EMPLOYMENT LAW - IF THE UNION IS IMPROPERLY WITHDRAWING SUPPORT ON A VALID CLAIM

Jusino v. FEDERATION OF CATHOLIC TEACHERS, INC., 2024 NY Slip Op 50315,  - Sup Ct. Richmond Co, March 25, 2024:

"The plaintiff in this action, Ramon K. Jusino (hereinafter "Plaintiff"), was a high school theology teacher employed by Notre Dame Academy of Staten Island (hereinafter "NDA"), a Catholic high school. In this capacity, Plaintiff was a member of the Federation of Catholic Teachers, Inc. (hereinafter "Defendant"), the defendant in this action, which serves as a labor organization representing teachers employed by Catholic schools. Plaintiff commenced this action by filing a summons and complaint on August 10, 2023, wherein he asserted causes of action for breach of contract and unlawful discrimination.

Defendant argues herein that Plaintiff's claim for breach of contract must be dismissed as it was filed outside of the applicable statute of limitations (CPLR 3211 [a] [5]). Defendant further argues that Plaintiff's claims for both breach of contract and unlawful discrimination must be dismissed because the complaint failed to state proper causes of action (id. 3211[a][7]). Plaintiff filed opposition, to which Defendant filed a reply. Oral argument was heard on January 25, 2024, with Plaintiff appearing as an unrepresented litigant and Defendant appearing by counsel. The motion was marked as fully submitted, and the Court's decision was reserved.

Plaintiff's causes of action arise from the termination of Plaintiff's employment with NDA, which predicated arbitration pursuant to the collective bargaining agreement between Defendant and NDA, with Defendant retaining counsel for Plaintiff within the arbitration. Plaintiff contemporaneously filed an action against NDA in federal court, as an unrepresented litigant, asserting a claim of unlawful discrimination. Article XXIX of the collective bargaining agreement provides that "neither [NDA] nor [Defendant] shall discriminate against teachers on the basis of ... race, color, [or] national origin ..." In preparing for the arbitration, Defendant advised Plaintiff that its position would be based only on a "just cause" theory, and not include a discrimination claim similar to Plaintiff's position in his separate litigation. Plaintiff now seeks recovery for Defendant's refusal to pursue a discrimination claim which, he argues, amounted to discrimination in and of itself, and a breach of Defendant's collective bargaining agreement, whereunder Plaintiff was covered.

I. Plaintiff's Cause of Action for Breach of Contract

The Court will first address the issue of timeliness with respect to the cause of action for breach of contract. On a motion to dismiss a cause of action on such grounds (CPLR 3211[a][5]), a defendant bears the initial burden of establishing, prima facie, that the time in which to sue has expired (Wells Fargo Bank, N.A. v Burke, 155 AD3d 668, 669 [2d Dept 2017]). Within the verified complaint, Plaintiff asserted that the cause of action arose on May 17, 2019, when Defendant confirmed with the arbitrator that the hearing would be based upon the question of whether Plaintiff's employment was terminated for just cause, rather than unlawful discrimination. Defendant argues that the claim should be governed by the statute of limitations for a cause of action for a breach of duty for fair representation, which requires commencement within four months (CPLR. 217[2][a]; see Dolce v Bayport — Blue Point Union Free Sch. Dist., 286 AD2d 316 [2d Dept 2001]). Such a deadline would have expired on September 17, 2019, almost four years prior to Plaintiff's commencement of this action.

The burden then shifts to the plaintiff to "aver evidentiary facts establishing that the action was timely or to raise an issue of fact as to whether the action was timely" (Wells Fargo Bank, N.A., 155 AD3d at 669, quoting Lessoff v 26 Ct. St. Assoc., LLC, 58 AD3d 610, 611 [2d Dept 2009]). "The plaintiff has the burden of establishing that the statute of limitations has not expired, that it is tolled, or that an exception to the statute of limitations applies" (Federal Natl. Mtge. Assn. v Schmitt, 172 AD3d 1324, 1325 [2d Dept 2019], quoting Lake v New York Hosp. Med. Ctr. of Queens, 119 AD3d 843, 844 [2d Dept 2014]). Plaintiff does not argue any of these factors but, instead, that this claim should be governed by the statute of limitations for an action concerning a contractual obligation, which is six years (id. 213 [2]), placing it comfortably within the statutory time for commencement. The Court disagrees.

The statute of limitations for an alleged breach of duty for fair representation applies to proceedings against an organization subject to the Public Employees' Fair Employment Act (Civil Service Law § 201 [5]) or the New York State Labor Relations Act (Labor Law § 701 [5]). Defendant is subject to the latter, as a labor organization "which exists and is constituted for the purpose, in whole or in part, of collective bargaining, or of dealing with employers concerning grievances, terms or conditions of employment, or of other mutual aid or protection" (id.), despite the non-public employment of its members (see New York State Empl. Rels. Bd. v Christ the King Regional High Sch., 90 NY2d 244 [1997]). Plaintiff conceded as much in his verified complaint, wherein he stated, "Defendant ...is a labor organization as defined by the New York State Human Rights Law § 292(3), and the New York City Human Rights Law § 8-102."

Therefore, Plaintiff's cause of action for a breach of contract will be dismissed as time-barred. The Court will dispense with considering whether this claim should be dismissed under any other provision, as such a discussion would be academic.

II. Plaintiff's Causes of Action for Unlawful Discrimination

Defendant seeks dismissal of the discrimination claims based on Plaintiffs' failure to state a cause of action (CPLR 3211 [a][7]). In considering dismissal under this theory, the complaint should be liberally construed in the light most favorable to the plaintiff, and all allegations must be accepted as true (Leon v Martinez, 84 NY2d 83, 87-88 [1994]). Initially, the sole criterion is whether the pleading states a cause of action, and if, from the pleading's four corners, the court discerns factual allegations that, when taken together, manifest any cause of action cognizable at law, the motion will fail (Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]). The question is whether the plaintiff has a cause of action, not whether the plaintiff has stated one (Steve Elliot, LLC v Teplitsky, 59 AD3d 523 [2d Dept 2009], citing Guggenheimer, 43 NY2d 268).

With respect to the second and third causes of action in his verified complaint, Plaintiff alleges that:

"Defendant wantonly and willfully colluded with [NDA] by intentionally refusing to make any claim of retaliation on Plaintiff's behalf during the entire grievance and arbitration process. Defendant, in effect, aided and abetted [NDA]'s retaliatory conduct towards Plaintiff, squarely making Defendant a co-conspiring perpetrator of unlawful discrimination/retaliation against Plaintiff."

The New York State Human Rights Law identifies an "unlawful discriminatory practice" as any action by a labor organization to "... discriminate against any person because he or she has opposed any practices forbidden under this article or because he or she has filed a complaint, testified or assisted in any proceeding..." (Executive Law § 296[1][e]).

The New York City Human Rights Law identifies an "unlawful discriminatory practice" as any action by a labor organization to "... represent that membership is not available when it is in fact available, or to discriminate in any way against any of its members ..." based upon "actual or perceived ... race, ... color, ... [or] national origin..." (NYC Admin. Code § 8-107 [1] [c]). The statute further identifies an "unlawful discriminatory practice" as any action to "retaliate ... against any person because such person has (i) opposed any practice forbidden under this chapter, (ii) filed a complaint ... under this chapter, (iii) commenced a civil action alleging ... an unlawful discriminatory practice under this chapter, ... or (vi) provided any information to the commission pursuant to the terms of a conciliation agreement" (id. § 8-107[7]).

Both statutes further dictate that "[i]t shall be an unlawful discriminatory practice for any person to aid, abet, incite, compel or coerce the doing of any of the acts forbidden under this [provision], or to attempt to do so" (Executive Law § 296[6]; NYC Admin. Code § 8-107[6]).

To prove retaliation, Plaintiff would need to show that (1) he has engaged in protected activity, (2) his employer was aware that she participated in such activity, (3) he suffered an adverse employment action, and (4) a causal connection between the protected activity and the adverse action (Asabor v Archdiocese of NY, 102 AD3d 524, 528 [1st Dept 2013], citing Forrest v Jewish Guild for the Blind, 3 NY3d 295, 312-313 [2004]). Under the circumstances alleged, it would be NDA's participation in discrimination that "serves as the predicate for the imposition of liability on others for aiding and abetting" a discriminatory practice (Santana v Yonkers City Sch. Dist., 2023 NY Slip Op 23386, quoting Murphy v ERA United Realty, 251 AD2d 469, 472 [2d Dept 1998]). Defendant may be held liable for aiding and abetting the discriminatory conduct if it "actually participated" in NDA's conduct that gave rise to the discrimination claim (see Valentin v Staten Is. Univ. Hosp., 2011 NY Slip Op 33343[U], 13-14 [Sup Ct, Richmond County], citing Matter of Medical Express Ambulance Corp. v Kirkland, 79 AD3d 886 [2d Dept 2010]).

Plaintiff attached to his verified complaint, two emails from his counsel during the arbitration, dated September 23, 2018 and May 1, 2019, wherein said counsel informed Plaintiff that he was retained by Defendant solely on the issue of whether Plaintiff was terminated for just cause, and not on the issue of discrimination. In the body of the verified complaint, Plaintiff asserted that Defendant's decision to eschew the discrimination claim, despite the express prohibition against such conduct within the collective bargaining agreement, shows that Defendant "willfully colluded" with NDA in the alleged retaliation.

The Court finds that these factual allegations manifest a cause of action for aiding and abetting an unlawful discriminatory practice cognizable at law (Guggenheimer, 43 NY2d at 275; Executive Law § 296[1][e]; NYC Admin. Code § 8-107[1][c]; id. § 8-107[7]).

III. Decision and Order

Accordingly, it is hereby ORDERED that Defendant's motion is GRANTED to the extent that Plaintiff's first cause of action for breach of contract is hereby dismissed. Any items of relief sought by the motion that are not addressed herein are deemed to be DENIED."

WHEN SETTLING A NEW YORK DISCRIMINATION/HARASSMENT CLAIM WITH CONFIDENTIALITY CLAUSE

It is a two-stage process. New York General Obligations Law § 5-336 provides:

"1. (a) Notwithstanding any other law to the contrary, no employer, its officers or employees shall have the authority to include or agree to include in any settlement, agreement or other resolution of any claim, the factual foundation for which involves discrimination, in violation of laws prohibiting discrimination, including but not limited to, article fifteen of the executive law, any term or condition that would prevent the disclosure of the underlying facts and circumstances to the claim or action unless the condition of confidentiality is the complainant's preference.

(b) Any such term or condition must be provided in writing to all parties in plain English, and, if applicable, the primary language of the complainant, and the complainant shall have twenty-one days to consider such term or condition. If after twenty-one days such term or condition is the complainant's preference, such preference shall be memorialized in an agreement signed by all parties. For a period of at least seven days following the execution of such agreement, the complainant may revoke the agreement, and the agreement shall not become effective or be enforceable until such revocation period has expired.

(c) Any such term or condition shall be void to the extent that it prohibits or otherwise restricts the complainant from: (i) initiating, testifying, assisting, complying with a subpoena from, or participating in any manner with an investigation conducted by the appropriate local, state, or federal agency; or (ii) filing or disclosing any facts necessary to receive unemployment insurance, Medicaid, or other public benefits to which the complainant is entitled.

2. Notwithstanding any provision of law to the contrary, any provision in a contract or other agreement between an employer or an agent of an employer and any employee or potential employee of that employer entered into on or after January first, two thousand twenty, that prevents the disclosure of factual information related to any future claim of discrimination is void and unenforceable unless such provision notifies the employee or potential employee that it does not prohibit him or her from speaking with law enforcement, the equal employment opportunity commission, the state division of human rights, a local commission on human rights, or an attorney retained by the employee or potential employee. "

LANDLORD ONLY LIABLE TO A TENANT FOR FAILURE TO ACT UPON RACIAL INCIDENTS OF ANOTHER TENANT UNDER FAIR HOUSING ACT IF THERE WAS SUBSTANTIAL CONTROL AND DELIBERATE INDIFFERENCE

In the spotlight again is Francis v. KINGS PARK MANOR, INC., Court of Appeals, 2nd Circuit March 25, 2021. 

Last year, a panel court held: "Just over fifty years ago, spurred by the assassination of Dr. Martin Luther King, Jr., Congress enacted Title VIII of the Civil Rights Act of 1968, commonly referred to as the Fair Housing Act of 1968 (“FHA” or “Act”), 42 U.S.C. § 3601 et seq., a landmark piece of civil rights legislation that accompanied the Civil Rights Act of 1964 and the Voting Rights Act of 1965. The main question before us is whether a landlord may be liable under the FHA for failing to take prompt action to address a racially hostile housing environment created by one tenant targeting another, where the landlord knew of the discriminatory conduct and had the power to correct it. In holding that a landlord may be liable in those limited circumstances, we adhere to the FHA’s broad language and remedial scope and agree with the views of the United States Department of Housing and Urban Development (“HUD”), the agency tasked with administering the FHA. " 

See A Lawyer's Blog - Jon Michael Probstein, Esq.: LANDLORD CAN BE LIABLE TO A TENANT FOR FAILURE TO ACT UPON RACIAL INCIDENTS OF ANOTHER TENANT UNDER FAIR HOUSING ACT (jmpattorney.blogspot.com)

After ordering a rehearing en banc, the court now holds:

"The FHA makes it unlawful "[t]o discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of race . . . ."^[16] When, as here, a plaintiff brings a claim under the FHA that does not rest on direct evidence of landlord discrimination, we analyze the claim under the familiar McDonnell Douglas burden-shifting framework first developed in Title VII cases.^[17] Plaintiffs have specific, "reduced" pleading burdens in cases subject to the McDonnell Douglas analysis.^[18] For a plaintiff's claim to survive a motion to dismiss in a McDonnell Douglas case, he must plausibly allege that he "[1] is a member of a protected class, . . . [2] suffered an adverse . . . action, and [3] has at least minimal support for the proposition that the [housing provider] was motivated by discriminatory intent."^[19]

We conclude that the factual allegations in Francis's Complaint do not suffice to carry his modest burden.^[20] Although Francis has claimed that he is a member of a protected class, his Complaint lacks even "minimal support for the proposition" that the KPM Defendants were motivated by discriminatory intent.^[21] The Complaint alleges, in a conclusory fashion, only that the "KPM Defendants have intervened against other tenants at Kings Park Manor regarding non-race-related violations of their leases or of the law."^[22] But because the Complaint does not provide enough information to compare the events of which Francis complains to the KPM Defendants' responses to other violations, there is no factual basis to plausibly infer that the KPM Defendants' conduct with regard to Francis was motivated by racial animus.^[23]

To hold that Francis has plausibly pleaded discriminatory intent on these facts would be to indulge the speculative inference that "because the KPM Defendants did something with regard to some incident involving some tenant at some past point," racial animus explains the failure to intervene here.^[24] Francis does not allege that the KPM Defendants regularly intervened in other disputes among tenants, much less that it had a practice of addressing tenant-on-tenant harassment when the matter did not involve an African American victim and a white harasser. Francis's vague allegation that the "KPM Defendants have intervened against other tenants . . . regarding non-race-related violations of their leases" could refer to efforts to collect rent, stop unauthorized subletting, or remedy improper alterations to the rental premises. Only untethered speculation supports an inference of racial animus on the part of the KPM Defendants. We decline to engage in such speculation.^[25]

In an apparent attempt to avoid the obligation to plead facts that plausibly support an inference that the KPM Defendants were motivated by racial animus, Francis asserts that his allegations establish that the KPM Defendants intentionally discriminated against him under a deliberate indifference theory of liability. This theory of liability has been applied almost exclusively in custodial environments such as public schools and prisons, where it is clear that the defendant has both "substantial control over the context in which harassment occurs" and "a custodial [power over the harasser] . . . permitting a degree of supervision and control that could not be exercised over free adults."^[26] Francis argues that a landlord may be held liable for intentional discrimination if the landlord "ignore[d] the known discriminatory harassment of a third party."^[27]

We assume, for purposes of this appeal, that deliberate indifference may be used to establish liability under the FHA when a plaintiff plausibly alleges that the defendant exercised substantial control over the context in which the harassment occurs and over the harasser.^[28] Nevertheless, we hold that Francis has failed to state a claim because his Complaint provides no factual basis to infer that the KPM Defendants had "substantial control over [Endres] and the context in which the known harassment occur[red]."^[29] Nor can such control be reasonably presumed to exist in the typically arms-length relationship between landlord and tenant, unlike the custodial environments of schools and prisons.^[30] The typical powers of a landlord over a tenant— such as the power to evict—do not establish the substantial control necessary to state a deliberate indifference claim under the FHA.^[31]

Francis's appeal to the employment context to support his theory of liability for landlords under the FHA is also unavailing. He argues that since employers are responsible for employee-on-employee harassment under Title VII, landlords must be responsible for tenant-on-tenant harassment under similarly worded provisions of the FHA.^[32] But the employer-employee relationship differs from the landlord-tenant relationship in important ways. Employees are considered agents of their employer. And a landlord's control over tenants and their premises is typically far less than an employer's control over "free adult[]" employees and their workspaces.^[33] We are hard-pressed to presume that an employer's manner and degree of control over its agent-employees is equivalent to that of a landlord over its tenants.^[34]

To hold the KPM Defendants liable for Endres's conduct on the facts alleged would also be inconsistent with the background tort principles against which the FHA was enacted. The Supreme Court has been clear that when Congress creates "a species of tort liability,"^[35] as it did in enacting the FHA, Congress "legislates against a legal background of ordinary tort-related . . . liability rules" which it presumptively "intends its legislation to incorporate."^[36]

Under New York law, landlords have a duty "to take reasonable precautionary measures to protect members of the public from the reasonably foreseeable criminal acts of third persons . . . on the premises."^[37] But New York tort law has long been clear that a landlord has no general duty to protect tenants even from "the criminal acts of yet another tenant, since it cannot be said that [a] landlord ha[s] the ability or a reasonable opportunity to control [the offending tenant]" and the "power to evict cannot be said to . . . furnish" such control.^[38]

It is true that the Seventh Circuit, in Wetzel v. Glen St. Andrew Living Cmty., LLC, 901 F.3d 856 (7th Cir. 2018), has recognized a deliberate indifference theory of liability for a claim of discrimination under the FHA.^[39] But, unlike in this case, the plaintiff's allegations in Wetzel gave rise to the plausible inference that the defendant-landlord had unusual supervisory control over both the premises and the harassing tenants.^[40] Moreover, as the panel dissenter observed, the landlord in Wetzel, unlike the KPM Defendants, was alleged to have affirmatively acted against the plaintiff.^[41] In the absence of any factual allegations suggesting that the KPM Defendants had a similarly unusual degree of control over the premises and tenants, or actively facilitated or compounded harm to Francis, the Seventh Circuit's decision in Wetzel does not suggest, much less compel, a different outcome here.^[42]

As a final matter, we note that even if Francis had plausibly pleaded that the KPM Defendants had substantial control over Endres, he would still have failed to state an FHA claim for discrimination under a deliberate indifference theory. To state a deliberate indifference claim, a plaintiff must plausibly plead that the defendant's response to harassment by a third party was "clearly unreasonable in light of the known circumstances."^[43] It cannot be said that the KPM Defendants' inaction was "clearly unreasonable" in light of the circumstances described in Francis's Complaint. The KPM Defendants were aware that the police were involved, and indeed, the police conducted an investigation that ultimately led to Endres's arrest and prosecution.^[44] We therefore have no factual basis to infer that the KPM Defendants clearly acted unreasonably.^[45]

We think that our decision today coheres with the aims of those who are concerned about mounting housing costs for renters and increasing risks of housing loss for some of the most vulnerable among us.^[46] The alternative pleading standard proposed by Francis would generate considerable uncertainty about the scope of a landlord's responsibility for tenant behavior. The prophylactic measures by which landlords would manage the ensuing uncertainty would come at a cost, one that would almost certainly be borne, in one form or another, by current and prospective renters.^[47]

Finally, we note that laws making landlords legally responsible for discriminatory tenant misbehavior are conspicuously absent from the abundant and exemplary history of New York legislation designed to proscribe discrimination in housing.^[48] If the legislative bodies of New York have not seen fit to impose such landlord liability, there is good reason to doubt that it is a suitable tool for promoting fair housing. Contrary to the suggestions of a dissenting colleague, such observations do not indicate that our interpretation of the FHA improperly "puts a policy concern ahead of a legal mandate."^[49] Rather, we stress the potentially dramatic and arguably undesirable implications of the panel's faulty interpretation of the FHA because it is improbable that such implications could have gone unnoticed for over fifty years after the passage of that much-discussed and much-litigated legislation."

ARBITRATION OF DISCRIMINATION CLAIMS: STATE LAW V. FEDERAL

CPLR 7515 prohibits "any clause or provision in any contract which requires as a condition of the enforcement of the contract or obtaining remedies under the contract that the parties submit to mandatory arbitration to resolve any allegation or claim of discrimination, in violation of laws prohibiting discrimination, including but not limited to, article fifteen of the executive law." However, in one federal case (referred to below) it was held that application of CPLR 7515 to invalidate the parties' agreement to arbitrate would be inconsistent with the Federal Arbitration Act and another case has certified the question to the Second Circuit (TANTAROS v. FOX NEWS NETWORK, LLC, Dist. Court, SD New York June 8, 2020). 

A month after this certification, came Newton v. LMVH MOËT HENNESSY LOUIS VUITTON INC., 2020 NY Slip Op 32290 - NY: Supreme Court July 10, 2020:

"CPLR 7515 prefaces its prohibition of future mandatory discrimination-related arbitration clauses, and its nullification of then-existing discrimination arbitration clauses, with the qualifier, "[e]xcept where inconsistent with federal law" (CPLR 7515[b][i], [iii]). Based on that language, defendant asserts that the instant claims must be arbitrated per the language found in Arbitration Agreement, by force of the Federal Arbitration Act (the "FAA") (9 USC § 1, et seq.), which generally requires enforcement of arbitration clauses and, concomitantly, warrants a stay of litigation commenced concerning the arbitrable dispute and an order compelling the parties to proceed to arbitration (see, id, §§ 3, 4). However, defendant's haste in citing the FAA overlooks a key limitation set forth in that very statute; to wit, that it only applies to "a transaction involving commerce" (id., § 2). Specifically, section 2 of the FAA provides as follows, in pertinent part:

A written provision in ... a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract, or the refusal to perform the whole or any part thereof, or an agreement in writing to submit to arbitration an existing controversy arising out of such a contract ... or refusal, shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.

(9 USC § 2 [emphasis added].) Because claims for sexual harassment, or other discrimination-based claims, cannot reasonably be characterized as claims concerning or "arising out of" "a transaction involving commerce," and additionally because the instant case involves purely intrastate activity, the FAA cannot reasonably be said to apply to the Arbitration Agreement's reference to arbitration of sexual harassment or other discrimination-based claims. Nor can the Arbitration Agreement itself be reasonably characterized as "a contract evidencing a transaction involving commerce," particularly insofar as it seeks application to sexual harassment or other discrimination-based claims. Thus, we are left with the express and unambiguous provisions of CPLR 7515, which prohibit and nullify clauses mandating arbitration of such claims.

Indeed, the United States Supreme Court itself, in United States v Morrison (529 US 598, 613 [2000]), noted that "thus far in our Nation's history our cases have upheld Commerce Clause regulation of intrastate activity only where that activity is economic in nature." As noted hereinabove, at the outset, the acts of sexual harassment and related retaliation alleged in the complaint occurred intrastate — in defendant's New York City offices. Nothing relating to that conduct could possibly be cast as "interstate" or "economic in nature." Absent such variables, there can be no possible application of the FAA to the prohibited and nullified arbitration provisions which defendant champions in its motion now before the court.

Defendant's counsel draws the court's attention to one federal court decision which has considered CPLR 7515 since its enactment in 2018, and which appears to have applied the FAA to an arbitration clause mandating arbitration of sexual harassment claims: Latif v Morgan Stanley & Co. LLC (2019 WL 2610985 [SDNY June 26, 2019]).^[6] However, no treatment is accorded in that decision to the observation of this court hereinabove, that the FAA explicitly limits its scope to "a transaction involving commerce" (9 USC § 2) or to other considerations noted hereinabove. This court, therefore, respectfully disagrees with the holding of the federal district court in that case, and holds, instead, that the FAA, by its very own terms, does not apply to the types of claims asserted in this action, which are undeniably not "transaction[s] involving commerce" and which have no interstate qualities.^[7] Indeed, this court is inclined to conclude that such was the understanding and intent of our Legislature itself when it enacted CPLR 7515 in the face of the FAA, which preceded it.^[8] The court in Latif stressed the qualifier "[e]xcept where inconsistent with federal law," suggesting that such language rendered CPLR 7515 preempted by the FAA. Such a construction implausibly suggests that the New York State Legislature knowingly engaged in a futile exercise by enacting its statute nullifying mandatory arbitration for discrimination claims and then, in the same breath, eviscerated it with the words "[e]xcept where inconsistent with federal law." This court is fully authorized to engage such statutory analysis, as the Appellate Division, First Department, has declared on the basis of abundant Court of Appeals authority:

"[T]he question is one of pure statutory reading and analysis, dependent only on an accurate apprehension of legislative intent...." (Kurcsics, 49 N.Y.2d at 459, 426 N.Y.S.2d 454, 403 N.E.2d 159; see also Matter of Belmonte v. Snashall, 2 N.Y.3d 560, 565-566, 780 N.Y.S.2d 541, 813 N.E.2d 621 [2004]). On such occasions, the counts are free to ascertain the proper interpretation from the statutory language and intent and may undertake the function of statutory interpretation....

... [T]he well settled principle that in interpreting a statute, it is fundamental that a court "ascertain and give effect to the intention of the Legislature" (McKinney's Cons. Laws of N.Y., Book 1, Statutes § 92[a], at 177; see Riley v. County of Broome, 95 N.Y.2d 455, 463, 719 N.Y.S.2d 623, 742 N.E.2d 98 [2000]; Matter of Astoria Gas Turbine Power, LLC v. Tax Comm. of City of N.Y., 14 A.D.3d 553, 557, 788 N.Y.S.2d 417 [2005]), and, "[a]s the clearest indicator of legislative intent is the statutory text, the starting point in any case of interpretation must always be the language itself, giving effect to the plain meaning thereof" (Majewski v. Broadalbin-Perth Cent. School Dist., 91 N.Y.2d 577, 583, 673 N.Y.S.2d 966, 696 N.E.2d 978 [1998]; see also Flores v. Lower East Side Serv. Ctr., Inc., 4 N.Y.3d 363, 367, 795 N.Y.S.2d 491, 828 N.E.2d 593 [2005]). Moreover, "new language cannot be imported into a statute to give it a meaning not otherwise found therein" (McKinney's Cons. Laws of N.Y., Book 1, Statutes § 94, at 190; see Matter of Raritan Dev. Corp. v. Silva, 91 N.Y.2d 98, 104-105, 667 N.Y.S.2d 327, 689 N.E.2d 1373 [1997], quoting § 94), and a court, in discerning the meaning of statutory language, must "avoid objectionable, unreasonable or absurd consequences" (Long v. State of New York, 7 N.Y.3d 269, 273, 819 N.Y.S.2d 679, 852 N.E.2d 1150 [2006]; Ryder v. City of New York, 32 A.D.3d 836, 837, 821 N.Y.S.2d 227 [2006], lv. dismissed 8 N.Y.3d 896, 832 N.Y.S.2d 899, 865 N.E.2d 8 [2007]).

(Roberts v Tishman Speyer Properties, L.P., 62 AD3d 71, 80-81 [1st Dept] [emphasis added], affd 13 NY3d 270 [2009]. See also, People ex rel. Weber & Heilbroner, Inc. v Graves, 249 AD 49, 54 [3d Dept 1936] ["We are concerned here with the interpretation of a State law, the exclusive province of the State courts...."].)

Thus, to suggest that the Legislature toiled to promulgate the general rule of CPLR 7515 only to have it immediately swallowed up by a "federal law" exception, would be to suggest an "objectionable, unreasonable or absurd consequence[]" (Roberts, supra, at 81). So, to be clear: it is the opinion of this court (which this court firmly believes is shared by our state Legislature) that a plain and proper reading of the FAA does not support the notion that CPLR 7515 was preempted from the moment of its inception, by the FAA.^[9]

This court's holding is not inconsistent with the holding of the United States Supreme Court in Equal Employment Opportunity Commission v Waffle House, Inc. (534 US 279 [2002]). That case involved a corporate defendant's application to stay litigation and to compel arbitration based on "an agreement between an employer and an employee to arbitrate employment-related disputes" (id., at 282). The Equal Employment Opportunity Commission ("EEOC") had filed an action on behalf of the employee, who claimed to have been wrongly discharged by the employer on account of his disability. The Court granted the defendant's motion, stating that "[e]mployment contracts, except for those covering workers engaged in transportation, are covered by the FAA" (id., at 289). The critical distinction between that case and the one presently before this court is that the gravamen of the dispute in that case revolved exclusively around a quintessential incident of "employment," i.e., the loss, by an employee, of his job, and the salary and benefits that go with it, resulting in the employee's attempt, through EEOC, to pursue a judgment for backpay and reinstatement (see, id., at 282). The employee's discharge was, by its very nature, an issue central to his "[e]mployment contract[]" (id., at 289). It was within that specific employment-centric context that the Court in that case emphasized that "[e]mployment contracts ... are covered by the FAA" (id. [emphasis added]).

In stark contrast to the job-related circumstance in EEOC v Waffle House, Inc., supra, the instant case now before this court involves alleged activity more akin to tortious conduct unrelated to the employer/employee contractual relationship, and alleged complicity therein; i.e., allegations of sexual harassment and retaliatory acts reactionary to Ms. Newton's internal complaints about such harassment. As discussed hereinabove, the New York State Legislature in CPLR 7515 has focused on such wrongdoing, having little to do with the commercial aspects, or contractual aspects, of the ordinary employer-employee relationship — the incidents of the job. Rather, they have everything to do with wrongful acts entirely extrinsic of such contractual relationship. In such cases, the New York State Legislature was free to enact CPLR 7515, which, understood properly, and understanding the parameters of the FAA properly, does not conflict with the FAA's policy of encouraging arbitration regarding the economic incidents of contractual relationships."

NOTE: This case has been appealed to the First Department: ANDOWAH NEWTON, Plaintiff-Respondent, v. LVMH MOET HENNESSY LOUIS VUITTON INC., Defendant-Appellant. Index No. 154178/19, Case No. 2020-3198. Appellate Division of the Supreme Court of New York, First Department.

RELIGIOUS DISCRIMINATION CLAIMS AT THE PLEADING STAGE

PATRICIA COCCA-RAU, Plaintiff, v. STANDARD INSURANCE COMPANY and STANDARD INSURANCE OF NEW YORK, Defendants., No. 19-cv-06149 (PMH). ,United States District Court, S.D. New York. July 22, 2020:

"Title VII of the Civil Rights Act of 1964 "makes it unlawful for an employer `to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin.'" Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 85 (2d Cir. 2015) (quoting 42 U.S.C. § 2000e-2(a)(1)). What exactly a plaintiff must allege at the pleading juncture for her Title VII case to survive a motion to dismiss has evolved, and it is appropriate for the Court to pinpoint the applicable pleading standards for a Title VII claim in the Second Circuit before turning to the merits of Plaintiff's claim.

The Supreme Court, in a 1973 landmark decision, adopted a three-stage, burden-shifting framework for analyzing employment discrimination claims under Title VII. See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). At the first stage, a plaintiff has the initial burden of establishing a prima facie case of discrimination. Id. at 802. A plaintiff can make such a showing by demonstrating that: "(1) she is a member of a protected class; (2) she is qualified for her position; (3) she suffered an adverse employment action; and (4) the circumstances give rise to an inference of discrimination." Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir. 2000) (citing McDonnell Douglas, 411 U.S. at 802). Second, once a plaintiff presents a prima facie case of employment discrimination, the burden of production shifts "to the employer to articulate some legitimate, nondiscriminatory reason for the employees'" adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Weinstock, 224 F.3d at 42 ("[T]he defendant may rebut [the plaintiff's prima facie] showing by articulating a legitimate, non-discriminatory reason for the employment action." (citing Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 254 (1981))). Third, if the defendant can articulate a legitimate, non-discriminatory reason why the plaintiff suffered an adverse employment action, the burden of production shifts back to the plaintiff "to show that [defendant's] stated reason for [plaintiff's adverse employment action] was in fact pretext." McDonnell Douglas, 411 U.S. at 804; Weinstock, 224 F.3d at 4 ("[T]he plaintiff must then come forward with evidence that the defendant's proffered, non-discriminatory reason is a mere pretext for actual discrimination.").

After McDonnell Douglas, for a plaintiff's Title VII claim to survive a motion to dismiss, a plaintiff's complaint had to allege facts constituting a prima facie case of discrimination. That pleading test was reviewed by the Supreme Court in 2002. See Swierkiewicz v. Sorema N. A., 534 U.S. 506, 511 (2002). The Supreme Court, in Swierkiewicz, held that at the motion to dismiss stage "under a notice pleading system, it is not appropriate to require a plaintiff to plead facts establishing a prima facie [Title VII] case." Id. The Court rejected a heightened pleading standard and found that the initial phase of the McDonnell Douglas test set forth "an evidentiary standard, not a pleading requirement." Id. at 510. The Court observed:

Under the. . . heightened pleading standard, a plaintiff without direct evidence of discrimination at the time of his complaint must plead a prima facie case of discrimination, even though discovery might uncover such direct evidence. It thus seems incongruous to require a plaintiff, in order to survive a motion to dismiss, to plead more facts than he may ultimately need to prove to succeed on the merits if direct evidence of discrimination is discovered.

Id. at 511-12.

The Court further held that this heightened pleading standard was in conflict with Fed. R. Civ. P. 8 which requires only that a complaint include "a short and plain statement of the claim showing that the pleader is entitled to relief." Id. at 512 (quoting Fed. R. Civ. P. 8(a)(2)). When Swierkiewicz was decided in 2002, Conley v. Gibson was good law and provided the motion to dismiss standard of review for evaluating the sufficiency of claims in a complaint pursuant to Fed. R. Civ. P. 8 and 12. Under Conley's liberal pleading standards, "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." 355 U.S. 41, 45-46 (1957), abrogated by Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007). Apparently relying on Conley, the Swierkiewicz Court held that a plaintiff's Title VII allegations "must simply `give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests.'" Swierkiewicz, 534 U.S. at 512 (quoting Conley, 355 U.S. at 47). Therefore, the Court found that "conclusory allegations of discrimination" were enough for a Title VII claimant to survive a motion to dismiss. Id. at 514-15 (finding that because plaintiff "alleged that he had been terminated on account of his national origin in violation of Title VII and on account of his age in violation of the ADEA" his claims could survive a motion to dismiss).

Subsequently, Conley's minimal pleading standard was reformed when the Court adopted a heightened plausibility pleading standard in Iqbal. See Iqbal, 556 U.S. at 669-70. Given that Swierkiewicz had relied on Conley to hold that a heightened pleading standard in Title VII cases was improper and in conflict with Rule 8, the continued clarity and use of Swierkiewicz's holding has become uncertain. The Second Circuit, in a pair of 2015 decisions, grappled with how to square Iqbal's heightened plausibility pleading standards with the minimal Title VII pleading standard adopted by the Court in Swierkiewicz.

The first occasion on which the Second Circuit addressed "whether Iqbal's requirement applies to Title VII complaints falling under the McDonnell Douglas framework" was in Littlejohn v. City of New York. See 795 F.3d 297, 309 (2d Cir. 2015). The Court found that Swierkiewicz's minimal pleading standard should be refined in light of Iqbal's plausibility pleading standard. The Court held:

[A]t the initial stage of the litigation—prior to the employer's coming forward with the claimed reason for its action—the plaintiff does not need substantial evidence of discriminatory intent. If she makes a showing (1) that she is a member of a protected class, (2) that she was qualified for the position she sought, (3) that she suffered an adverse employment action, and (4) can sustain a minimal burden of showing facts suggesting an inference of discriminatory motivation. . . .

Id. at 311. Therefore, in considering Swierkiewicz's minimal pleading standard and Iqbal's plausibility pleading standard, the Second Circuit kept in place the first three factors of the McDonnell Douglas evidentiary standard. However, as to the fourth McDonnell Douglas factor, the Court modified a plaintiff's pleading burden. Whereas stage one of the McDonnell Douglas evidentiary standard requires a plaintiff to present evidence showing "some minimal evidence suggesting an inference that the employer acted with discriminatory motivation," the Second Circuit in Littlejohn stated that, at the pleading stage and to survive a motion to dismiss, the facts included in a plaintiff's complaint must make it plausible that "the plaintiff. . . has at least minimal support for the proposition that the employer was motivated by discriminatory intent." Id. Stated another way, Littlejohn held that "[t]he facts required by Iqbal to be alleged in the complaint need not give plausible support to the ultimate question of whether the adverse employment action was attributable to discrimination. They need only give plausible support to a minimal inference of discriminatory motivation." Id.
The Court found that an inference of discrimination could arise in, at least, five circumstances including:

[1] the employer's criticism of the plaintiff's performance in ethnically degrading terms; [2] or its invidious comments about others in the employee's protected group; [3] or the more favorable treatment of employees not in the protected group; [4]or the sequence of events leading to the plaintiff's discharge. . . [5 or] when an employer replaces a terminated or demoted employee with an individual outside the employee's protected class.

Id. at 312-13 (internal citations and quotations omitted).

One month later in Vega v. Hempstead Union Free Sch. Dist., a separate panel in the Second Circuit again addressed a Title VII plaintiff's pleading requirement at the motion to dismiss stage in light of Iqbal's plausibility pleading standard. See 801 F.3d 72, 85-87 (2d Cir. 2015). In Vega, rather than apply the Littlejohn version of the four McDonnell Douglas factors at the motion to dismiss stage, the Court held that "under Iqbal and Twombly. . . in an employment discrimination case, a plaintiff must plausibly allege that (1) the employer took adverse action against him and (2) his race, color, religion, sex, or national origin was a motivating factor in the employment decision." Id. at 86. The Court therefore restated the McDonnell Douglas four-factor and Swierkiewicz tests at the pleading juncture in light of Iqbal.

As to whether a plaintiff's allegations are plausible, the court relied on the familiar fundamental plausibility principles: "[A] plaintiff must plead `factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged,'" id. (quoting Iqbal, 556 U.S. at 678); "While `detailed factual allegations' are not required, `a formulaic recitation of the elements of a cause of action will not do,'" id. (quoting Twombly, 550 U.S. at 555); "[T]he court must assume the factual allegations in the complaint to be true, even if [they are] doubtful in fact, and a complaint may not be dismissed based on a judge's disbelief of a complaint's factual allegations," id. (internal citations and quotations omitted). Plausibility then is not probability, but rather requires only that the allegations give rise to an inference of discriminatory motivation that "nudge [the plaintiff's] claims across the line from conceivable to plausible." Id. (quoting Twombly, 550 U.S. at 570).

The Vega panel acknowledged that the minimal pleading requirement may be met by evidence of direct discrimination. Id. For example, an employer's policy that requires female employees to contribute more money to a pension fund than male employees is evidence of direct discrimination. See City of Los Angeles, Dep't of Water & Power v. Manhart, 435 U.S. 702, 711 (1978). The panel also acknowledged that a plaintiff could satisfy her minimal pleading burden by alleging facts that create a "`mosaic' of intentional discrimination by identifying `bits and pieces of evidence' that together give rise to an inference of discrimination." Vega, 801 F. 3d 87 (quoting Gallagher v. Delayney, 139 F.3d 338, 342 (2d Cir.1998), abrogated in part on other grounds by Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998)). The court was cognizant that the discrimination a Title VII claimant faces may be elusive "because discrimination claims implicate an employer's usually unstated intent and state of mind, [and] rarely is there direct, smoking gun, evidence of discrimination." Id. (internal quotations and citations omitted). The Vega panel urged the district court to "draw on its judicial experience and common sense" to identify discriminatory motivation as "clever men may easily conceal their motivations." Id. (quoting Robinson v. 12 Lofts Realty, Inc., 610 F.2d 1032, 1043 (2d Cir.1979)).

The Second Circuit emphasized the minimal burden on a plaintiff at the motion to dismiss stage to allege facts demonstrating discrimination and concluded:

At the pleadings stage, then, a plaintiff must allege that the employer took adverse action against her at least in part for a discriminatory reason, and she may do so by alleging facts that directly show discrimination or facts that indirectly show discrimination by giving rise to a plausible inference of discrimination.

Id. at 87 (citing Littlejohn, 795 F. 3d at 310).

Since Littlejohn and Vega were decided, the Second Circuit has reviewed the sufficiency of a Title VII claim by following Littlejohn in some cases^[3] and by following Vega in others.^[4] Even assuming it were necessary, this Court need not reconcile Littlejohn and Vega and their holdings on the proper framework for analyzing whether a Title VII claimant has alleged enough facts to survive a motion to dismiss. The allegations related to Plaintiff's Title VII claim here, analyzed under the pleading standard in both cases, is insufficient and must be dismissed.

Turning to the merits of Plaintiff's claim, Plaintiff's Title VII claim alleges religious discrimination. Compl. ¶¶ 60-67. Plaintiff is a Catholic. Id. ¶ 19. Plaintiff has plausibly alleged that she suffered an adverse employment action because she alleges that she was terminated. Id. ¶ 8; see also Terry v. Ashcroft, 336 F.3d 128, 138 (2d Cir. 2003) (finding "termination of employment" is an example of a "materially adverse" employment action). Plaintiff also alleges that she is a member of a protected class, Catholic, see Compl. ¶ 19, and that she was qualified for the position she held, see id. ¶ 21.

The question this Court must address, then, is whether Plaintiff "can sustain a minimal burden of showing facts suggesting an inference of discriminatory motivation" or whether Plaintiff has "plausibly allege[d] that. . . [her] race, color, religion, sex, or national origin was a motivating factor in the employment decision." Littlejohn, 795 F. 3d at 311; Vega, 801 F.3d 86. Plaintiff's allegations fail under either standard. The allegations in Plaintiff's Complaint do not give rise to a plausible inference of discrimination based on Plaintiff's Catholic religion. In fact, Plaintiff does not include a single allegation from which the Court can infer that she faced any discrimination based on her religion.

Rather, Plaintiff advances the theory that she faced discrimination "on account of her being non-Jewish" which, according to Plaintiff, is actionable "reverse discrimination." Pl. Opp'n at 6. While Plaintiff is correct that Title VII forbids "reverse discrimination," see McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 279 (1976), a plaintiff still must allege that they faced discrimination because of their religion. See 42 U.S.C.A. § 2000e-2(a)(1) ("It shall be an unlawful employment practice for an employer. . . to discharge any individual, or otherwise to discriminate against any individual. . . because of such individuals. . . religion" (emphasis added)). A reverse discrimination claim cannot lie if the plaintiff does not allege that they faced discrimination because of a protected characteristic. Plaintiff could, of course, allege that she faced discrimination based on her Catholic religion. However, Plaintiff makes no such allegation here and the Court therefore cannot plausibly infer that her religion was a motivating factor in her termination. The Court has searched and not found any support for the proposition that a claim of religious discrimination can exist for a "non-Jewish" person.

Additionally, and separately dispositive of Plaintiff's Title VII claim, the majority of Plaintiff's allegations are based upon Plaintiff's beliefs. See, e.g., Compl. ¶ 11 ("Plaintiff was fired, in her view, because she is a non-Jew who acted appropriately regarding possible insurance fraud potentially perpetrated by an ultra-Orthodox (Hasidic) person, and as a matter of `political correctness,' the Standard feared an accusation that it was being labeled `anti-Semitic' by its examining possible fraud by one or more Jewish claimants." (emphasis added)); id. ¶ 13 ("Upon information and belief, if Plaintiff had been Hasidic herself, and pointed out the same evidence of potential fraud, she would not have been fired, or even criticized." (emphasis added)); id. ¶ 52 ("Upon information and belief, the unfounded accusations against Plaintiff are the result of religiously-motivated bias by Defendant." (emphasis added)); id. ¶ 53 ("Upon information and belief, the fact that Plaintiff was making any comment that a Jewish broker or members of a Hasidic school or community may have committed or condoned insurance fraud. . . were construed by Defendant as being `anti-Semitic.'" (emphasis added)). Even if Plaintiff had alleged that she faced discrimination because of her Catholic religion, Plaintiff's Complaint, which is based almost entirely on her beliefs would be insufficient to state a claim for relief. See Gilford v. NYS Office of Mental Health, No. 17-CV-8033, 2019 WL 1113306, at *5-6 (S.D.N.Y. Mar. 11, 2019) ("No matter what the pleading standard is, her complaint must at least contain enough factual allegations that are not made upon information and belief to `raise a right to relief above the speculative level.'" (quoting Twombly, 550 U.S. at 555)); Negrete v. Citibank, N.A., 187 F. Supp. 3d 454, 461 (S.D.N.Y. 2016), aff'd, 759 F. App'x 42 (2d Cir. 2019) ("[W]hile `a plaintiff may plead facts alleged upon information and belief where the belief is based on factual information that makes the inference of culpability plausible, such allegations must be `accompanied by a statement of the facts upon which the belief is founded.'" (quoting Munoz-Nagel v. Guess, Inc., No. 12-cv-1312, 2013 WL 1809772, *3 (S.D.N.Y. Apr. 30, 2013))). Accordingly, Plaintiff's Title VII claim is dismissed."

REAL ESTATE BROKERS AND DISCRIMINATION

As you know, Governor Andrew M. Cuomo on August 3 signed legislation (S6874-A/ A8903-A) explicitly granting the Department of State the authority to discipline real estate professionals found to have violated provisions of the state Human Rights Law by revoking or suspending their license.

Paragraph (a) of subdivision 1 of section 441-c of the Real Property Law is amended  to read as follows (the language in BOLD is new):

"(a) The department of state may revoke the license of a real estate broker or salesman or suspend the same, for such period as the department may deem proper, or in lieu thereof may impose a fine not exceeding one thousand dollars payable to the department of state, or a reprimand upon conviction of the licensee of a violation of any provision of this article, or for a material misstatement in the application for such license, or if such licensee has been guilty of fraud or fraudulent practices, or for dishonest or misleading advertising, or has demonstrated untrustworthiness or incompetency to act as a real estate broker or salesman, or for a violation of article fifteen of the executive law committed in his or her capacity as a real estate broker or salesman, as the case may be. In the case of a real estate broker engaged in the business of a tenant relocator, untrustworthiness or incompetency shall include engaging in any course of conduct including, but not limited to, the interruption or discontinuance of essential building service, that interferes with or disturbs the peace, comfort, repose and quiet enjoyment of a tenant."

PERSONAL LIABILITY OF MANAGEMENT UNDER NYC HUMAN RIGHTS LAW

Doe v Bloomberg, L.P., 2019 NY Slip Op 06728, Decided on September 24, 2019, Appellate Division, First Department Kern, J.:

"The City HRL imposes strict liability on an "employer" for the discriminatory acts of the employer's managers and supervisors (see Administrative Code of the City of New York § 8-107[13][b][1]; Zakrzewska v New School, 14 NY3d 469, 480-481 [2010])[FN2]. Specifically, Administrative Code § 8-107(13)(b) provides:

"An employer shall be liable for an unlawful discriminatory practice based upon the conduct of an employee or agent which is in violation of subdivision 1 or 2 of this section only where:

(1) The employee or agent exercised managerial or supervisory
responsibility . . . ."

However, the statute does not provide a definition of "employer" and the legislature has not provided guidance as to how "employer" should be defined under the statute. The legislature has also not provided guidance as to when an individual, in addition to the corporate employer, may be held strictly liable under the statute.

The Court of Appeals has held that section 8-107(13)(b)(1) of the Administrative Code holds corporate employers strictly liable for the discriminatory acts of their managers and supervisors (see Zakrzewska, 14 NY3d at 469). Additionally, pursuant to the plain language of the statute, where the only employer is an individual and there is no corporate employer, the individual may be held strictly liable for the discriminatory acts of his or her managers and supervisors as such individual is the only possible employer under the statute. However, the Court of Appeals has never addressed the issue of when an individual, in addition to the corporate employer, may be held strictly liable under section 8-107(13)(b)(1) of the Administrative Code. Based on a review of the cases that have addressed the issue, we find that in order to hold an individual owner or officer of a corporate employer, in addition to the separately charged corporate employer, strictly liable under section 8-107(13)(b)(1) of the Administrative Code, a plaintiff must allege that the individual has an ownership interest or has the power to do more than carry out personnel decisions made by others and must allege that the individual encouraged, condoned or approved the specific conduct which gave rise to the claim.[FN3]
This Court has twice explicitly addressed the issue of when an individual may be held strictly liable, in addition to the corporate employer, under section 8-107(13)(b)(1) of the Administrative Code, and held that an individual will be held strictly liable under the statute if he or she encouraged, condoned or approved the specific discriminatory behavior alleged in the complaint. In Boyce v Gumley-Haft, Inc. (82 AD3d 491, 492 [1st Dept 2011]), this Court denied summary judgment to the individual owner of the corporate employer under section 8-107(13)(b)(1) of the Administrative Code because there were issues of fact as to whether he "encouraged, condoned or approved" the specific discriminatory conduct alleged by the plaintiff (82 AD3d at 492). This Court reiterated this standard in McRedmond v Sutton Place Rest. & Bar, Inc. (95 AD3d 671, 673 [1st Dept 2012]), a case in which we denied summary judgment to the individual officers of the corporate employer under section 8-107(13)(b)(1) of the Administrative Code because there were issues of fact as to whether they condoned or participated in the discriminatory conduct complained of by the plaintiff.

All of the federal cases cited by the parties which have addressed the specific issue before us now have also held that an individual will only be held strictly liable under section 8-107(13)(b)(1) of the Administrative Code if he or she participated, in some way, in the specific discriminatory conduct alleged in the complaint (see Marchuk v Faruqi & Faruqi, LLP, 100 F Supp 3d 302, 309 [SD NY 2015] [a plaintiff must establish "at least some minimal culpability on the part of (the company's individual shareholders)" in order to hold them liable as employers under the City HRL]; Zach v East Coast Restoration & Constr. Consulting Corp., 2015 WL 5916687, *1, 2015 US Dist LEXIS 138334, *1 [SD NY 2015] [denying plaintiff's motion to add the president of the corporate employer as an individual defendant under the City HRL because the proposed amended complaint failed to "allege any knowledge, participation, or involvement whatsoever" in the discriminatory conduct detailed in the complaint]; Burhans v Lopez, 24 F Supp 3d 375, 385 [SD NY 2014] [allowing plaintiffs' claims to proceed against the individual defendant as an employer under the City HRL on the ground that plaintiffs "sufficiently allege that (the individual defendant) was personally involved in the conduct in question"]).[FN4]

We note that the legislative history of section 8-107(13)(b)(1) does not address whether an individual owner or officer of a corporate employer may be held strictly liable, in addition to the corporate employer, absent a finding of culpability on the part of the individual. However, holding an individual owner or officer of a corporate employer liable under the City HRL as an [*3]employer, without even an allegation that the individual participated, in some way, in the specific conduct that gave rise to the claim, would have the effect of imposing strict liability on every individual owner or high-ranking executive of any business in New York City. The City HRL is not so broad that it imposes strict liability on an individual for simply holding an ownership stake or a leadership position in a liable corporate employer.

Moreover, interpreting section 8-107(13)(b)(1) of the Administrative Code to impose liability on an owner or officer of a corporate employer in his or her individual capacity without any inquiry into his or her personal participation in the conduct giving rise to the claim would be inconsistent with the principles underlying this State's corporate law (see Marchuk, 100 F Supp 3d at 309). "The law permits the incorporation of a business for the very purpose of enabling its proprietors to escape personal liability" (Walkovszky v Carlton, 18 NY2d 414, 417 [1966]). Indeed, a corporate owner or officer may be held individually liable for a tort committed by the corporation but only if the corporate officer or owner "participates in the commission of [the] tort" (American Express Travel Related Servs. Co. v North Atl. Resources, Inc., 261 AD2d 310, 311 [1st Dept 1999]). Moreover, a plaintiff who attempts to pierce the corporate veil and hold a corporate officer or owner liable for an obligation of, or a wrong committed by, the corporation must show complete domination of the corporation and that "the [individual], through [his] domination, abused the privilege of doing business in the corporate form to perpetrate a wrong or injustice against [the plaintiff]" (Matter of Morris v New York State Dept. of Taxation and Fin., 82 NY2d 135, 142 [1993]). Thus, some participation in the specific conduct committed against the plaintiff is required in order to hold an individual owner or officer of a corporate employer personally liable in his or her capacity as an employer.

Based on the foregoing, we find that plaintiff's City HRL claims must be dismissed as against Mr. Bloomberg because plaintiff has failed to sufficiently allege that Mr. Bloomberg is her employer for purposes of the City HRL. She has failed to allege that Mr. Bloomberg encouraged, condoned or approved the specific discriminatory conduct allegedly committed by Mr. Ferris."

LANDLORD CAN BE LIABLE TO A TENANT FOR FAILURE TO ACT UPON RACIAL INCIDENTS OF ANOTHER TENANT UNDER FAIR HOUSING ACT

In this case, the tenant's next door neighbor began "what can only be described as a brazen and relentless campaign of racial harassment, abuse, and threats."

Francis v. Kings Park Manor, Inc., Civ. 15-1823, Decided March 4, 2019 (US Court of Appeals, Second Circuit):

"Just over fifty years ago, spurred by the assassination of Dr. Martin Luther King, Jr., Congress enacted Title VIII of the Civil Rights Act of 1968, commonly referred to as the Fair Housing Act of 1968 (“FHA” or “Act”), 42 U.S.C. § 3601 et seq., a landmark piece of civil rights legislation that accompanied the Civil Rights Act of 1964 and the Voting Rights Act of 1965. The main question before us is whether a landlord may be liable under the FHA for failing to take prompt action to address a racially hostile housing environment created by one tenant targeting another, where the landlord knew of the discriminatory conduct and had the power to correct it. In holding that a landlord may be liable in those limited circumstances, we adhere to the FHA’s broad language and remedial scope and agree with the views of the United States Department of Housing and Urban Development (“HUD”), the agency tasked with administering the FHA. "

DISCRIMINATION FOR "PERCEIVED ALCOHOLISM"

The New York City Human Rights Law (NYCHRL) is a civil rights law that is embodied in Title 8 of the Administrative Code of the City of New York. It prohibits discrimination in employment, housing, and public accommodations based on race, color, creed, age, national origin, alienage or citizenship status, gender (including gender identity and sexual harassment), sexual orientation, disability, marital status, and partnership status.

Recently in No. 104, Kathleen Makinen et al., Respondents, v. City of New York, et al., Appellants, October 17, 2017, New York Court of Appeals:

"The United States Court of Appeals for the Second Circuit has certified and we have accepted for review (29 NY3d 1019 [2017]) the question whether "sections 8 102 (16) (c) and 8 107 (1) (a) of the New York City Administrative Code preclude a plaintiff from bringing a disability discrimination claim based solely on a perception of untreated alcoholism?" (Makinen v City of New York, 857 F3d 491, 493 [2d Cir 2017]). We conclude that those sections of the Administrative Code plainly preclude a disability discrimination claim based solely on a perception of untreated alcoholism, and we therefore answer the certified question in the affirmative."

According to the dissent (J. Garcia):

Plaintiffs, two female police officers, were wrongfully diagnosed as alcoholics based on allegations made by their respective former partners from past relationships. As a result, plaintiffs' employer -- the New York City Police Department (NYPD) -- compelled them to undergo unwarranted treatment. Plaintiffs brought suit, contending, among other things, that defendants' discriminatory conduct violated City, State, and federal civil rights laws. The jury entered verdicts in favor of plaintiffs under the New York City Human Rights Law (the Human Rights Law).

Defendants appealed, contending that the relevant provisions of the Human Rights Law "preclude a plaintiff from bringing a discrimination claim based solely on a perception of untreated alcoholism" (Makinen v City of New York, 857 F3d 491, 497 [2d Cir 2017]). The Second Circuit determined that certification on this issue was warranted, and we accepted the certified question. Defendants advance a plausible reading of the Human Rights Law that would prohibit plaintiffs from recovering. Specifically, defendants contend that, according to the clear statutory language, the Human Rights Law applies only to "recovering" or "recovered" alcoholics, and therefore does not extend protection to an employee who is -- or, like plaintiffs, is perceived to be -- an untreated alcoholic, even if that employee is not, in fact, an alcoholic at all. The majority adopts this admittedly "narrow[]" reading of the Human Rights Law, concluding that the plain text of the statute "does not consider a mistaken perception of alcoholism to be a disability" (majority op at 6, 11).

But we are required to construe the Human Rights Law "broadly in favor of discrimination plaintiffs" wherever such a construction is "reasonably possible" (Albunio v City of New York, 16 NY3d 472, 477-478 [2011]). Here, plaintiffs have advanced a logical interpretation of the statute that aligns with its text, that better serves its express remedial purpose, and that is consistent with its legislative history. Accordingly, I believe plaintiffs have asserted a valid discrimination claim under the Human Rights Law, and I dissent."

ON WORKPLACE DISCRIMINATION

"The New York State Assembly today (May 5) passed a pair of bills to protect New York women from workplace discrimination, legislation initially introduced as part of the Women’s Equality Act and championed by the New York Civil Liberties Union. The vote clears the way for Gov. Andrew Cuomo to sign the legislation into law."

For the full story: http://www.nyclu.org/news/assembly-vote-protects-womens-ability-work-free-discrimination

UNEMPLOYMENT INSURANCE - HEALTH REASONS

I have been noting, perhaps as a result of the economy, a greater number of Claimants who have been denied benefits and, to add to their disappointment, the difficulty in overturning the adverse determination by the Department of Labor. Recently, I was consulted by someone who wanted to know if the Employee could voluntary separate due to mental health issues. Of course, the general rule with voluntary separation is that one must have a compelling good cause and have taken reasonable steps to protect the employment. Mental health issues was recently discussed by the Appellate Division, 3rd Department in a misconduct case:

IN RE ANUMAH, 60 A.D.3d 1216, 876 N.Y.S.2d 172 [3d Dept 2009]

Appeal from a decision of the Unemployment Insurance Appeal Board, filed August 13, 2008, which ruled that claimant was disqualified from receiving unemployment insurance benefits because her employment was terminated due to misconduct.

Christopher D. Lamb, MFY Legal Services, Inc., New York City (Carolyn E. Coffey of counsel), for appellant.

Andrew M. Cuomo, Attorney General, New York City (Mary Hughes of counsel), for respondent.

Nina Loewenstein, Disability Advocates, Inc., Albany, for Disability Advocates, Inc. and another, amici curiae.

Before: Mercure, J.P., Peters, Malone Jr. and Stein, JJ.

Kane, J.

Claimant was a senior medical clerk for the employer. She received progressive discipline related to her excessive tardiness and absenteeism, including verbal warnings, written warnings and, finally, a two-day suspension in December 2005. After that suspension, she was tardy or absent an additional 38 times before her absence on April 17, 2006. The employer then terminated her employment due to her continued attendance problems. At a hearing following the denial of claimant's application for unemployment insurance benefits, she testified and supplied medical evidence that she was diagnosed with major depressive disorder that caused her tardiness and absenteeism. The Administrative Law Judge found that claimant should have informed the employer that her diagnosed disorder caused her attendance problems, and her failure to do so constituted misconduct. The Unemployment Insurance Appeal Board affirmed, both initially and upon reconsideration. This appeal by claimant ensued.

Claimant acknowledges that her poor attendance furnished the employer with sufficient reason to terminate her employment. The issue on this appeal is whether her absenteeism constituted misconduct that disqualifies her from receiving unemployment insurance benefits, or whether her diagnosis excuses her attendance problems for unemployment insurance purposes (see Matter of Clum [All-Lifts, Inc. -Commissioner of Labor], 51 AD3d 1171, 1172-1173 [2008]). Excessive absences and tardiness following prior warnings have been found to constitute disqualifying misconduct (see Matter of Kazaka [Commissioner of Labor], 46 AD3d 1071, 1071 [2007]; Matter of Valenta [Commissioner of Labor], 38 AD3d 1070, 1070 [2007]; Matter of Cuillo [Commissioner of Labor], 37 AD3d 896, 897 [2007]; Matter of Iglesias [Commissioner of Labor], 297 AD2d 849, 849-850 [2002]). On the other hand, loss of employment attributable to symptoms of a recognized illness will not constitute disqualifying misconduct (see Matter of Finn [Commissioner of Labor], 307 AD2d 509, 510 [2003]; Matter of Pluckhan [Sweeney], 245 AD2d 997, 998 [1997]). Whether absences are justified so as to remove them from disqualifying misconduct is a factual issue for the Board to resolve, and its determination will be upheld if supported by substantial evidence (see Matter of Sunderland [Nassau County Med. Ctr. — Roberts], 121 AD2d 779, 780 [1986]).

Here, the Board determined that claimant did not take reasonable steps to protect her employment (see Matter of Hernandez [Commissioner of Labor], 299 AD2d 794, 794[2002]). Claimant was aware, through the employer's progressive discipline spanning more than a year, that her job was in jeopardy. She contends that she took reasonable steps to protect her position by attending weekly therapy sessions and seeing a psychiatrist to adjust her medication. Yet these actions, about which her employer was unaware, did not resolve the problem. Each time the employer counseled and warned claimant about her attendance, the employer inquired if it could do anything to help; claimant did not respond or offer any explanation for her absences. The employer's witness testified that had claimant mentioned the reason for her absences, it would have referred her to a company nurse — who would keep specific medical information confidential — or the human resources department to consider accommodations such as different hours or leave under the Family and Medical Leave Act of 1993 (29 USC § 2612 [a] [1] [D]). Substantial evidence supports the Board's determination that by failing to mention the legitimate medical reason for her absences, claimant failed to take a reasonable step to protect her position (see Matter of Peterson [Commissioner of Labor], 32 AD3d 610, 610-611 [2006]; Matter of Hernandez [Commissioner of Labor], 299 AD2d at 794; see also Matter of Miner [Commissioner of Labor], 49 AD3d 1128, 1129 [2008]; Matter of Cooper [Commissioner of Labor], 305 AD2d 894, 895 [2003]). Thus, she was not entitled to unemployment insurance benefits.

The employer did not violate the Americans with Disabilities Act of 1990(hereinafter ADA) (see 42 USC § 12101 et seq.). The employer did not require claimant to explain her absences and, even when warnings were given, only a general inquiry was made to see if the employer could do anything to assist claimant in remedying her attendance problems. Nevertheless, the ADA permits inquiries related to business necessity (see 42 USC § 12112 [d] [4] [A]), and regular attendance usually is, although it is not always, an essential function of a position (see Brenneman v MedCentral Health Sys., 366 F3d 412, 418-420 [6th Cir 2004]; Ramirez v New York City Bd. of Educ., 481 F Supp 2d 209, 221-222 [ED NY 2007] [stating that attendance is an essential function of employment]; Miller v Verizon Communications, Inc., 474 F Supp 2d 187, 198 [D Mass 2007]; see also Conroy v New York State Dept. of Correctional Servs., 333 F3d 88, 97-98 [2d Cir 2003] [explaining the business necessity standard]). Thus, requiring claimant to take reasonable steps to protect her employment, by providing a reason for her absences and lateness, does not violate the ADA.

Ordered that the decision is affirmed, without costs.

UNEMPLOYMENT INSURANCE - PREGNANCY

I have a hearing today where the issue is whether the Claimant, who was pregnant and delivered birth, voluntary separated after delivery, as the Employer claims. The Claimant claims the job was terminated because of the pregnancy. In this type of case, one must not just research the Appeals Board decisions but also the Federal and State laws regarding pregnancy discrimination as well as the Federal Medical Leave Act and advise the Claimant to consult with the appropriate agencies and with specialized counsel to consider discrimination claims.