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STANDARD FOR PUNITIVE DAMAGES IN EMPLOYMENT DISCRIMINATION SUIT PURSUANT TO THE NYC HUMAN RIGHTS LAW DETERMINED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Garcia, over a dissenting opinion, answering a certified question from the Second Circuit, determined the appropriate standard of proof for the imposition of punitive damages in an employment discrimination (here gender and pregnancy discrimination) suit pursuant to the New York City Human Rights Law (NYCHRL):

The New York City Human Rights Law makes clear that punitive damages are available for violations of the statute, but does not specify a standard for when such damages should be awarded. The Second Circuit has, by certified question, asked us to determine the applicable standard. We conclude that, consistent with the New York City Council’s directive to construe the New York City Human Rights Law liberally, the common law standard as articulated in Home Insurance Co. v American Home Prods. Corp. (75 NY2d 196, 203-204 [1990]) applies. Accordingly, a plaintiff is entitled to punitive damages where the wrongdoer’s actions amount to willful or wanton negligence, or recklessness, or where there is “a conscious disregard of the rights of others or conduct so reckless as to amount to such disregard” … . Chauca v Abraham, 2017 NY Slip Op 08158, CtApp 11-20-17

 

EMPLOYMENT LAW (DISCRIMINATION, STANDARD FOR PUNITIVE DAMAGES IN EMPLOYMENT DISCRIMINATION SUIT PURSUANT TO THE NYC HUMAN RIGHTS LAW DETERMINED (CT APP))/HUMAN RIGHTS LAW (NYC) (PUNITIVE DAMAGES, STANDARD FOR PUNITIVE DAMAGES IN EMPLOYMENT DISCRIMINATION SUIT PURSUANT TO THE NYC HUMAN RIGHTS LAW DETERMINED (CT APP))/PUNITIVE DAMAGES (EMPLOYMENT DISCRIMINATION, NYC HUMAN RIGHTS LAW, STANDARD FOR PUNITIVE DAMAGES IN EMPLOYMENT DISCRIMINATION SUIT PURSUANT TO THE NYC HUMAN RIGHTS LAW DETERMINED (CT APP))/DISCRIMINATION (EMPLOYMENT LAW, NYC HUMAN RIGHTS LAW, STANDARD FOR PUNITIVE DAMAGES IN EMPLOYMENT DISCRIMINATION SUIT PURSUANT TO THE NYC HUMAN RIGHTS LAW DETERMINED (CT APP))/GENDER DISCRIMINATION  (EMPLOYMENT LAW, NYC HUMAN RIGHTS LAW, STANDARD FOR PUNITIVE DAMAGES IN EMPLOYMENT DISCRIMINATION SUIT PURSUANT TO THE NYC HUMAN RIGHTS LAW DETERMINED (CT APP))/PREGNANCY DISCRIMINATION  (EMPLOYMENT LAW, NYC HUMAN RIGHTS LAW, STANDARD FOR PUNITIVE DAMAGES IN EMPLOYMENT DISCRIMINATION SUIT PURSUANT TO THE NYC HUMAN RIGHTS LAW DETERMINED (CT APP))

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DEPUTY SHERIFF WAS COERCED INTO RESIGNING WITHOUT A HEARING, SHERIFF SHOULD HAVE ALLOWED DEPUTY TO WITHDRAW HIS RESIGNATION (FOURTH DEPT).

The Fourth Department determined Supreme Court properly found that the sheriff abused his discretion when he refused to allow petitioner, a deputy sheriff, to withdraw his resignation. The deputy resigned after the sheriff told him he would be fired if he didn’t resign:

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It is well settled that ” [a] resignation under coercion or duress is not a voluntary act and may be nullified’ ” … . Although a threat to terminate an employee does not constitute duress if the person making the threat has the legal right to terminate the employee … , such a threat does constitute duress if it is wrongful and precludes the exercise of free will … . It follows that a resignation obtained under the threat of wrongful termination is involuntary and may be withdrawn upon request, and that it is an abuse of discretion for an officer to deny such a request … .

Here, petitioner tendered his resignation under the threat of wrongful termination, and we therefore conclude that the Sheriff abused his discretion in refusing to allow petitioner to withdraw the resignation. Civil Service Law § 75 provides that a public employer may not terminate or otherwise discipline certain public employees “except for incompetency or misconduct shown after a hearing upon stated charges” … . A covered employee “against whom removal or other disciplinary action is proposed shall have written notice thereof and of the reasons therefor, shall be furnished a copy of the charges preferred against him and shall be allowed at least eight days for answering the same in writing” … . Thereafter, a hearing must be held … . There is no dispute that petitioner was covered by the statute and that he was not provided with the requisite predisciplinary hearing. Thus, the Sheriff had no legal right to terminate him.  Matter of Ortlieb v Lewis County Sheriff’s Dept., 2017 NY Slip Op 08115, Fourth Dept 11-17-17

 

MUNICIPAL LAW (EMPLOYMENT LAW, CIVIL SERVICE LAW, DEPUTY SHERIFF WAS COERCED INTO RESIGNING WITHOUT A HEARING, SHERIFF SHOULD HAVE ALLOWED DEPUTY TO WITHDRAW HIS RESIGNATION (FOURTH DEPT))/EMPLOYMENT LAW (MUNICIPAL LAW, CIVIL SERVICE LAW,  DEPUTY SHERIFF WAS COERCED INTO RESIGNING WITHOUT A HEARING, SHERIFF SHOULD HAVE ALLOWED DEPUTY TO WITHDRAW HIS RESIGNATION (FOURTH DEPT))/CIVIL SERVICE LAW (EMPLOYMENT LAW,  DEPUTY SHERIFF WAS COERCED INTO RESIGNING WITHOUT A HEARING, SHERIFF SHOULD HAVE ALLOWED DEPUTY TO WITHDRAW HIS RESIGNATION (FOURTH DEPT))

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PLAINTIFF’S SEX AND AGE DISCRIMINATION CAUSES OF ACTIONS, AS WELL AS A RETALIATION CAUSE OF ACTION, SHOULD NOT HAVE BEEN DISMISSED, FIRST AMENDMENT VIOLATION CAUSE OF ACTION AGAINST CITY REQUIRES A NOTICE OF CLAIM, MOTION TO AMEND COMPLAINT TO ADD A FIRST AMENDMENT VIOLATION UNDER FEDERAL LAW, WHICH DOES NOT REQUIRE A NOTICE OF CLAIM, SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing in part Supreme Court, determined plaintiff’s complaint stated employment (sex and age) discrimination and retaliation causes of action pursuant to the NYC Human Rights Law, a notice of claim was required for the First Amendment violation cause of action against the city (plaintiff’s employer), and plaintiff’s motion to amend the complaint to state the First Amendment violation cause of action pursuant to 18 USC 1983 (which does not require a notice of claim) should have been granted:

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Here, the Supreme Court erred in granting those branches of the defendants’ motion which were pursuant to CPLR 3211(a)(7) to dismiss the causes of action alleging employment discrimination on the basis of sex and age in violation of the NYCHRL … . The allegation that a coworker repeatedly demonstrated a sex toy to the plaintiff was sufficient to state a cause of action to recover damages for sexual harassment in violation of the NYCHRL … . Further, in opposition to the defendants’ motion, the plaintiff submitted an affirmation of a separate coworker detailing detailing further allegations of sexual harassment directed toward the plaintiff. The court erred in determining that the cause of action must be dismissed because the behavior constituted no more than petty slights or trivial inconveniences. A contention that the behavior was a petty slight or trivial inconvenience constitutes an affirmative defense … which should be raised in the defendants’ answer and does not lend itself to a pre-answer motion to dismiss … .

Further, the allegations of disparate treatment of older employees, including the plaintiff, and that the plaintiff’s demotion was based, in part, on age discrimination, sufficiently stated a cause of action to recover damages for age discrimination in violation of the NYCHRL … . …

The Supreme Court also erred in granting dismissal of the cause of action alleging unlawful retaliation based on the plaintiff’s complaints of sexual harassment. … The allegations that, following the plaintiff’s complaint to a supervisor concerning alleged sexual harassment, the plaintiff was assigned double the normal workload, subjected to increased scrutiny of her work and reprimands for minor errors, and ultimately demoted a few months later, sufficiently stated a cause of action to recover damages for unlawful retaliation for the plaintiff’s complaints of sexual harassment in violation of the NYCHRL … . However, the complaint failed to allege that the plaintiff ever complained about the alleged age discrimination, and thus the court properly granted dismissal of the cause of action alleging unlawful retaliation based on complaints of age discrimination. Kassapian v City of New York, 2017 NY Slip Op 07985, Second Dept 11-15-17

 

EMPLOYMENT LAW (PLAINTIFF’S SEX AND AGE DISCRIMINATION CAUSES OF ACTIONS, AS WELL AS A RETALIATION CAUSE OF ACTION, SHOULD NOT HAVE BEEN DISMISSED, FIRST AMENDMENT VIOLATION CAUSE OF ACTION AGAINST CITY REQUIRES A NOTICE OF CLAIM, MOTION TO AMEND COMPLAINT TO ADD A FIRST AMENDMENT VIOLATION UNDER FEDERAL LAW, WHICH DOES NOT REQUIRE A NOTICE OF CLAIM, SHOULD HAVE BEEN GRANTED (SECOND DEPT))/MUNICIPAL LAW (EMPLOYMENT LAW, PLAINTIFF’S SEX AND AGE DISCRIMINATION CAUSES OF ACTIONS, AS WELL AS A RETALIATION CAUSE OF ACTION, SHOULD NOT HAVE BEEN DISMISSED, FIRST AMENDMENT VIOLATION CAUSE OF ACTION AGAINST CITY REQUIRES A NOTICE OF CLAIM, MOTION TO AMEND COMPLAINT TO ADD A FIRST AMENDMENT VIOLATION UNDER FEDERAL LAW, WHICH DOES NOT REQUIRE A NOTICE OF CLAIM, SHOULD HAVE BEEN GRANTED (SECOND DEPT))/HUMAN RIGHTS LAW (EMPLOYMENT LAW, PLAINTIFF’S SEX AND AGE DISCRIMINATION CAUSES OF ACTIONS, AS WELL AS A RETALIATION CAUSE OF ACTION, SHOULD NOT HAVE BEEN DISMISSED, FIRST AMENDMENT VIOLATION CAUSE OF ACTION AGAINST CITY REQUIRES A NOTICE OF CLAIM, MOTION TO AMEND COMPLAINT TO ADD A FIRST AMENDMENT VIOLATION UNDER FEDERAL LAW, WHICH DOES NOT REQUIRE A NOTICE OF CLAIM, SHOULD HAVE BEEN GRANTED (SECOND DEPT))/NOTICE OF CLAIM (MUNICIPAL LAW, EMPLOYMENT LAW, PLAINTIFF’S SEX AND AGE DISCRIMINATION CAUSES OF ACTIONS, AS WELL AS A RETALIATION CAUSE OF ACTION, SHOULD NOT HAVE BEEN DISMISSED, FIRST AMENDMENT VIOLATION CAUSE OF ACTION AGAINST CITY REQUIRES A NOTICE OF CLAIM, MOTION TO AMEND COMPLAINT TO ADD A FIRST AMENDMENT VIOLATION UNDER FEDERAL LAW, WHICH DOES NOT REQUIRE A NOTICE OF CLAIM, SHOULD HAVE BEEN GRANTED (SECOND DEPT))/CONSTITUTIONAL LAW (FREE SPEECH, EMPLOYMENT LAW, MUNICIPAL LAW, PLAINTIFF’S SEX AND AGE DISCRIMINATION CAUSES OF ACTIONS, AS WELL AS A RETALIATION CAUSE OF ACTION, SHOULD NOT HAVE BEEN DISMISSED, FIRST AMENDMENT VIOLATION CAUSE OF ACTION AGAINST CITY REQUIRES A NOTICE OF CLAIM, MOTION TO AMEND COMPLAINT TO ADD A FIRST AMENDMENT VIOLATION UNDER FEDERAL LAW, WHICH DOES NOT REQUIRE A NOTICE OF CLAIM, SHOULD HAVE BEEN GRANTED (SECOND DEPT))/FREE SPEECH (EMPLOYMENT LAW, MUNICIPAL LAW, PLAINTIFF’S SEX AND AGE DISCRIMINATION CAUSES OF ACTIONS, AS WELL AS A RETALIATION CAUSE OF ACTION, SHOULD NOT HAVE BEEN DISMISSED, FIRST AMENDMENT VIOLATION CAUSE OF ACTION AGAINST CITY REQUIRES A NOTICE OF CLAIM, MOTION TO AMEND COMPLAINT TO ADD A FIRST AMENDMENT VIOLATION UNDER FEDERAL LAW, WHICH DOES NOT REQUIRE A NOTICE OF CLAIM, SHOULD HAVE BEEN GRANTED (SECOND DEPT))/CIVIL PROCEDURE (AMEND COMPLAINT, EMPLOYMENT LAW, MUNICIPAL LAW, PLAINTIFF’S SEX AND AGE DISCRIMINATION CAUSES OF ACTIONS, AS WELL AS A RETALIATION CAUSE OF ACTION, SHOULD NOT HAVE BEEN DISMISSED, FIRST AMENDMENT VIOLATION CAUSE OF ACTION AGAINST CITY REQUIRES A NOTICE OF CLAIM, MOTION TO AMEND COMPLAINT TO ADD A FIRST AMENDMENT VIOLATION UNDER FEDERAL LAW, WHICH DOES NOT REQUIRE A NOTICE OF CLAIM, SHOULD HAVE BEEN GRANTED (SECOND DEPT))/DISCRIMINATION (EMPLOYMENT LAW, HUMAN RIGHTS LAW, MUNICIPAL LAW, PLAINTIFF’S SEX AND AGE DISCRIMINATION CAUSES OF ACTIONS, AS WELL AS A RETALIATION CAUSE OF ACTION, SHOULD NOT HAVE BEEN DISMISSED, FIRST AMENDMENT VIOLATION CAUSE OF ACTION AGAINST CITY REQUIRES A NOTICE OF CLAIM, MOTION TO AMEND COMPLAINT TO ADD A FIRST AMENDMENT VIOLATION UNDER FEDERAL LAW, WHICH DOES NOT REQUIRE A NOTICE OF CLAIM, SHOULD HAVE BEEN GRANTED (SECOND DEPT))

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LAW FIRM ASSOCIATE WAS ENTITLED TO 5% OF $5 MILLION FEE UNDER A BREACH OF ORAL CONTRACT THEORY, BUT NOT UNDER A LABOR LAW 190 THEORY (FOURTH DEPT).

The Fourth Department determined plaintiff, an associate in defendant law firm, was entitled to 5% of the $5 million fee collected by the law firm in an action on behalf of a client brought in by the associate. The jury found that the plaintiff was entitled to payment under the Labor Law 190 cause of action, as well as under the breach of contract cause of action. The Fourth Department determined the verdict on the Labor Law 190 cause of action should have been set aside because, under the law described in the jury instructions, the jury should have found the payment to be “incentive compensation” which is excluded from the type of pay covered by the Labor Law:

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Applying the facts to the law as stated in the jury charge, the evidence establishes that the collections bonus was “incentive compensation” because it was based on more than just plaintiff’s performance. Among other things, the matter took considerable effort from other attorneys, some of whom billed far more hours on the matter than plaintiff, and a partner conducted international arbitration and filed enforcement proceedings to secure a settlement collectible by the client. Contrary to plaintiff’s contention, inasmuch as the collections bonus was calculated as a percentage of the fee in the matter and “the fee collected” by defendant was based on the abovementioned factors outside of plaintiff’s control, the jury could not have rationally concluded that the collections bonus was anything other than “incentive compensation” excluded from protection under Labor Law § 193 (1). …

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… [T]he evidence adduced by plaintiff established, prima facie, that the parties entered into a binding oral agreement in which at least one of defendant’s partners promised to pay plaintiff a bonus consisting of 5% of the fee collections from any client generated by plaintiff if such fees exceeded $100,000, that plaintiff subsequently performed under the agreement by generating the client, and that defendant breached the agreement by failing to pay the collections bonus, thereby causing plaintiff to incur damages … . Doolittle v Nixon Peabody LLP, 2017 NY Slip Op 08126, Fourth Dept 11-17-17

 

EMPLOYMENT LAW (LAW FIRM ASSOCIATE WAS ENTITLED TO 5% OF $5 MILLION FEE UNDER A BREACH OF ORAL CONTRACT THEORY, BUT NOT UNDER LABOR LAW 190 THEORY (FOURTH DEPT))/LABOR LAW (INCENTIVE COMPENSATION, LAW FIRM ASSOCIATE WAS ENTITLED TO 5% OF $5 MILLION FEE UNDER A BREACH OF ORAL CONTRACT THEORY, BUT NOT UNDER LABOR LAW 190 THEORY (FOURTH DEPT))/INCENTIVE COMPENSATION (LABOR LAW, LAW FIRM ASSOCIATE WAS ENTITLED TO 5% OF $5 MILLION FEE UNDER A BREACH OF ORAL CONTRACT THEORY, BUT NOT UNDER LABOR LAW 190 THEORY (FOURTH DEPT))/CONTRACT LAW (EMPLOYMENT LAW, (LAW FIRM ASSOCIATE WAS ENTITLED TO 5% OF $5 MILLION FEE UNDER A BREACH OF ORAL CONTRACT THEORY, BUT NOT UNDER LABOR LAW 190 THEORY (FOURTH DEPT))

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NEW YORK LABOR LAW WORK-PAY REQUIREMENTS DO NOT APPLY TO WORK DONE OUT-OF-STATE (FIRST DEPT).

The First Department determined New York Labor Law worker-pay requirements do not apply to work done outside the state:

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Under New York Law, it is a “settled rule of statutory interpretation, that unless expressly stated otherwise, no legislation is presumed to be intended to operate outside the territorial jurisdiction of the state enacting it” … .

Article 6 of the New York Labor Law, which contains the unlawful deductions, notice, and record keeping provisions which plaintiffs claim were violated, contains no indication that the provisions were intended to apply when the work in question is performed outside the state. Article 19 of the New York Labor Law, which contains the minimum wage, overtime, and spread of hours provisions identified in the complaint, includes a “Statement of Public Policy” which states, in relevant part: “There are persons employed in some occupations in the state of New York at wages insufficient to provide adequate maintenance for themselves and their families…. Employment of persons at these insufficient rates of pay threatens the health and well-being of the people of this state and injures the overall economy” (Labor Law § 650).

Since these statutes do not expressly apply on an extraterritorial basis, plaintiffs’ claims under these provisions, based on labor performed exclusively outside New York, do not state a cause of action under Article 6 or Article 19 of the New York Labor Law … . Rodriguez v KGA Inc., 2017 NY Slip Op 07948, First Dept 11-14-17

 

CIVIL PROCEDURE (STATUTES, APPLICATION OUT-OF-STATE, NEW YORK LABOR LAW WORK-PAY REQUIREMENTS DO NOT APPLY TO WORK DONE OUT-OF-STATE (FIRST DEPT))/EMPLOYMENT LAW (STATUTES, APPLICATION OUT-OF-STATE, NEW YORK LABOR LAW WORK-PAY REQUIREMENTS DO NOT APPLY TO WORK DONE OUT-OF-STATE (FIRST DEPT))/LABOR LAW (STATUTES, APPLICATION OUT-OF-STATE, NEW YORK LABOR LAW WORK-PAY REQUIREMENTS DO NOT APPLY TO WORK DONE OUT-OF-STATE (FIRST DEPT))/JURISDICTION (LABOR LAW STATUTES, APPLICATION OUT-OF-STATE, NEW YORK LABOR LAW WORK-PAY REQUIREMENTS DO NOT APPLY TO WORK DONE OUT-OF-STATE (FIRST DEPT))/STATUTES (JURISDICTION, LABOR LAW, NEW YORK LABOR LAW WORK-PAY REQUIREMENTS DO NOT APPLY TO WORK DONE OUT-OF-STATE (FIRST DEPT))/EMPLOYMENT LAW (STATUTES, APPLICATION OUT-OF-STATE, NEW YORK LABOR LAW WORK-PAY REQUIREMENTS DO NOT APPLY TO WORK DONE OUT-OF-STATE (FIRST DEPT))

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WHISTLEBLOWER CAUSE OF ACTION WAS TIMELY UNDER THE RELATION-BACK DOCTRINE AND DID NOT WAIVE THE HUMAN RIGHTS LAW GENDER DISCRIMINATION CLAIM (FIRST DEPT).

The First Department determined plaintiff’s whistleblower (Labor Law 740) cause of action in the amended complaint was not time-barred because defendant had timely notice of the facts underlying the claim in the original complaint. The relation-back doctrine applied. The court further held that the gender discrimination action under the Human Rights Law was separate and distinct from the whistleblower cause of action:

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The court properly applied the relation back doctrine (CPLR 203[f]) to plaintiff’s whistleblower claim pursuant to Labor Law § 740, which requires such actions to be commenced within one year of the alleged retaliatory action (Labor Law § 740[4][a]). Although that claim was not asserted until the Second Amended Complaint, filed on October 19, 2015, more than one year after her termination on February 4, 2014, the original complaint, filed on January 31, 2015, alleged that on February 3, 2014, plaintiff reported to the defendants’ Business Practices Office defendants’ improper practices regarding its procurement of chemicals to manufacture its highest grossing drug, and that those practices did not comply with FDA regulations. It further alleged that she was terminated the next day in retaliation for that conduct. …

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The motion court correctly concluded that Labor Law § 740(7), the “election-of-remedies” provision, does not waive plaintiff’s claim of discrimination under the New York State Human Rights Law (State HRL) (Executive Law § 296) because, in alleging discrimination on account of plaintiff’s gender, national origin, and religion, plaintiff does not seek the same rights and remedies as she does in connection with her whistleblowing claim, notwithstanding that both claims allege that she was wrongfully terminated … . Demir v Sandoz Inc., 2017 NY Slip Op 07961, First Dept 11-14-17

 

EMPLOYMENT LAW (WHISTLEBLOWER CAUSE OF ACTION WAS TIMELY UNDER THE RELATION-BACK DOCTRINE AND DID NOT WAIVE THE HUMAN RIGHTS LAW GENDER DISCRIMINATION CLAIM (FIRST DEPT))/LABOR LAW (WHISTLEBLOWER CAUSE OF ACTION WAS TIMELY UNDER THE RELATION-BACK DOCTRINE AND DID NOT WAIVE THE HUMAN RIGHTS LAW GENDER DISCRIMINATION CLAIM (FIRST DEPT))/HUMAN RIGHTS LAW (WHISTLEBLOWER CAUSE OF ACTION WAS TIMELY UNDER THE RELATION-BACK DOCTRINE AND DID NOT WAIVE THE HUMAN RIGHTS LAW GENDER DISCRIMINATION CLAIM (FIRST DEPT))/CIVIL PROCEDURE (WHISTLEBLOWER CAUSE OF ACTION WAS TIMELY UNDER THE RELATION-BACK DOCTRINE AND DID NOT WAIVE THE HUMAN RIGHTS LAW GENDER DISCRIMINATION CLAIM (FIRST DEPT))/CPLR 203 (RELATION BACK, WHISTLEBLOWER CAUSE OF ACTION WAS TIMELY UNDER THE RELATION-BACK DOCTRINE AND DID NOT WAIVE THE HUMAN RIGHTS LAW GENDER DISCRIMINATION CLAIM (FIRST DEPT))/DISCRIMINATION (HUMAN RIGHTS LAW, EMPLOYMENT LAW, WHISTLEBLOWER CAUSE OF ACTION WAS TIMELY UNDER THE RELATION-BACK DOCTRINE AND DID NOT WAIVE THE HUMAN RIGHTS LAW GENDER DISCRIMINATION CLAIM (FIRST DEPT))

AGE DISCRIMINATION LAWSUIT PROPERLY DISMISSED FOR FAILURE TO STATE A CAUSE OF ACTION (SECOND DEPT).

The Second Department determined plaintiff teacher’s age discrimination suit was properly dismissed for failure to state a cause of action:

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The Age Discrimination in Employment Act of 1967 (hereinafter the ADEA) provides, in relevant part: “It shall be unlawful for an employer . . . to discharge any individual or otherwise discriminate against any individual with respect to [her] compensation, terms, conditions, or privileges of employment, because of such individual’s age” … . “To establish a prima facie case of age discrimination under the ADEA, a claimant must demonstrate that: 1) [she] was within the protected age group; 2) [she] was qualified for the position; 3) [she] was subject to an adverse employment action; and 4) the adverse action occurred under circumstances giving rise to an inference of discrimination'” … .

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… [T]he general allegation in the amended complaint that the plaintiff and two other “older” teachers had been “continuously harassed” by the principal and the assistant principal are vague and conclusory … . Furthermore, the specific instances of discrimination described in the amended complaint, which allegedly occurred over a period of more than three years, were isolated and episodic. For instance, the amended complaint alleged that the plaintiff “was required to teach a class that she was not qualified to teach,” that the principal left her name off an art fair newsletter, that the assistant principal gave the plaintiff “a useless laptop to complete a survey,” and that on two separate occasions the principal slammed her hand on the table and screamed at her. These occurrences were “not severe or pervasive enough to create an objectively hostile or abusive work environment” … . Murphy v Department of Educ. of the City of New York, 2017 NY Slip Op 07609, Second Dept 11-1-17

 

EMPLOYMENT LAW (AGE DISCRIMINATION LAWSUIT PROPERLY DISMISSED FOR FAILURE TO STATE A CAUSE OF ACTION (SECOND DEPT))/AGE DISCRIMINATION (AGE DISCRIMINATION LAWSUIT PROPERLY DISMISSED FOR FAILURE TO STATE A CAUSE OF ACTION (SECOND DEPT))/AGE DISCRIMINATION IN EMPLOYMENT ACT  (AGE DISCRIMINATION LAWSUIT PROPERLY DISMISSED FOR FAILURE TO STATE A CAUSE OF ACTION (SECOND DEPT))

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CHEERLEADERS FOR BUFFALO BILLS PROPERLY CERTIFIED AS A CLASS ALLEGING LABOR LAW VIOLATIONS AND FRAUD, EVIDENCE PRESENTED IN REPLY PAPERS PROPERLY CONSIDERED, MULTIPLE LAW FIRMS PROPERLY CERTIFIED AS CLASS COUNSEL (FOURTH DEPT).

The Fourth Department determined members of the Buffalo Jills, cheerleaders for the Buffalo Bills football team, were properly certified as a class to bring an action alleging Labor Law violations (failure to compensate) and fraud. The Fourth Department noted that evidence submitted in the reply papers was properly considered because the defendants had the opportunity to address the evidence and further noted Supreme Court properly certified three law firms as class counsel:

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Class action is appropriate only if all five of the requirements are met … , and the burden of establishing those requirements is on the party seeking certification … . The first prerequisite is that the class must be so numerous that joinder of all of its members is impracticable (see CPLR 901 [a] [1]). …

The second prerequisite is that there are common questions of law or fact that predominate over questions affecting only individual members (see CPLR 901 [a] [2]). …

The third prerequisite is that the class representatives’ claims are typical of the claims of the class (see CPLR 901 [a] [3]). …

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The fourth prerequisite is that the class representatives will fairly and adequately protect the interest of the class (see CPLR 901 [a] [4]). …

The fifth prerequisite is that class action is the superior method to fairly and efficiently adjudicate the controversy (see CPLR 901 [a] [5]).  …

… Once the section 901 (a) prerequisites have been met, a court must consider the class members’ interest in prosecuting individual actions; the impracticality or inefficiency of prosecuting or defending separate actions; the extent and nature of any separate action already pending; the desirability of the forum; and the difficulties likely to be encountered in managing a class action (see CPLR 902…) …

… [T]he court properly certified three law firms as class counsel. It is within the court’s discretion to allow representation by more than one counsel … . Ferrari v The Natl. Football League, 2017 NY Slip Op 06755, Fourth Dept 9-29-17

 

CIVIL PROCEDURE (CHEERLEADERS FOR BUFFALO BILLS PROPERLY CERTIFIED AS A CLASS ALLEGING LABOR LAW VIOLATIONS AND FRAUD, EVIDENCE PRESENTED IN REPLY PAPERS PROPERLY CONSIDERED, THREE LAW FIRMS PROPERLY CERTIFIED AS CLASS COUNSEL (FOURTH DEPT))/EMPLOYMENT LAW (CHEERLEADERS FOR BUFFALO BILLS PROPERLY CERTIFIED AS A CLASS ALLEGING LABOR LAW VIOLATIONS AND FRAUD, EVIDENCE PRESENTED IN REPLY PAPERS PROPERLY CONSIDERED, THREE LAW FIRMS PROPERLY CERTIFIED AS CLASS COUNSEL (FOURTH DEPT))/ATTORNEYS (CLASS ACTION,  CHEERLEADERS FOR BUFFALO BILLS PROPERLY CERTIFIED AS A CLASS ALLEGING LABOR LAW VIOLATIONS AND FRAUD, EVIDENCE PRESENTED IN REPLY PAPERS PROPERLY CONSIDERED, THREE LAW FIRMS PROPERLY CERTIFIED AS CLASS COUNSEL (FOURTH DEPT))/REPLY PAPERS (CIVIL PROCEDURE, EVIDENCE PRESENTED IN REPLY PAPERS PROPERLY CONSIDERED (FOURTH DEPT))/CLASS ACTIONS (EMPLOYMENT LAW, (CHEERLEADERS FOR BUFFALO BILLS PROPERLY CERTIFIED AS A CLASS ALLEGING LABOR LAW VIOLATIONS AND FRAUD, THREE LAW FIRMS PROPERLY CERTIFIED AS CLASS COUNSEL (FOURTH DEPT))

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SUPREME COURT SHOULD HAVE DETERMINED THE CONTESTED PROMOTION OF A SHERIFF’S DISPATCHER WAS ARBITRABLE UNDER THE COLLECTIVE BARGAINING AGREEMENT (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the petitioner-county’s motion to permanently stay arbitration should not have been granted. The respondent-union filed a grievance on behalf of a part-time sheriff’s dispatcher when another dispatcher was made full-time:

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The Court of Appeals has set forth a two-pronged test to determine “whether a grievance is arbitrable” (Matter of City of Johnstown [Johnstown Police Benevolent Assn.], 99 NY2d 273, 278 [Johnstown] …). In the first prong of the test, known as “the may-they-arbitrate’ prong,” we “ask whether there is any statutory, constitutional or public policy prohibition against arbitration of the grievance” … . If we conclude that arbitration is not prohibited, we move to the second prong, known as “the did-they-agree-to-arbitrate’ prong,” in which we “examine the CBA to determine if the parties have agreed to arbitrate the dispute at issue” … .

Here, petitioner does not contend that arbitration of [the dispatcher’s] grievance is prohibited, and we therefore are concerned only with the second prong of the Johnstown test. With respect to that issue, “[i]t is well settled that, in deciding an application to stay or compel arbitration under CPLR 7503, the court is concerned only with the threshold determination of arbitrability, and not with the merits of the underlying claim”… . Furthermore, “[w]here, as here, there is a broad arbitration clause and a reasonable relationship’ between the subject matter of the dispute and the general subject matter of the parties’ [CBA], the court should rule the matter arbitrable, and the arbitrator will then make a more exacting interpretation of the precise scope of the substantive provisions of the [CBA], and whether the subject matter of the dispute fits within them’ ” … . Matter of Lewis County (CSEA Local 1000, AFSCME, AFL-CIO, Lewis County Sheriff’s Empls. Unit #7250-03, Lewis County Local 825), 2017 NY Slip Op 06743, Fourth Dept 9-29-17

 

ARBITRATION (COLLECTIVE BARGAINING AGREEMENT, SUPREME COURT SHOULD HAVE DETERMINED THE CONTESTED PROMOTION OF A SHERIFF’S DISPATCHER WAS ARBITRABLE UNDER THE COLLECTIVE BARGAINING AGREEMENT (FOURTH DEPT))/EMPLOYMENT LAW (COLLECTIVE BARGAINING AGREEMENT, SUPREME COURT SHOULD HAVE DETERMINED THE CONTESTED PROMOTION OF A SHERIFF’S DISPATCHER WAS ARBITRABLE UNDER THE COLLECTIVE BARGAINING AGREEMENT (FOURTH DEPT))/MUNICIPAL LAW  (COLLECTIVE BARGAINING AGREEMENT, SUPREME COURT SHOULD HAVE DETERMINED THE CONTESTED PROMOTION OF A SHERIFF’S DISPATCHER WAS ARBITRABLE UNDER THE COLLECTIVE BARGAINING AGREEMENT (FOURTH DEPT))/COLLECTIVE BARGAINING AGREEMENT (ARBITRATION, SUPREME COURT SHOULD HAVE DETERMINED THE CONTESTED PROMOTION OF A SHERIFF’S DISPATCHER WAS ARBITRABLE UNDER THE COLLECTIVE BARGAINING AGREEMENT (FOURTH DEPT))/UNIONS (ARBITRATION, SUPREME COURT SHOULD HAVE DETERMINED THE CONTESTED PROMOTION OF A SHERIFF’S DISPATCHER WAS ARBITRABLE UNDER THE COLLECTIVE BARGAINING AGREEMENT (FOURTH DEPT))

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SUPREME COURT SHOULD HAVE DETERMINED THE PROPER PAY FOR A TEACHER WAS ARBITRABLE UNDER THE COLLECTIVE BARGAINING AGREEMENT (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined a matter concerning the proper pay for a teacher was arbitrable under the collective bargaining agreement (CBA). The school districts (petitioner’s) motion to permanently stay arbitration should not have been granted:

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… [R]espondent (union) filed a grievance on behalf of one of its members, a teacher, alleging that petitioner had violated the provisions of the CBA that require petitioner to maintain salary schedules in an ethical manner, to adjust teacher salaries based on graduate credits earned, and to abide by the salary schedules. …

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It is well settled that courts must apply a two-part test to determine whether a matter is subject to arbitration under a CBA … . “First, the court must determine whether there is any statutory, constitutional or public policy prohibition against arbitration of the grievance’ ” … . If there is no such prohibition, the court must examine the CBA to determine “whether the parties in fact agreed to arbitrate the particular dispute” … . …

… [T]he arbitration of disputes concerning public school teachers’ salaries is not proscribed by law or public policy, and thus only the second prong is at issue … .

… The dispute concerns whether petitioner placed the teacher at the correct step of the salary schedule and paid her properly based on the graduate credits that she earned, and thus it is reasonably related to the general subject matter of the CBA …  Issues concerning whether the CBA supports a grievance arising from the initial placement of a new employee on the salary schedule, as opposed to the proper payment of an existing employee, “are matters involving the scope of the substantive [CBA] provisions and, as such, are for the arbitrator” to resolve … . … [T]he clause in the CBA stating that an arbitrator has “no power to alter, add to, or detract from” the CBA does not render the dispute nonarbitrable … . Matter of Thousand Is. Cent. Sch. Dist. v Thousand Is. Educ. Assn., 2017 NY Slip Op 06759, Fourth Dept 9-29-17

ARBITRATION (EMPLOYMENT LAW, SUPREME COURT SHOULD HAVE DETERMINED THE PROPER PAY FOR A TEACHER WAS ARBITRABLE UNDER THE COLLECTIVE BARGAINING AGREEMENT (FOURTH DEPT))/EMPLOYMENT LAW (TEACHERS, SUPREME COURT SHOULD HAVE DETERMINED THE PROPER PAY FOR A TEACHER WAS ARBITRABLE UNDER THE COLLECTIVE BARGAINING AGREEMENT (FOURTH DEPT))/EDUCATION-SCHOOL LAW  (TEACHERS, SUPREME COURT SHOULD HAVE DETERMINED THE PROPER PAY FOR A TEACHER WAS ARBITRABLE UNDER THE COLLECTIVE BARGAINING AGREEMENT (FOURTH DEPT))/TEACHERS (EMPLOYMENT LAW, SUPREME COURT SHOULD HAVE DETERMINED THE PROPER PAY FOR A TEACHER WAS ARBITRABLE UNDER THE COLLECTIVE BARGAINING AGREEMENT (FOURTH DEPT))/UNIONS (TEACHERS, SUPREME COURT SHOULD HAVE DETERMINED THE PROPER PAY FOR A TEACHER WAS ARBITRABLE UNDER THE COLLECTIVE BARGAINING AGREEMENT (FOURTH DEPT))/COLLECTIVE BARGAINING AGREEMENT (TEACHERS, SUPREME COURT SHOULD HAVE DETERMINED THE PROPER PAY FOR A TEACHER WAS ARBITRABLE UNDER THE COLLECTIVE BARGAINING AGREEMENT (FOURTH DEPT))

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