December 15, 2014

New York Law Journal / Written by: Harvey M. Stone, Richard H. Dolan

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 Kiyo A. Matsumoto saw no reason, despite an application by the parties, to seal papers submitted in connection with a motion. Judge William F. Kuntz, II, rejected plaintiffs' claims that their religious beliefs entitled them to send their children to school without mandatory vaccinations. Kuntz also granted summary judgment in plaintiffs' favor on their hostile work environment claims detailing sexual abuse by employees and failure of management to take corrective action. And Judge Jack B. Weinstein held that, under the circumstances, plaintiff's failure to exhaust administrative remedies did not bar his section 1983 claims against jail officials.

Sealing Order Denied

In Raffaele v. The City of New York, 13 CV 4607 (EDNY, June 9, 2014), Judge Matsumoto rejected an unopposed application by plaintiff and a number of city defendants to seal plaintiff's papers discussing and attaching a Civilian Complaint Review Board report, all filed in opposition to defendants' motion to dismiss the complaint.

Plaintiff brought this civil rights action against The City of New York, the City's Civilian Complaint Review Board (CCRB), the Police Commissioner, the Queens District Attorney, and certain assistant district attorneys and police officers. Plaintiff, the city and a group of other defendants joined in an application to seal plaintiff's opposition to defendants' motion to dismiss. The parties argued that the opposition papers should be sealed in their entirety because they discuss the appended CCRB report.

Plaintiff represented that the CCRB report is "material" to the issues presented by the motion. The document and his analysis of it in his papers therefore carry a strong presumption of public access.

The parties failed to present countervailing reasons for sealing, such as the potential to jeopardize an investigation or undermine important privacy interests. As the court observed:

Plaintiff points only to the fact that the documents are covered by a protective order issued by Judge [Viktor V.] Pohorelsky. Judge Pohorelsky's order was issued for the purposes of facilitating discovery in this case, however, and does not bear on the presumption of access to motion papers.

As to any concern about non-parties' personal information in the CCRB report, the parties may make—and have already made—appropriate redactions. The CCRB's investigation has apparently ended, further diminishing any purported need for a sealing order, "narrowly tailored" or not. Finally, portions of the report that are immaterial need not be resubmitted.

Mandatory Vaccination

In Phillips v. City of New York, 12 CV 98, 237 & 791 (EDNY, June 4, 2014), Judge Kuntz dismissed claims brought by three parents challenging the New York City school system's response to their decisions to refrain from having certain mandatory vaccinations administered to their minor children.

The children of all three plaintiffs had been granted religious exemptions from mandatory vaccination. An exemption for one plaintiff's child was revoked. The other two plaintiffs alleged that their children were being excluded from school whenever schoolmates reported a case of a vaccine-preventable disease. Plaintiffs asserted violations of the U.S. Constitution along with state claims, and the cases were consolidated for all purposes.

Kuntz dismissed plaintiffs' First Amendment claims alleging violations of their right to free exercise of religion: "[N]ot only has the Supreme Court strongly suggested that religious objectors are not constitutionally exempt from vaccinations, Jacobson v. Commonwealth of Mass., 197 U.S. 11, 35-39 (1905), courts in this Eastern District have resolutely found there is no such constitutional exemption." Slip op. 4, citing Caviezel v. Great Neck Public Schools, 739 F.Supp.2d 273, 285 (E.D.N.Y. 2010), aff'd, 500 F. App'x 16 (2d Cir. 2012), cert. denied, 133 S. Ct. 1997 (2013).

Plaintiffs' substantive due process claims failed because "the Second Circuit has found that Jacobson flatly defeats any such claims," citing Caviezel, 500 F. App'x 16. Their claims under the Equal Protection Clause were unsupported by any allegations that "Defendants favored any religion over another, or that Plaintiffs are part of any protected class." The court declined to exercise pendent jurisdiction over the state claims. Slip op. 5.

Hostile Work Environment

In D'Annunzio v. Ayken, Inc. d/b/a Ayhan's Fish Kebab Restaurant, 11 CV 3303 (EDNY, June 10, 2014), Judge Kuntz granted summary judgment to plaintiffs on their Title VII claims against defendant Ayken, Inc. and on their New York State Human Rights Law claims against Ayken and its manager.

Plaintiffs were three sisters who worked at Ayhan's Fish Kebab Restaurant in Port Washington. Defendant Dario Gomez, the restaurant's manager, was responsible for hiring (except chefs), training and firing employees, addressing employee complaints and stopping inappropriate behavior. He also trained staff on Employee Handbook policies. The Employee Handbook described and prohibited harassment, including sexual harassment. It required Gomez to report sexual harassment to Ayken's human resource manager, and management to investigate any complaint. Gomez never reported any instances of possible sexual harassment to the human resource manager or the company's owner and president, Ayhan Hassan.

Half of the employees were male kitchen staff; the other half, including plaintiffs, were primarily female servers and hostesses. Gomez interviewed and hired Juan Pablo Orellano as a dishwasher, but did not call any references or conduct a background check.

Plaintiff Lauren D'Annunzio alleged that Orellano sexually assaulted her in the basement of the restaurant. He was arrested, pleaded guilty to Attempted Sexual Abuse in the First Degree and was deported. In addition, Lauren and her sisters Gabrielle and Ashley alleged many other sexual comments, lewd gestures, slaps on the buttocks and other offensive touchings by male kitchen staff. Plaintiffs asserted that they had complained to Gomez about the harassment, but he did not report the complaints or try to stop the harassment. Instead, Lauren observed Gomez joking with the harassers. Defendants submitted declarations denying any harassment.

As the court found, plaintiffs had "set forth overwhelming evidence that Defendant Ayken created a hostile work environment" in violation of Title VII. Indeed, "the outrageous actions of the Defendant and its employees were simply too gross to ignore." Slip op. 13. The record was "replete with specific facts alleging that Plaintiffs endured prevalent abuse and harassment at the workplace, and that the acts were subjectively and objectively severe or pervasive enough to alter the terms of Plaintiffs' employment." Slip op. 13. The sexual abuse of Lauren alone showed an objectively hostile work environment. Plaintiffs' many complaints to Gomez supported allegations that the harassment was subjectively severe or pervasive. Ayken "did not take sufficient or reasonable actions to prevent discriminatory behavior." Slip op. 17. Accordingly, the court took the unusual step at this stage of granting summary judgment in favor of plaintiffs.

Kuntz also granted summary judgment to plaintiffs against Ayken on their claim under the New York State Human Rights Law. Unlike Title VII, the New York Human Rights Law allows imposition of liability on individuals. Gomez's conduct in laughing about the harassment with the offending employees was sufficient to impose liability on him. But with no evidence that the owner was aware of any harassment or complaints, the court dismissed the allegations against him.

Finally, the court granted summary judgment to defendants and dismissed plaintiffs' state common law claims for negligent infliction of emotional distress, negligent supervision and respondeat superior because the New York State Workers' Compensation Law is plaintiffs' exclusive remedy against their employer. Slip op. 22.

Prisoner Claims

In Taylor v. Swift, 12 CV 5623 (EDNY, May 21, 2014), involving §1983 claims by a Rikers Island inmate, Judge Weinstein denied a summary judgment motion by jail officials based on plaintiff's non-exhaustion of administrative remedies.

Plaintiff brought several claims under 42 U.S.C. §1983, alleging: (1) failure by jail officials to protect him from a gang assault after he complained about treatment by gang members, and (2) excessive force by a jail official who tugged on handcuffs, scraping chunks of skin from plaintiff's hands and fingers. Plaintiff did not file grievances prior to bringing this action, and defendants moved to dismiss, claiming failure to exhaust administrative remedies. Defendants withdrew that argument in connection with plaintiff's excessive force claim, but maintained that plaintiff was obligated to file a grievance in connection with his failure-to-protect claim.

The Inmate Grievance Resolution Program provides forms and procedures to initiate a grievance. Under New York City Department of Correction Directive 3375R-A, several types of inmate complaints are "Non-Grievable," including "allegations of assault or harassment by either staff or inmates." The Prison Litigation Reform Act, 42 U.S.C. §1997e(a), imposes an exhaustion requirement for federal actions under §1983 on incarcerated prisoners whether they allege excessive force or something else. Courts, however, have recognized special circumstances in which a prisoner's failure to comply have been justified, including a reasonable interpretation of the Department of Corrections regulations.

Weinstein stated: "A reasonable inmate attempting to follow DOC Directive 3375-R would conclude that no administrative mechanism existed through which to obtain remedies for the alleged attack." Slip op. 7-8. Here "[l]ay inmates—many ill-educated or with mental health problems—cannot be expected to interpret regulations with the historical knowledge available to counsel or with the degree of semantic nuance upon which lawyers are trained to rely." Slip op. 8. Assault, harassment and criminal misconduct are non-grievable, and the wrongdoing alleged by plaintiff was criminal misconduct. Further, because the grievance form required only a description of plaintiff's problem, there would have been no opportunity to include the names of the responsible parties.

Underlying the exception to the exhaustion requirement lay the "venerable principle of lenity: that ambiguities in regulations limiting individuals' constitutional and statutory rights should be resolved in favor of those seeking to defend or vindicate those fundamental interests." Thus, plaintiff's "mistake was reasonable and his non-exhaustion does not provide a basis for dismissing the claims asserting lack of protection from physical attacks and excessive use of force by prison authorities." Slip op. 11.

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.

Read more:

[Reproduced with permission from New York Law Journal Volume 252, Friday, July 11, 2014.  Copyright 2014 ALM Properties, Inc.  All rights reserved.]