Human Rights Law – Page 7 – New York Appellate Digest

COMPLAINT IN PUTATIVE CLASS ACTION ALLEGING DISCRIMINATION AGAINST PERSONS WHO CANNOT USE STAIRS PROPERLY SURVIVED MOTIONS TO DISMISS; 360 OF 427 NYC SUBWAY STATIONS ARE ACCESSIBLE ONLY BY STAIRS (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Gische, determined that the transit authority’s and the city’s motions to dismsiss the complaint in this putative class action were properly denied. The complaint, brought pursuant to the NYC Human Rights Law (NYCHRL), alleged discrimination against persons with disabilities which prevent them from using stairs. 360 of the 427 subway stations in NYC are accessible only by stairs. The First Department held: (1) the action was not time-barred because the continuous violation doctrine applied; (2) the action was not preempted by either Transportation Law 15-b or Public Authorities Law 1266 (8); (3) the controversy is justiciable; and (4) the city, which owns the stations, was not entitled to pre-discovery dismissal. With respect to the continuous violation doctrine, the court wrote:

… [T]he reach of the continuous violation doctrine under NYCHRL is broader than under either federal or state law. A broad interpretation is consistent with a “rule that neither penalizes workers who hesitate to bring an action at the first sign of what they suspect could be discriminatory trouble, nor rewards covered entities that discriminate by insulating them[selves] from challenges to their unlawful conduct that continues into the limitation period” … . Thus, defendants’ claimed failure to provide an accessible subway system is a continuous wrong for purposes of tolling the statute of limitations under the NYCHRL Center for Independence of the Disabled v Metropolitan Transp. Auth., 2020 NY Slip Op 03203, First Dept 6-4-20

June 4, 2020

Human Rights Law, Landlord-Tenant, Municipal Law, Social Services Law

HUMAN RESOURCES ADMINISTRATION SECURITY DEPOSIT VOUCHERS MUST BE ACCEPTED IN LIEU OF CASH DEPOSITS; TO REFUSE TO ACCEPT THE VOUCHERS VIOLATES THE NYC HUMAN RIGHTS LAW; THE VOUCHER PROGRAM DOES NOT VIOLATE THE SOCIAL SERVICES LAW OR THE URSTADT LAW (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Webber, determined plaintiff Estates, a leasing agent for multi-family apartment buildings in New York City, must accept a Human Resources Administration (HRA) security deposit voucher for an apartment. When the potential tenant, Walters, applied for an apartment, plaintiff’s employee told her the security deposit must be cash:

We find that the court correctly concluded that HRA’s security deposit vouchers are a “lawful source of income” under the City HRL [Human Rights Law] (Administrative Code § 8-102) and are therefore included in the HRL’s prohibition against discrimination by a landlord against a prospective tenant because of “any lawful source of income” (Administrative Code § 8-107[5][a][1]). “The term lawful source of income’ includes income derived from social security, or any form of federal, state or local public assistance or housing assistance including section 8 vouchers” … .

Administrative Code § 8-107(5) prohibits a landlord from refusing to accept a Section 8 voucher from an existing tenant or refusing a lease to a prospective tenant who seeks to pay rent with a Section 8 voucher … . …

Supreme Court correctly found that HRA’s security deposit voucher program does not violate Social Services Law § 143-c. * * *

Finally, we find that the voucher program does not violate the Urstadt Law (McKinney’s Uncons Laws of NY § 8605). “The Urstadt Law was intended to check City attempts, whether by local law or regulation, to expand the set of buildings subject to rent control or stabilization'” … . Here, a landlord’s acceptance of such security deposit vouchers “will have no impact in expanding the buildings subject to the rent stabilization law or expanding regulation under the rent laws” … . Estates NY Real Estate Servs. LLC v City of New York, 2020 NY Slip Op 03093, First Dept 5-28-20

May 28, 2020

Employment Law, Human Rights Law, Municipal Law

DIFFERENT STANDARDS OF PROOF OF EMPLOYMENT DISCRIMINATION UNDER THE NY CITY HUMAN RIGHTS LAW, AS OPPOSED TO THE NY STATE HUMAN RIGHTS LAW, EXPLAINED IN SOME DEPTH; PLAINTIFF’S CAUSE OF ACTION FOR GENDER DISCRIMINATION UNDER THE NY CITY HUMAN RIGHTS LAW ON A THEORY OF A HOSTILE WORK ENVIRONMENT REINSTATED (SECOND DEPT).

The Second Department, in a comprehensive opinion by Justice Brathwaite Nelson, reversing (modifying) Supreme Court, determined plaintiff’s cause of action for gender discrimination on a theory of a hostile work environment under the NY City Human Rights Law should not have been dismissed. The Second Department held that the “materially adverse” change in employment conditions, which applies to the NY State Human Rights Law, does not apply to the NY City Human Rights Law. The standard under the NY City Human Rights Law is a showing that plaintiff was subject to an unfavorable change or treated less well than other employees on the basis of a protected characteristic. The Second Department took pains to explain the different standards of proof under the State and City Human Rights Laws:

… [U]nder the City Human Rights Law, in order to demonstrate liability, a plaintiff need not establish that she or he was subjected to a “materially adverse” change to terms and conditions of employment, but only that she or he was subject to an unfavorable change or treated less well than other employees on the basis of a protected characteristic … . * * *

The alleged comment by Denesopolis [plaintiff’s boss], that he did not “like women on this job because they have babies,” plainly expresses a view of the role of women in the workplace. Considering the totality of the circumstances, which include the plaintiff’s testimony that Denesopolis expressed displeasure upon learning of her transfer to his unit as a pregnant woman, and then again at her second pregnancy, we cannot say that this is a “truly insubstantial case” as a matter of law. In addition, while it might be inferred that the incidents in which Denesopolis publicly reprimanded the plaintiff and referred to her as an “empty suit” and “Sergeant do nothing” were related to deficiencies in her performance as a sergeant, on the defendants’ motion for summary judgment, we must view the facts in the light most favorable to the plaintiff. A jury could agree with the plaintiff that the conduct was based upon her pregnancies and conclude that the plaintiff was subject to a workplace in which she was treated less well than others because of her gender. Accordingly, the cause of action alleging gender discrimination on a theory of a hostile work environment under the City Human Rights Law must be reinstated. Golston-Green v City of New York, 2020 NY Slip Op 02768, Second Dept 5-13-20

May 13, 2020

Human Rights Law

JAIL IS NOT A ‘PUBLIC ACCOMMODATION’ WITHIN THE MEANING OF THE NYS HUMAN RIGHTS LAW; THE STATE DIVISION OF HUMAN RIGHTS THEREFORE DID NOT HAVE JURISDICTION TO HEAR PETITIONER’S ADMINISTRATIVE COMPLAINT ALLEGING UNLAWFUL DISCRIMINATION IN JAIL (FOURTH DEPT).

The Fourth Department determined jail is not a “public accommodation” within the meaning of the Human Rights Law. Therefore petitioner’s administrative complaint alleging unlawful discrimination in the jail was properly dismissed by the NYS Division of Human Rights (SDHR) for lack of jurisdiction:

SDHR has jurisdiction to, inter alia, investigate and adjudicate complaints of unlawful discrimination in the provision of any “public accommodation, resort or amusement” (Executive Law § 296 [2] [a]; see § 295 [6] … ). For purposes of the Human Rights Law, a “public accommodation, resort or amusement” offers ” conveniences and services to the public’ ” and is “generally open to all comers” … , and it defies logic to suggest that law enforcement is providing ” conveniences’ ” or ” services’ ” to those arrested and detained … . Nor is arrest and detention “open to all comers” in any sense … . Indeed, it well established that “prison facilities do not cater or offer [their] goods to the general public” … . To the contrary, arrest and detention is imposed upon a person by law enforcement and the criminal courts, not provided to those arrested and detained as a service for their benefit. The process of arresting and incarcerating a person is, “by its very nature,” a governmentally decreed “separat[ion of] the general public from the individuals who are compelled by our penal system to be confined” … .

In short, although we note SDHR’s concession at oral argument that governmental entities such as police agencies could provide public accommodations within the meaning of the Human Rights Law under certain circumstances, we join the consensus of courts nationwide in concluding that arrest and incarceration are “properly viewed as the antithesis of a . . . public accommodation’ ” … . Matter of LeTray v New York State Div. of Human Rights, 2020 NY Slip Op 01978, Fourth Dept 3-20-20

March 20, 2020

Arbitration, Contract Law, Employment Law, Human Rights Law, Privilege

ARBITRATOR’S AWARD IN FAVOR OF DONALD J TRUMP FOR PRESIDENT INC VACATED AS VIOLATING PUBLIC POLICY AND EXCEEDING THE ARBITRATOR’S AUTHORITY (FIRST DEPT).

The First Department, reversing Supreme Court, determined the arbitrator’s award in this action based upon a non-disclosure, non-disparagement agreement (NDA) was against public policy and exceeded the arbitrator’s authority. Plaintiff was employed by defendant, Donald J. Trump For President, Inc. She signed the NDA as a condition of her employment. Plaintiff brought an employment discrimination action in Supreme Court alleging a hostile work environment, sexual discrimination, defamation and intentional and negligent infliction of emotional distress. Pursuant to the NDA defendant demanded arbitration. Plaintiff then started a federal lawsuit seeking a declaration that the NDA was void and unenforceable and defendant, pursuant to the NDA again demanded arbitration. The arbitrator found plaintiff had breached the NDA by disclosing confidential information in the federal action and making disparaging comments on her GoFundMe pages and on her Twitter account. The First Department held the information disclosed in the federal action was protected by privilege and the comments posted on the Internet were not part of the defendant’s demand for arbitration:

Plaintiff’s negative statements about defendant, for which the arbitrator made an award, were made in the context of the federal action in which she sought a declaration that the NDA was unenforceable … . By concluding that the allegations in the federal action are tantamount to disclosure of confidential information violative of the NDA, the arbitrator improperly punished plaintiff for availing herself of a judicial forum. Defendant is hard-pressed to explain how plaintiff could have pursued her rights without setting forth necessary factual statements for the federal court to consider.

The remainder of the award was based upon certain Twitter “Tweets” and statements on a GoFundMe page. The nature of the Demand to Arbitrate, however, was limited to statements made “in connection” with this state action. * * * Defendant relies on plaintiff’s actions subsequent to the date of its Demand to Arbitrate in an effort to have the arbitration award confirmed. Since the award takes into account events occurring after the demand, which could not have been legitimately considered at arbitration, the award was made in excess of the arbitrator’s enumerated authority. Denson v Donald J. Trump for President, Inc., 2020 NY Slip Op 00923, First Dept 2-6-20

February 6, 2020

Employment Law, Human Rights Law

ALTHOUGH THE ALLEGED RETALIATORY ACTIONS BY THE EMPLOYER TOOK PLACE YEARS AFTER PLAINTIFF STOPPED WORKING FOR THE EMPLOYER, THE COMPLAINT STATED VALID CAUSES OF ACTION FOR RETALIATORY EMPLOYMENT DISCRIMINATION AND PROMISSORY ESTOPPEL, SUPREME COURT REVERSED (FIRST DEPT).

The First Department, reversing Supreme Court, reinstated the retaliation (employment discrimination) and promissory estoppel causes of action against Artforum International Magazine. Plaintiff, an art curator, alleged sexual harassment by an Artforum publisher. After meeting with the two other publishers about the alleged harassment, the publishers allegedly promised to ensure the harassment would never happen again. Instead, plaintiff alleged, the publishers retaliated against her. The central issue on appeal is whether the actions by Artforum, which took place after plaintiff had left the magazine’s employment, could still be subject to the employment-discrimination prohibitions of the New York City Human Rights Law (NYC Administrative Code 8-107). The First Department held that the close-knit nature of the fine art business, and the effect the alleged retaliation by Artforum can have on plaintiff’s career in the art world, warranted finding plaintiff had stated valid causes of action:

… [T]here is jurisprudential grounding for expanding the boundaries of the employment context that is central to discrimination and retaliation claims in section 8-107(7) to the extent necessary to provide redress when there exists some nexus between the retaliatory harm alleged and a relationship characterized in some manner as one of employment, past or present. …

Similar reasoning can be justified in reading some expansiveness into the undefined and similarly ambiguous term “employment” for remedying retaliation under Administrative Code section 8-107(7). However, some safeguards are necessary to avoid the unintended consequence of allowing a lawsuit against a party who happens to be a plaintiff’s former employer on a retaliation theory when there is no reasonable connection between the harm alleged and that economic relationship. The plaintiff, if not a current employee, should be shown to occupy a subordinate position in an ongoing economic relationship that is threatened by the “employer’s” retaliation, and the nature of the retaliation itself should have a demonstrable nexus to the harm being alleged. Schmitt v Artforum Intl. Mag., Inc., 2019 NY Slip Op 09352, First Dept 12-26-19

December 26, 2019

Administrative Law, Employment Law, Human Rights Law

THIS EMPLOYMENT DISCRIMINATION ACTION SHOULD NOT HAVE BEEN DISMISSED WITHOUT A HEARING (THIRD DEPT).

The Third Department, reversing Supreme Court, determined petitioner’s employment discrimination claim should not have been dismissed without a hearing by the State Division of Human Rights (SDHR):

SDHR is free to dismiss a complaint without conducting a formal hearing where it finds no probable cause to conclude that an employer engaged in discriminatory practices, and we will only disturb that determination “if it is arbitrary, capricious or lacks a rational basis” … . Those flaws are present in a determination that stems from “an inadequate or abbreviated investigation” by SDHR … , such as one in which the agency does not afford the complainant “a full and fair opportunity to present evidence on his [or her] behalf and to rebut the evidence presented by the employer” … . Petitioner argues, among other things, that she was deprived of that opportunity when SDHR refused to consider her response to the notes of a one-party conference at which various individuals associated with [the employer] gave their accounts of her tenure with the firm.

We agree. … [T]he determination must be annulled and the matter remitted so that SDHR may conduct an investigation that is “neither abbreviated nor one-sided” and affords petitioner “a full and fair opportunity to . . . rebut the submissions of [the employer] in opposition to her complaint” … . Matter of Hong Wang v New York State Div. of Human Rights, 2019 NY Slip Op 08463, Third Dept 11-21-19

November 21, 2019

Civil Procedure, Defamation, Education-School Law, Human Rights Law, Immunity, Intentional Infliction of Emotional Distress, Negligence

WHETHER PLAINTIFFS WILL BE ABLE TO ESTABLISH THE CLAIMS IN A COMPLAINT IS NOT CONSIDERED ON A MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM; HERE THE DEFENDANTS’ ARGUMENT THAT PLAINTIFFS WILL NOT BE ABLE TO LEARN AN ESSENTIAL ASPECT OF THEIR CASE IN DISCOVERY BECAUSE OF STATUTORY IMMUNITY WAS NOT RELEVANT TO WHETHER THE COMPLAINT STATED CAUSES OF ACTION (FIRST DEPT).

The First Department determined defendant school’s motion to dismiss the complaint was properly denied. Plaintiffs alleged the school retaliated against them after they complained about race-related issues by making a false child neglect report to Child Protective Services (CPS). The school argued the plaintiffs will not be able to learn the identity of the person who reported the alleged neglect because of the immunity provided by the Social Services Law. The 2nd Department explained that the immunity question is not relevant to whether the complaint states causes of action:

… [P]laintiffs assert causes of action for intentional infliction of emotional distress, defamation, violations of the New York State and City Human Rights Laws, and negligent hiring, training and supervision … .

Defendants moved to dismiss all of these causes of action on the basis that plaintiffs would be unable to prove any of these claims because they did not know the identity of the CPS reporter and would be unable to learn it in discovery. …

… [I]n the context of this motion to dismiss, the Court does not assess the relative merits of the complaint’s allegations against defendant’s contrary assertions or to determine whether or not plaintiffs can produce evidence to support their claims … . Whether plaintiffs “can ultimately establish [their] allegations is not a part of the calculus in determining a motion to dismiss” … . Thus, regardless of whether plaintiffs will be able to obtain disclosure concerning the identity of the CPS reporter (Social Services Law § 422[4][A] …), defendants have not demonstrated entitlement to dismissal of the well-pleaded complaint for failure to state a cause of action … . M.H.B. v E.C.F.S., 2019 NY Slip Op 08276, First Dept 11-14-19

November 14, 2019

Employment Law, Human Rights Law, Municipal Law

PETITIONERS’ EMPLOYMENT DISCRIMINATION AND RETALIATION CLAIMS UNDER THE STATE AND CITY HUMAN RIGHTS LAW AGAINST THE NYC DEPARTMENT OF TRANSPORTATION SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, in a full-fledged opinion by Justice Renwick, determined petitioners’ retaliation and discrimination claims against the NYC Department of Transportation (DOT) should not have been dismissed. The facts of the case are too complex to fairly summarize here:

It is undisputed that petitioners sufficiently stated the first two elements of an employment discrimination claim on behalf of Bharat and Kubair under both the State and City HRLs[Human Rights Law’s] — namely, that they are both members of a protected class and were well qualified for their respective positions …. Petitioners also sufficiently stated the third element — that they were adversely (State HRL) or differently treated (City HRL) …. In particular, petitioners allege that DOT’s failure to upgrade Bharat to SMME II status (a position with greater salary and pension benefits) was discriminatory conduct as a less qualified white employee received the upgrade. * * *

Bharat’s allegations are sufficient, at the pleading stage, to permit the inference that the reason he was not awarded an upgrade and the determination was issued against him was because of his involvement in the prior federal action against the DOT, which resulted in the issuance of a consent decree that subjected the DOT to significant damages … . The petition provides additional support for an inference of retaliation in the fact that an employee with less experience was upgraded over Bharat shortly after the consent decree was issued. Matter of Local 621 v New York City Dept. of Transp., 2019 NY Slip Op 08014, First Dept 11-6-19

November 7, 2019

Education-School Law, Employment Law, Human Rights Law

PLAINTIFF’S EMPLOYMENT DISCRIMINATION ACTION AGAINST THE NYC DEPARTMENT OF EDUCATION SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff’s employment discrimination action could go forward:

Plaintiff, Stevenson Petit, commenced this employment discrimination action on or about July 1, 2016, against his former employer, the Department of Education (DOE). Plaintiff was hired by the DOE in 1994 as a paraprofessional. In 2010, he became a guidance counselor at the Tilden Educational Campus and received tenure.

Plaintiff, a 55-year-old black male from Haiti, who alleges that he studied voodoo, but does not practice it, asserts that he was discriminated against by the principal of the school, Marina Vinitskaya (a Caucasian woman), due to his Haitian origin and her belief that he is a voodoo priest. Since his hiring in 2010, plaintiff had no performance issues until Vinitskaya became the school’s principal in the 2008-2009 school year. He asserts that Principal Vinitskaya then began creating a hostile work environment, by targeting him due to his Haitian origin. Plaintiff asserts that Principal Vinitskaya falsely accused him of misconduct, subjecting him to an Office of Special Investigations investigation, during which Vinitskaya falsely accused plaintiff of being a voodoo priest.

Plaintiff also asserts that Principal Vinitskaya assigned him to an unsanitary basement office upon his return to Tilden Educational Campus from a temporary administrative office assignment. Plaintiff asserts that Principal Vinitskaya did this maliciously in disregard of his seniority even though there were other available offices. Reportedly, both plaintiff and his union submitted administrative complaints to no avail. Ultimately, Principal Vinitskaya demoted plaintiff to the position of temporary substitute, assigned on a weekly basis to different schools.

Crediting plaintiff’s allegations for the purpose of this pre-answer, pre-discovery motion to dismiss the complaint …, we find that the complaint states a causes of action for discrimination, retaliation and hostile work environment in violation of the New York State and New York City Human Rights laws. These allegations are sufficient to give defendant DOE “fair notice” of the nature of plaintiff’s claims and their grounds … . Petit v Department of Educ. of the City of N.Y., 2019 NY Slip Op 07990, First Dept 11-7-19