Kamal ALY, Plaintiff, Appellee, v. MOHEGAN COUNCIL, BOY SCOUTS OF AMERICA, Defendant, Appellant.
A. Neil Hartzell, with whom David A. Slocum and LeClairRyan, PC, was on brief for appellant. Paul J. Caruso, on brief for appellee.
Before TORRUELLA, HOWARD, and THOMPSON, Circuit Judge.
This appeal arises from a workplace discrimination suit filed by Plaintiff–Appellee Kamal Aly (“Aly” or “Appellee”) against Defendant–Appellant Mohegan Council, Boy Scouts of America (“Mohegan Council” or “Appellant”), in which Appellee alleged that he was denied career advancement opportunities on account of his religion (Islam) and national origin (Egyptian–American). Following trial, the jury returned a verdict in favor of Aly. Mohegan Council filed a motion for judgment as a matter of law claiming that Aly failed to prove: (1) that Mohegan Council was an “employer” with the requisite fifteen or more employees under Title VII of the Civil Rights Act of 1964; (2) that the administrative charge with the Massachusetts Commission Against Discrimination (“MCAD”) was timely filed; and (3) that sufficient evidence supported a finding of discrimination. The district court denied Mohegan Council's motion, and this timely appeal followed. After careful consideration, we affirm the district court in all respects.
Since the court is reviewing the district court's denial of Mohegan Council's post-verdict motion for judgment as a matter of law, we set forth the factual background, as supported by the record, “in the light most favorable to the verdict.” Muñiz–Olivari v. Stiefel Labs., Inc., 496 F.3d 29, 35 (1st Cir.2007).
Aly is an Egyptian–American Muslim who was employed by Mohegan Council, a local Massachusetts council chartered by the Boy Scouts of America (“BSA”). Aly worked for the Council between August 6, 2001, and October 19, 2005, when he resigned. Throughout the course of his employment, Aly received two professional development trainings—Professional Development Learning I (“PD–LI”) in December 2001 and Professional Development Learning II (“PD–LII”) in 2003—and was subject to four annual evaluations, called “Performance Reviews,” at the beginning of each year to review the year prior. During the events relevant to Aly's claim on appeal, he served as a District Executive responsible for oversight of four functions of the district operation: membership,program, unit service, and finance. Further, the Council has around 1,800 volunteers overall, and District Executives were also tasked with recruiting and motivating volunteers.
For Aly's first two years of employment, he received positive Performance Reviews. His 2001 Review gave him an overall performance rating of “expected performance,” and noted that he was “very systematic in his approach to [his] position,” was “very willing and eager to do anything that [was] asked of him,” and “work[ed] well with all volunteers.” While he received a “marginal performance” in the traditional membership category—the district had a membership loss of 3.7% that year—his performance in district operations was rated “significantly exceeds.” His 2002 Review was likewise very positive, and his overall performance rating was “significantly exceeds.” He received “significantly exceeds” ratings in the “membership” and “quality district” categories, and won the National Quality District Award. Finally, Aly received a “far exceeds” rating for his performance as the “TVSR Director” of the summer camp, achieving “2003 Staff objectives by December 31, 2002.” The 2002 evaluation noted that he: “demonstrated great leadership in taking on the Summer Camping Director Position [three] months prior to camp and running a successful camp”; “work[ed] well with all volunteers in his district and on the Council Training Committee”; and “demonstrated good customer service in working to resolve issue[s] as they ar[o]se.” In Aly's 2003 Review, he received an overall rating of “expected performance,” and while he got an “unsatisfactory” rating for membership, he received a “significantly exceeds” rating for an increase in campers and troops at the summer camp and a “far exceeds” rating for popcorn sales, which increased by 20.3%.
In 2003 and 2004, Aly held Boy Scout recruitment meetings in mosques. In 2004 in particular, he expanded recruitment meetings into two mosques and two Islamic schools in Worcester. Up until the fall of 2004, open houses and recruitment meetings were usually held in schools and churches. Prior to Aly's organizing in the Muslim community, there were no Muslim scouts or volunteers that were part of Mohegan Council.
In the midst of these recruiting efforts, in February 2004, Aly became eligible for Professional Development III (“PD–LIII”) training. The PD–LIII training was required for promotion to a Senior Executive Director position, and in order to attend, an employee would need to be recommended following completion of a Career Evaluation. Aly approached his supervisor, James Kennedy (“Kennedy”), about the training almost every week between February 2004 and August 2004. On August 30, 2004, Kennedy and Richard Trier (“Trier”), the Area Director for the Northeast Region of the Boy Scouts, conducted Aly's Career Evaluation. Based on all of the evaluation data, Kennedy and Trier recommended Aly to attend the PD–LIII training “within the next six months,” indicating that Aly was “[r]eady to assume increased responsibilities as a senior executive after PD–LIII.” Under all categories—initiative, relationship with volunteers, cooperation, teamwork, attitudes, and commitment to scouting principles and objectives—Aly was given a “satisfactory” rating. The Career Evaluation form required the supervisors to provide an indication of “what improvement [wa]s needed” if the employee received any “unsatisfactory” ratings. Aly received no “unsatisfactory” ratings, and no recommendations for improvement were listed on the form. However, the form did list a concern about Aly's relationship with volunteers—“[c]oncern over follow-up w[ith] phone. Viewed as undependable [at] times”—and mentioned in the “attitude” section that he could be “stubborn at times,” and “takes advice—lack[s] follow through.” At trial, Aly testified that he was only told of one instance when he did not properly respond to telephone calls from volunteers, and that involved an incident of “playing ... phone tag with a volunteer.” Regarding the “stubborn” comment, Aly testified that Kennedy “was upset because I was asking for my career evaluation to be done on time, and he didn't like that.” For the other concerns listed, Aly stated that Kennedy neither offered examples of negative performance nor explained what the negative remarks meant.
At the same time that Aly was recommended for PD–LIII training, another professional scout working for Mohegan Council, Néstor Chevalier (“Chevalier”), was also reviewed and received a recommendation for PD–LIII training. Chevalier is a third-generation Lebanese Christian born in the Dominican Republic, and he began employment with Mohegan Council in February 2002, six months after Aly. Between 2002 and 2005, Chevalier received three Performance Reviews as well as a Career Evaluation, and his overall performance rating was, respectively, “expected performance” in 2002, “expected performance” in 2003, and “significantly exceeds” in 2004. While Chevalier got a solid review of “expected performance” in each of the relevant categories in his 2002 Performance Review, he received three “marginal performance” ratings in 2003 for membership, units, and popcorn sales as well as a “far exceeds” rating in urban scouting units, membership and program administration. Despite the overall “significantly exceeds” rating for his 2004 Review, he received two “unsatisfactory” ratings in the “friends of scouting” and “chief scout executive's winner circle” due to decreased fundraising from the prior year, as well as membership and unit loss. Nevertheless, following Kennedy and Trier's recommendation that Chevalier receive PD–LIII training on January 13, 2005, he was sent three months later for said training in April 2005. Subsequent to the training and in the same year, he was promoted to Senior District Executive.
At trial, Mohegan Council presented evidence that one of the non-discriminatory reasons for not sending Aly to the PD–LIII training was his declining performance. Specifically, the Council presented testimony by Kennedy, Garee, Trier and David Libbey, a volunteer member of the District Committee within the Council, regarding their understanding of the basis of Aly's more negative evaluations in his final year. Kennedy indicated that Aly's receipt of lower ratings was based on: a decrease in district membership, volunteer complaints of Aly's failure to return calls and be fully prepared for meetings, a decrease in popcorn sales, and a drop in summer camp attendance.
Garee replaced Kennedy as Aly's supervisor on August 22, 2005, almost a year after Aly was recommended for the PD–LIII training. Garee testified that Aly notified him that he did not think his 2004 Performance Review was fair, and that he felt he did not have a good working relationship with Kennedy. Garee further testified that Aly had expressed concerns to him that he had been treated unfairly by volunteers and camp staff members on the basis of the fact that he was Muslim. After he reviewed Aly's prior Performance Reviews and observed Aly as he presided over the district committee meeting in September 2005, Garee stated that his impression was that Aly appeared “disorganized,” “considerably disengaged,” and “wasn't well-prepared.” Garee also testified that a promotion was not an option due to Aly's marginal performance rating and his deficiency “in several areas” that needed work. Garee did, however, testify that he had never witnessed a situation where a district executive was recommended for PD–LIII training but was not provided it.
Garee met with Aly on September 8, 2005, after speaking with several of Aly's volunteers and conducting a field observation of Aly. At that meeting, according to Garee, he and Aly discussed Aly's background, performance, and the PD–LIII training and promotion. Aly testified that Garee told him that he was not sending him to the PD–LIII training because key volunteers in the district had told him that they did not want him anymore. As stated infra, Garee had testified that, prior to that September 8, 2005 meeting, Aly had expressed concerns to him about unfair treatment by volunteers and camp staff members because he was Muslim.
1. The reasons why performance is unsatisfactory.
2. What must be accomplished in a specific time frame (short-term critical achievements) to regain a satisfactory level of performance?
3. How long the performance improvement period will last. (The period is normally 90 days; rarely is it shorter, and it is longer for long service employees who have served the organization for at least five years.).
4. The support and resources the staff member can expect during the performance improvement period.
5. The consequences of failure to achieve satisfactory performance.
Upon being notified of Aly's concerns regarding discrimination, Garee did not conduct a formal investigation to determineif discrimination had in fact occurred as he did not regard Aly's complaint as a formal complaint. Garee also did not inform the human resources division of the Boy Scouts about Aly's complaints of discrimination. Garee did conduct informal interviews with volunteers and also notified Trier of the issue at the time it was presented to him.
Aside from his declining work performance, Mohegan Council presented three additional non-discriminatory reasons for not sending Aly to the PD–LIII training. Specifically, Mohegan Council presented evidence that it had concerns regarding Aly's wavering commitment to the organization, presenting testimony by Garee indicating such concerns after learning of Aly's pursuit of other job opportunities with outside employers in late September 2005. The final two reasons were budgetary and timing-related. Regarding the budgetary issue, evidence was presented at trial that Mohegan Council did not have the funds to send Aly to the training. Between Aly's August 30, 2004 Career Evaluation and the end of 2004, Aly and Kennedy had conversations where, according to Aly, Kennedy told him that the Council could not afford to send him to the training. When Aly offered to pay for the training himself, Kennedy told him that the Council would not be able to give him a raise upon his return. When Aly offered to forego a raise upon his return, Kennedy still refused. Mohegan Council also presented testimony that it was not typical to send people to training in the Fall months—the period most critical for member recruitment—and, in any case, a strong performance by Aly in the Fall could bring up his membership numbers and thus improve upon his prior performance ratings.
On October 10, 2005, Aly e-mailed Garee to notify him that he would resign by December 31, 2005, if he did not get promoted to a higher position by then. Garee did not respond to this e-mail. On October 19, 2005, Aly sent Garee another e-mail notifying him in writing of his resignation from the position of District Executive. Garee accepted his resignation by e-mail on the same day.
On June 2, 2006, Aly met with Maritza Reyes of MCAD and filled out a “General Employment Interview Form” (“Interview Form”) alleging that Mohegan Council discriminated against him on the basis of his race, religion, and national origin. Under “[d]ate of the last discriminatory act,” Aly listed October 19, 2005, the date of his resignation, and indicated that the basis for his discriminatory complaint was denial of promotion, terms and conditions, retaliation and being “force[d] to resign.” The Interview Form had the appearance of an intake form but is described in its body as an “employment complaint.” In the factual predicate section of the Interview Form, Aly listed the following allegations: Kennedy “[h]arrassed” him to quit and refused to perform a timely career evaluation after 30 to 36 months of his employment; Néstor Chevalier's career evaluation was performed soon after he reached the thirtieth month of his hiring date; and Aly never received the PD–LIII training for which he was recommended while Chevalier did receive it.
On August 18, 2006, Aly filed a formal complaint with MCAD identifying Mohegan Council as his discriminatory employer. On April 4, 2008, MCAD issued an order dismissing Aly's MCAD complaint for lack of jurisdiction for having been “untimely filed” after the requisite 300 days of the alleged discriminatory act: October 19, 2005, when Aly tendered his written resignation.
Aly then filed the instant case in the U.S. District Court for the District of Massachusetts on May 23, 2008. Before trial, Mohegan Council filed a motion for summary judgment, arguing that the requisite administrative filing with MCAD was not timely. The district court denied that motion on the grounds that: (1) Aly's June 2, 2006 Interview Form constituted a “complaint” for the purposes of the statute of limitations, and (2) Aly's August 18, 2006 formal complaint was merely an amendment to his June 2006 complaint which could properly relate back to it under MCAD regulations.
Trial commenced in September 2011, and resulted in a jury verdict in favor of Aly. Following the district court's denial of Mohegan Council's motion for judgment as a matter of law, it filed the instant timely appeal.
Since the timeliness of Aly's MCAD complaint and the number of employees who worked for Mohegan Council are threshold issues for a Title VII action, we address them first, each in turn. We then review the merits of Aly's discrimination claim.
To bring a civil action for employment discrimination pursuant to Title VII, an employee must first file a “charge” with either: (1) the Equal Employment Opportunity Commission (EEOC) within 180 days of the alleged unlawful employment practice; or (2) a parallel state agency—in this case, MCAD—within 300 days of said practice. 42 U.S.C. § 2000e–5(e)(1); Mass. Gen. Laws ch. 151B, § 5; Jorge v. Rumsfeld, 404 F.3d 556, 564 (1st Cir.2005). An employee may only sue in federal court if the EEOC dismisses the administrative charge, does not bring civil suit, or does not enter into a conciliation agreement within 180 days of the filing of the administrative charge. 42 U.S.C. § 2000e–5(f)(1). Failure to exhaust this administrative process “bars the courthouse door.” Jorge, 404 F.3d at 564.
[a] complaint ... may be amended to cure technical defects or omissions, including failure to swear to the complaint, or to clarify and amplify allegations made therein.... Amendments shall relate back to the original filing date.
Id.§ 1.10(6)(a); see also29 C.F.R. § 1601.12(b) (Title VII requirements for amendment of charge and relation back). This “relation-back” principle applies, however, only when the earlier filing can be construed to operate as a “charge.” Montes v. Vail Clinic, Inc., 497 F.3d 1160, 1167 (10th Cir.2007); see also Edelman v. Lynchburg Coll. (“ Edelman II ”), 300 F.3d 400, 403–04 (4th Cir.2002); Pijnenburg v. W. Ga. Health Sys., Inc., 255 F.3d 1304, 1306–07 (11th Cir.2001).
There has been significant debate concerning what constitutes a “charge” for the purposes of meeting the filing and verification requirements laid out by Title VII and the EEOC's regulations. In Edelman v. Lynchburg Coll. (“ Edelman I ”), 535 U.S. 106, 122 S.Ct. 1145, 152 L.Ed.2d 188 (2002), the Supreme Court addressed the conflict among the courts of appeals regarding filing and verification requirements by first noting their differing purposes. The time-to-file limitation, the Court stated, was intended “to encourage a potential charging party to raise a discrimination claim before it gets stale, for the sake of a reliable result and a speedy end to any illegal practices that prove[ ] out.” Id. at 112–13, 122 S.Ct. 1145. The verification requirement, on the other hand, had a distinct objective, namely, to “protect [ ] employers from the disruption and expense of responding to a claim unless a complainant is serious enough and sure enough to support it by oath subject to liability for perjury.” Id. at 113, 122 S.Ct. 1145. “This object,” the Court continued, “demands an oath only by the time the employer is obliged to respond to the charge, not at the time an employee files it with the EEOC. There is accordingly nothing plain in reading ‘charge’ to require an oath by definition.” Id. In thus requiring an oath, the Court stated, “Congress presumably did not mean to affect the nature of Title VII as ‘a remedial scheme in which laypersons, rather than lawyers, are expected to initiate the process.’ ” Id. at 115, 122 S.Ct. 1145 (quoting EEOC v. Commercial Office Products Co., 486 U.S. 107, 124, 108 S.Ct. 1666, 100 L.Ed.2d 96 (1988)) (other citation omitted).
While Holowecki considered the question of what constitutes a charge under the ADEA, “the filing provisions of the ADEA and Title VII are virtually in haec verba, the former having been patterned after the latter.” Montes, 497 F.3d at 1164 n. 6 (internal quotation marks omitted) (quoting Commercial Office Prods., 486 U.S. at 123–24, 108 S.Ct. 1666).
[i]n addition to the information required by the regulations, ... if a filing is to be deemed a charge it must be reasonably construed as a request for the agency to take remedial action to protect the employee's rights or otherwise settle a dispute between the employer and the employee.
[d]ocuments filed by an employee with the EEOC should be construed, to the extent consistent with permissible rules of interpretation, to protect the employee's rights and statutory remedies. Construing ambiguities against the drafter may be the more efficient rule to encourage precise expression in other contexts; here, however, the rule would undermine the remedial scheme Congress adopted. It would encourage individuals to avoid filing errors by retaining counsel, increasing both the cost and likelihood of litigation.
Id. at 406, 128 S.Ct. 1147.
The district court denied summary judgment as to the timeliness of Aly's MCAD filing on the grounds that Aly's June 2, 2006 Interview Form, while defectivein not including Aly's signature, was a valid initial filing, and his subsequent formal charge filed on August 18, 2006, cured the technical verification defect and served as an amendment that “related back” to the original complaint. Since that initial complaint was filed on June 2, 2006, within 300 days of Aly's October 19, 2005 resignation, it met the timeliness requirement.
While Mohegan Council does not dispute that Aly's Interview Form complies with the basic required content of an MCAD complaint—stating the name and address of his employer, the person alleged to have discriminated against him, the alleged discriminatory conduct, and as well as the date of said conduct—it makes three arguments as to why it was error for the district court to deem Aly's MCAD complaint timely. First, Mohegan Council argues that, since the Interview Form did not bear Aly's signature and did not state the particulars surrounding the alleged discriminatory acts, it did not constitute a valid filing. Since the “relation-back” principle could only apply to an initial valid filing, it could thus not be applied here to cure the deficiencies of the filed charge. Second, Mohegan Council contends that the district court improperly relied on case law assessing the timeliness of charges filed with the EEOC, which does not require—as MCAD regulations do—that a charge include a signature and verification under the pains and penalties of perjury. Finally, Mohegan Council claims that this court must defer to the MCAD Investigating Commissioner's order that dismissed Aly's complaint as untimely filed.
We disagree on all counts. First, Aly's Interview Form may be construed as a valid charge to which the August 18, 2006 complaint may relate back under MCAD regulations. The Interview Form conformed with said regulations in that it: (1) listed the date on which the unlawful discriminatory act occurred: October 19, 2005 ( see804 C.M.R. § 1.10(5)(a)); (2) contained a concise statement of the alleged discriminatory acts: Kennedy's “harassment” and refusal to either perform Aly's Career Evaluation or send him to the PD–LIII training while another employee, Chevalier, received differential treatment as to the evaluation and training ( see id. § 1.10(5)(b)); and (3) identified Kennedy as the person alleged to have committed the unlawful discriminatory act ( see id.). While Aly's statement was not verified by his sworn signature subject to liability for perjury as required under Rule 1.10(4)(a), the rules provide an explicit remedy for such omission in Rule 1.10(6)(a), allowing for a complaint to be amended “to cure technical defects or omissions, including failure to swear to the complaint.” (emphasis added).
Further, EEOC regulations and Supreme Court precedent endorsing said regulations allow an intake questionnaire such as Aly's to serve as a “charge” for the purpose of meeting the limitations period in appropriate circumstances. See Holowecki, 552 U.S. at 401–02, 128 S.Ct. 1147; 29 C.F.R. §§ 1601.9, 1601.12, 1626.6, 1626.8. Those circumstances include cases where a Form may be “reasonably construed as a request for the agency to take remedial action to protect [a complainant's] rights or otherwise settle a dispute between the employer and the employee.” Holowecki, 552 U.S. at 402, 128 S.Ct. 1147.Holowecki provided indicia to assist in a court's inquiry as to whether a complaint may be reasonably construed as a charge, and those included labels on the face of the complaint. In Holowecki, the Court deemed a complaint insufficient to constitute a charge where said complaint was not labeled a “Charge of Discrimination,” and its wording indicated that its purpose was to facilitate “pre-charge filing counseling.” Id. at 405, 128 S.Ct. 1147. Here, on the contrary, the Interview Form referred to the filing employee as a “Complainant” and contained wording referring to the Form itself in the present tense as an “ employment complaint ... being filed against the Respondent ...” (emphasis added). It is thus reasonable to construe that language as a request for the agency to take action to protect Aly's Title VII workplace rights. Further, so construing the Interview Form is consistent with both the purposes of the limitations requirement as articulated in Edelman and the injunction in Holowecki to construe documents filed by employees, “to the extent consistent with permissible rules of interpretation, to protect the employee's rights and statutory remedies.” 552 U.S. at 406, 128 S.Ct. 1147.
We cannot agree with Mohegan Council's contention that the August 18, 2006 complaint may not relate back due to its failure to meet the verification requirement. Firstly, regulations allowing relation back in cases where the earlier-filed complaint failed to fulfill a verification requirement have been upheld by the Supreme Court as reasonable. See, e.g., Edelman, 535 U.S. at 116–17, 122 S.Ct. 1145 (“Where a statute or supplemental rule requires an oath, courts have shown a high degree of consistency in accepting later verification as reaching back to an earlier, unverified filing.... [and] Congress [is] presumed to have known of this settled judicial treatment of oath requirements when it enacted and later amended Title VII.”) (internal citations and quotations omitted). Second, it is of no matter that the district court relied on case law assessing relation back of verified complaints filed with the EEOC rather than MCAD because, contrary to Mohegan Council's assertions, Section 706(b) of Title VII as a general matter requires all employment discrimination charges under its purview to “be in writing under oath or affirmation” for EEOC review, just as MCAD regulations do. 42 U.S.C. § 2000e–5(b) (2013). Thus, the district court did not err in relying on federal case law governing verification requirements under EEOC regulation 29 C.F.R. § 1601.12.
Finally, contrary to Mohegan Council's assertions, MCAD's Investigating Commissioner did not directly address the issue of whether or not Aly's June 2, 2006 Interview Form constituted a “charge” under proper MCAD and EEOC guidelines. Rather, the Commissioner just assumed that the filing date of the charge was August 18, 2006, and dismissed that complaint as untimely without considering the question of whether said complaint may or may not relate back to the prior-filed Interview Form. Therefore, there was no agency determination made as to that issue to which this court may be asked to defer.
For the above-cited reasons, we hold that the district court did not err in finding Aly's MCAD complaint timely.
Title VII defines an “employer,” for the purposes of its mandate, as “a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year.” 42 U.S.C. § 2000e(b) (2013). Courts may rely on the “payroll method,” or calculating the number of employees who are on the payroll for each day of a given week regardless of whether they were actually present at work each day, to determine whether an employer has reached Title VII's threshold number. Walters v. Metro. Educ. Enters., Inc., 519 U.S. 202, 207, 117 S.Ct. 660, 136 L.Ed.2d 644 (1997); De Jesús v. LTT Card Servs., 474 F.3d 16, 21 (1st Cir.2007). The payroll method allows for calculating the jurisdictional 15–employee threshold merely by knowing whether a particular employee was on the payroll during a particular time frame, and it allows for the counting of part-time employees within said time frame to reach the threshold. See Walters, 519 U.S. at 207, 117 S.Ct. 660. Part-time workers are counted as employees for each day they worked between arrival and departure, and those times may be added to reach the threshold number. Id.; see 2 EEOC Compl. Man. (BNA), Directives Transmittal No. 915.003, § 2–III(B)(1)(a), “Employers” (May 2000). The plaintiff bears the burden of demonstrating by a preponderance of the evidence that the employer meets the 15–employee threshold. Arbaugh v. Y & H Corp., 546 U.S. 500, 516, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006) (holding that “the threshold number of employees for application of Title VII is an element of a plaintiff's claim for relief, not a jurisdictional issue”).
After hearing the testimony of Thanh Nguyen, the Council's office manager, and reviewing the Council's payroll records submitted into the record, the jury determined that Aly met his burden as to this threshold issue. The district court's opinion on Mohegan Council's motion for judgment as a matter of law found this determination to be “not unreasonable,” and made the following deduction: in addition to the fourteen full-time employees of Mohegan Council, it was not unreasonable to find that a fifteenth employee, Quan Nguyen, was employed for twelve weeks and at least one of the seasonal workers was employed for eight weeks, or that at least one of the seasonal workers worked year-round.
On appeal, Mohegan Council again challenges the sufficiency of Aly's evidence in showing that it employed the threshold number of employees during the period relevant for this action. Specifically, it contends that the evidence presented at trial could only allow a reasonable jury to speculate as to whether it had the requisite employees, and the jury could not reasonably conclude that, above and beyond its fourteen employees, an additional employee or employees of the 61 seasonal and part-time employees worked for more than twenty weeks because no particular evidence was provided as to who worked which weeks.
We review the district court's decision awarding a judgment as a matter of law de novo, but a jury's verdict “must be upheld unless the facts and inferences, viewed in the light most favorable to the verdict, point so strongly and overwhelmingly in favor of the movant that a reasonable jury could not have [returned the verdict].” Astro–Med, Inc. v. Nihon Kohden Am., Inc., 591 F.3d 1, 13 (1st Cir.2009) (quotations and citations omitted). The Court must affirm “unless the evidence, together with all reasonable inferences in favor of the verdict, could lead a reasonable person to only one conclusion, namely, that the moving party was entitled to judgment.” Id. (quotation marks, quotations and citations omitted). We find that, viewed in the light most favorable to the verdict, Mohegan Council met the threshold number of employees to constitute an “employer” for Title VII purposes.
It is undisputed that Mohegan Council employed fourteen employees full-time for a period of at least twenty weeks during the relevant period, and that another employee, Quan Nguyen, was employed for twelve weeks. Therefore, Aly only needed to show that, amongst the hours that 61 seasonal and part-time employees worked for Mohegan Council, eight remaining weeks of work could be compiled by a single employee or a combination thereof. The evidence of payroll and time cards submitted into the record show that most of the 61 part-time or seasonal workers were employed during the seven-week summer camp. A reasonable jury could find, based on this evidence, that any one or combination of the sixty-one employees filled the eight-week gap between Quan's employment and the requisite twenty-week threshold. Therefore, the district court did not err in denying Mohegan Council's motion for judgment as a matter of law as to whether it met the threshold number of employees.
To successfully bring a Title VII claim, a plaintiff must first establish a prima facie case of discrimination by a preponderance of the evidence. Goncalves v. Plymouth Cnty. Sheriff's Dep't, 659 F.3d 101, 105 (1st Cir.2011). To set out a prima facie case, a plaintiff bears the burden of showing that (1) he or she is a member of a protected class; (2) possessed the necessary qualifications and adequately performed his or her job; (3) was nevertheless dismissed or otherwise suffered an adverse employment action at the hand of his or her employer; and (4) his or her employer sought someone of roughly equivalent qualifications to perform substantially the same work. Rodríguez–Torres v. Caribbean Forms Mfr., Inc., 399 F.3d 52, 58 (1st Cir.2005) (citation omitted).
Under the well-known McDonnell Douglas burden-shifting framework, McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), once a plaintiff has proven his prima facie case by a preponderance, the burden shifts to the defendant to rebut the presumption of discrimination by providing legitimate, non-discriminatory reasons for their action. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993) (quoting Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 254, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981)). If the defendant proffers legitimate reasons for the adverse action, the plaintiff must then prove by a preponderance that the proffered reasons by the defendant are a pretext for unlawful discrimination. Id. at 507–08, 113 S.Ct. 2742. To meet his or her burden, a plaintiff must demonstrate either that the adverse employment action was (1) “more likely motivated” by discrimination than by the explanation proffered by the defendant; or (2) “the proffered explanation [was] unworthy of credence” where the suspect action, coupled with evidence to the contrary, suggests a discriminatory motivation. Burdine, 450 U.S. at 256, 101 S.Ct. 1089. Disparate treatment may be “competent proof that the explanation given for the challenged employment action was pretextual, provided the plaintiff-employee can make a preliminary showing that others similarly situated ... in all relevant respects were treated [more advantageously] by the employer.” Straughn v. Delta Air Lines, Inc., 250 F.3d 23, 43–44 (1st Cir.2001) (quotation marks, quotations and internal citation omitted).
Although the burdens shift between the plaintiff and the defendant during the course of an employment discrimination claim, the ultimate burden of persuading the trier of fact lies with the plaintiff. Burdine, 450 U.S. at 253, 101 S.Ct. 1089. Once an employment action has been submitted to a jury and tried on its merits, the burden-shifting framework is confined to the ultimate question of discrimination. Sánchez v. P.R. Oil Co., 37 F.3d 712, 720 (1st Cir.1994) (“[t]o focus on the existence of a prima facie case after a discrimination case has been fully tried on the merits is to ‘unnecessarily evade the ultimate question of discrimination vel non.’ ”) (internal citations omitted). This is because, at that stage, McDonnell Douglas has served its purpose, and the evaluation of a post-trial motion assesses whether the plaintiff met his overall burden of establishing discrimination. Id.
if the record conclusively revealed some other, nondiscriminatory reason for the employer's decision, or if the plaintiff created only a weak issue of fact as to whether the employer's reason was untrue and there was abundant and uncontroverted independent evidence that no discrimination occurred.
Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 148, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). Further, as stated above, the jury's verdict is given high deference unless the evidence in the record, taken in the light most favorable to the non-movant, is so overwhelmingly inconsistent with the verdict that no reasonable jury could come to the same conclusion. Muñiz–Olivari, 496 F.3d at 35;see also Zimmerman v. Direct Fed. Credit Union, 262 F.3d 70, 75 (1st Cir.2001) (holding that verdict must stand unless evidence points unerringly to the opposite conclusion).
Mohegan Council makes three main arguments on appeal. First, it claims that Aly failed to establish a prima facie case of discrimination. Specifically, the Council argues that Aly failed to provide sufficient evidence either that his performance was up to its legitimate expectations or that it took an adverse employment action against him since he was not entitled to the PD–LIII training and voluntarily resigned. Further, the Council contends that Aly failed to show discriminatory intent, particularly because their Separation Notice with Aly indicated their willingness to take him back.
Second, and assuming this court finds that Aly established a prima facie case, Mohegan Council argues that a reasonable juror could not find discrimination because of the unrebutted evidence it presented establishing that it had multiple, legitimate non-discriminatory reasons for promoting and training Chevalier rather than Aly. Mohegan Council insists that Aly's evaluations in his first two years were outstanding, demonstrating that his religion and national origin were not factors in his assessments, and that when his performance declined, Aly did not dispute that his performance reviews were weaker, signing the relevant portions thereof without objection. Further, they point to evidence cited infra regarding negative performance, the difficult timing of the PD–LIII training due to Fall recruitment efforts, and Aly's indecisiveness about his long-term prospects with the Council.
Finally, Mohegan Council argues that Aly failed to rebut its evidence by sufficiently showing pretext. It claims that Aly's evidence that he felt he was being treated differently by other staff members and volunteers is insufficient to show that its proffered non-discriminatory reasons are untrue.
Mohegan Council also argues in its opening brief that the district court erred in its memorandum and order denying judgment as a matter of law when it examined evidence without regard to the burden-shifting framework presented in McDonnell Douglas. However, Mohegan Council misstates the law in this Circuit when it claims that the strict, step-by-step McDonnell Douglas burden-shifting framework applies when reviewing the sufficiency of the evidence following a jury verdict. As stated supra, once an employment discrimination action has been submitted to a jury, “the burden-shifting framework has fulfilled its function” since “backtracking serves no useful purpose.” Sánchez, 37 F.3d at 720. As we noted in Sánchez, “[t]o focus on the existence of a prima facie case after a discrimination case has been fully tried on the merits is to ‘unnecessarily evade[ ] the ultimate question of discrimination vel non.’ ” Id. (quoting U.S. Postal Serv. Bd. of Govs. v. Aikens, 460 U.S. 711, 713–14, 103 S.Ct. 1478, 75 L.Ed.2d 403 (1983)). Thus, the district court did not err when it considered the evidence presented as a whole rather than piecemeal, in a step-by-step review. In any case, the district court did, in fact, consider the evidence presented by Aly in determining whether the non-discriminatory reasons proffered by the Council constituted pretext. Specifically, it found that the Council's proffered evidence was “not so one-sided that no jury could reasonably find that discrimination occurred,” noting that much of Aly's evidence to counter the Council's non-discriminatory reasons depended on credibility determinations that the jury made in Aly's favor.
While it is a close case, we agree with the district court that Mohegan Council did not meet its burden in showing that the evidence in the record, taken in the light most favorable to Aly, is so overwhelmingly inconsistent with the verdict that no reasonable jury could come to the same conclusion.
As to the Council's argument regarding Aly's prima facie case, while it is true that Aly's performance evaluations declined in his last two years of employment, the lowest evaluation mark his supervisor ever gave him was within his employer's work expectations. Further, it is reasonable to believe that Aly was performing to those legitimate expectations if his worst evaluation both recommended him for the PD–LIII training and suggested that he was “successful in every component of the job.” In fact, Aly's most negative evaluations were issued during the period when he held recruitment meetings in mosques to expand recruitment into the Muslim community. Thus, the jury could reasonably infer that there was a correlation between said recruitment and his negative evaluations, an inference that goes directly to Aly's discrimination claim.
As to the Council's adverse employment actions, Aly presented sufficient evidence that the delay in being evaluated for recommendation to the PD–LIII training program and the Council's refusal to send him to the PD–LIII training once recommended, resulting in his ineligibility for a promotion, were adverse. See Rathbun v. Autozone, Inc., 361 F.3d 62, 71 (1st Cir.2004) (stating the elements of a failure-to-promote claim). The record also indicates that Garee, Aly's supervisor at the time, was unable to identify a single person in his thirteen-year history of affiliation with the Boy Scouts who had passed the same benchmarks as Aly but was not sent to the PD–LIII training.
Finally, Aly sufficiently showed that the Council sought someone of roughly equivalent qualifications—namely, Chevalier—to send to the PD–LIII training and perform the work of a Senior Executive Director following a promotion for which the training made him eligible. Chevalier was a non-Muslim of Hispanic and Lebanese descent who started working at the Council six months after Aly began. Even though Chevalier had received “exceptional marks” on his evaluations prior to being sent to the PD–LIII training program, he was similarly situated to Aly in all relevant respects. His performance reviews were almost equivalent to those of Aly, and while he received higher performance scores than Aly in certain categories and overall, he received lower performance scores than him in certain categories in 2003 and 2004.
While Mohegan Council offered a number of reasons it did not send Aly to the PD–LIII training—his declining work performance, his wavering future commitment to the organization, a lack of financial resources to either send him or raise his salary following any promotion, and the timing of the training—this evidence was not so overwhelmingly inconsistent with the jury's verdict as to require reversal. While Aly's proffered evidence of discrimination was not extensive, it could reasonably lead to an inference of discriminatory intent and a showing of pretext, particularly since it: (1) provided a direct challenge to the alleged non-discriminatory reasons as to job performance; (2) revealed consistent Performance Reviews noting Aly's commitment to the Council, with the only statements indicating otherwise occurring after Aly notified Kennedy about his concerns about discrimination; (3) indicated the Council's failure to follow Guidelines in dealing with negative Performance Reviews, if said reviews did in fact indicate performance so unsatisfactory as to warrant a failure to commit to a precondition for promotion; (4) revealed that Garee had relied at least in part in his decision not to send Aly to the training on volunteers, persons that Aly had complained were discriminating against him on the basis of religion; and (5) demonstrated that the Council was willing to forego its budgetary concerns regarding the PD–LIII training when it came to Chevalier, but not when it came to Aly. Therefore, a reasonable jury could conclude that Mohegan Council's proffered nondiscriminatory reasons are not worthy of credence, and taken together with the other circumstances, suggest that discrimination was more likely the motivation behind the adverse action.
We conclude that the district court did not err in denying Mohegan Council's motion for judgment as a matter of law. We accordingly affirm on all counts.


(a) Rule of privilege. The United States or a state or subdivision thereof has a privilege to refuse to disclose the identity of a person who has furnished to a law enforcement officer information relating to or assisting in an investigation of a possible violation of a law.
(b) Who may claim. The privilege may be claimed by an appropriate representative of the public entity to which the information was furnished or the public entity bringing the prosecution.
(1) VOLUNTARY DISCLOSURE; INFORMER AS A WITNESS. No privilege exists under this rule if the identity of the informer or the informer’s interest in the subject matter of the communication has been disclosed, by a holder of the privilege or by the informer’s own action, to those who would have cause to resent the communication or if the informer appears as a witness for the prosecution.
additional time or a continuance, relieving the defendant from making disclosures otherwise required, prohibiting the prosecuting attorney from introducing specified evidence, or dismissing charges. In fashioning appropriate relief in civil cases, the court may make any order the interests of justice require. Evidence submitted to the court shall be sealed and preserved, to be made available to the appellate court in the event of an appeal, and the contents shall not otherwise be revealed without consent of the public entity asserting the privilege. During any in camera showing, for the purpose of determining the applicability of the present privilege, no party should be present but, in its discretion, the court may allow counsel for any party and counsel for the public entity to be present.
does not fall within the privilege unless its disclosure would have the incidental effect of identifying the informer. See Pugh v. State, 493 So.2d 388 (Ala.Crim.App.1985), aff’d, 495 So.2d 393 (Ala.1986); 8 J. Wigmore, Wigmore on Evidence § 2374 (McNaughton rev. 1961).
The drafters thought it unnecessary to extend this privilege to legislative investigations; thus, in that regard this rule is different from Unif.R.Evid. 509.
Section (b). Who may claim. While this privilege is often referred to as the “informer’s privilege,” the holder of this privilege is either the governmental entity to which the informer furnished the information or the public entity bringing the prosecution. An appropriate representative of such an entity may claim the privilege in its behalf. Normally, the appropriate representative is counsel for the entity. See Fed.R.Evid. 501 (original proposal, not enacted) advisory committee’s note. Others, however, may be deemed appropriate to assert the privilege, particularly in proceedings to which the governmental entity is not a party. See Bocchicchio v. Curtis Publishing Co., 203 F.Supp. 403 (E.D.Pa.1962) (civil libel action in which the police officer, not represented by counsel, successfully claimed the privilege).
inapplicable, with regard to complaints of criminal antitrust violations made to the attorney general, after plaintiff/informer filed civil antitrust action).
informer’s identity has already been disclosed to those who would resent the informer’s action, there is no need for the privilege. The language “resent the communication” is taken from Roviaro v. United States, 353 U.S. 53 (1957), and has been quoted approvingly by the Supreme Court of Alabama. Pugh v. State, 493 So.2d 388 (Ala.Crim.App.1985), aff’d, 493 So.2d 393, 395 (Ala.1986). Those as to whom a disclosure will abrogate the privilege may include the defense or persons in the community. See United States v. Long, 533 F.2d 505 (9th Cir.), cert. denied, 429 U.S. 829 (1976). Disclosure by one law enforcement agency to another does not abrogate the privilege. See E. Cleary, McCormick on Evidence § 111 (3d ed. 1984).
The privilege may be waived when the holder of it discloses the informer’s identity, i.e., when an agent of the governmental entity holding the privilege discloses the informer’s identity. Additionally, however, this rule recognizes a waiver when the informer discloses his or her own identity. Compare Fed.R.Evid. 510 (not enacted).
When the government calls the informer as a witness, the cross-examining party’s right to show the informer’s status, as indicating bias, outweighs the interest promoted by assertion of the privilege. See Harris v. United States, 371 F.2d 365 (9th Cir. 1967).
(2) Testimony on relevant issue. The Rule 509 privilege aims at promoting the free flow of information to governmental law enforcement officers. This policy, however, may be held to give way, under the present exception, to an overriding policy of fundamental fairness in allowing litigants to prove their cases via access to material and relevant information.
The privilege falls where the identity of the informer, or what was communicated by the informer, is relevant and helpful to the defense of the criminally accused. Roviaro v. United States, 353 U.S. 53 (1957). In this circumstance, the governmental interest in the free flow of information is deemed to be outweighed by the accused’s right to prove innocence. This exception has received historic recognition in Alabama. Pugh v. State, 493 So.2d 388 (Ala.Crim.App.1985), aff’d, 493 So.2d 393 (Ala.1986). Rule 509 extends this balancing process to civil cases and directs the court’s focus to whether there exists a reasonable probability that the informer may be able to give testimony necessary to a fair determination of a material issue on the merits in a civil case. In determining whether that probability exists, the court is to investigate the facts in camera. Should the privilege continue to be asserted, in face of the court’s finding that the informer is able to give necessary testimony, the court is to afford appropriate relief. Subsection (c)(2) provides a list of possible measures, satisfying the requirement of “appropriate relief,” for application in criminal cases. Possible relief in civil litigation is of such breadth that no specification is attempted.


Perhaps the most radical changes are structural. The First Department has now established two Attorney Grievance Committees (heretofore, there was only one, the Departmental Disciplinary Committee (DDC)), each consisting of 21 members, of which at least three must be non-lawyers residing or working in the First Department. 22 NYCRR §603.4(a)(1) and (2). Each of the Attorney Grievance Committees shall have a chairperson and a vice-chairperson who must be lawyers. 22 NYCRR §603.4(a)(3). Every member will serve for a three-year term and is eligible for reappointment for not more than one additional term of three years. 22 NYCRR §603.4(a)(2). The Committees also have the power to appoint their members to subcommittees. 22 NYCRR §603.4(a)(1).
These changes effectively abolish the former organizational arrangement in two important ways: (1) by creating two working committees in place of the previous, single committee—which had a chairperson, 10 Policy Committee members, and approximately 48 other members; and, (2) by eliminating the Policy Committee (i.e., the executive committee), to be replaced by, as noted, two chairpersons, two vice-chairpersons, and subcommittees. The First Department rules do not specify what functions the subcommittees are to perform; presumably they will review individual cases and then recommend dispositions to the full Committees.
The other important alterations relate to meetings, quorums and, pursuant to the statewide rules, informal determinations. 22 NYCRR §603.4(b); 22 NYCRR §1240.7. Under the old system in the First Department, the DDC met no more than once a year as a Committee of the whole. However, the Policy Committee generally convened monthly. Approval of Formal Charges, or the issuance of Admonitions and Letters of Dismissal with Guidance, were authorized by two members of the Policy Committee, while dismissals of complaints could be confirmed by a single member of the DDC.
This has all been revised. Each of the two Attorney Grievance Committees must now meet not less frequently than every other month. 22 NYCRR §603.4(b)(1). Two-thirds of the members shall constitute a quorum. 22 NYCRR §603.4(b)(2). Most critically, “all action” shall require the affirmative vote of at least a majority of the members present. 22 NYCRR §603.4(b)(2). In other words, at least 14 members must be present, and no less than eight members are required to approve any disposition (action). While this general structure, and the just-described procedures, were routine in the other Departments, until the advent of the new, uniform statewide rules the First Department’s grievance system had never conducted business in this way since its inception in the late 1970s.
Many years ago the DDC informally employed pro bono special counsel to assist in the investigation and prosecution of complaints requiring formal charges and a hearing. This was largely an effort to reduce a backlog of serious cases. While the program worked well, for unspecified reasons it was discontinued after 1998.
The amended First Department rules have revived and formally recognized the use of pro bono special counsel upon an initial determination by the Chief Counsel and approval by the Committee Chairperson and the court. 22 NYCRR §603.4(c). This is an unexpected and welcome development, one that can only benefit the bar and the public.
While incorporating by reference the statewide rule concerning formal proceedings (Proceedings in the Appellate Division), 22 NYCRR §1240.8, the First Department has filled in certain gaps and amplified several procedures.
Appearances. While the statewide rules provide that “the Court shall permit or require such appearances as it deems necessary in each case,” 22 NYCRR §1240.8(a)(1), the First Department rules require counsel for a respondent to file with the court and the Chief Attorney a formal notice of appearance, which notice must provide adequate contact information for both counsel and respondent. 22 NYCRR §603.8(a)(2). Similarly, pro se respondents must file with the court and the Chief Attorney an address to which notices and other communications may be sent, as well as a telephone number and email address. 22 NYCRR §603.8(a)(1).
Requests for Extensions of Time. The First Department rules carry forward the prior policy that disciplinary matters shall be granted a preference by the court, and mandate that any requests for extensions of time periods set forth in the statewide rules must be made in writing to the court and “determined by a justice of the Court upon good cause shown.” 22 NYCRR §603.8(a)(3). Needless to say, this reflects the court’s ultra concern about delays.
Pleadings. The statewide rules indicate that formal disciplinary proceedings will consist of three basic pleadings: (1) a notice of petition and petition; (2) an answer; and (3) a reply (if appropriate). 22 NYCRR §1240.8(a)(1). The First Department rules more specifically spell out the required content of the basic pleadings. Thus, the petition shall set forth the charges of misconduct, the disciplinary rules alleged to have been violated, and in appropriate cases, the fact that the Committee will seek restitution per section 90(6-a)(a) of the Judiciary Law. 22 NYCRR §603.8(b)(2). As for the answer, it must respond specifically (by admissions, denials, or otherwise) to each allegation of the petition, shall assert all affirmative defenses, and may include matters in mitigation. 22 NYCRR §603.8(b)(3).
Motions. Regarding motions, the statewide rules defer to the rules of the Appellate Divisions, stating that unless otherwise specified, “applications and motions shall be made in accordance with the rules of the Court in which the proceeding is pending.” 22 NYCRR §1240.8(c). The First Department rules, in turn, provide, in pertinent part, that where the court has appointed a referee to hear and report, “the Court may refer any pending motion or application in that proceeding to the referee for determination.” 22 NYCRR §603.8(c)(2).
Evidence. The statewide rules do not contain a provision addressing the rules of evidence. Thus, in New York, there are still no uniform rules with respect to reception of evidence in attorney discipline cases. Under the former departmental rules, only the First Department had a rule that concerned the admissibility of evidence, and the amended First Department rules have retained the general rule that “[a]ll evidence which the referee deems relevant, competent and not privileged shall be admissible.” 22 NYCRR §603.8-a(l)(1). Similarly, with regard to “reception and ruling on evidence,” the amended First Department rules, like the former rules, provide that “[w]hen objections to the admission or exclusion of evidence are made, the grounds relied upon shall be stated. Formal exceptions are unnecessary. The referee shall rule on the admissibility of all evidence.” 22 NYCRR §603.8-a(m).
Plainly, however, different referees may have very different standards. In sum, there is no consistent governing standard, either statewide or within the First Department (or within the other Departments), with respect to reception of evidence, including hearsay evidence.
Bifurcation. No provision is made in the statewide rules for bifurcation. In bifurcated proceedings, the parties try the merits first. Only if the referee sustains one or more charges of ethical misconduct do the parties proceed to the hearing’s second stage, devoted to an inquiry on sanction, during which they may present evidence in mitigation or aggravation. Practically speaking, bifurcation is designed to protect the rights of the respondent. Notably, the hearing’s initial phase proceeds unimpeded by staff counsel’s submission of evidence in aggravation, such as the respondent’s prior disciplinary history, if any.
Under the former departmental rules, hearings pursuant to formal charges in the First Department were bifurcated, and the amended First Department rules, unlike the statewide rules, continue to provide for bifurcated formal proceedings. 22 NYCRR §603.8-a(t)(1). The first part only involves the respondent’s alleged liability as to one or more of the charges. At the conclusion of the testimony and following the presentation of oral arguments, the referee determines whether an inquiry as to sanction is required. Id. If so, the referee sets forth on the record the charges that are sustained. Id. The so-called sanction phase may commence immediately upon the conclusion of oral arguments concerning liability, but in no event later than seven days from the conclusion of oral arguments. Id. In short, if the referee sustains none of the charges, the referee advises the parties in writing or on the record, and that ends the hearing. Id. If, on the other hand, the referee sustains any charge, the parties proceed to the hearing’s second stage, during which they can present evidence in mitigation or aggravation. Id.
The First Department has a long history of detailed rules of procedure in attorney disciplinary matters, particularly as compared to the other Departments’ more sparse rules. The new (amended) First Department rules helpfully carry on this tradition.


text:
2003-05-23 Assigned to SARATOGA VENTURES III, L.P., SAPIENT CAPITAL, L.P., DENOVO (Q) VENTURES I, L.P., 2180 ASSOCIATES FUND V, L.P., U.S. VENTURE PARTNERS V, L.P., GUIDANT INVESTMENT CORPORATION, USVP V. INTERNATIONAL L.P., PEQOUT PRIVATE EQUITY FUND III, L.P., DEVOVO VENTURES, I, L.P., USVP V ENTREPRENEUR PARTNERS, L.P. reassignment SARATOGA VENTURES III, L.P. SECURITY INTEREST (SEE DOCUMENT FOR DETAILS). Assignors: CRYOVASCULAR SYSTEMS, INC.
The present invention provides methods, apparatus, and kits for detection and/or treatment of vulnerable plaque of a blood vessel having a lumen surface. Detection methods include sensing a temperature differential along a lumen surface with temperature sensors that thermally couple the lumen surface. Treatment methods include controlled and safe cryogenic cooling of vulnerable plaque to inhibit release of retained fluid within the vulnerable plaque so as to inhibit acute coronary syndrome and to help maintain patency of a body lumen. Treatment methods may include additional treatments, such as primary treatments or passivation.
The present invention relates generally to methods, apparatus, and kits for treating blood vessels. More particularly, the present invention provides methods, apparatus, and kits for treating a lesion, and particularly a vulnerable atherosclerotic plaque, within a patient's vasculature to inhibit harmful releases within the vasculature, such as those which may be responsible for strokes or acute coronary syndromes of unstable angina, myocardial infarction, and sudden cardiac death.
Atherosclerotic plaque is present to some degree in most adults. Plaques can severely limit the bloodflow through a blood vessel by narrowing the open vessel lumen. This narrowing effect or stenosis is often responsible for ischemic heart disease. Fortunately, a number of percutaneous intravascular procedures have been developed for treating atherosclerotic plaque in a patient's vasculature. The most successful of these treatments is percutaneous transluminal angioplasty (PTA). PTA employs a catheter having an expansible distal end, usually in the form of an inflatable balloon, to dilate a stenotic region in the vasculature to restore adequate blood flow beyond the stenosis. Other procedures for opening stenotic regions include directional arthrectomy, laser angioplasty, stents, and the like. Used alone or in combination, these percutaneous intravascular procedures have provided significant benefits for treatment of stenoses caused by plaque.
While treatments of plaque-induced stenoses have advanced significantly over the last few decades, the morbidity and mortality associated with vascular plaques have remained significant. Recent work suggests that plaque may generally fall into one of two different general types: standard stenotic plaques and vulnerable plaques. Stenotic plaque, which is sometimes referred to as thrombosis-resistant plaque, can generally be treated effectively by the known intravascular lumen opening techniques mentioned above. Although the stenoses they induce may require treatment, these atherosclerotic plaques themselves are often a benign and effectively treatable disease.
Unfortunately, as plaque matures, narrowing of a blood vessel by a proliferation of smooth muscle cells, matrix synthesis, and lipid accumulation may result in formation of a plaque which is quite different than a standard stenotic plaque. Such atherosclerotic plaque becomes thrombosis-prone, and can be highly dangerous. This thrombosis-prone or vulnerable plaque may be a frequent cause of acute coronary syndromes.
The characterization of these vulnerable (and potentially life-threatening) plaques is currently under investigation. A number of strategies have been proposed to detect a vulnerable plaque. Proposed strategies include angiography, intravascular ultrasound, angioscopy, magnetic resonance imaging, magnetic resonance diffusion imaging; spectroscopy, infrared spectroscopy, scintigraphy, optical coherence tomography, electron beam computed tomographic scanning, and thermography, all of which have had limited success. In particular, proposed thermography methods detect temperature variations, as vulnerable plaque is typically inflamed and as such gives off more heat than standard stenotic plaque. While current thermography methods show great promise, they continue to suffer from limited temperature sensitivity which may often result in inaccurate detections of vulnerable plaque.
A cryoplasty device and method are described in WO 98/38934. Balloon catheters for intravascular cooling or heating a patient are described in U.S. Pat. No. 5,486,208 and WO 91/05528. A cryosurgical probe with an inflatable bladder for performing intrauterine ablation is described in U.S. Pat. No. 5,501,681. Cryosurgical probes relying on Joule-Thomson cooling are described in U.S. Pat. Nos. 5,275,595; 5,190,539; 5,147,355; 5,078,713; and 3,901,241. Catheters with heated balloons for post-angioplasty and other treatments are described in U.S. Pat. Nos. 5,196,024; 5,191,883; 5,151,100; 5,106,360; 5,092,841; 5,041,089; 5,019,075; and 4,754,752. Cryogenic fluid sources are described in U.S. Pat. Nos. 5,644,502; 5,617,739; and 4,336,691. The following U.S. Patents may also be relevant to the present invention: U.S. Pat. Nos. 5,458,612; 5,545,195; and 5,733,280.
Thermography is described by Ward Casscells et al. in The Vulnerable Atherosclerotic Plague: Understanding, Identification, and Modification, chpt. 13, pp. 231-242 (1999); and L. Diamantopoulos et al. at http://www.eurekalert. org/releases/aha-ati041499.html. The impact of low temperatures on lipid membranes is described by Jack Kruuv in Advances in Molecular and Cell biology, vol. 19, pp. 143-192 (1997); P.J. Quinn in Cryobiology, vol. 22, pp. 128-146 (1985); and Michael J. Taylor, Ph.D. in Biology Of Cell Survival In The Cold, (Harwood Academic Publishers, In Press).
The present invention provides detection and cryotherapy treatment of vulnerable plaque within a blood vessel of a patient. The blood vessel may be any blood vessel in the patient's vasculature, including veins, arteries, and particularly coronary arteries. The vessel will typically be partially stenosed, at least in part from vulnerable plaque. In particular, the present invention may inhibit release of retained fluid within the vulnerable plaque so as to inhibit acute coronary syndrome and to help maintain the patency of a body lumen. The present invention may also provide for the treatment of vulnerable plaque in carotid arteries for stroke prevention. Where the patient's vasculature has both the vulnerable plaque and standard stenotic plaque, the treatment techniques described herein may be selectively directed to the vulnerable plaque, optionally without substantial cooling of the standard stenotic plaque. In other embodiments, both types of plaque may be treated.
In a first aspect, the present invention provides a method for treating vulnerable plaque of a blood vessel. The method comprises cooling the blood vessel adjacent the vulnerable plaque to a temperature sufficient to inhibit release of retained fluid from within the vulnerable plaque into the blood stream. The cooling treatment will often be directed against all or a portion of a circumferential surface of a lumen of the blood vessel, and will preferably inhibit release of lipid-rich liquid being releasably retained by the vulnerable plaque.
Cooling of the vessel may be effected by introducing a catheter into a lumen of the blood vessel. A first balloon is positioned within the vessel lumen adjacent the vulnerable plaque. Cryogenic cooling fluid is introduced into the first balloon and exhausted. A second balloon disposed over the first balloon is expanded to radially engage the vessel lumen. Generally, the temperature of an inside surface of the first balloon will be in the range from about −55° C. to −75° C. and an outside surface of the first balloon will be in the range from about −25° C. to −45° C. The temperature of an outside surface of the second balloon will be in the range from about 10° C. to −40° C., preferably from about 10° C. to −20° C., more preferably from about 5° C. to −10° C.
Usually, the temperature at the cell surface of the blood vessel lumen is in the range from about 10° C. to −40° C., preferably from about 10° C. to −20° C., more preferably from about 5° C. to −10° C. The tissue is typically maintained at the desired temperature for a time period in the range from about 15 seconds to 120 seconds, preferably from 30 seconds to 60 seconds. Vulnerable plaque stabilization may be enhanced by repeating cooling in cycles, typically with from about 1 to 3 cycles, with the cycles being repeated at a rate of about one cycle every 120 seconds.
Surprisingly, cooling temperatures above 0° C. can effect a transition of the vulnerable plaque's lipid core from a disordered cystalline state fluid to a ordered crystalline state solid or gel. Thus, vulnerable plaque can be stabilized by cooling the lipid-rich liquid sufficiently to change a state of the lipid-rich liquid, typically to a highly ordered hexagonal lattice at transition temperatures generally in the range from about 10° C. to −10° C. Cooling may stabilize the vulnerable plaque while inhibiting necrosis and/or apoptosis of tissue adjacent the lipid-rich liquid, particularly of the tissues defining a cap of cells between the lipid-rich liquid and the lumen of the blood vessel. Cooling may also inhibit inflammation and deterioration of the vulnerable plaque. The cooling treatment may further inhibit rupture of the cap of cells of the vulnerable plaque.
In other aspects, the present invention of cooling the vulnerable plaque to inhibit release of lipid-rich liquid may be combined with additional treatments. For example, one adjunctive method may comprise treating the cooled vulnerable plaque with a primary treatment. Suitable primary treatments may include balloon angioplasty, atherectomy, rotational atherectomy, laser angioplasty, or the like, where the lumen of the treated blood vessel is enlarged to at least partially alleviate a stenotic condition. The primary treatment may also include procedures for controlling restenosis, such as stent placement. In the case of arteries, the primary treatment will be effected shortly before, during, or preferably very shortly after the cooling treatment, preferably within 60 seconds of the cooling treatment, more preferably immediately following the cooling of the lipid-rich liquid to a desired temperature. Alternatively, cooling methods may additionally comprise passivating the vulnerable plaque by reducing a size of the lipidrich liquid, changing a cellular consistency or composition of the lipid-rich liquid, enhancing a structural integrity of the cap (e.g. increasing a thickness of the cap), modifying a cellular composition or structural properties of the cap, and/or the like by altering the chemistry or life cycle of the vulnerable plaque.
FIG. 4 illustrates an exploded cross-sectional view of FIG. 1A taken along line 4—4.
FIG. 6 is a cross-sectional view of the catheter taken along line 6—6 in FIG. 5.
FIG. 10B is a cross-sectional view of the catheter taken along line 10B—10B in FIG. 10A.
As used herein, the terms “vulnerable plaque” and “hot plaque” refer to atherosclerotic plaque that is thrombosis-prone. FIGS. 1A and 1B illustrate cross-sectional views of a blood vessel 100 containing a mature vulnerable plaque 102 within a lumen 104 of the vessel. The vulnerable plaque 102 generally comprises a necrotic core 106 of soft, lipid-rich, atheromatous gruel and a fibrous, sclerotic cap 108 of a collagen matrix of smooth muscle cells that covers the core 106. The gruel generally comprises a liquid of esterified cholesterol and low density lipoproteins which is releasably retained by the vulnerable plaque 102. Disruption or fissuring of the cap 108 may cause plaque hemorrhage 110 (release of the highly thrombogenic lipid-rich liquid 106 through the ruptured plaque), as seen in FIG. 2. As a result of plaque hemorrhage 110, the highly thrombogenic lipid-rich liquid 106 is exposed to flowing blood of the vessel lumen 104. As illustrated in FIG. 3, release of the thrombogenic liquid may cause a thrombotic occlusion 112 (blood clot) of the entire vessel lumen, which in turn may be lead to lifethreatening conditions, such as a stroke or sudden cardiac death.
Three determinants of vulnerability are illustrated in FIG. 4, which is an exploded cross-sectional view of FIG. 1A taken along line 4—4. Susceptibility of a vulnerable plaque to rupture may be primarily determined from the size 114 and consistency of the atheromatous core (e.g. a larger core increases chances for rupture), the thickness 116 and structural integrity of the sclerotic cap (e.g. a thinner cap increases chances for rupture), and cap inflammation (e.g. macrophage foam cell 118 infiltration weakens the cap cells 120 and increases chances for rupture). Additionally, vulnerable plaque disruption may be triggered by numerous extrinsic stresses imposed on the plaque. For example, fluctuations in intraluminal blood pressure, pulse pressure, heart contraction, vasospasm, and the like may precipitate disruption of a vulnerable plaque. Alternatively, mechanical stresses caused by primary treatments like PTA or stenting may trigger rupture as well.
Referring now to FIGS. 5 and 6, an exemplary cryotherapy catheter 10 (which is more fully described in application Ser. No. 09/619,583 filed Jul. 19, 2000, the full disclosure of which is incorporated herein by reference) for detecting and treating vulnerable plaque 102 of a blood vessel 100 having a lumen surface 105 (see FIG. 1A) will be described. The catheter 10 comprises a catheter body 12 having a proximal end 14 and a distal end 16 with a cooling fluid supply lumen 18 and an exhaust lumen 20 extending therebetween. A first balloon 22 is disposed near the distal end of the catheter body 12 in fluid communication with the supply and exhaust lumens. A second balloon 24 is disposed over the first balloon 22 with a thermal barrier 26 therebetween.
The thermal barrier 26 may comprise a gap maintained between the balloons 22, 24 by a filament. The filament typically comprises a helically wound, braided, woven, or knotted monofilament. The monofilament may be formed from PET or polyethylene napthlate (PEN), and affixed to the first balloon 22 by adhesion bonding, heat welding, fasteners, or the like. The thermal barrier 26 may also comprise a gap maintained between the balloons 22, 24 by a plurality of bumps on an outer surface of the first balloon 22 and/or an inner surface of the second balloon 24. The plurality of bumps may be formed in a variety of ways. For example, the bumps may be intrinsic to the balloon (created during balloon blowing), or the bumps could be created by deforming the material of the balloon wall, by affixing mechanical “dots” to the balloon using adhesion bonding, heat welding, fasteners, or the like. Alternatively, the thermal barrier 26 may comprise a gap maintained between the balloons 22, 24 by a sleeve. The sleeve may be perforated and formed from PET or rubbers such as silicone and polyurathane.
The vacuum space 52 may be provided by a simple fixed vacuum chamber 64 coupled to the vacuum space 52 by a vacuum lumen 66 of the body 12 via a vacuum port 68 (See FIG. 5). In the exemplary embodiment, a positive displacement pump (ideally being similar to a syringe) is disposed within handle 74 and may be actuated by actuator 75, as seen in FIG. 8A. The vacuum space 52 should comprise a small volume of vacuum in the range from 1 mL to 100 mL, preferably 10 mL or less, as a smaller vacuum space 52 facilitates detection of a change in the amount of vacuum when a small amount of fluid leakage occurs. The cryogenic fluid supply 62 and battery 60 for powering the circuit may be packaged together in an energy pack 70, as seen in FIG. 8B. The energy pack 70 is detachable from a proximal handle 74 of the catheter body and disposable. A plurality of separate replaceable energy packs 70 allow for multiple cryogenic cooling cycles. Additionally, an audio alert or buzzer 76 may be located on the handle 74, with the buzzer providing an audio warning unless the handle is maintained sufficiently upright to allow flow from the fluid supply 62. The cryotherapy catheter may additionally comprise a hypsometer 72 coupled to the volume by a thermistor, thermocouple, or the like located in the first balloon 22 or handle to determine the pressure and/or temperature of fluid in the first balloon 22. The hypsometer allows for accurate real time measurements of variables (pressure, temperature) that effect the efficacy and safety of cryotherapy treatments.
The dual balloon cryotherapy catheter 10 in FIG. 5 also illustrates a temperature sensing mechanism that provides for thermographic detection of vulnerable plaque. A plurality of temperature sensors 78 are affixed to the second balloon 24 so as to provide direct temperature measurements of the lumen surface 105 (see FIG. 1A). The temperature sensors 78 may comprise a plurality of up to 20 thermocouples or thermistors and may be capable of detecting temperature differences greater than 0.1° C. The temperature sensors 78 may be secured to the second balloon 24 at a series of axial and circumferential locations. The plurality of temperature sensors 78 may be affixed by adhesion bonding, heat welding, fasteners, or the like to an outer surface of the second balloon 24, as shown in FIG. 5, or may be alternatively affixed to an inner surface of the second balloon 24. Temperature sensor wires 80 may be secured along the length of the catheter shaft 12 within a thin sleeve 82 formed from PET or rubbers such as silicone and polyurathane, or in the latter case the wires 80 may be threaded through the vacuum lumen 66. A connector 84 at the proximal end 14 of the catheter 10 may also be provided to connect the temperature sensor wires 80 to a temperature readout device for temperature mapping along the lumen surface. Additionally, a circuit 77 may be attached to the connector 84 for measuring a temperature differential ΔT along the lumen surface from temperature measurement T1 and T2 sensed by the temperature sensors 78, as illustrated in the block diagram of FIG. 9. An indicator which is triggered above a threshold temperature differential may also be located on the connector for alerting purposes.
Detection of vulnerable plaque may be carried out by introducing the cryotherapy catheter 10 into a lumen 104 of the blood vessel 100 over a guidewire. The first balloon 22 is positioned within the blood vessel lumen 104 adjacent a plaque. The first balloon 22 is inflated so that the plurality of temperature sensors 78 affixed to the second balloon 24 (which expands upon inflation) thermally couple a surface of the vessel lumen. A temperature differential along the lumen surface 105 is sensed with the sensors. Inflation of balloon 22 may be effected by a gas, such as carbon dioxide, nitrous oxide, or the like, at a pressure in the range from about 5 psi to 50 psi. The balloon 22 will typically be inflated for a time period in the range from 10 to 120 seconds. The balloon catheter may sense for a temperature differential in a static position or as it moving along the lumen surface. Advantageously, temperature sensors 78 thermally engage the lumen surface to allow for direct temperature measurements to be made at specific locations along the lumen surface. This increased temperature sensitivity may in turn lead to improved temperature mapping and accurate vulnerable plaque detections. Cryotherapy catheter 10 may then be used for treating the detected vulnerable plaque as described in more detail below with reference to FIGS. 11A-11C.
Referring now to FIGS. 11A through 11C, use of cryotherapy catheter 10 of FIG. 5 for treatment of vulnerable plaque 102 will be described. As illustrated in FIG. 11A and 11B, catheter 10 will be introduced into a lumen 104 of the blood vessel 100 over a guidewire GW. The first balloon 22 is positioned within the blood vessel lumen 104 adjacent the vulnerable plaque 102. Cryogenic cooling fluid is introduced into the first balloon 22 (in which it often vaporizes) and exhausted. The second balloon 24 expands to radially engage the vessel wall, as illustrated by FIG. 11C. The vaporized fluid serves both to inflate balloon 22 (and expand balloon 24) and to cool the exterior surface of the balloons 22, 24. The blood vessel 100 adjacent the vulnerable plaque 102 is cooled to a temperature sufficient to inhibit release of retained fluid 106 from within the vulnerable plaque 102 into the blood vessel 100. The cooling treatment will be directed at all or a portion of a circumferential surface the vessel lumen. Preferably cooling will inhibit release of lipid-rich liquid being releasably retained by the vulnerable plaque by stabilizing the lipid-rich liquid 106 to a lipid-rich solid or gel 106′ (which is described in more detail in FIGS. 12A-12B below). Heat transfer will also be inhibited between the first and second balloons 22, 24 by the thermral barrier 26 so as to limit cooling of the vulnerable plaque to a desired temperature profile. Additionally, containment of the first and second balloons 22, 24 will be monitored during cooling by the fluid shutoff mechanism (see FIG. 7).
Suitable cryogenic fluids will preferably be non-toxic and may include liquid nitrous oxide, liquid carbon dioxide, cooled saline and the like. The cryogenic fluid will flow through the supply lumen sauid at an elevated pressure and will vaporize at a lower pressure within the first balloon 22. For nitrous oxide, a delivery pressure within the supply lumen 18 will typically be in the range from 600 psi to 1000 psi at a temperature below the associated boiling point. After vaporization, the nitrous oxide gas within the first balloon 22 near its center will have a pressure typically in the range from 15 psi to 100 psi. Preferably, the nitrous oxide gas will have a pressure in the range from 50 psi to 100 psi in a peripheral artery and a range from about 15 psi to 45 psi in a coronary artery.
Generally, the temperature of an inside surface of the first balloon will be in the range from about −55° C. to −75° C. and an outside surface of the first balloon will be in the range from about −25° C. to −45° C. The temperature of an outside surface of the second balloon will be in the range from about 10° C. to −40° C., preferably from about 10° C. to −20° C., more preferably from about 5° C. to −10° C. This will provide a desired treatment temperature in a range from about 10° C. to −40° C., preferably from about 10° C. to −20° C., more preferably from about 5° C. to −10° C. The tissue is typically maintained at the desired temperature for a time period in the range from about 15 to 120 seconds, preferably being from 30 to 60 seconds. Vulnerable plaque stabilization may be enhanced by repeating cooling in cycles, typically with from about 1 to 3 cycles, with the cycles being repeated at a rate of about one cycle every 120 seconds.
In other applications, cooling of the vessel at cooler temperatures may be desirable to provide for apoptosis and/or programmed cell death stimulation of inflamatory cells (e.g. macrophages 118, see FIG. 4) in the vulnerable plaque 102. Apoptosis may be desirable as the presence of such inflamatory cells may trigger cap weakening or erosion which in turn may lead to vulnerable plaque release of the lipid-rich liquid. Cooling at temperatures in the range from about 0° C. to −15° C. may inhibit inflammation and deterioration of the vulnerable plaque, particularly of the tissues defining the cap of cells 108. Alternatively, it may be beneficial to provide for necrosis in the cap cells 108 at cooling temperatures below about −20° C. Cap necrosis may stimulate cellular proliferation and thickening of the cap which in turn may inhibit cap rupture.
expanding a second balloon disposed over the first balloon to radially engage the vessel lumen.
2. A method as in claim 1, wherein a temperature of an outer surface of the first balloon is in the range from about −25° C. to −45° C. and a temperature of an outer surface the second balloon is in the range from about 10° C. to −40° C.
4. A method as in claim 1, wherein the fluid of the vulnerable plaque comprises a lipid-rich liquid.
5. A method as in claim 4, wherein the vulnerable plaque comprises a cap of cells between the lipid-rich liquid and a lumen of the blood vessel.
6. A method as in claim 5, further comprising inhibiting apoptosis of tissue adjacent the lipid-rich liquid.
7. A method as in claim 5, wherein the cooling step inhibits rupture of the cap of cells.
8. A method as in claim 1, wherein the cooling step comprises lowering the temperature of the blood vessel surface from about 10° C. to −40° C. for a time period in the range from about 15 to 120 seconds.
9. A method as in claim 4, further comprising stabilizing the vulnerable plaque by cooling the lipid-rich liquid to a highly ordered hexagonal lattice.
10. A method as in claim 9, wherein the lipid-rich liquid is hardened to at least a gel-state.
11. A method as in claim 1, wherein the cooling inhibits inflammation of the vulnerable plaque.
12. A method as in claim 1, wherein the cooling inhibits deterioration of the vulnerable plaque.
13. A method as in claim 1, further comprising treating the vulnerable plaque with a primary treatment.
14. A method as in claim 4, further comprising passivating the vulnerable plaque by reducing a size or modifing a consistency or composition of the lipid-rich liquid.
15. A method as in claim 14, wherein passivation is carried out by altering the chemistry or life cycle of the vulnerable plaque.
16. A method as in claim 5, further comprising passivating the vulnerable plaque by increasing a thickness of the cap of cells.
Casscells, W., et al., The Vulnerable Atherosclerotic Plaque: Understanding, Identification, and Modification: Chapter 13: Thermography. Armonk, NY: Futura Publishing Company, Inc.; (C)1999. pp. 231-242.
Casscells, W., et al., The Vulnerable Atherosclerotic Plaque: Understanding, Identification, and Modification: Chapter 13: Thermography. Armonk, NY: Futura Publishing Company, Inc.; ©1999. pp. 231-242.
Dalager-Pedersen, S., et al. The Vulnerable Atherosclerotic Plaque: Understanding, Identification, and Modification: Chapter 1: Coronary Artery Disease: Plaque Vulnerability, Disruption, and Thrombosis. Armonk, NY:Futura Publishing Company, Inc.; (C)1999. pp. 1-23.
Dalager-Pedersen, S., et al. The Vulnerable Atherosclerotic Plaque: Understanding, Identification, and Modification: Chapter 1: Coronary Artery Disease: Plaque Vulnerability, Disruption, and Thrombosis. Armonk, NY:Futura Publishing Company, Inc.; ©1999. pp. 1-23.
Diamantopoulos, L., et al. http://www.eurekalert.org/releases/aha-ati0041499.html. "Artery Temperatures Identify Hot Spots on Plaque that May Rupture and Trigger Heart Attack." (Release date: Apr. 20, 1999) 3 pages.
Kruuv, Jack. "Survival of Mammalian Cells Exposed to Pure Hypothermia in Culture." Advances in Molecular and Cell Biology. (1997) 9:143-190.
Quinn, P.J. "A Lipid-Phase Separation Model of Low-Temperature Damage to Biological Membranes." Cryobiology. (1985) 22:128-146.
Taylor, Michael J. Biology of Cell Survival in the Cold. Organ Recovery Systems, Inc. & Allegheny University of Health Sciences. Greenwich, CT: JAI Press, 1996:1-64.
U.S. patent application No. 09/203,011 filed on Dec. 1, 1998 entitled: Apparatus and Method for Cryogenic Inhibition of Hyperplasia, Inventor(s): James Joye et al.
U.S. patent application No. 09/268,205 filed Mar. 15, 1999 entitled: Cryosurgical Fluid Supply, Inventor(s): James Joye et al.
U.S. patent application No. 09/344,177 filed on Jun. 24, 1999 entitled: Cryosurgical Catheter Inhibition of Hyperplasia, Inventor(s): James Joye et al.
U.S. patent application No. 09/510,903 filed on Feb. 23, 2000 entitled: Cryogenic Angioplasty Catheter, Inventor(s): James Joye et al.
U.S. patent application No. 09/511,191 filed on Feb. 23, 2000 entitled: Cryogenic Angioplasty Catheter, Inventor(s): James Joye et al.
U.S. patent application No. 09/619,583 filed on Jul. 19, 2000 entitled: Improved Safety Cryotherapy Catheter, Inventor(s): James Joye et al.

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HOW TO BEST READ THE ARTICLES ON THIS SITE.
This site is dedicated to educating the internet user accused of copyright infringement via the peer-to-peer (P2P) software (a.k.a. “bittorrent”). Most likely, you received a letter from your ISP in the mail along with a subpoena, where you are identified as a “John Doe” defendant in a lawsuit. Alternatively, you have been contacted by the plaintiff attorney demanding that you pay a settlement “or else you will be named and served in a lawsuit against you.” Most of these cases are filed in a federal court, thus an attorney licensed in any state can represent you.
I was reviewing the various New Sensations, Inc v. Does cases in the US District Court for the Northern District of California, and one of them caught my attention.
In the New Sensations, Inc v. Does 1-1745 (3:10-cv-05863-WHA) case, I noticed that Judge William Alsup has taken over this case. This can only be good news for you and bad news for your plaintiff attorney, Ira Siegel. In short, Judge Alsup has the reputation for being known as “Mr. Rocket Docket”. Why? Historically, he has no patience for plaintiffs who sue and then sit around for months and months doing nothing (while they pressure defendants to settle). I have seen already a few cases where he gets tired of a case and on his own, he dismisses them for lack of prosecution. No doubt, if Mr. Siegel is paying attention, he’ll be paying attention to this case over the others or else he’ll have the case snatched from him.
New Sensations, Inc v. Does 2-1768 (4:11-cv-02835-CW) <– severed from New Sensations, Inc v. Does 1-1768 (5:10-cv-05864-PSG) by Judge Paul S. Grewal.
Judge rules that it is improper to sue bittorrent swarms in the same lawsuit.
There is an interesting case coming out of the U.S. District Court for the Northern District of California — the court where most of John Steele’s newer and smaller Does 1-40 cases are showing up. In severing and dismissing all defendants (except Doe #1) in the Pacific Century International Ltd., v. Does 1-101 (4:11-cv-02533-DMR) case, Judge Donna Ryu held that it is improper to sue bittorrent users from different swarms in the same copyright infringement lawsuit, even if they all downloaded the same copyrighted work (e.g., the same movie).
In her decision, Judge Ryu made the distinction that each swarm has bittorrent users downloading a particular .torrent file, but the files themselves might not be similar enough for the plaintiff to join together all of the John Doe Defendants from the various swarms into one lawsuit claiming that all the John Doe Defendants downloaded “the same copyrighted work”.
For example, in one swarm, bittorrent users might download a low quality version of a pirated movie (e.g., perhaps from a “CAM” — an individual who takes a camrecorder into a theater and video tapes the film). Similarly, the bittorrent users of another swarm might be downloading a higher quality version of that same pirated movie, (e.g., a leaked high DVD quality version of a movie shared with movie screeners).
While each of these users who download copies of the copyrighted work — whether low quality or high quality — would likely be found guilty of copyright infringement [should any of the plaintiff attorneys decide to take these cases to trial rather sending out “scare” letters, making threatening phone calls, and in some cases naming defendants for the sole purpose of eliciting settlements], Judge Ryu ruled that it is improper to join the first swarm of bittorrent users (e.g., the low quality film downloaders) with the second swarm of bittorrent users (e.g., those downloading the leaked DVD version of that same work) BECAUSE the first swarm of downloaders WOULD NEVER INTERACT with the second swarm of downloaders. Thus, plaintiffs who join the John Doe Defendants of multiple swarms into one lawsuit claiming that each defendant necessarily participated in the SAME TRANSACTION OR OCCURRENCE is a faulty argument. Swarm #1 will never take part in the same transaction or occurrence as Swarm #2, and thus the judge ruled that it is improper to join defendants of the two swarms into one lawsuit.
How does this change the playing field? As we already know, John Steele, Ira Siegel, and the other plaintiff attorneys have already started suing smaller numbers of John Doe Defendants. Seeing a “Plaintiff v. Does 1-40” or “Plaintiff v. Does 1-60” (or even smaller) has become commonplace in bittorrent lawsuits. However, these smaller lawsuits have been made smaller in order to 1) fix the inherent issues of jurisdiction (e.g., suing defendants in the wrong court), and 2) to keep the case under the radar of the judges (after all, a lawsuit suing fifty defendants (Does 1-50) will incur far less attention than a lawsuit suing five thousand defendants (Does 1-5,000). Thus, in the new trend of these lawsuits, California defendants are now being sued in the California courts, Illinois defendants are being sued in the Illinois courts, and so on. Until the plaintiff attorneys begin suing defendants swarm-by-swarm (where a swarm is merely a snapshot of users uploading and downloading at a particular time), these smaller lawsuits also suffer the inherent flaw of “improper joinder,” and thus in time, they too will be severed and dismissed.
As a disclaimer, obviously this case is still alive as to John Doe #1 who remains a defendant in the case. In addition, there have been additional filings where the plaintiff attorney appears to be trying to convince the judge to change her mind on this matter.
I have attached a copy of the order below for your viewing and reading pleasure.

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