In the U.S. District Court for the Eastern District of New York, Judge Jack B. Weinstein granted collateral relief to a defendant whose trial lawyer, by neglecting to investigate the crime scene, missed opportunities to rebut the District Attorney’s case. Judge I. Leo Glasser held that equal protection and § 1983 claims against the parks commissioner for converting a cemetery into a recreation area were some 64 years out of time. And Judge David G. Trager applied recently relaxed pleading standards to a Title VII complaint.
Ineffective Assistance of Counsel
In Thomas v. Kuhlman, 97 CV 2096 (EDNY, April 7, 2003), Judge Weinstein, granting a writ of habeas corpus, held that defense counsel’s failure to investigate the crime scene prior to his client’s trial in state court for second-degree murder prevented an effective attack on critical eye-witness testimony, in violation of petitioner’s right to counsel. Judge Weinstein emphasized counsel’s ethical obligations to pay for the necessary investigation.
A woman whom petitioner had known was found murdered in her Brooklyn apartment. Save for the window leading to the fire escape, the apartment’s doors and windows were locked. The prosecution’s key witness testified to seeing petitioner, shortly before the murder, on the fire escape abutting the victim’s apartment. As is now undisputed, however, that fire escape was not visible from the witness’ vantage point. An inspection of the crime scene would have made clear this crucial fact, which was never brought out to the jury. The prosecution’s remaining evidence was slight, and the jury was on the verge of hanging, requiring an Allen charge.
After losing his direct appeal, petitioner filed a motion to vacate in the original trial court, arguing ineffective assistance of counsel. Petitioner obtained no relief there or on further state court review. He then sought habeas corpus in the Eastern District.
As Judge Weinstein saw it, a proper pretrial investigation would have enabled defense counsel to deal "significant blows" to the prosecution’s case. Most importantly, counsel could "have eliminated all proof that [petitioner] was seen that evening outside of the victim’s window." Counsel could also have highlighted other weaknesses in the prosecution’s theory. Slip op. 16-17.
In response to the habeas petition, defense counsel submitted an affidavit stressing petitioner’s "assurances" to him that the eye-witness’ testimony concerning the layout of the buildings and fire escapes was accurate. But given the gravity of the charges and the importance of the testimony, counsel was obligated "to see for himself what the crime scene looked like." Indeed, counsel was so obliged "even if no funds were forthcoming either from the defendant, defendant’s family or the county." Slip op. 21.
But for counsel’s unprofessional errors, Judge Weinstein concluded, there is more than a reasonable probability that petitioner would have escaped conviction.
In Tshaka v. Benepe, 02 CV 5580 (April 9, 2003), Judge Glasser granted defendants’ motion to dismiss equal protection and § 1983 claims brought by African-American and Native American descendants of people buried in Martin’s Field, a former cemetery in Flushing. Plaintiffs alleged that defendants, including the New York City Parks Commissioner, had converted Martin’s Field into a park and children’s playground and failed to properly maintain the area as a cemetery, solely because of plaintiffs’ race.
In 1840 the Town of Flushing set aside Martin’s Field as a paupers’ burial ground. Numerous former slaves were buried there. In 1935 the New York City Department of Parks and Recreation tore down the headstones, cemented over part of the land and constructed a children’s playground.
The complaint alleged that defendants, for purposes of racial discrimination, failed to enforce the city code regarding maintenance of the cemetery from 1898 to 1935, and then wrongfully turned the land into a park. According to plaintiffs, their rights were still being violated "each and every day" defendants did not enforce the code.
As Judge Glasser noted, plaintiffs made no allegation even suggesting the existence of any "official municipal policy or custom" regarding enforcement of the city code, and they never identified any similarly situated parties treated more favorably than they were.
In any event, the claims would be barred by the three-year statute of limitations. Finding the "continuing wrongs doctrine" inapplicable here, Judge Glasser stated:
Even assuming that defendants had a legal obligation to maintain the cemetery, for purposes of the statute of limitations, the act of razing the cemetery and constructing a playground was a single act, not a continuing series of acts. When the cemetery ceased to exist, the statute of limitations began to run, and it has assuredly expired.
In O’Neal v. State University of New York, Health Science Center Brooklyn, 01 CV 7802 (EDNY, March 24, 2003), Judge Trager denied defendant’s motion to dismiss plaintiff’s Title VII hostile work environment and retaliation claims, and dismissed with leave to re-plead her gender discrimination claim. The court discussed the recent easing of pleading requirements in Title VII cases.
Plaintiff worked for defendant health center for approximately 30 years as a drug counselor. In 1995, after defendant merged with another clinic, Mr. Myzwinski became one of her supervisors. Plaintiff alleged that Mr. Myzwinski: embarrassed her in front of clients and fellow employees by publicly criticizing and humiliating her; treated her and her fellow female employees in humiliating ways, such as closing her office door; and caused the door to strike her knee, resulting in a permanent disability.
Plaintiff filed an administrative complaint with the New York State Division of Human Rights (NYSDHR) claiming gender discrimination and a subsequent complaint alleging retaliatory threats of discipline because of her absence. The NYSDHR found no probable cause to believe that defendant had engaged in unlawful discriminatory practices, and the EEOC subsequently issued a right to sue letter.
Applying Swierkiewicz v. Sorema N.A., 534 US 506 (2002), Judge Trager declined to dismiss plaintiff’s gender discrimination and retaliation claims based upon plaintiff’s failure to plead a prima facie case. However, the court dismissed plaintiff’s gender-discrimination claim with leave to file an amended complaint because the complaint did not clearly state a claim for constructive discharge.
In Swierkiewicz, the Supreme Court rejected the stringent requirement that a Title VII plaintiff plead evidence of a prima facie case. Swierkiewicz held that under Fed. R. Civ. P. 8(a)(2), a Title VII plaintiff need only show by a "short and plain statement" that he or she is entitled to relief. As Judge Trager stated, a complaint alleging employment discrimination will withstand a motion to dismiss if it gives "’fair notice of what the plaintiff’s claim is and the grounds upon which it rests."’ Slip op. 12 (quoting Swierkiewicz, 534 US at 512). Judge Trager therefore found no need to dismiss the complaint because it failed to allege evidence establishing an adverse employment action, one of the components of a prima facie case of gender discrimination. While the complaint did not clearly state a claim for constructive discharge, the court was satisfied that "a constructive termination claim is at least plausible." Accordingly, the court dismissed plaintiff’s gender-discrimination claim with leave to file an amended complaint to pursue a constructive-discharge claim. Similarly, the court found that plaintiff’s allegations of retaliation met the pleading requirements of Swierkiewicz.
In denying the motion to dismiss plaintiff’s hostile work environment claim, Judge Trager held that defendant’s alleged conduct "could be construed as creating an objectively hostile work environment." Slip op. 16. The court pointed to plaintiff’s allegations of Mr. Myzwinaki’s hostile actions, including: (1) closing her door, (2) verbally attacking her, (3) bypassing her immediate supervisor to harass her, (4) embarrassing her at a staff meeting and (5) physically injuring her.
Judge Trager dismissed plaintiff’s race-discrimination claim for failure to exhaust administrative remedies, and her state-law claim against the health center, a state entity, as barred by the Eleventh Amendment.
Peter R. Schlam and Harvey M. Stone are partners at Schlam Stone & Dolan.
[This article is reprinted with permission from the May 9, 2003, issue of the New York Law Journal. Copyright © 2007 ALM Properties, Inc. All rights reserved. Further duplication without permission is prohibited.]