made applicable to the States by the Fourteenth Amendment, provides that "Congress shall make no law respecting an establishment of religion."  U.S. Const. amend. I, cl. 1.  Among other things, a Government violates the Establishment Clause if its practice could be viewed by a reasonable observer as endorsing religion, either by fostering excessive entanglement with religion, see Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971), or by applying coercive pressure to support or participate in religion, see Lee v. Weisman, 505 U.S. 577, 587 (1992); Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 312 (2000).

In Doe v. Elmbrook School District, No. 10-2922, 2012 WL 2996743 (7th Cir. July 23, 2012) (en banc), a divided en banc Seventh Circuit held that the Establishment Clause prohibits having high school graduation and related events at a church with an emphatically Christian atmosphere.  Due to the hot, cramped, and uncomfortable confines of the high school gymnasium shared for graduation-related events by two area high schools in the Elmbrook, Wisconsin, School District (the "District"), the senior class of 2000 looked for alternative locations in which to hold them.  With the backing of the District, they ultimately chose a local evangelical Christian church (the "Church").  "The atmosphere of the Church, both inside and outside the sanctuary, is indisputably and emphatically Christian.  Crosses and other religious symbols abound on the Church grounds and the exterior of the Church building, and visitors encounter these symbols as they drive to the parking lot and walk into the building."  Id. at *4.  A group of students and their parents brought suit against the District, claiming that holding graduation in the Church violated the Establishment Clause.

On cross-motions for summary judgment, the trial court granted the District summary judgment.  The plaintiffs appealed, and the District's judgment was affirmed by a panel of the Seventh Circuit.  On rehearing en banc, however, in a 4-3 decision, the Seventh Circuit reversed and remanded, holding that the District's practice violated the Establishment Clause.

In relevant part, the majority held first that the District's practice "conveyed a message of endorsement" and that "the sheer religiosity of the space created a likelihood that high school students and their younger siblings would perceive a link between church and state." Id. at *10.  In addition to the large Latin cross at the front of the sanctuary, the lobby contained numerous child-oriented proselytizing pamphlets, and church staff manned booths during some of the District's activities.  Not only was the Church adorned with its own symbols, but it was covered with high school decorations too, such that the District placed its imprimatur on the Church's religious message.

The majority also held that the District's practice constituted religious coercion.  By directing students to attend a pervasively Christian, proselytizing environment, the District created a captive audience.  "The only way for graduation attendees to avoid the dynamic is to leave the ceremony.  That is a choice . . . the Establishment Clause does not force students to make."

August 21, 2012

John Stone, Senior Attorney, National Legal Research Group

Among the less frequently litigated federal civil rights statutes is 42 U.S.C. § 1981, which prohibits race discrimination related to making and enforcing contracts. The term "make and enforce contracts" in the statute means "the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship."  42 U.S.C. § 1981(b).  Within the category of cases deciding claims under this provision, there are fewer still that involve actions brought by customers against retail businesses.  In a recent case, the Eleventh Circuit had to decide whether a customer could succeed on his § 1981 cause of action, where he had been subjected to racially motivated treatment that delayed and obstructed his shopping but that did not, in the end, prevent him from completing the transaction.  The court answered this question in favor of the defendant store, affirming dismissal of the § 1981 claim.  Lopez v. Target Corp., 676 F.3d 1230 (11th Cir. 2012).

The Hispanic plaintiff in Lopez had selected some items to purchase at a big-box store and stood in a checkout line.  When he reached the register, the white female cashier "rudely" told him that her register was closed, then proceeded to help the next customer, who was white, after Lopez had walked away.  As she did this, the cashier laughed at, and gestured toward, Lopez.  When Lopez headed toward a different line, a supervisor, who had apparently witnessed Lopez's first attempt to check out, told Lopez to go back to the same line, where the same cashier would accept his payment.  Given a second chance to get it right, the cashier squandered the opportunity and instead revealed her bias more plainly.  The cashier did not use any racial terms, but when Lopez reached her, she very loudly said, "Don't you listen? I'm closed!"  Id. at 1232.  When Lopez explained that a supervisor had sent him back to her, she said, even more loudly, "Don't you understand? I'm closed to YOU!"  Id.  Again Lopez left the line, and again the cashier gestured at him and laughed as he went.  At that point, Lopez was finally able to buy his items from a different cashier, who heard his story and summoned a supervisor, who apologized profusely.  The opinion does not indicate the fate of the rude cashier, but Lopez, "in a state of shock" and still distraught, finally left the store with his purchased items and $9 worth of coupons from the apologetic supervisor.

Lopez brought suit in state court against the store and the cashier, and the presence of the federal claim under § 1981 allowed the case to be removed to federal court.  When Lopez's claims were dismissed by the district court, the Eleventh Circuit had before it the ' 1981 claim and the state law tort claim for intentional infliction of emotional distress ("IIED").  It affirmed the lower court's rulings.

The Lawletter Vol 37 No 2

John Stone, Senior Attorney, National Legal Research Group

Police arrested Christina outside Chicago's Midway Airport.  She had purchased a ticket from Southwest Airlines but was behaving so oddly while waiting to board the airplane that agents called the police, who escorted her from the airport.  Christina walked to the rail and bus terminal of the Chicago Transit Authority, immediately outside the airport, where she started singing loudly, ranting about the price of oil, and screaming at other people, with her face only inches from theirs.  She would not or could not stop, despite multiple requests, leading to her arrest.

Experts in the ensuing litigation concluded that Christina had been in an acute manic phase. She did not tell the police about her mental‑health background, however, and was uncooperative after her arrest—sometimes refusing to answer questions, sometimes screaming, sometimes providing false or unresponsive answers.  Telephone calls from her mother and her stepfather informed officers in Chicago that Christina had bipolar disorder, but the officers did not believe the stepfather, and the officer who took the calls from the mother failed to tell anyone else or record the information in Christina's file.  While Christina was in custody, some officers thought that she was just being difficult, some thought that she was on drugs, some thought that she was no worse than the run-of-the-mill loud and uncooperative people who do not want to be in custody, and those who thought that she needed mental‑health care were ignored or overruled.

While detained at a police station, Christina alternated between calm and manic conduct, sometimes chatting amiably and sometimes screaming, chanting rap lyrics, smearing menstrual blood on the cell's walls, and taking off her clothes.  Officers processed the paperwork to release her on an individual‑recognizance bond.  Christina signed the bond and walked out of the station house.  She had no idea where she was and did not do the most sensible things—hail a taxi or head for a bus station and get out of the area during the remaining daylight.  It was evening, and the police station was close to a public‑housing project with an exceptionally high crime rate; the police had not returned her cell phone, so she could not easily summon aid; she was lost, unable to appreciate her danger, and dressed in a manner that attracted attention (a cutoff top with a bare midriff, short shorts, and boots); and she was white and well-off while the local population was predominantly black and not affluent, thus, in the court's view, causing her to stand out as a person unfamiliar with the environment and a potential target for crime.

Soon Christina joined a cluster of 15 to 20 people on a street corner outside one of the project's high‑rise buildings.  She accompanied several young men to an apartment that was vacant and had been taken over as a hangout.  Some of the occupants told her that it was unsafe and that she should leave, but Christina was too confused to act on that advice.  About five hours after the police let Christina go, a man found her in the apartment, forced the others out, and raped her at knifepoint.  People outside tried and failed to break down the door in time to save her.  Trying to escape, Christina jumped out the window, which was seven stories aboveground.  Although she survived the fall, her brain was seriously damaged.  She has undergone years of physical therapy, but her brain functioning is permanently that of a child.