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POLICE OFFICER’S CAUSES OF ACTION FOR DISABILITY DISCRIMINATION SHOULD HAVE SURVIVED THE MOTION TO DISMISS.

The Fourth Department determined plaintiff police officer had stated causes of action for unlawful discrimination based upon a disability under the Human Rights Law and the federal Rehabilitation Act. Plaintiff was arrested for DWI and entered a rehabilitation program where he was diagnosed as suffering from post-traumatic stress disorder stemming from his work in New York City after the 9-11 attack. Plaintiff was terminated upon completion of the rehabilitation program. The city argued his termination was based on the DWI, but plaintiff alleged other officers, who were not disabled, were not terminated after committing a criminal offense. The Fourth Department noted that when the plaintiff’s and defendant’s arguments are equally supported, plaintiff must prevail in a motion to dismiss:

 

Plaintiff sufficiently stated a cause of action for disability discrimination under the Human Rights Law by alleging that: he has a disability and is therefore a member of a protected class; he is qualified for his position; he suffered an adverse employment action, i.e., termination of his employment; and the termination occurred under circumstances giving rise to an inference of discrimination … . Similarly, plaintiff sufficiently stated a cause of action for discriminatory termination under the Rehabilitation Act by alleging that: “(1) he has a disability; (2) he is otherwise qualified to perform the job; (3) he was terminated solely because of his disability; and (4) the program or activity receives federal funds” … . …

In support of those causes of action, plaintiff alleged that the City did not terminate the employment of two nondisabled employees after they were arrested for criminal misconduct, thus raising an inference that his termination was based upon his disability. The court stated in its decision that plaintiff’s allegations “equally support” the conclusions that those two employees and plaintiff were similarly situated, and that they were not similarly situated. On the motion to dismiss pursuant to CPLR 3211 (a) (7), however, facts that equally support opposing inferences must be resolved in plaintiff’s favor … . Regan v City of Geneva, 2016 NY Slip Op 01101, 4th Dept 2-11-16

 

EMPLOYMENT LAW (DISABILITY [PTSD] DISCRIMINATION CAUSES OF ACTION SHOULD HAVE SURVIVED MOTION TO DISMISS)/HUMAN RIGHTS LAW (DISABILITY [PTSD] DISCRIMINATION CAUSES OF ACTION SHOULD HAVE SURVIVED MOTION TO DISMISS)/REHABILITATION ACT (DISABILITY [PTSD] DISCRIMINATION CAUSES OF ACTION SHOULD HAVE SURVIVED MOTION TO DISMISS)/CIVIL PROCEDURE (WHEN THE ALLEGATIONS OF BOTH SIDES ARE EQUALLY SUPPORTED, PLAINTIFF MUST PREVAIL IN A MOTION TO DISMISS)/MUNICIPAL LAW (POLICE OFFICERS CAUSES OF ACTION FOR DISABILITY [PTSD] DISCRIMINATION SHOULD HAVE SURVIVED MOTION TO DISMISS)POLICE OFFICERS (OFFICER’S CAUSES OF ACTION FOR DISABILITY [PTSD] DISCRIMINATION SHOULD HAVE SURVIVED MOTION TO DISMISS)

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PETITIONERS, WHO HELD CATERED EVENTS, INCLUDING WEDDINGS, AT THEIR FARM, COMMITTED AN UNLAWFUL DISCRIMINATORY PRACTICE WHEN THEY REFUSED TO ALLOW RESPONDENTS’ SAME-SEX MARRIAGE AT THE FARM.

The Third Department, in a full-fledged opinion by Justice Peters, determined the State Division of Human Rights (SDHR) properly found petitioners (the Giffords) discriminated against respondents (the McCarthys) by refusing to hold the McCarthys’ same-sex marriage at the Giffords’ farm (Liberty Ridge). The Giffords held catered events on their farm, including weddings. The Third Department held the farm was “a place of public accommodation” within the meaning of the Human Rights Law (Executive law 290 [3]) and was therefore subject to the statutory prohibition of “unlawful discriminatory practice[s]” in “a place of public accommodation.” The federal and state constitutional arguments raised by the owners of the farm  (free exercise of religion, free speech, compelled speech and expressive association) were discussed in detail and rejected. SDHR’s award of $1500 each to the respondents, and the imposition of a $10,000 civil penalty on the Giffords was upheld. With respect to the definition of “a place of public accommodation,” the court explained:

Executive Law § 292 (9) “defines ‘place of public accommodation, resort or amusement’ inclusively and illustratively, not specifically, and sets forth an extensive list of examples of places within the statute” … . Such term includes “establishments dealing with goods or services of any kind” and “any place where food is sold for consumption on the premises” (Executive Law § 292 [9]). Over the years, the statutory definition has been expanded repeatedly, “provid[ing] a clear indication that the Legislature used the phrase place of public accommodation ‘in the broad sense of providing conveniences and services to the public’ and that it intended that the definition of place of accommodation should be interpreted liberally” … .

Here, Liberty Ridge’s wedding facilities fall comfortably within the broad definition of “place of public accommodation.” It is undisputed that petitioners open Liberty Ridge to the public as a venue for wedding ceremonies and receptions and offer several wedding-related event services in connection therewith. Indeed, the only wedding-related service that Liberty Ridge does not provide is an officiant for the wedding ceremony. The couples who contract to wed at Liberty Ridge’s facilities are members of the general public who, like the McCarthys, may be attracted to the farm by its broadly disseminated advertisements and website. The fact that the wedding ceremonies occur on private property and pursuant to a written contract does not, as petitioners contend, remove Liberty Ridge’s facilities from the reach of the Human Rights Law; the critical factor is that the facilities are made available to the public at large… . Matter of Gifford v McCarthy, 2016 NY Slip Op 00230, 3rd Dept 1-14-16

LABOR LAW (SUMMARY JUDGMENT ON LABOR LAW 240 (1) CAUSE OF ACTION SUPPORTED BY NON-DEFECTIVE A-FRAME LADDER WHICH FELL OVER WITH PLAINTIFF HOLDING ON TO IT AFTER PLAINTIFF WAS JOLTED WITH ELECTRICITY)

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Plaintiff’s Allegations of a Hostile Work Environment and Retaliation Were Not Sufficient As a Matter of Law

The Third Department determined that plaintiff’s action against her employer (UPS) alleging sexual harassment, rising to the level of a hostile work environment, and retaliation for complaining about it, was properly dismissed. Although the complaint alleged several instances of crude and improper language and physical contact, the allegations did not, as a matter of law, describe a “hostile work environment.” Nor were the allegations of retaliation sufficient as a matter of law:

A party alleging the existence of a sexually hostile work environment must demonstrate that “‘the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment'” … . To determine whether a hostile work environment exists, we must consider “all the circumstances, including ‘the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance'” … . The test is both subjective and objective; that is, a plaintiff must demonstrate that the conditions of his or her employment were altered as a result of the conduct he or she perceived to be abusive and that the conduct created an environment that a reasonable person would find to be hostile or abusive … . * * *

A valid claim for retaliation under the Human Rights Law exists where a party demonstrates “that (1) [he or] she has engaged in protected activity, (2) [his or] her employer was aware that [he or] she participated in such activity, (3) [he or] she suffered an adverse employment action based upon [his or] her activity, and (4) there is a causal connection between the protected activity and the adverse action”… . Minckler v United Parcel Serv., Inc., 2015 NY Slip Op 07882, 3rd Dept 10-29-15

 

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Unlike a “State Human Rights Law” Cause of Action, a “New York City Human Rights Law” Cause of Action Is Supported If Racial Bias Played “Any Role” (As Opposed to a “Motivating and Substantial Role”) In the Discriminatory Action

The plaintiff alleged he was terminated from employment due to racial bias and sued under the Executive Law (New York State Human Rights Law) and under New York City Human Rights Law. Plaintiff acknowledged that he was sleeping on the job, a legitimate reason for termination. Plaintiff’s New York State Human Rights Law cause of action was dismissed because plaintiff could not show that racial bias played a “motivating or substantial role” in the termination. But, because the criteria for a cause of action under the New York City Human Rights Law are broader, the New York City Human Rights Law cause of action survived summary judgment. Under the New York City Human Rights Law, if termination was motivated “in part” by racial bias, even though there was a legitimate reason for termination, the termination is actionable:

The Court of Appeals has recognized that the New York City Human Rights Law must be construed “broadly in favor of discrimination plaintiffs, to the extent that such a construction is reasonably possible” … . Thus, the New York City Human Rights Law is to be more broadly interpreted than similarly worded federal or State antidiscrimination provisions … . The Appellate Division, First Department, has interpreted the New York City Human Rights Law as requiring that unlawful discrimination play ” no role'” in an employment decision … . Our Court has expressed general agreement with the First Department’s interpretation of the New York City Human Rights Law … . Thus, under the broadly worded and broadly interpreted New York City Human Rights Law, if the supervisor’s decision to report the plaintiff was motivated by racial or ethnic animus, even in part, the defendant may be held liable.

The evidence undisputedly established that the plaintiff’s employment was terminated by the defendant because the plaintiff was found to be asleep while on duty, in violation of its rules. Additionally, there was evidence that the defendant had a zero-tolerance policy with respect to violations of that rule. Further, it is also not disputed that the defendant’s no-tolerance policy regarding the termination of the employment of employees found sleeping while on duty is a legitimate policy. Nevertheless, the plaintiff presented evidence that his supervisor reported him to the defendant’s management in part out of racial animus, and did not report other, non-Indian employees who were found sleeping while on duty. Thus, the plaintiff raised a triable issue of fact as to whether his supervisor’s unlawful discrimination, which is to be imputed to the defendant, played a role in the termination of the plaintiff’s employment. Accordingly, the Supreme Court erred in granting that branch of the defendant’s motion which was for summary judgment dismissing the cause of action alleging a violation of the New York City Human Rights Law … . Singh v Covenant Aviation Sec., LLC, 2015 NY Slip Op 06911, 2nd Dept 9-23-15

 

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Arbitrator’s Ruling that, Under the Terms of the Collective Bargaining Agreement, a Bus Driver Could Not Be Disciplined for Sexual Harassment While He Was On Union-Paid “Release Time,” Violated the Public Policy Prohibiting Sexual Harassment in the Workplace

The First Department, in a full-fledged opinion by Justice Renwick, determined the facts of the case presented a rare instance when the arbitrator’s resolution of a matter covered by the collective bargaining agreement (CBA) violated public policy. A bus driver, Aiken, was accused of sexual harassment by a co-worker. Shortly thereafter the union requested of the Transit Authority that Aiken be placed on union-paid “release time” and the Transit Authority did so. The Equal Employment Opportunity Commission (EEOC) found the bus driver had violated the Transit Authority’s sexual harassment policy and recommended corrective action. Aiken did not participate in the disciplinary proceedings (which resulted in Aiken’s termination) on the ground that, under the terms of the CBA, the Transit Authority did not have the authority to impose discipline while he was on union-paid “release time.” An arbitrator ultimately agreed with Aiken and reinstated him. The First Department noted that the arbitrator’s award was supported by the terms of the CBA, but held the award violated the strong public policy prohibiting sexual harassment in the workplace:

The scope of the public policy exception to an arbitrator’s power to resolve disputes is extremely narrow, and courts will only intervene in ” cases in which public policy considerations, embodied in statute or decisional law, prohibit, in an absolute sense, particular matters being decided or certain relief being granted by an arbitrator'” … . In other words, under this analysis, we must focus on the result only, and can vacate the award if it intrudes into areas reserved for others to resolve; or if, because of its reach, the award violates an explicit law of this State. Moreover, “courts must be able to examine an arbitration … award on its face, without engaging in extended fact finding or legal analysis, and conclude that public policy precludes its enforcement” … . * * *

We … find it nececessary to intervene … because the arbitrator construed the CBA and fashioned a remedy in a manner that conflicts with a well-defined and dominant public policy. The public policy against sexual harassment in the workplace is well recognized. Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on the basis of sex (42 USC § 2000e-2[a][1]). The Equal Employment Opportunity Commission (the EEOC), which administers and enforces this provision, has promulgated a guideline that states:

Harassment on the basis of sex is a violation of Sec. 703 of Title VII. Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when … such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment (29 CFR 1604.11[a][3]).

Moreover, Title VII places upon an employer the responsibility to maintain a workplace environment free of sexual harassment. The EEOC Guidelines make employers liable for sexual harassment between fellow employees of which it knew or should have known, “unless it can show that it took immediate and appropriate corrective action” (29 CFR § 1604.11[d]). The EEOC Guidelines indicate that employers should take all reasonable steps to prevent harassment from occurring in the employment setting, such as affirmatively raising the subject, expressing strong disapproval, developing appropriate sanctions, informing employees of their right to raise and how to raise the issue of harassment under Title VII, and developing methods to sensitize all concerned (29 CFR § 1604.11[f]). The EEOC Compliance Manual further provides that employers should create a procedure for resolving sexual harassment complaints that encourages victims of sexual harassment to come forward …  “It should ensure confidentiality as much as possible and provide effective remedies, including protection of victims and witnesses against retaliation” … .

New York has similar legislation and rules … . Furthermore, the protections afforded employees under the New York City Human Rights Law (NYCHRL) are more expansive than those provided under analogous provisions of Title VII of the Civil Rights Act of 1964… . Matter of Phillips v Manhattan & Bronx Surface Tr. Operating Auth., 2015 NY Slip Op 06564, 1st Dept 8-18-15

 

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Sexual Harassment Findings Affirmed

The Third Department affirmed the State Division of Human Rights’ (SDHR’s) determination that respondent corrections officer had been subjected to sexual harassment (creating a hostile work environment) and was entitled to economic and noneconomic damages. The court noted that its review powers were “narrow” and were confined to whether the Commissioner of Human Rights’ rulings were rational in light of the evidence. The court further noted that the Commissioner should not have offset the award based upon past and future workers’ compensation benefits, and the commissioner should have considered respondent’s loss of pension benefits. In explaining its review criteria, the court wrote:

When reviewing a determination made by the Commissioner in a matter such as this one, our purview is “extremely narrow” and must focus not on whether we would have reached the same result as did the Commissioner, but instead on whether the Commissioner’s determination was rational in light of the evidence presented … . Such deference is due given SDHR’s expertise in evaluating discrimination claims … . A violation of Executive Law § 296 based on a hostile work environment must be supported by proof that the “workplace [was so] permeated [by a] discriminatory” atmosphere that it “alter[ed] the conditions of the [complainant’s] employment” … . “Where, as here, there is a finding of a hostile work environment as a result of sexual harassment, the evidence in the record must establish the pertinent elements, including proof that the discriminatory conduct occurred due to the complainant’s gender”… . Matter of Rensselaer County Sheriff’s Dept. v New York State Div. of Human Rights, 2015 NY Slip Op 06551, 3rd Dept 8-13-15

 

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Even Though the Insured Was Faultless, the “Additional Insureds” Endorsement Was Triggered—The Endorsement Covered Acts or Omissions by the Insured Which “Caused” the Underlying Injury Without Any Requirement that the “Cause” Entail Negligence—Here the Insured Was Not Negligent, but the Injury Was “Caused” by Insured’s Non-Negligent Acts—Therefore the Additional Insureds Were Covered Under the Policy

The First Department, in a full-fledged opinion by Justice Friedman, determined that the “additional insureds” endorsement in plaintiff-insurer’s policy did not have a “negligence trigger.” Therefore, even though it was demonstrated that the company insured under plaintiff-insurer’s policy was not negligent, the endorsement covered the “additional insureds” because there was a causal relationship between the insured’s acts and the underlying injury to a worker. The insured company, Breaking Solutions, was hired by the New York City Transit Authority (NYCTA) and the Metropolitan Transit Authority (MTA) to break up concrete for a subway construction project. Plaintiff-insurer, Burlington Insurance Co. insured Breaking Solutions.  The NYCTA and MTA were additional insureds under the policy. It was NYCTA’s responsibility to identify the location of electric cables and to shut off the power in the areas where Breaking Solutions was working. NYCTA failed to identify and shut off the power to a cable which was struck by Breaking Solutions’ excavation equipment resulting in an explosion. The plaintiff in the underlying personal injury action, an NYCTA employee, was injured by the explosion. The issue came down to the language of the “additional insureds” endorsement which referred only to injuries “caused” by the acts or omissions of the insured. Even though the probable intent of the drafters of the policy was to cover only “negligent” acts or omissions by the insured which “caused” the injury, the language of the endorsement could only be enforced as written. Because the worker’s injuries were “caused” by the (non-negligent) acts of the insured, the additional insureds (NYCTA and MTA) were covered under the terms of the policy:

While it is true that, because NYCTA had not warned the Breaking Solutions’ operator of the cable’s presence, Breaking Solutions’ “act[]” did not constitute negligence, this does not change the fact that the act of triggering the explosion, faultless though it was on Breaking Solutions’ part, was a cause of [the worker’s] injury. The language of the relevant endorsement, on its face, defines the additional insured coverage afforded in terms of whether the loss was “caused by” the named insured’s “acts or omissions,” without regard to whether those “acts or omissions” constituted negligence or were otherwise actionable. Burlington Ins. Co. v NYC Tr. Auth., 2015 NY Slip Op 06481, 1st Dept 8-11-15

 

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Bringing a Cause of Action Under the Whistleblower Statute Alleging Retaliation for Reporting Misconduct Does Not Bar Claims Arising from the Misconduct Itself (Here Claims of Sexual Harassment)

The First Department, in a full-fledged opinion by Justice Tom, determined that a cause of action pursuant to Labor Law 740, the whistleblower statute, did not bar the underlying sexual harassment and negligence claims reported by the whistleblowers.  Labor Law 740 prohibits retaliation for blowing the whistle, which is distinct from claims arising from the misconduct which was reported:

In dispute is the scope of Labor Law § 740 (7), which provides:

“Existing rights. Nothing in this section shall be deemed to diminish the rights, privileges, or remedies of any employee under any other law or regulation or under any collective bargaining agreement or employment contract; except that the institution of an action in accordance with this section shall be deemed a waiver of the rights and remedies available under any other contract, collective bargaining agreement, law, rule or regulation or under the common law.”

This provision makes clear that the terminated employee is neither compelled to bring an action under the statute nor limited to the relief it affords but may pursue any other available remedy. However, if the employee chooses to institute an action pursuant to the statute, any alternative means of redress is thereby waived.

Central to the assessment of the scope of this waiver is the purpose of the statute, both with respect to the abuse it is intended to remedy and the relief it provides. It prohibits “retaliatory personnel action” against an employee who undertakes to disclose conduct in violation of any law or regulation, who furnishes information to an investigatory body in regard to such activity or who refuses to participate in such activity (Labor Law § 740 [2]). Notably, statutory relief is confined to wrongful termination; no redress is provided to the victims of the underlying misconduct. The statute specifically addresses the termination of an employee who witnesses and reports misconduct. It is not so broad as to encompass the circumstances at bar, in which plaintiffs were not only terminated for revealing abuse by senior managers but were also targeted and victimized by that abuse. Lee v Woori Bank, 2015 NY Slip Op 06299, 1st Dept 7-28-15

 

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Supreme Court Properly Annulled New York Division of Human Rights’ Determination there Was No Probable Cause to Believe the School District Discriminated against Petitioner When It Refused to Hire Her Because of Her Anticipated Absence (Due to Pregnancy)

The Fourth Department affirmed Supreme Court’s annulment of the New York Division of Human Rights’ (SDHR’s) finding, without a hearing, there was no probable cause to believe the school district discriminated against the petitioner. Petitioner was not hired because of her anticipated absence due to pregnancy. The school district’s stated reason for not hiring petitioner was that she was going to be unavailable to counsel students and there was concern about the resulting lack of continuity of counseling services for the students.  However, the petitioner’s unavailability was due to her pregnancy and discrimination could therefore be inferred:

“Where, as here, a determination of no probable cause is rendered [by SDHR] without holding a public hearing pursuant to Executive Law § 297 (4) (a), the appropriate standard of review is whether the determination was arbitrary and capricious or lacking a rational basis’ ” … . “Probable cause exists only when, after giving full credence to the complainant’s version of the events, there is some evidence of unlawful discrimination” … . “There must be a factual basis in the evidence sufficient to warrant a cautious [person] to believe that discrimination had been practiced” … . The complainant’s factual showing must be accepted as true on a probable cause determination … . While our standard of review is highly deferential to the agency’s determination …, we agree with the court that SDHR’s determination “was not rationally based upon the evidence presented” … .

Executive Law § 296 prohibits an employer from refusing to hire or employ an individual based on, inter alia, the individual’s sex. In opposition to the petition, the District argued that it decided not to rehire petitioner because of her unavailability and its concern for continuity of counseling services for its students. Petitioner was unavailable to work, however, because of her pregnancy, and we conclude that discrimination could be inferred from the record before us … . The District relies on Roslyn Union Free Sch. Dist. v State Div. of Human Rights (72 AD2d 808) in support of its argument that it did not discriminate against petitioner. To the extent that Roslyn holds that a decision not to hire an individual because the individual is pregnant is not a form of discrimination (see id. at 809-810), we decline to follow it. Matter of Mambretti v New York State Div. of Human Rights, 2015 NY Slip Op 05384, 4th Dept 6-19-15

 

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Question of Fact Whether Employer Considered Accommodation for Plaintiff’s Injury—Summary Judgment to Employer Should Not Have Been Granted

Plaintiff’s employment with the Department of Correctional Services (DOCS) was terminated (after plaintiff injured her hand) on the ground that plaintiff had failed to demonstrate she was medically fit to return to work and had failed to provide a date by which she would return to full duty. The plaintiff challenged her proposed termination and sought reinstatement before the effective date of termination. The Second Department determined Supreme Court should not have granted summary judgment to the employer (DOCS).  A question of fact had been raised about whether DOCS met its duty to consider accommodation for plaintiff’s injury:

An employer normally cannot obtain summary judgment on a disability discrimination claim pursuant to Executive Law § 296 “unless the record demonstrates that there is no triable issue of fact as to whether the employer duly considered the requested accommodation,” and the employer cannot present such a record “if the employer has not engaged in interactions with the employee revealing at least some deliberation upon the viability of the employee’s request” … .

“The employer has a duty to move forward to consider accommodation once the need for accommodation is known or requested” (9 NYCRR 466.11[j][4]). Viewing the evidence in the light most favorable to the nonmoving party … , we find that the plaintiff’s responses to the notice of proposed termination could reasonably have been understood as a request for accommodation, which DOCS rejected by terminating the plaintiff’s employment based on her inability to return to work within the one year permitted under Civil Service Law § 71.

Therefore, we conclude that the defendants failed to establish, prima facie, that they engaged in a good faith interactive process that assessed the needs of the plaintiff and the reasonableness of her requested accommodation … . Cohen v State of New York, 2015 NY Slip Op 05147, 2nd Dept 6-17-15

 

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