January 15, 2016

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 Jack B. Weinstein explained the reasons for sentencing a defendant to time served (one month) for not registering as a sex offender, 18 U.S.C. §2250. Magistrate Judge Gary R. Brown declined to enjoin advertisements by either plaintiff Cablevision or defendant Verizon, where the two competing providers of Wi-Fi services had each sought to stop allegedly false claims by the other.

Judge Weinstein also upheld a jury verdict finding discrimination (and retaliation) by UPS related to an employee's sexual orientation. And Judge I. Leo Glasser denied a motion to dismiss a §1983 complaint for false arrest.

Failure to Register

In United States v. Sloane, 15 CR 0086 (EDNY, July 30, 2015), Judge Weinstein imposed a sentence well below the U.S. Sentencing Guidelines range where defendant, who was "making good progress towards rehabilitation[,]" had pleaded guilty to failure to register as a sex offender.

Defendant is now 53 years old. His prior record included a guilty plea in 1997 to sexual abuse, resulting in a four-year sentence and a requirement to register annually as a sex offender and verify his current housing and email address. In 2007 he was charged in Florida with failing to register and sentenced to two years' probation. He then properly registered, providing his Florida address. Later, in 2008, defendant filed a New York State Sex Offender Registry Form listing his Florida address.

In 2011, upon his arrest in Staten Island for assault, defendant gave the arresting officer his Staten Island address. After a guilty plea, he received a conditional discharge.

In 2015 U.S. Marshals discovered that defendant had not registered in New York as a sex offender since 2008, in violation of the Sex Offender Registration and Notification Act, 18 U.S.C. §2250. Under that act, whoever knowingly fails to register as required and travels in interstate commerce faces a fine and/or imprisonment up to 10 years.

Defendant served one month in jail before being released pending trial. In May 2015 he pleaded guilty to failure to register as a sex offender.

Defendant's guidelines imprisonment range was 24-30 months. Weinstein imposed a sentence of time served plus supervised release for five years (the statutory minimum).

Defendant was homeless when he first moved back to New York and said this was a reason for failing to register. Growing up in a low-income household, he dropped out of high school in 10th grade and left home at 16.

Three years ago he reunited with his two sisters while volunteering at a church. One of the sisters has resided with him while she searches for a job. Defendant lives in "cramped quarters of his own apartment." He is working toward his Graduate Equivalency Diploma, attends school part-time, and receives $190 monthly in food stamps and $806 in disability benefits. The government does not view him as sexually dangerous under the Adam Walsh Child Protection and Safety Act of 2006, 18 U.S.C. §4248.

The court found defendant "unlikely to recidivate." As Weinstein also noted:

Any imposed incarceration will cause distress and difficulties to his two sisters, who have grown close to and are supportive of their brother.…Incarceration will interfere with [his] recent efforts to turn his life around….It would cause loss of his apartment…. This would adversely impact his sister's living situation…. Incarceration would also make it difficult for him, upon release, to avoid a return to homelessness.

Slip op. 7. In short, the lenient sentence "will assist him and his family, protect the public, and save taxpayer money." Slip op. 1.

WiFi Advertising

In Cablevision Systems Corp. v. Verizon New York, 15 CV 456 (EDNY, Aug. 7, 2015), Magistrate Judge Brown denied applications from competing providers of wireless Internet service (WiFi) to enjoin certain of each other's advertisements as false or misleading.

Cablevision Systems Corp. and CSC Holdings, LLC commenced the action, seeking a preliminary injunction against certain ads of Verizon Communications Inc., Verizon New York, Inc., and GTE Wireless (collectively, Verizon). Verizon counterclaimed, seeking a preliminary injunction of its own. With the parties' consent, Judge Leonard D. Wexler reassigned the case to Magistrate Brown to conduct all proceedings. Hearings were held on May 28, June 4 and June 5, 2015.

Cablevision complained of Verizon ads claiming that Verizon offered the "Fastest Wi-Fi." Brown denied injunctive relief because Cablevision could establish neither a likelihood of success or serious question going to the merits as to literal falsehood, nor evidence of consumer reaction showing confusion to support a finding of implied falsity. Slip op. 14-16. As the court found, "Verizon FIOS's speed plans"—upper tier plans offering faster connections—"allow customers to wirelessly connect to the Internet at speeds far in excess of those offered by Cablevision." Cablevision's argument that "as a technical matter, WiFi speed relates to the performance speed of a router rather than the actual speed at which consumers can connect to the Internet" was insufficient. While the evidence on the speeds of the parties' respective routers was less decisive than that concerning Internet connection speed, "having the 'fastest WiFi' would commonly be interpreted to refer to the speed of a wireless internet connection…rather than the theoretical capability of the supplied router under laboratory conditions." Slip op. 14-15.

Verizon sought to enjoin three different types of Cablevision ads. Verizon attacked certain ads, which claimed that Cablevision offered its subscribers access to "1.1 million WiFi hotspots," for emphasizing that some of these hot spots were located in public properties while failing to disclose that 87 percent of them consist of routers in the homes of residential customers. After expressing concern about Verizon's delay of more than six months in bringing the claim, Brown denied relief on the merits. The residence-based routers were strong enough to provide access to the public on the streets outside the homes and, as the streets are public, these ads were "neither expressly nor implicitly false." Slip op. 18.

Verizon argued that ads claiming Cablevision offered a "better data network" were false, because Verizon has more expansive geographic data coverage. But, said the court, customers connecting through WiFi would connect faster than those connecting through Verizon's cellular towers, "such that some users could consider Cablevision's WiFi offering 'better' than Verizon's more available cellular network which features narrower bandwidth." Describing Cablevision's service as "better" was therefore excusable "puffery." Slip op. 19, citing Time Warner Cable v. DirectTV, 497 F.3d 144, 159 (2d Cir. 2007).

Verizon's complaints about ads for Cablevison's "Freewheel Device"—a phone that connects only through WiFi, to the exclusion of cell phone towers—also failed. The means of connection did not render Cablevision's description of the device as a "phone" literally false: "Analogously, an automobile powered by an electrical or hybrid engine is not less a 'car' than a standard gasoline-powered vehicle." Verizon's implied falsehood claim—"that consumers will confuse the service offered with the Freewheel with cellular telephone service, and, hence, Verizon will lose customers"—failed for want of proof.

Verizon relied exclusively on Cablevision's internal customer focus groups showing customer confusion on this point. But the ads Verizon complained of were prepared after the customer research was conducted, and addressed the difference between a phone connecting through cellular towers and one connecting through WiFi more directly than did the materials used in the focus groups. "Because of these substantial changes to the promotion made after the focus group review, I find that the focus group evidence is not a reliable indication of consumer perception at this juncture." Slip op. 20-23.

Employment Discrimination

In Roberts v. United Parcel Service, 13 CV 6161 (EDNY, July 27, 2015), Judge Weinstein denied defendant's challenges to a jury verdict (1) finding that plaintiff was subjected to a hostile work environment as a lesbian and then to retaliation for complaining about her treatment, and (2) awarding on each of her two claims compensatory damages of $25,000 and punitive damages of $25,000.

Plaintiff, who lived with her wife and three sons, began working for UPS in 1995 and over the years had 20 different supervisors. Donald Woodard supervised plaintiff from 2007 through 2008 and from 2010 through 2012. Beginning in 2007, Woodard made a series of derogatory comments to plaintiff about her sexual orientation and how it went against the Bible. These comments continued through 2008 and picked up again from 2010 through 2012.

Plaintiff complained to her shop steward and the head of security in 2007, and her shop steward in 2008 and again in 2010 and 2011. In 2012 shop stewards took her to Woodard's supervisor and the Human Resources Department, where plaintiff made her complaint. Finally, in October 2012 UPS opened an investigation, but closed it after reviewing the harassment policy with Woodard and telling him religion did not belong in the workplace. Woodard remained plaintiff's supervisor but did not make any further comments directly to plaintiff.

In November 2012 plaintiff complained to the corporate department, and UPS opened a second investigation, led by Beverly Riddick, UPS Human Resources Operations Manager for the district in which plaintiff worked. That investigation ended in early December 2012 with no written warnings issued to Woodard, who continued to supervise plaintiff. As the second investigation was coming to a close, Woodard altered plaintiff's time card to erase permission she had received to miss work, creating the appearance of an unauthorized absence.

In December 2012, plaintiff filed a complaint of discrimination with the New York State Division of Human Rights. Shortly thereafter, as she was sorting packages, a number of packages hit her in the face, shoulder, arm and hand. When she looked up, she saw Woodard above her. He was attempting a UPS procedure called "breaking the jam," which caused the objects to drop on plaintiff, but he had not followed the UPS safety protocol, requiring that he notify the people in the area and stop the conveyor belt. Plaintiff had to take two months off after the incident, and Woodard was not disciplined. Riddick testified at trial that she did not believe that Woodard's comments were illegal in the workplace. Slip op. 11-17, 19.

Weinstein denied defendant's motion for judgment as a matter of law. Such a motion may be granted only to prevent a "manifest injustice." Slip op. 22.

Defendant's motion for a new trial could succeed only if the jury's verdict was "seriously erroneous" or a "miscarriage of justice." Weinstein analyzed the history and current state of legal protections and societal acceptance given to lesbian, gay and bisexual members of the community, noting that public perception has changed and the law is in transition. Although no federal statute explicitly protects gays and lesbians, the Equal Employment Opportunity Commission issued a landmark ruling in July 2015 interpreting Title VII's prohibition of sex-based discrimination to include such protections. Slip op. 32-36. Only a minority of states, but over 200 cities and counties, prohibit employment discrimination based on sexual orientation. The New York City Human Rights Law explicitly prohibits this kind of discrimination and imposes strict liability on employers for discriminatory acts of managerial employees. Slip op. 39. The NYCHRL also makes it unlawful to retaliate against a person who complains about illegal discrimination or a hostile work environment.

Weinstein concluded: "Woodard's continuing discriminatory comments about plaintiff's sexual orientation, made over a number of years, show adverse differential treatment. So too do the significant failures of supervisors to protect plaintiff against discrimination." The jury also "had ample grounds to find retaliation likely to deter a worker from complaining of abuse." Slip op. 45.

Weinstein found both the compensatory and punitive damage verdicts to be well within an acceptable range. In addition, "plaintiff demonstrated sufficiently for a jury finding that defendant acted with reckless indifference to her multiple complaints of sexual orientation discrimination over many years," and there "was sufficient proof of retaliation in central administration's cavalier attitude towards plaintiff's serious charges of harassment." Slip op. 50.

Section 1983—False Arrest

In Daniels v. New York City, 14 CV 5267 (EDNY, July 30, 2015), Judge Glasser denied defendants' motion to dismiss a §1983 complaint in which plaintiff alleged that officers falsely arrested him after observing a sheet of paper with his license plate number on his van rather than an official license plate.

Plaintiff owned a van registered and licensed in Florida. In early May 2014 the license plates were stolen in New York City. Plaintiff reported the theft to the 69th Precinct of the New York City Police Department, which gave him an "Incident Information Slip" confirming that he had reported the theft. Plaintiff also notified the Florida Highway Safety and Motor Vehicles Department, requesting that replacement plates be sent to New York. He placed a sheet of paper in the rear of his van upon which he had written his license plate number, FL and LOST PLATE.

At about 1:30 p.m. on May 21, 2014, plaintiff was seated in his parked van with the engine turned off in Brooklyn. Two officers approached the van, and plaintiff told them that his plates had been stolen and he was waiting for replacement plates from Florida. He showed the officers his driver's license, Florida vehicle registration, insurance documents and the Incident Information Slip. One of the officers stated plaintiff had forged plates and arrested him. He was taken to the 63rd Precinct and held on a felony charge of forgery, then transferred to Central Booking where he was held until 7:30 p.m. the next day, when he was released without charge.

Glasser rejected defendants' argument that the officers had probable charge to arrest plaintiff for criminally possessing a forged instrument and violating New York license plate requirements. As the court observed: "The officer didn't have an iota of trustworthy information that the paper displayed was falsely made or made with intent to deceive." The arresting officers' refusal to look at the Incident Information Slip and dismissal of plaintiff's effort to explain created "a classic example of conscious avoidance—a deliberate ignorance of the dispositive fact which would dispel even a suggestion of probable cause that the crime of forgery was attempted or committed." Slip op. 5.

Glasser was equally dismissive of the city's claim that the New York Vehicle and Traffic Law, which was not the stated cause for the arrest, provided probable cause. The Vehicle and Traffic Law requires a set of number plates on the front and back of a vehicle, but when one or both of the plates is missing, a motorist may, while waiting for a duplicate, place a temporary substitute plate on his vehicle. Plaintiff complied with this requirement and had done all the law required.

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.