Monday, November 27, 2017

2d Department Decision Illustrates More Favorable State Discrimination Standards

Kassapian v. City of New York, ____A.D.3d____(2d Dep't. Nov. 15, 2017), is brought to your attention for several reasons.

The case concerned an ALJ who alleged that she was terminated because of her age, sex and retaliation for her speech under the NYS Constitution. She sought to amend her Free Speech Claim to assert a 1983 claim and the court held that a Notice of Claim was not required.

The court also held that the lower court erred by dismissing plaintiff's sexual harassment claims and appeared to apply a much more liberal standard than federal courts do. As the court explained:

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 (see Administrative Code of City of NY § 8-107[1][a][3]). 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 (see Nelson v HSBC Bank USA, 87 AD3d 995, 999). Further, in opposition to the defendants' motion, the plaintiff submitted an affirmation of a separate coworker 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 (see Williams v New York City Hous. Auth., 61 AD3d 62, 80), which should be raised in the defendants' answer and does not lend itself to a pre-answer motion to dismiss (see Kaplan v New York City Dept. of Health & Mental Hygiene, 142 AD3d 1050, 1051).
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 (see Administrative Code of City of NY § 8-107[1][a][3]; Bennett v Health Mgt. Sys., Inc., 92 AD3d 29, 40; cf. Askin v Department of Educ. of the City of N.Y., 110 AD3d 621, 621-622). The fact that the individual defendants were approximately the same age as the plaintiff does not render the cause of action insufficient (see Rollins v Fencers Club, Inc., 128 AD3d 401, 402).
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. Under the NYCHRL, the retaliatory act or acts complained of "must be reasonably likely to deter a person from engaging in protected activity" (Administrative Code of City of NY § 8-107[7]; see Brightman v Prison Health Serv., Inc., 108 AD3d 739, 739). 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 (see Ananiadis v Mediterranean Gyros Prods., Inc., 151 AD3d 915, 920; Fletcher v Dakota, Inc., 99 AD3d 43, 51-52; Williams v New York City Hous. Auth., 61 AD3d at 71). 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.

Friday, November 17, 2017

Whistleblower States A Claim Under New York Law

Demir v. Sandoz, Inc. ____A.D, 3d___(1st Dep't. Nov. 14, 2017), is an interesting decision for several reasons. First, the Appellate Division holds that a whistleblower states a claim under New York Labor Law Section 740 even if no violation of law is alleged. As the court states:
[P}laintiff adequately pleaded a Labor Law § 740 violation against defendants in alleging that its manufacturer and procurement of chemical ingredients for defendants' highest grossing product was not compliant with FDA regulatory requirements governing the drug's safety and efficacy, and she need not plead an actual violation of laws or regulations (see Webb—Weber v. Community Action for Human Servs., Inc., 23 NY3d 448 [2014]).
Next, the court held that by proceeding under Section 740, the plaintiff did not elect her remedies which would bar an employment discrimination claim:
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.
Finally, the court also held that the "relations back" doctrine applies to Section 740 cases and therefore, the case was not time-barred:
 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. This sufficed to give defendants notice of the transactions or occurrences to be proved in asserting the Section 740 claim in the later Second Amended Complaint (see Giambrone v Kings Harbor Multicare Ctr., 104 AD3d 546 [1st Dept 2013]). Nor is there any basis or sound policy reason to deem the relation back doctrine inapplicable to such whistleblower claims. The right to sue an employer for an allegedly retaliatory discharge predates enactment of that statute and thus is not the kind of "statute of repose" to which the relation back doctrine does not apply (Goldstein v New York State Urban Dev. Corp., 13 NY3d 511, 521 [2009]), nor is the time limit "so incorporated with the remedy given as to make it an integral part of it and the condition precedent to the maintenance of the action at all."
Importantly, this case involved a motion to dismiss and involved legal standards which requires that complaints be liberally construed in favor of the plaintiff. That same standard would not apply later in the litigation. In order to prevail, it appears that under Webber, plaintiff would still have to prove an actual violation of law.

Tuesday, November 7, 2017

Interesting 2d Circuit School District ADEA Decision

PFIZENMAYER v. HICKSVILLE PUBLIC SCHOOLS, ____F.3d____(2d Cir. Nov. 2, 2017), is an interesting decision. The court grants the school district summary judgement in an ADEA discharge case. I bring it to your attention because the court does an excellent job summarizing the applicable law. As the court stated:

A plaintiff asserting an employment discrimination claim under the ADEA must plausibly allege that her employer took adverse action against her and that her age was the “but-for” cause of the adverse action. See Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 86–87 (2d Cir. 2015). “A plaintiff sustains an adverse employment action if he or she endures a ‘materially adverse change’ in the terms and conditions of employment. To be ‘materially adverse’ a change in working conditions must be ‘more disruptive than a mere inconvenience or an alteration of job  responsibilities.’” Kassner v. 2nd Ave. Delicatessen Inc., 496 F.3d 229, 238 (2d Cir. 2007) (quoting Galabya v. N.Y.C. Bd. of Educ., 202 F.3d 636, 640 (2d Cir. 2000)). Here, the district court correctly determined that the conduct described in Pfizenmayer’s complaint either could not form the basis for a timely claim or did not rise to the level of an adverse employment action. Further, Pfizenmayer has not plausibly alleged, for the purposes of a constructive discharge claim, that the defendants discriminated against her “to the point such that [her] ‘working conditions bec[a]me so intolerable that a reasonable person in [her] position would have felt compelled to resign.’” Green v. Brennan, 136 S. Ct. 1769, 1776 (2016) (quoting Pa. State Police v. Suders, 542 U.S. 129, 141 (2004)). Second, Pfizenmayer contends that the district court erred in dismissing her ADEA hostile work environment claim. “An actionable discrimination claim based on hostile work environment under the ADEA is one for which ‘the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently pervasive to alter the conditions of the victim’s employment . . . .’” Kassner, 496 F.3d at 240 (quoting Brennan v. Metro. Opera Ass’n, 192 F.3d 310, 318 (2d Cir. 1999)). Here, though certain aspects of Pfizenmayer’s claimed treatment are troubling, Pfizenmayer has not plausibly alleged that her “workplace [was] permeated with discriminatory intimidation, ridicule, and insult” of a kind that “alter[ed] the conditions of [her] employment.” Id. (quoting Brennan, 192 F.3d at 318). Third, Pfizenmayer argues that the district court erred in dismissing her ADEA retaliation claim. However, Pfizenmayer has not plausibly alleged that she engaged in any protected activity of which the defendants were aware. See Kessler v. Westchester Cty. Dep’t of Soc. Servs., 461 F.3d 199, 205–06 (2d Cir. 2006). “[I]mplicit in the requirement that the employer have been  aware of the protected activity is the requirement that it understood, or could reasonably have understood, that the plaintiff’s opposition was directed at conduct prohibited by” the ADEA. Galdieri-Ambrosini v. Nat’l Realty & Dev. Corp., 136 F.3d 276, 292 (2d Cir. 1998).  

Tuesday, October 17, 2017

Mistaken Perception of Alcoholism Is Not Protected Under The NYC Human Rights Law

Makinen v. City of New York, ___N.Y.3d___(Oct. 17, 2017), is an interesting case to be aware of. The case addressed a certified question from the Second Circuit, namely whether the mistaken perception of alcoholism is protected under the NYC Human Rights Law and the Court concluded that it was not. As the Court explained:
As the Second Circuit noted, there is no ambiguity about the plain language of the NYCHRL, which is only open to one reasonable interpretation: the disability of alcoholism "shall only apply to a person who (1) is recovering or has recovered and (2) currently is free of such abuse" (Makinen, 857 F3d at 496). Indeed, by its plain language, the NYCHRL does not regulate employer actions  motivated by concern with respect to the abuse of alcohol. Rather, the NYCHRL covers circumstances in which employers unfairly typecast alcoholics who have sought treatment and who are not presently abusing alcohol, so as to ensure that such persons are afforded a fair opportunity at recovery. Said differently, the NYCHRL provides that, with respect to alcoholism, a person is considered to be disabled (so as to trigger the protections of that law) only when he or she "is recovering or has recovered" and "currently is free of such abuse" (§ 8-102 [16] [c]; see § 8-107 [1] [a] [3]).

Thursday, October 12, 2017

Duty of Fair Representation Does Not Preempt NYS Human Rights Law

Figueroa v. Foster, ____F.3d____(2d Cir. July 17, 2017), is an interesting decision. The Duty of Fair Representation outlaws unions actions that are arbitrary, discriminatory or in bad faith. But the NYS Human Rights law also outlaws discrimination. Is it preempted? No, says the 2d Circuit, in an exhaustive opinion reasoning, in part:

As noted above, the anti‐discrimination roots of the duty of fair representation are long‐established. In Vaca, the Supreme Court observed that the “statutory duty of fair representation was developed [in the 1940s] in a series of cases involving alleged racial discrimination by unions certified as exclusive bargaining representatives under the Railway Labor Act [(“RLA”)], and was soon extended to unions certified under the [NLRA].” 386 U.S. at 177 (citations omitted). As this Court more recently explained, “[a] union breaches its duty of  fair representation if its actions with respect to a member are arbitrary,  discriminatory, or taken in bad faith.” Fowlkes, 790 F.3d at 388. The purpose of  the duty of fair representation, therefore, can easily be said to encompass a  purpose of prohibiting discrimination. Indeed, the Local and the Commissioner agree that the NYSHRL serves the  same purpose of prohibiting discrimination as does the NLRA’s duty of fair representation. Each serves to reinforce the anti‐discriminatory purpose of the other. This mutual service is not a conflict such that the duty of fair representation and the NYSHRL “cannot be reconciled or consistently stand together.” In re MTBE Prod. Liab. Litig., 725 F.3d at 102. Instead, the two work in tandem to protect union members from invidious discrimination in all of its forms. This opinion addresses only the Local’s claim that the duty of fair representation preempts the NYSHRL in its entirety when applied to unions acting in their capacity as collective bargaining agents. We do not purport to address every potential conflict between the NYSHRL and federal law. For  example, NYSHRL claims are subject to a one‐year statute of limitations, see N.Y.  Exec. Law § 297(5), whereas private duty of fair representation claims are subject to a six‐month statute of limitations, see 29 U.S.C. § 160(b); DelCostello v. Int’l Bhd. 13 of Teamsters, 462 U.S. 151, 154‐55 (1983), and overlapping Title VII claims filed  with the SDHR are subject to a 300‐day statute of limitations, see Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 78‐79 (2d Cir. 2015). We need not decide today which of these statutes of limitations applies to NYSHRL claims against unions because the present appeal does not raise facts that implicate any  such conflict. We hold only that the NYSHRL presents no potential conflict so incompatible with federal labor laws that all of its provisions must fall. We leave for other cases to resolve more specific conflicts between the NYSHRL and federal law as they arise.  
So, why is this significant? First, as indicated by the 2d Circuit itself, different statute of limitations apply to DFR claims than to discrimination claims. But, second and more importantly, much more deference is paid to union actions under the DFR standard than under a discrimination standard. Undoubtedly, that is why  the plaintiff here was the President of a large labor union seeking to declare that in DFR cases alleging discrimination, state law was preempted, leaving the DFR standard which is more favorable towards unions.

Stay tuned as this issue is not over. Law review commentary would be most welcome.

Tuesday, September 26, 2017

Teacher who Reported That Another Teacher Improperly Coached Students is not Protected Under First Amendment

Cohen v. NYC Department of Education, ____Fed. Appx.____(2d Cir. Sept. 20, 2017), demonstrates just how narrow the protection are for public employees under the First Amendment. There, a teacher noticed that students in another teacher's class received perfect scores. He suspected that the teacher improperly coached his students. He then received negative ratings and argued that was because of his report. The 2d Circuit held that the teacher's conduct here was not protected under the First Amendment, reasoning:

Only certain types of speech made by government employees are protected by the First Amendment: it is necessary (but not sufficient) that the government employee “sp[eak] ‘as a citizen’ rather than solely as an employee.” Matthews v. City of New York, 779 F.3d 167, 172 (2d Cir. 2015) (quoting Jackler v. Byrne, 658 F.3d 225, 235 (2d Cir. 2011)). There is no “brightline rule” to determine whether or not “a public employee is speaking pursuant to [his] official duties,” i.e., speaking as an employee rather than as a citizen. Ross v. Breslin, 693 F.3d 300, 306 (2d Cir. 2012). “Courts must examine the nature of the plaintiff’s job responsibilities, the nature of the speech, and the relationship between the two.” Id. 
In Weintraub v. Board of Education, a teacher alleged retaliation after complaining that a school administrator had declined to punish a student who had thrown books at the teacher. 593 F.3d 196, 198 (2d Cir. 2010). The teacher’s complaint was made “pursuant to his official duties because it was part-and-parcel of his concerns about his ability to properly execute his duties as a public school teacher-- namely, to maintain classroom discipline.” Id. at 203 (citation and quotation marks omitted). Consequently, the teacher spoke as an employee rather than as a citizen.
So too here. Cohn and the other earth science teachers were responsible for setting up the laboratory exam, creating the answer key, and grading the exam. As in Weintraub, Cohn’s speech was “part-and-parcel” of his job responsibilities--here, ensuring the fair and proper administration of a test for which he had some responsibility. Id. The alert to school officials that another teacher may have helped students cheat was therefore “pursuant to his official duties.” Id. Accordingly, Cohn was speaking as an employee--rather than as a citizen--and his speech is unprotected by the First Amendment.

Monday, September 11, 2017

SDNY Approves FLSA Collective Action For Unpaid Overtime

Garcia v. 34th Street Coffee, ____F. Supp. 2d ____(S.D.N.Y. Aug. 30, 2017), NYLJ Sept. 11, 2017 (registration required), is brought to your attention because the Court does an excellent job of summarizing the standards for a collective action under the FLSA for unpaid Overtime. As the Court stated:

The Second Circuit has endorsed a two-step process for determining whether an action may proceed collectively under Section 216(b). See, e.g., Myers, 624 F.3d at 554. In the first stage of the analysis, a district court must make an initial determination as to whether the named plaintiffs are "similarly situated" to the putative collective members. Id.; see also Gauman v. DL Rest. Dev. LLC, No. 14 Civ. 2587 (RWS), 2015 WL 6526440, at *1 (S.D.N.Y. Oct. 28, 2015) ("The Court is not concerned with weighing the merits of the underlying claims, but rather with determining whether there are others similarly suited who could opt into the lawsuit and become plaintiffs."); Cunningham v. Elec. Data Sys. Corp., 754 F. Supp. 2d 638, 644 (S.D.N.Y. 2010) (quoting Lynch v. United Servs. Auto. Ass'n, 491 F. Supp. 2d 357, 368 (S.D.N.Y. 2007)). If a plaintiff makes a "modest factual showing" that she and the potential opt-in plaintiffs "together were victims of a common policy or plan that violated the law," conditional certification and court-facilitated notice is appropriate. Myers, 624 F.3d at 555 (citation omitted); see also Cunningham, 754 F. Supp. 2d at 644; Lynch, 491 F. Supp. 2d at 368. This initial phase is often termed the "notice stage." Lynch, 491 F. Supp. 2d at 368.
The second stage, after discovery is completed, is where "if it appears that some or all members of a conditionally certified class are not similarly situated," a "defendant may move to challenge certification, at which point a court will conduct a more searching factual inquiry as to whether the class members are truly similarly situated." Viriri v. White Plains Hosp. Med. Ctr., No. 16 Civ. 2348 (KMK), 2017 WL 2473252, at *2 (S.D.N.Y. June 8, 2017) (internal quotation marks omitted) (quoting Jenkins v. TJX Cos., 853 F. Supp. 2d 317, 320-21 (E.D.N.Y. 2012)). At that time, "[i]f the claimants are indeed similarly situated, the collective action proceeds to trial, and if they are not, the class is decertified, the claims of the opt-in plaintiffs are dismissed without prejudice, and the class representative may proceed on his or her own claims." Malloy v. Richard Fleischman & Assocs. Inc., No. 09 Civ. 322 (CM), 2009 WL 1585979, at *2 (S.D.N.Y. June 3, 2009) (citing Lee v. ABC Carpet & Home, 236 F.R.D. 193, 197 (S.D.N.Y. 2006).

Tuesday, September 5, 2017

Confidentiality Rule That Prohibits Discussions About Salary Violates The NLRA

NLRB v. Long Island Association, ___F. 3d___(2d Cir. Aug. 31, 2017, is an interesting decision. The Court holds that an employer violated 8(a)(1) of the NLRA for discharging an employee who refused to sign an employer's confidentiality rule. That rule, among other things, stated that employees cannot disclose salaries. Of interest is that this employer was not organized and this is yet another example of the application of the NLRA to non-union employers. As the court stated:

 “The [NLRB] has long adhered to and applied the principle that discipline  imposed pursuant to an unlawfully overbroad rule is unlawful.” The Cont’l Grp., 3 Inc., 357 N.L.R.B. 409, 410 (2011). This is called the Double Eagle rule after Double  Eagle Hotel & Casino, 341 N.L.R.B. 112 (2004). See The Cont’l Grp., Inc., 357 N.L.R.B. 5 at 410. One of the central concerns animating the Double Eagle rule is that “the  mere maintenance of an overbroad rule tends to inhibit employees who are  considering engaging in legally protected activities by convincing them to refrain  from doing so rather than risk discipline.” Id. at 411. Thus, “[a]n employer is not free to evade liability through the device of utilizing a rule prohibiting activity protected by Section 7 of the [NLRA] and by then basing its discipline on the fact that the employee has violated the rule, thereby being insubordinate.” Kolkka  Tables & Finnish‐Am. Saunas, 335 N.L.R.B. 844, 849 (2001). In other words, “an employer may not discharge an employee for refusing to comply with an unlawful order prohibiting protected activity.” Quantum Elec., Inc., 341 N.L.R.B. 15 1270, 1280‐81 (2004). The rule that has emerged, therefore, is “that an employer  may not take coercive action against an employee . . . for refusing to comply with a policy that . . . itself deters protected activity” in violation of Section 8(a)(1)

2d Department Decision Illustrates More Favorable State Discrimination Standards

Kassapian v. City of New York , ____A.D.3d____(2d Dep't. Nov. 15, 2017), is brought to your attention for several reasons. The case co...