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​ ALTHOUGH NOT REQUIRED UNDER THE GENERAL MUNICIPAL LAW, FILING A NOTICE OF CLAIM FOR AN EMPLOYMENT DISCRIMINATION ACTION IS REQUIRED UNDER THE TOWN LAW; BECAUSE THE TOWN HAD TIMELY KNOWELDGE OF THE FACTS UNDERLYING THE ACTION, PLAINTIFF WAS ENTITLED TO LEAVE TO FILE A LATE NOTICE OF CLAIM (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined (1) although plaintiff would not have been required to file a notice of claim for an employment discrimination action against a city pursuant to the General Municipal Law, plaintiff is required to file a notice of claim for the instant employment discrimination action against the town pursuant to the Town Law, and (2) plaintiff was entitled to leave to file a late notice of claim. The notice of claim provisions in the Town Law are broader than those in the General Municipal Law and include “wrong to a person” which encompasses employment discrimination:

Consistent with the purpose of the Human Rights Law, unlawful discrimination and retaliation is undoubtably considered a wrong against a person (see Executive Law § 290 [3]). Thus, the plain, unambiguous text of Town Law § 67 directs that a notice of claim is required for an action alleging violations of the Human Rights Law. * * *

Although the presence or absence of any given factor is not determinative, it is well settled that “[a] factor to be accorded great weight in determining whether to grant leave to serve a late notice of claim is whether the [public corporation] had actual knowledge of the facts underlying the claim, including knowledge of the injuries or damages” … . …

… [T]here is no dispute that the Town and its officers had timely actual knowledge of the facts underlying the claim … . Arnold v Town of Camillus, 2023 NY Slip Op 06627, Fourth Dept 12-22-23

Practice Point: Unlike the General Municipal Law, the Town Law requires the filing of a notice of claim for an employment discrimination action under the Human Rights Law.

Practice Point: The most important criterium for granting leave to file a late notice of claim is the defendant’s timely knowledge of the facts underlying the action.

 

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​PLAINTIFF’S FIRST EMPLOYMENT DISCRIMINATION COMPLAINT WAS DISMISSED FOR FAILURE TO STATE A CAUSE OF ACTION UNDER THE NYS HUMAN RIGHTS LAW; PLAINTIFF’S SECOND COMPLAINT STATED A CAUSE OF ACTION UNDER THE SAME STATUTE; THE SECOND COMPLAINT WAS NOT BARRED BY THE DOCTRINE OF RES JUDICATA (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined plaintiff stated a cause of action for employment discrimination under the New York State Human Rights Law (NYSHRL). Plaintiff had filed a prior complaint which was properly dismissed for failure to state a cause of action. Plaintiff then filed the instant complaint under the same statute by on different grounds. The instant complaint was not precluded the the doctrine of res judicata:

… [T]his cause of action was not barred by the doctrine of res judicata. That doctrine “precludes a party from relitigating a claim that has been finally adjudicated on the merits” …  “Although, generally, a dismissal for failure to state a cause of action based on the insufficiency of the allegations in the pleading is not a dismissal on the merits, and does not bar the adequate repleading of the claim in a subsequent action, such a determination has preclusive effect as to a new complaint for the same cause of action which fails to correct the defect or supply the omission determined to exist in the earlier complaint” … . The first cause of action alleged in the present complaint was distinct from that alleged in the prior action, the latter of which was based upon an alleged failure of the defendants, among others, to provide a reasonable accommodation in the form of certain medical leave, as well as retaliation for engaging in a protected activity. Thus, the dismissal of those causes of action under CPLR 3211(a)(7) did not bar the first cause of action asserted in the present complaint. Duchemin v Village of E. Hampton, 2023 NY Slip Op 06350, Second Dept 12-13-24

Practice Point: Here the first complaint alleging employment discrimination was dismissed for failure to state a cause of action. That is not considered a dismissal on the merits. Therefore the second employment-discrimination complaint, brought under the same body of law, was not precluded by the doctrine of res judicata.

 

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DISMISSAL OF THE HOSTILE WORK ENVIRONMENT CAUSES OF ACTION IN FEDERAL COURT DID NOT COLLATERALLY ESTOP PLAINTIFF’S HOSTILE WORK ENVIRONMENT CAUSE OF ACTION IN STATE COURT PURSUANT TO THE NEW YORK CITY HUMAN RIGHTS LAW (NYCHRL) (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the dismissal of the hostile work environment causes of action by the federal court did not collaterally estop plaintiff’s hostile work environment cause of action in state court pursuant to the New York City Human Rights Law (NYCHRL):

Supreme Court erred in granting dismissal of the cause of action alleging hostile work environment pursuant to CPLR 3211(a)(5). The District Court analyzed the hostile work environment claims under the standards set by Title VII and NYSHRL, and determined that those claims were neither “pervasive” nor “extraordinarily severe.” Under NYCHRL, a claimant must only prove that they were “treated less well than other employees” because of their gender … . As the plaintiff’s allegations of sexual harassment and improper touching could constitute “more than petty slights and trivial inconveniences” without rising to the level of being severe and pervasive, Supreme Court should not have granted dismissal of this cause of action pursuant to the doctrine of collateral estoppel … . Domingo v Avis Budget Group, Inc., 2023 NY Slip Op 04463, Second Dept 8-30-23

Practice Point: The New York City Human Rights Law has less stringent standards for a hostile work environment cause of action than those required by the New York State Human Rights Law.

 

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PLAINTIFF WAS NOT HIRED BECAUSE HE TESTED POSITIVE FOR MARIJUANA WHEN HE WAS UNDER TREATMENT WITH MARIJUANA; THAT STATED A CAUSE OF ACTION FOR EMPLOYMENT DISCRIMINATION (SECOND DEPT). ​

The Second Department determined that refusing to hire plaintiff for testing positive for marijuana when he was being treated with marijuana stated a cause of action for employment discrimination:

We find unavailing the defendant’s contention that the complaint failed to state a cause of action to recover damages for employment discrimination on the basis of disability in violation of the NYCHRL [New York City Human Rights Law] because the defendant chose not to hire the plaintiff based only on his positive drug test and not his disability. Refusing to hire the plaintiff because he tested positive for marijuana while knowing that he was being treated with marijuana by a licensed physician for a medical condition effectively denied the plaintiff the opportunity of a reasonable accommodation, and therefore, under these circumstances, is appropriately recognized as a cognizable cause of action to recover damages for employment discrimination on the basis of disability in violation of the NYCHRL … . Brouillard v Sunrun, Inc., 2023 NY Slip Op 04184, Second Dept 8-9-23

Practice Point: Refusing to hire plaintiff for testing positive for marijuana when plaintiff was under a doctor’s treatment with marijuana stated a cause of action for denying the plaintiff the opportunity of a reasonable accommodation.

 

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THE PLAINTIFF, A MALE EMT, ALLEGED HE WAS TERMINATED BECAUSE OF HIS INVOLVEMENT IN A TRAFFIC ACCIDENT AND SEVERAL FEMALE EMT’S WERE INVOLVED IN COMPARABLE ACCIDENTS BUT WERE NOT TERMINATED; PLAINTIFF STATED A CAUSE OF ACTION FOR SEX DISCRIMINATION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff emergency medical technician (EMT) stated a cause of action for sex discrimination. Plaintiff alleged he was terminated because he was involved in a traffic accident but several female EMT’s were involved in comparable accidents but were not terminated:

The NYSHRL [state human rights law] and the NYCHRL [city human rights law], prohibit discrimination in employment on the basis of sex … . “A plaintiff alleging discrimination in employment in violation of the NYSHRL must establish that (1) she or he is a member of a protected class, (2) she or he was qualified to hold the position, (3) she or he suffered an adverse employment action, and (4) the adverse action occurred under circumstances giving rise to an inference of discrimination” … . “Under the NYCHRL, the plaintiff must establish that she or he was subject to an unfavorable employment change or treated less well than other employees on the basis of a protected characteristic” … . Here, accepting the facts as alleged in the complaint as true, and according the plaintiff the benefit of every possible favorable inference, the complaint sufficiently alleges circumstances which give rise to an inference of sex discrimination, and adequately states a cause of action pursuant to the NYCHRL and the NYSHRL … . Silvers v Jamaica Hosp., 2023 NY Slip Op 03938, Second Dept 7-26-23

Practice Point: Here a male employee alleged he was terminated because he was involved in a traffic accident and several female employees were involved in comparable accidents but were not terminated. That allegation stated a cause of action for sex discrimination. 

 

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THE AFFIDAVITS AND REAL ESTATE CONTRACT SUBMITTED IN SUPPORT OF THE MOTION TO DISMISS DID NOT CONSTITUTE DOCUMENTARY EVIDENCE WHICH UTTERLY REFUTED THE ALLEGATIONS OF UNLAWFUL DISCRIMINATION IN THE COMPLAINT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the complaint alleging unlawful discrimination in a real estate deal should not have been dismissed because the documentary evidence did not utterly refute the allegations in the complaint. After the real estate purchase offer was signed by both parties and the down payment was made, defendant’s attorney returned the down payment check with a letter saying that the defendant was no longer interested in selling to the plaintiff:

Here, neither the affidavits submitted in support of the defendant’s motion nor the purported contract between the defendant and another purchaser constituted documentary evidence within the intendment of CPLR 3211(a)(1) … , and the defendant’s evidentiary submissions were “insufficient to utterly refute the plaintiff’s factual allegations” … . Moreover, accepting the facts as alleged in the complaint as true, and according the plaintiffs the benefit of every possible favorable inference … , the complaint sufficiently stated a cause of action alleging unlawful discrimination pursuant to Administrative Code § 8-107(5). Jeffrey v Collins, 2023 NY Slip Op 03686, Second Dept 7-5-23

Practice Point: The affidavits and real estate contract submitted in support of the motion to dismiss did not utterly refute the allegations in the complaint and therefore did not support dismissal of the complaint based on documentary evidence.

 

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PURSUANT TO THE “MINISTERIAL EXCEPTION,” THE HOSTILE WORK ENVIRONMENT COMPLAINT BY A PRIEST AGAINST THE DIOCESE OF BUFFALO WAS DISMISSED (FOURTH DEPT).

The Fourth Department, determined the “ministerial exception” to employment discrimination applied to petitioner’s complaint against his former employer, the Diocese of Buffalo. Petitioner, a priest serving as pastor of a church, alleged he was subjected to  a  “hostile work environment:”

Here, SDHR [New York State Division of Human Rights] determined that it lacked jurisdiction over petitioner’s complaint inasmuch as petitioner had been a priest serving as the pastor of a church and the ministerial exception barred his claims. Inasmuch as there is no controlling United States Supreme Court or New York precedent and the federal courts that have addressed the issue are divided on the extent to which the ministerial exception applies to claims of a hostile work environment, we conclude that SDHR’s determination with respect to the hostile work environment claim is not arbitrary and capricious or affected by an error of law … . Matter of Ibhawa v New York State Div. of Human Rights, 2023 NY Slip Op 03585, Fourth Dept 6-30-23

Practice Point: There is a “ministerial exception” to employment discrimination claims by a priest against the diocese-employer. Here the priest’s hostile-work-environment petition was properly dismissed based on the exception.

 

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THE COMPLAINT STATED A CAUSE OF ACTION FOR A VIOLATION OF THE EXECUTIVE LAW WHICH PROHIBITS DISCRIMINATION BY LANDLORDS AGAINST POTENTIAL TENANTS BASED UPON SOURCE OF INCOME; ALTHOUGH THE ISSUE WAS NOT RAISED BELOW IT PRESENTED A QUESTION OF LAW REVIEWABLE ON APPEAL (FOURTH DEPT). ​

The Fourth Department, reversing Supreme Court, determined the complaint stated a cause of action for a violation of the Executive Law prohibiting discrimination in renting an apartment based upon source of income. Although the issue was raised for the first time on appeal, the issue presented a question of law which could not have been avoided had it been raised below:

Executive Law § 296 (5) (a) (2) provides in relevant part that it “shall be an unlawful discriminatory practice for the owner, lessee, sub-lessee, assignee, or managing agent of, or other person having the right to sell, rent or lease a housing accommodation, constructed or to be constructed, or any agent or employee thereof . . . [t]o discriminate against any person because of . . . lawful source of income . . . in the terms, conditions or privileges of the sale, rental or lease of any such housing accommodation or in the furnishing of facilities or services in connection therewith.” Plaintiff alleged in its amended complaint that it sent two testers to defendants’ properties seeking to rent the properties. The testers asked defendants if they accepted security agreements, which are issued by the Erie County Department of Social Services to landlords in the amount of one month’s rent in lieu of a cash deposit. Defendants responded that they accepted those agreements, but that they also required tenants to put down a cash deposit of one-half of a month’s rent for the security deposit.

… The allegations in the amended complaint support the inference that, for a person whose lawful source of income is public assistance … , defendants imposed a different term or condition for the rental than for a person whose lawful source of income was not public assistance. In particular, for a person on public assistance, defendants required one-half’s month rent, in cash, as a security deposit in addition to the security agreements. Housing Opportunities Made Equal v DASA Props. LLC, 2023 NY Slip Op 03607, Fourth Dept 6-30-23

Practice Point: The Executive Law prohibits landlords from discriminating against potential tenants by requiring a cash deposit in addition to security agreements issued by the county.

Practice Point: An issue not raised below will be considered on appeal if it presents a question of law which could not have been avoided if raised below.

 

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THE HOSTILE WORK ENVIRONMENT AND SEX DISCRIMINATION CLAIMS WERE NOT UNTIMELY BECAUSE A CONTINUING COURSE OF CONDUCT LEADING UP TO THE FILING OF THE COMPLAINT WAS ALLEGED (FIRST DEPT). ​

The First Department, reversing (modifying) Supreme Court, determined plaintiff’s hostile work environment and sex discrimination claims should not have been dismissed as untimely because a continuing pattern was sufficiently alleged:

The allegations supporting plaintiff’s hostile work environment and sex discrimination claims are timely, as she has sufficiently alleged facts comprising “a single continuing pattern of unlawful conduct extending into the [limitations] period immediately preceding the filing of the complaint” … . The complaint alleges that, following Corn’s sexual assault on plaintiff in February 2015, he continued to stare at her, lurked by her desk, made inappropriate, flirtatious comments toward her, disclosed intimate details about his marriage, and frequently pressured her to go out drinking, within the limitations period. It cannot be said that, as a matter of law, these acts were not part of a single continuing pattern of unlawful conduct supporting her hostile work environment and discrimination claims … .

Moreover, under the New York City Human Rights Law (Administrative Code of City of NY § 8-107) and amended New York State Human Rights Law (Executive Law § 296[h]), the allegations that Corn sexually assaulted plaintiff in 2015 and engaged in a pattern of gender-based misconduct in the workplace, demonstrate that she was subjected to inferior terms, conditions, or privileges of employment on the basis of her gender … . Crawford v American Broadcasting Co., Inc., 2023 NY Slip Op 02611, First Dept 5-16-23

Practice Point: Here the hostile work environment and sex discrimination claims should not have been dismissed as untimely because a continuing course of conduct up until the filing of the complaint was alleged.

 

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UNDER THE NEW YORK CITY HUMAN RIGHTS LAW, PLAINTIFF NEED NOT DEMONSTRATE AN ADVERSE EMPLOYMENT ACTION TO RECOVER FOR GENDER DISCRIMINATION (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff’s gender discrimination action under the NYC Human Rights Law (City HRL) should not have been dismissed:

Since “[t]he City HRL does not differentiate between sexual harassment and other forms of gender discrimination, but requires that sexual harassment be viewed as one species of sex- or gender-based discrimination” … , it was error to grant summary judgment dismissing plaintiff’s gender discrimination claim, while denying the motion with respect to the hostile work environment and sexual harassment claim. Moreover, plaintiff need not show an adverse employment action in order to establish a prima facie case of gender discrimination under the City HRL … . On this motion for summary judgment dismissing a claim under the City HRL, defendant bore the burden of showing that, based on the record evidence and drawing all reasonable inferences in plaintiff’s favor, no jury could find defendant liable for gender-based discrimination … . Here, plaintiff submits sufficient evidence to support her assertions that, after she rejected her supervisor’s sexual advances, she was unjustifiably criticized for her work product and attendance by her supervisors and was stripped of her assignments, which permits a finding that she was treated “less well” based on her gender … . Bond v New York City Health & Hosps. Corp., 2023 NY Slip Op 01939, First Dept 4-13-23

Practice Point: Under the New York City Human Rights Law a plaintiff need only show she was treated “less well” based on her gender. No adverse employment action is required.

 

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