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PLAINTIFF’S COMPLAINT AGAINST THE DEFAULTING DEFENDANT-ATTORNEY SUFFICIENTLY ALLEGED GENDER DISCRIMINATION AND INFLICTION OF EMOTIONAL DISTRESS BY DEFENDANT-ATTORNEY’S WITHHOLDING REQUESTED LEGAL SERVICES AND ENGAGING IN SEXUAL HARASSMENT (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff’s complaint against the defaulting attorney-defendant should not have been dismissed. Plaintiff alleged defendant attorney discriminated against her by depriving her of the legal services she sought in connection with a sexual assault. Plaintiff alleged she was sexually harassed by defendant attorney. The matter was sent back to determine damages:

“[B]y defaulting, a defendant admits all traversable allegations contained in the complaint, and thus concedes liability, although not damages” … . “Some proof of liability is also required to satisfy the court as to the prima facie validity of the uncontested cause of action,” but the standard of proof is “minimal,” “not stringent” … .

… [P]laintiff averred that defendant … used his position of authority and confidence as an attorney to gain her trust, and then discriminated against her by withholding the legal services she sought in connection with litigation related to a sexual assault of plaintiff and using the pretext of offering such services to harass and subject her to unwelcome sexual conduct and advances. …

Plaintiff established claims under New York State Executive Law § 269(2)(a) (State HRL) that defendant … discriminated against plaintiff based on her gender … . [P]laintiff also made a prima facie showing that defendant[‘s] … discriminatory behavior violated the City HRL … . [P]laintiff established her claim for intentional infliction of emotional distress by demonstrating that defendant … engaged in extreme and outrageous conduct through his deliberate and malicious campaign of harassment, while disregarding a substantial probability that doing so would cause severe emotional distress to her, and that his conduct did in fact did cause her severe emotional distress … . Petty v Law Off. of Robert P. Santoriella, P.C., 2021 NY Slip Op 07527, First Dept 12-28-21

 

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PETITIONER, A PROBATIONARY EMPLOYEE AND THE ONLY FEMALE MANUAL-LABOR EMPLOYEE OF THE DEPARTMENT OF PUBLIC WORKS, DEMONSTRATED SHE WAS TERMINATED SOLELY BECAUSE OF HER GENDER; SUPREME COURT PROPERLY REINSTATED HER WITH BACK PAY (THIRD DEPT).

The Third Department determined petitioner, a probationary employee of the Department of Public Works (DPW), was terminated based solely upon her gender and was properly reinstated with back pay:

Despite receiving two interim probationary reports that indicated her performance was satisfactory during the course of her employment, on April 3, 2018, petitioner was called to a meeting with respondent Daniel Crandell, DPW’s Commissioner, at which she was terminated after being told that she was “just not a good fit.” Although petitioner received a written termination letter at the close of that meeting, petitioner received no prior warning or notice of any problematic conduct. Notably, petitioner was the only female employee of DPW that was in a position of manual labor at the time of her termination. * * *

“Judicial review of the discharge of a probationary employee is limited to whether the determination was made in bad faith or for an improper or impermissible reason” … . * * *

Supreme Court found that, “[i]n the absence of any credible evidence that her work performance provided a basis for her termination, [it was] compelled to find that the only reason she was terminated was because of her gender.” Significantly, the court found respondents’ assertions regarding “[p]etitioner’s alleged argumentative attitude” to “reflect more of a post-termination justification for her dismissal than a valid or proper basis for the termination of her employment.” … [R]espondents failed to meet their burden of establishing a legitimate, nondiscriminatory purpose for petitioner’s termination … . Matter of Triumpho v County of Schoharie, 2021 NY Slip Op 06727, Third Dept 12-2-21

 

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ALTHOUGH PLAINTIFF’S HOSTILE WORK ENVIRONMENT ALLEGATIONS DID NOT STATE A CAUSE OF ACTION UNDER THE APPLICABLE NEW YORK STATE HUMAN RIGHTS LAW PROVISIONS, THE ALLEGATIONS DID STATE A CAUSE OF ACTION UNDER THE MORE PROTECTIVE NEW YORK CITY HUMAN RIGHTS LAW (CT APP).

The First Department, reversing (modifying) Supreme Court, determined the complaint stated a hostile work environment cause of action under the more protective New York City Human Rights Law, but not under the New York State Human Rights Law:

… [A]lthough the motion court properly concluded that it does not rise to the level of “severe and pervasive” under the applicable pre-2019 State HRL, plaintiff has raised triable issues of fact regarding the hostile work environment claims under the more protective City HRL … . There was evidence that in May and September 2015, several of plaintiff’s coworkers referred to him by using the Spanish word for “monkey,” a racially humiliating and degrading term. Further, the evidence suggested that other coworkers and supervisors, if not everyone at the restaurant, knew that certain employees were using that term to refer to plaintiff … . Under these circumstances, triable issues exist as to whether this rises above the level of a “truly insubstantial” case … . The evidence also raised triable issues as to whether plaintiff was treated differently from other employees of his ethnic background because of his skin color … .

… [T]riable issues of fact exist as to whether defendant was liable for the comments of its workers, and whether defendant took “immediate and appropriate corrective action” to prevent the conduct … . Pichardo v Carmine’s Broadway Feast Inc, 2021 NY Slip Op 06565, First Dept 11-23-21

 

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SUPREME COURT DID NOT HAVE SUBJECT MATTER JURISDICTION OVER PLAINTIFF’S HOSTILE WORK ENVIRONMENT CLAIMS; THE CONDUCT OCCURRED WHEN PLAINTIFF WAS NOT PHYSICALLY IN NEW YORK AND DID NOT HAVE ANY IMPACT ON THE TERMS, CONDITIONS OR EXTENT OF HER EMPLOYMENT WITHIN NEW YORK; THE FACTS WERE NOT DESCRIBED (FIRST DEPT).

​The First Department, reversing Supreme Court, determined the court did not have subject matter jurisdiction over the hostile work environment claims under the Human Rights Law. The facts were not explained. The conduct occurred when plaintiff was “physically situated outside of New York” and did not have any impact on the “terms, conditions or extent of her employment” within New York:

Supreme Court lacks subject matter jurisdiction over the Human Rights Law claims … . Defendants’ alleged conduct occurred while plaintiff was “physically situated outside of New York” … , and did not have “any impact on the terms, conditions or extent of her employment . . . within the boundaries of New York” … . “The fact that the alleged discriminatory acts . . . occurred in New York is insufficient to plead impact in New York” … . Jarusauskaite v Almod Diamonds, Ltd., 2021 NY Slip Op 05460, First Dept 10-12-21

 

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PLAINTIFF STATED A CAUSE OF ACTION UNDER THE CORRECTION LAW BY ALLEGING HIS APPLICATION FOR REEMPLOYMENT AFTER COMPLETION OF HIS SENTENCE (60 DAYS INCARCERATION) WAS DENIED SOLELY BECAUSE OF HIS PRIOR CONVICTION (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, over a concurring opinion, reversing the Appellate Division, determined plaintiff’s complaint stated a cause of action for discrimination under the Correction Law, which prohibits discrimination based upon criminal convictions in the context of applications for employment. Plaintiff had kept his employer informed of a criminal charge against him which had not yet gone to trial and was told he would not lose his job if he was sentenced to incarceration. Plaintiff was sentenced to 60 days and his employment was terminated:

The statutes do not categorically preclude consideration of a prospective employee’s criminal history and expressly permit the denial of employment or licensing if there is (1) a “direct relationship” between the previous criminal offense and the specific employment or license, or (2) if granting the request for employment or a license “would involve an unreasonable risk” to the property, safety, or welfare “of specific individuals or the general public” (Correction Law § 752). Thus, under the statutory scheme, reliance on a previous criminal offense when denying an application for employment or a license is not necessarily unlawful … . Whether an exception applies depends on factors identified in Correction Law § 753 such as, among other things, the relationship between the specific employment duties and the criminal offense as well as the amount of time that has elapsed since the offense occurred … . Under these provisions, when filling positions, public and private employers must treat job applicants with prior convictions equitably “while also protecting society’s interest in assuring performance [of job duties] by reliable and trustworthy persons” … . * * *

… [P]laintiff alleged that he was terminated for job abandonment soon after he was incarcerated. Applying our liberal standard, the complaint … may be read to allege that, after he completed his sentence, he applied for reemployment … and [defendant] denied the application solely because of the prior conviction. Sassi v Mobile Life Support Servs., Inc., 2021 NY Slip Op 05449, CtApp 10-12-21

 

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PLAINTIFF’S ALLEGATION DEFENDANT SUPERVISOR CONDITIONED HIS SUPPORT OF PLAINTIFF AT WORK ON HER COMPLIANCE WITH HIS DEMANDS FOR SEX SUPPORTED PLAINTIFF’S REQUEST FOR PUNITIVE DAMAGES RE: DEFENDANT SUPERVISOR AND DEFENDANT EMPLOYER (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined the punitive damages request in this employment discrimination action should not have been dismissed:

The request for punitive damages should be reinstated. [defendant] Ravich’s conduct in conditioning his support of plaintiff at work on her compliance with his demands for sex, if proven, would be sufficient to demonstrate discrimination “with willful or wanton negligence, or recklessness, or a conscious disregard of the rights of others or conduct so reckless as to amount to such disregard” … . Punitive damages could also be awarded against the TCW defendants if they are found vicariously liable for this conduct, although they would be entitled to mitigate such damages with proof of policies established to deter discrimination … . Tirschwell v TCW Group Inc., 2021 NY Slip Op 03397, First Dept 5-27-21

 

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THE DIFFERING CRITERIA FOR GENDER DISCRIMINATION, HOSTILE WORK ENVIRONMENT AND RETALIATION UNDER THE NEW YORK STATE AND NEW YORK CITY HUMAN RIGHTS LAW CAREFULLY EXPLAINED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, carefully laid out the criteria for gender diiscrimination, hostile work environment and retaliation under the NYS Human Rights Law (NYSHRL) and the NYC Human Rights Law (NYCHRL). The gender discriimination claims should have been dismissed, but the hostile work environment and retaliation claims properly survived summary judgment. The decision is too detailed to fairly summarize here and should be consulted for its explanation of the differing criteria under the NYS and NYC Human Rights Law. With respect to gender discrimination, the court wrote:

[Under the NYSHRL] a triable issue of fact regarding the falsity of the appellants’ proffered reasons for the employment action is not enough; there must be evidence “both that the reason was false, and that discrimination was the real reason” … . Here, the parties’ evidentiary submissions reveal no evidence that gender discrimination was the real reason for the challenged employment actions. …

… [A]n action alleging discrimination in violation of the NYCHRL “‘must be analyzed under both the familiar framework of McDonnell Douglas Corp. v Green (411 US 792 [1973]) and under the newer mixed motive framework, which imposes a lesser burden on a plaintiff opposing such a motion'” (Sanderson-Burgess v City of New York, 173 AD3d 1233, 1235 …). “‘Summary judgment dismissing a claim under the NYCHRL should be granted only if no jury could find [the] defendant liable under any of the evidentiary routes—McDonnell Douglas, mixed motive, direct evidence, or some combination thereof'” … . Here, the plaintiff … failed to raise a triable issue of fact as to whether the conduct was a pretext to mask a discriminatory intent or was in part motivated by discrimination … . Bilitch v New York City Health & Hosps. Corp., 2021 NY Slip Op 03300, Second Dept 5-26-21

 

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DEFENDANTS WERE NOT ENTITLED TO A DIRECTED VERDICT ON THE EMPLOYMENT DISCRIMINATION CAUSE OF ACTION; DEFENSE COUNSEL’S REMARK ABOUT THE FINANCIAL CONSEQUENCES OF A PLAINTIFF’S VERDICT DEPRIVED PLAINTIFF OF A FAIR TRIAL; THE COURT OF CLAIMS HAS EXCLUSIVE JURISDICTION OVER ACTIONS SEEKING MONEY DAMAGES FROM THE STATE, RELEVANT CAUSES OF ACTION PROPERLY DISMISSED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, over a dissent, determined defendants’ motion for a directed verdict should not have been granted and the defense attorney’s remark in summation warranted a new trial. Plaintiff alleged he was denied promotion at the Central New York Psychiatric Center (CNYPC) because the defendants deemed him mentally unstable due to his status as a veteran of the Iraq war.  The directed verdict awarded defendants on that issue was reversed. The defense counsel’s remark in summation that one of the individual defendants would have to “open up her checkbook and write somebody a check” if plaintiff wins deprived plaintiff of a fair trial (the state is required to indemnify defendants as state officers and employees). This case was brought in Supreme Court. The Fourth Department noted that the Court of Claims has exclusive jurisdiction over actions against the state for money damages (apparently the relevant causes of action were properly dismissed for that reason):

Plaintiff … contends that the court erred in granting defendants’ motion for a directed verdict with respect to plaintiff’s cause of action under the New York Human Rights Law alleging discrimination based on military status … . We agree. * * * Based upon the … testimony that plaintiff was not promoted because “[t]here was a question after [plaintiff’s] military service about his [mental] stability,” the jury could have rationally inferred that defendants refused to promote plaintiff in part because they perceived that combat veterans, such as plaintiff, develop dangerous and disqualifying mental health issues as a result of their military service. Thus, “it cannot be said that ‘it would . . . be utterly irrational for a jury to reach [a verdict in favor of plaintiff]’ ” … . * * *

… [R]emarks about a party’s financial status “have been universally condemned by the courts of this State” … . The defense attorney’s argument that his clients should not be “forced to open [their] checkbook” likely conveyed that the individual defendants would be required to pay any damages out-of-pocket. That remark was “grossly improper” … . Moreover, it misrepresented the law to the jury. The State has a duty to indemnify its employees for judgments that arise out of actions within the scope of their public duties, although that duty does not arise from injury or damage resulting from intentional wrongdoing on the part of the employee (see Public Officers Law § 17 [3] [a]). Hubbard v New York State Off. of Mental Health, Cent. N.Y. Psychiatric Ctr., 2021 NY Slip Op 01661, Fourth Dept 3-19-21

 

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WHERE PLAINTIFF’S EMPLOYER IS A BUSINESS ENTITY, HERE BLOOMBERG L.P., AN OWNER OR OFFICER OF THE COMPANY, HERE MICHAEL BLOOMBERG, IS NOT AN EMPLOYER WITHIN THE MEANING OF THE NYC HUMAN RIGHTS LAW; THE EMPLOYMENT DISCRIMINATION ACTION AGAINST MICHAEL BLOOMBERG WAS PROPERLY DISMISSED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Garcia, over an extensive dissent, determined Michael Bloomberg, in his status as “owner” and officer of the company, Bloomberg L.P., is not an “employer” within the meaning of the NYC Human Rights Law, and therefore cannot be liable for harassment of the plaintiff (Doe) by her supervisor, Ferris. Bloomberg L.P. can be vicariously liable as the employer, but Michael Bloomberg cannot:

Plaintiff, an employee of Bloomberg L.P. using the pseudonym “Margaret Doe,” brought suit against defendants Bloomberg L.P., her supervisor Nicholas Ferris, and Michael Bloomberg, asserting several causes of action arising from alleged discrimination, sexual harassment, and sexual abuse. The question before us is whether Bloomberg, in addition to Bloomberg L.P., may be held vicariously liable as an employer under the New York City Human Rights Law (Administrative Code of City of NY, title 8 [City HRL]) based on his status as “owner” and officer of the company. We hold that Bloomberg is not an “employer” within the meaning of the City HRL and accordingly, we affirm the dismissal of plaintiff’s claims that seek to hold Bloomberg vicariously liable for Ferris’s offending conduct. * * *

The language in the City HRL … requires no external limiting principle exempting employees from individual suit as employers. … [W]here a plaintiff’s employer is a business entity, the shareholders, agents, limited partners, and employees of that entity are not employers within the meaning of the City HRL. … [T]hose individuals may incur liability only for their own discriminatory conduct, for aiding and abetting such conduct by others, or for retaliation against protected conduct (Administrative Code of City of NY § 8-107 [1], [6], [7]). This rule [is] consistent with the principles of vicarious and limited liability governing certain business structures (see e.g. Partnership Law §§ 26, 121-303; Limited Liability Company Law § 609; Business Corporation Law § 719). Doe v Bloomberg, L.P., 2021 NY Slip Op 00898, CtApp, 2-11-21

 

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HUMAN RIGHTS LAW CLAIMS DID NOT ALLEGE DISCRIMINATION; INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS DOES NOT APPLY TO TERMINATION OF AT WILL EMPLOYMENT; WORKERS’ COMPENSATION IS THE EXCLUSIVE REMEDY FOR NEGLIGENCE ACTIONS AGAINST AN EMPLOYER; PUNITIVE DAMAGES NOT AVAILABLE FOR THE EMPLOYMENT DISCRIMINATION OR BREACH OF CONTRACT CAUSES OF ACTION (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined that several of plaintiff’s causes of action, as well as claims for punitive damages, should have been dismissed. Plaintiff’s lawsuit stemmed from alleged wrongful conduct in terminating the plaintiff’s employment and evicting him from a work-provided apartment:

… [P]laintiff alleges that he engaged in “protected activity” when his attorney sent a letter to one or more defendants about an altercation between plaintiff and a neighbor. We agree with defendants that … sending the letter did not constitute “protected activity” because the letter did not suggest, much less allege, that anyone had engaged in “unlawful discrimination,” i.e., conduct prohibited by the [Human Rights Law]. …

… [I]t is well established that “[t]ort causes of action alleging intentional infliction of emotional distress . . . ‘cannot be allowed in circumvention of the unavailability of a tort claim for wrongful discharge or the contract rule against liability for discharge of an at-will employee’ ” … . …

With respect to the fifth and eighth causes of action (negligent infliction of emotional distress and negligent hiring, training, and supervision, respectively), it is well established that workers’ compensation benefits are the “exclusive remedy for . . . injuries allegedly caused by the negligence of [a person’s] employer and fellow employee” … . …

Punitive damages are not available for the employment discrimination claims in the complaint … . … [T]he breach of contract claim … does not qualify for punitive damages because plaintiff does not allege that [the] alleged breach of contract was ” ‘aimed at the public generally’ ” … . Miller v National Prop. Mgt. Assoc., Inc., 2021 NY Slip Op 00729, Fourth Dept 2-5-21

 

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