November 13, 2014
This column reports on several significant, representative decisions handed down recently in the U.S. District Court for the Eastern District of New York. Judge Brian M. Cogan held that, by requiring certain employer-plaintiffs affiliated with the Catholic Church to file exemption forms regarding insurance for contraceptive services and to submit the forms to their insurers or third-party administrators, the Affordable Care Act violated plaintiffs' religious rights. Judge Arthur D. Spatt rejected age discrimination claims by a long-time company employee terminated at age 64. Judge Jack B. Weinstein held that the City of New York and three police offers could be liable under section 1983 for damages resulting from a federal prosecution based on the officers' allegedly false testimony. And Judge Spatt, awarding attorney fees to defendants as sanctions where two plaintiffs in a class action case failed to appear for their depositions, reduced the amount requested by 40 percent.
In The Roman Catholic Archdiocese of New York v. Sebelius, 12 CV 2542 (EDNY, Dec. 13, 2013), Judge Cogan held that The Patient Protection and Affordable Care Act (ACA) violated the rights of certain organizations affiliated with the Roman Catholic Church by requiring them to engage in administrative steps that amounted to cooperation in the provision of contraceptive services to their employees, in violation of their religious principles.
The ACA regulations require an employer who asserts religious objections to the provision of contraceptive services to complete a self-certification form stating that it is eligible for an exemption from the mandatory provision of such services, and to provide a copy of that form to its insurer or, in the case of a self-insuring entity, to its third-party administrator. The insurer or administrator is then "required to provide or arrange for payment of contraceptive services." Slip op. 10.
Plaintiffs alleged that mandatory participation in this process violated their rights under the Religious Freedom Restoration Act (RFRA), which provides that the government "may substantially burden a person's exercise of religion only if it demonstrates that application of the burden to the person (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest." Slip op. 16, citing 42 U.S.C. §2000bb-1(b).
Cogan rejected the government's argument that the mere act of providing a self-certification is too attenuated to be substantial under RFRA. "[W]here a law places substantial pressure on a plaintiff to perform affirmative acts contrary to his religion, the Supreme Court has found a substantial burden without analyzing whether those acts are de minimis. . . . There is no way that a court can, or should, determine that a coerced violation of conscience is of insufficient quantum to merit constitutional protection." Slip op. 24-25.
The government failed to show that there was no less restrictive means of advancing its stated interest in improving public health and equalizing women's access to health care. It could, for example, provide "contraceptive services or insurance coverage directly to plaintiffs' employees, or work with third parties – be it insurers, health care provides, drug manufacturers, or non-profits – to do so without requiring plaintiffs' active participation." Slip op. 34.
The court therefore granted summary judgment to the four plaintiffs who were subject to the self-certification requirements of the ACA regulations. Cogan granted summary judgment to the government dismissing the claims of two plaintiffs (the Archdiocese of New York and the Diocese of Rockville Center) that qualified as "religious employers" under the ACA and were therefore exempt from the self-certification requirements. Slip op. 28-29, 41.
In Robles v. Cox and Company, 11 CV 1975 (EDNY, Nov. 23, 2013), Judge Spatt found defendant entitled to summary judgment on plaintiff's age discrimination claim.
Plaintiff Carmen Robles was terminated by defendant, a manufacturer for the aerospace industry, when she was 64 years old. She had worked there in various positions for more than 40 years. At the time of her termination, in April 2009, she had been working for some seven years in the stockroom. At issue here were her claims under the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. § 621 et seq.; and the New York State Human Rights Law, N.Y.C. Admin. Code § 8-107(1)(a) et seq.
Though the New York State Department of Human Rights had found probable cause to support the alleged age discrimination, Spatt held that plaintiff had failed to make out a prima facie case; and that, in any event, defendant had met its burden of showing non-discriminatory reasons for the discharge. The court emphasized the following factors:
- Plaintiff's termination was part of a reduction in force in several steps, whereby defendant, facing financial difficulties, laid off 52 workers – nearly a third of its employees.
- While plaintiff was the oldest of five full-time employees in the stockroom (one other, in her 50s, was also terminated), a company-wide review of the layoffs shows that (1) defendant retained a number of employees in the protected class – that is, over the age of 40; and (2) employees under 40 also lost their jobs.
- Plaintiff admitted in her deposition that she had never experienced any kind of discrimination as a stockroom employee.
- The remaining stockroom employees were all in the protected class and assumed plaintiff's duties after she left.
- The Chief Financial Officer, who participated in the decision to terminate plaintiff, was 54 years old.
- Plaintiff's performance was generally evaluated as "average," in contrast to the "excellent" evaluation for the two nonsupervisory stockroom employees who survived the work force reduction.
- Plaintiff could not go beyond sheer speculation in arguing that the company's explanations were "pretextual."
- Here, unlike Title VII cases, a "but-for" analysis, rather than a "mixed-motive" analysis, applied. Plaintiff failed to offer evidence that age discrimination was a "but-for" cause of her termination. Slip op. 11-17.
In Davis v. City of New York, 12 CV 1219 (EDNY, Dec. 4, 2013), Judge Weinstein denied defendants' motion to dismiss plaintiff's §1983 civil rights case for wrongful arrest and malicious prosecution based on an arrest by New York City police officers, leading to federal criminal charges.
The arresting officers observed plaintiff Leroy Davis "suspiciously discard[ing] a black plastic bag, later discovered to contain a gun and crack cocaine, on a public sidewalk." Plaintiff claimed that the gun and cocaine were discovered during an unauthorized search of his residence and suggested that the items either belonged to another resident or were planted by the police officers. Plaintiff was arrested in October 2009, and the state charges were dismissed in April 2010. While the state prosecution was pending, federal authorities indicted plaintiff for possessing a weapon as a felon, possessing a weapon in furtherance of a drug offense and possessing crack cocaine with intent to distribute – all based on the city arresting officers' reports. Plaintiff remained in federal custody from November 2009 until he was acquitted by a federal jury in December 2010.
Defendants argued that they could not be liable for plaintiff's damages as a result of a federal prosecution. Weinstein found ample evidence from which a jury could conclude that the police officer defendants played an active role in the federal prosecution. Although the city police officers did not sign the federal complaint, they were the source of the information in the complaint and each testified, falsely according to plaintiff, during the federal criminal trial. Because the trial in the §1983 case will hinge on whether plaintiff or the defendant police officers are most credible, the credibility determinations made by the federal grand jury and the federal prosecutor must be kept from the civil jury.
Attorney Fees as Sanction
In Gagasoules v. MBF Leasing, 08 CV 2409 (EDNY, Nov. 8, 2013), Judge Spatt granted defendant's application for attorney fees as a sanction in a class action case, while reducing the requested fee by 40 percent.
Plaintiffs commenced this action on behalf of themselves and a putative class based on equipment finance leases between plaintiffs and defendant. In February 2009 the court dismissed all but one contract claim, and in September 2012 dismissed the rest of the complaint for lack of subject matter jurisdiction. The remaining contract claim alleged that defendants charged and collected sums in excess of those specified in the lease and imposed undisclosed additional amounts for taxes and insurance coverage. At the same time the court granted sanctions to defendant relating to scheduling and attending the depositions of two plaintiffs who failed to appear.
Spatt had denied defendant's initial application for fees and costs, rejecting the hourly rates. The court issued guidance on the reasonable hourly rates for this case: (1) $350 per hour for partners with 25 to 35 years of experience; (2) $300 per hour for counsel with 20 years of experience; (3) $150 per hour for an associate; and (4) $100 per hour for a summer associate. In addition, the court would approve only time spent on either (1) scheduling and attending the depositions, or (2) the portion of the motion for sanctions relating to the failure of the two plaintiffs to appear at their depositions.
The standard for reasonable attorney fees is "what a reasonable, paying client would be willing to pay, given that such a party wishes to spend the minimum necessary to litigate the case effectively." The court must consider case-specific factors, including:
(1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the level of skill to perform the legal services properly; (4) the preclusion of employment by the attorney due to acceptance of the case; (5) the attorney's customary hourly rate; (6) whether the fee is fixed or contingent; (7) the time limitations imposed by the client or the circumstances; (8) the amount involved in the case and the results obtained; (9) the experience, reputation and ability of the attorney; (10) the nature and length of the professional relationship with the client; and (11) the awards in similar cases. Slip op. 5-6.
The most important factor is the degree of success obtained by the party seeking fees.
The issue in this fee application was whether defendant reasonably calculated the number of hours expended. The court may reduce individual entries or apply an across-the-board reduction of the amount sought if the number of hours is excessive, redundant or unnecessary. Spatt rejected plaintiffs' contention that defendant's time sheets were not contemporaneous and sufficiently detailed. But the court saw other problems with the application, including entries for work on issues not covered by the court's prior orders. Instead of combing through the application, Spatt took a practical approach and reduced the defendant's request by 40 percent, awarding $3,925. Slip op. 10.
Harvey M. Stone and Richard H. Dolan are partners at Schlam Stone & Dolan. Bennette D. Kramer, a partner of the firm, assisted in the preparation of the article.
[This article is reprinted with permission from the January 10, 2014, issue of the New York Law Journal. Copyright © 2014 ALM Properties, Inc. All rights reserved. Further duplication without permission is prohibited.]