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Notable Employment Cases for New York City and Long Island, June Through August 2020

Notable Employment Cases for New York City and Long Island, June Through August 2020EDNY

Schimkewitsch v. N.Y. Inst. of Tech., CV 19-5199

Plaintiff alleges he was expelled from the New York Institute of Technology due to discrimination based upon sex, national origin, and disability.  Plaintiff also asserted claims grounded in breach of contract arising from his expulsion.  Defendant moved to dismiss all causes of action pursuant to Federal Rule of Civil Procedure 12(b)(6).

The Court granted Defendant’s motion in part, dismissing the claims of gender, national origin, and actual disability discrimination, as well as retaliation without prejudice, and the breach of contract, unjust enrichment, and quantum meruit claims, as well as all claims under the New York City Human Rights Law with prejudice.  The Court, however, denied Defendant’s motion with respect to the claims of perceived disability.  The Court found that Plaintiff failed to establish a prima facie case for national origin and gender discrimination claims.  Plaintiff’s allegations of national origin discrimination were based upon the comments of a single teacher and Plaintiff provided no link between these comments and his expulsion, or denial of alteration upon review of a grade he felt was incorrect.  With respect to Plaintiff’s gender discrimination claim, the Court noted Plaintiff ‘s complaint was absent any details to support conclusory allegations of disparate treatment, and that his bare assertion that the student body does not reflect the population at large is insufficient to establish a claim of disparate impact.  The Court also found that the Plaintiff failed to identify any protected activity he engaged in to establish a retaliation claim, and that his contractual claims are barred by Article 78 of the New York Civil Practice Law & Rules.  Plaintiff’s claims under the New York City Human Rights Law was also dismissed as the claim arose from events occurring in Nassau County, and his Nassau County Human Rights Law claim was dismissed as that law does not provide a private right of action.

The Court dismissed Plaintiff’s disability discrimination claim, finding that the Plaintiff failed to establish that his anxiety, which was undiagnosed until psychiatric review was undertaken to establish his fitness to return to school, was an actionable disability substantially limiting a major life activity.  The Court, noted that the Plaintiff’s allegation that his anxiety interfered with his ability to pursue his studies was contradicted by the plaintiff’s performance in the program, but that a professor’s comment that the Plaintiff should seek psychological counseling, coupled with emergency suspension of the Plaintiff requiring psychiatric clearance to return, subsequent diagnosis by a psychiatrist associated with the Defendant who indicated he was fit to return to school, and then Plaintiff’s subsequent expulsion, support a claim originating in a perceived disability sufficient to survive a motion to dismiss.  Plaintiff was granted leave to amend those claims dismissed without prejudice to properly plead them.

Rodriguez v. Nat’l Golf Links of Am., et al., 19-CV-7052

Plaintiff brought suit against the Defendants alleging violations of the Fair Labor Standards Act and New York Labor Law.  After a series of communications with a member of the Defendant golf organization, in which the member attempted to pressure Plaintiff into discontinuing his action or settling immediately, the member brought a suit against the Plaintiff in state court for failure to repay a $5,000.00 loan that the member made to Plaintiff to pay the medical expenses of a caddy Plaintiff had assaulted.  Plaintiff moved for leave to amend his complaint to add a cause of action for retaliation based upon the newly brought state Court action against him.  Defendants do not dispute that this member attempted to pressure Plaintiff into dropping the case or settling, but instead argued that Plaintiff cannot demonstrate the state law claim is baseless or frivolous.

The Court noted that the Plaintiff sufficiently alleged that he filed suit against the Defendants, and that the state Court lawsuit was causally related to the Plaintiff’s action for Fair Labor Standards Act violations.  The Court then considered whether the state court action constituted an adverse employment action under the Fair Labor Standards Act.  The Court relied on Second Circuit and Eastern District precedent to note that commencement of “bad faith litigation against [an] employee constitutes actionable retaliation.” Porter v. MooreGroup Corp., 2020 WL 32434, 11 (E.D.N.Y. 2020), but noted that the question of whether an action that is not baseless can also serve as an adverse employment decision remains unsettled.  The Court acknowledged that while several district courts have applied rulings on amending complaints to include claims for retaliation based on the assertion of counter-claims that have not yet been deemed baseless, the Second Circuit has provided no ruling that would serve as guidance on the issue.  Instead, the Court held that the Plaintiff sufficiently alleged that the “state court action was initiated on behalf of Defendants and in order to dissuade [Plaintiff] from proceeding with the instant action, and was thus motivated by retaliatory animus” and that therefore the Plaintiff had alleged an adverse employment action, relying on Romero v. Bestcare, Inc., 2018 WL 1702001 (E.D.N.Y. 2018).


Galli v. PricewaterhouseCoopers LLP, 19 Civ. 7224 (LGS) (S.D.N.Y. 2020)

Plaintiff, a former managing director for the Defendants, brought claims under ERISA for failure to provide a full and fair review of a claim, recovery of denied benefits, equitable relief for interference with benefits, breach of fiduciary duty, and equitable relief for disclosure violations.  Plaintiff’s benefits plan provided that Plaintiff either be given notice three months prior to termination or three months of severance pay.  Plaintiff was verbally notified of her termination, but not notified in writing, and as such alleged that she was entitled to three months of severance pay.  Plaintiff moved for summary judgment on the denial of benefits claim arguing she did not receive written notice of her termination and was therefore entitled to three months of severance pay under the plan.  Defendants moved for summary judgment on the denied benefits claim as well, which the Court granted.  The Court also granted a motion by Defendants to compel arbitration of the remaining claims.

The District Court’s decision on Plaintiff’s motion turned on the definition of “notice” in the plan’s language.  Notably, the Court found that the term “notice” was not defined by the plan.  The Plaintiff argued that the employment agreement required that the notice be provided in writing, as the agreement indicated a change in the terms of the agreement required a writing, however the Court held that any requirement that the notice be in writing should not be written into the plan as an additional requirement, as the plain definition of notice is not restricted to written notice, and Plaintiff’s argument that the plan and Employment Agreement be read together as requiring a written notice should be rejected as the plan does not refer to the Employment Agreement.  The Court also rejected Plaintiff’s argument that the employment agreement could be modified only by writing was not triggered by termination, as the agreement provided for at-will employment, allowing that the “firm may change the terms and conditions of the employment relationship, and that you may leave the Firm or the Firm may require you to leave its employ, for any reason or no reason, at any time.”

The Court then granted the Defendants’ summary judgment motion, finding the decision of the plan administrator was not arbitrary or capricious, as it was based on the finding that the plan did not require written notice, and that plaintiff had received verbal notice.  The Court held that the evidence presented by Plaintiff to the plan administrator did not render the decision arbitrary or capricious, as with or without Plaintiff’s declaration that email correspondence regarding her termination was not notice, the Defendants relied on “more than a scintilla of evidence” that Plaintiff received notice of her termination.  Finally, turning to the Defendants’ motion to compel arbitration, the Court granted the motion to compel under the Federal Arbitration act.  Plaintiff argued that she was fraudulently induced to sign the Employment Agreement and Arbitration Agreement, as the Defendants were the subjects of an investigation at the time of her hiring, and she would not have signed either if she had known the circumstances of the investigation, and that the attachment of the arbitration agreement to the employment agreement rendered both invalid, and therefore arbitration on the Employment Agreement should not be compelled.  The Court held that Plaintiff’s challenge is to her employment and all related contractual agreements, and the Arbitration Agreement is therefore severable from the Employment Agreement.  As such, the Court granted Defendant’s motion to compel arbitration on the remaining claims.

Appellate Division, First Department

Hosking v. Memorial Sloan-Kettering Cancer Ctr., 2020 NY Slip Op 03484

Plaintiff, an individual suffering from multiple debilitating conditions, brought a complaint alleging that her termination from her position as a concierge was discrimination based on her disability.  Plaintiff was restricted from pushing, pulling, lifting, or working outdoors, limiting her ability to perform any “doorman” functions.  The Defendant transitioned her position to involve a “pooled” set of job requirements that included these doorman functions.  Plaintiff sought an accommodation allowing her to remain in the concierge function exclusively, which Defendant concluded it could not provide.  Plaintiff asserted claims for disability and age discrimination in her complaint.  Defendants moved for summary judgment, dismissing the complaint, which was granted by the Supreme Court to the extent that they sought to dismiss the age discrimination claim, but denied summary judgment dismissing Plaintiff’s disability discrimination claim.  Defendant appealed, arguing it is entitled to summary judgment because Plaintiff was unable to perform the essential functions of the position, while Plaintiff cross appealed, contending issues of fact existed to warrant reinstatement of the age discrimination claim.

The Appellate Division held that the decision of the Supreme Court should be affirmed.  In holding such, the Court held that the Plaintiff’s age discrimination claim was supported only by evidence that she was replaced by someone younger, and that along was not sufficient to establish a prima facie case that would rebut the legitimate reasons offered for her termination.  The Court also held that the Defendant failed to demonstrate they engaged in an interactive process to attempt to determine if an accommodation could be made for Plaintiff’s disability.  The Court stated, “here is no rule that an employer has to engage in the process for a certain number of days or that it ultimately has to give the employee what the employee is demanding. However, the process has to be held in good faith and the essential functions of the position need to be part of the interactive process the law requires, not a unilateral employer decision cloaked by business judgement. Indeed, what happened here ‘is a long way from the framework of cooperative problem solving based on open and individualized exchange in the workplace that the [Americans with Disabilities Act [ADA] intended’” quoting Phillips v City of New York, 66 AD3d 170, 175 (1st Dept 2009).  The Court summarized Defendant’s argument that Plaintiff could not perform the duties of the position as jumping to a conclusory position that Plaintiff could not perform the duties, or that an accommodation would impose undue hardship, without first engaging in an interactive process in good faith.

Currid v. Valea, 2020 NY Slip Op 03590

Plaintiff-appellant was employed as a caretaker for Defendant’s sick aunt.  Plaintiff brought claims for violations of the overtime, minimum wage, and spread of hours provisions of the New York Code of Rules and Regulations.  The Defendant denies that she is Plaintiff’s employer, asserting that she paid the plaintiffs by check from 2014 to 2016 on behalf of her aunt.  Plaintiff alleged that from 2010 to 2013 defendant paid Plaintiff in cash, however Defendant denies these payments came from her.  To determine the source of these payments, Defendant moved to compel production of Plaintiffs’ tax returns for 2010 to 2013 which Defendant claims will verify the cash amounts alleged, as well as Plaintiff’s status as an independent contractor or employee.

The Court acknowledged that the disclosure of tax returns is generally disfavored but found that the defendant here “demonstrated both that the specific information ordered disclosed was necessary to defend the action, and unavailable from other sources.” (internal citations omitted).  The Court found that a simple examination of Plaintiff’s bank accounts would be inconclusive, as they could be mixed with money from other sources in the deposits, and that the tax returns would indicate whether the money was claimed as wages or income from self-employment.  The Court inspected the returns in camera and deemed them relevant and directed redactions of the documents to narrowly tailor discovery to this issue.  The Court concluded by advising the Plaintiff that they could seek a protective order to prevent the use of these returns in contexts other than this litigation, granting the motion to compel.

Supreme Court, New York County

Yang v. New PFL Inc., et al., 2020 NY Slip Op 50668(U)

Plaintiff brought a complaint alleging that, while working as a salesperson in a furniture and lighting store owned by New PFL Inc, the defendants failed to pay her statutorily required minimum wage and overtime wages, or provide statutorily required wage notices.  Defendants moved for summary judgment, arguing that the plaintiff never worked for the Defendants.  Plaintiff, however, produced business cards for both businesses indicating the same address and phone number for their operation and the individual defendant Li as the manager of both businesses, as well as an affidavit and deposition testimony describing her employment by the Defendants.  Defendants argued that Plaintiff’s affidavit and testimony were not credible, as the store in which Plaintiff was employed was owned by New Perfect Furniture & Lighting, Inc.  Defendants further argued that this entity was separate from New PFL Inc. and the individual defendant, Kevin Li.  Defendants claim that the individual defendant and New Perfect Furniture & Lighting, Inc. have operated separate from and uninvolved with New PFL Inc. since 2009, providing a printout from the website of the Secretary of State indicating New PFL Inc. was dissolved in 2009.

The Court denied Defendants’ motion for summary judgment, holding that the evidence presented by the Defendants did not render Plaintiff’s testimony incredible.  The Court further noted the evidence presented by the Plaintiff, indicating the existence of a third corporation involved with the businesses operated from that location overlapped in their existence and predated the alleged vacatur of the premises by the individual defendant.  As such, the Court denied Defendants’ motion, holding that the conflict between the two accounts required trial.

Turner v. Sheppard Grain Enter. LLC. 2020 WL 3432946

Plaintiff brought claims based on unpaid consulting fees under an agreement with the defendants.  Plaintiff alleges that $150,000 in fees was withheld in bad faith based on a pretextual termination for cause, and that under New York City’s Freelance Isn’t Free Act (“FIFA”), he was entitled to double damages.  Defendant moved to dismiss two of the causes of action, arguing FIFA does not apply here as the plaintiff did not perform the work in New York City.  The Defendant argued that they maintain an office in New York for notice purposes but their “nerve Center” is located in Phelps, New York, and that Plaintiff did not sign the contract in New York City, nor is Plaintiff a freelance worker.  Plaintiff contends that the Defendant is an LLC with its principle office in New York City, and that the contract was signed by the Defendant’s representative in New York City.  Plaintiff further argues that the contract was for work Plaintiff performed related to work performed by the Defendant based in New York City.  Finally, the Plaintiff argued that under FIFA, a person’s residency should not be determinative, and urged the Court to consider the nature of work in the digital age when evaluating the scope of FIFA.

The Court found that, per the agreement between Defendant and Plaintiff, Plaintiff fell within the scope of an independent contractor, which FIFA was intended to protect, but that the text of the law provides no guidance regarding its scope or applicability to freelancers based out of state.  In the absence of guidance, the Court turned to an examination of the intent and purpose of the law.  The Court compared FIFA to the New York City Human Rights Law, another city law, and the Court of Appeals’ adoption of an impact requirement that a “non-resident plaintiff must demonstrate that the alleged discriminatory conduct had an ’impact’ within the city.” Hoffman v. Parade Publs., 15 N.y.3d 285, 290 (2010).  The Court adopted this standard and found that the Plaintiff performed most of his work from Connecticut, and the few meetings Plaintiff asserts were in New York City  do not sufficiently establish that he is entitled to the protections of FIFA.  The Court held that Plaintiff was not entitled to the protections offered by FIFA, as his residency and work requirements failed to establish sufficient impact in New York City, and granted Defendants partial motion to dismiss.

Evans v. Bloomberg LP, 160707/2019

Plaintiff brought suit against Defendants, her former employer, for age, gender, and disability discrimination, as well as retaliation.  Defendants produced a release singed by the Plaintiff on November 28, 2016, and Plaintiff amended her complaint to include claims that the release is void.  Defendants then moved for dismissal, claiming the release bars her claims, and seeking a declaratory judgment to enforce the validity of the release.

Plaintiff’s amended complaint alleges that she was fraudulently induced to sign the release, based on claims by the Defendants that her position was being eliminated due to a reduction in workforce, removing six other employees alongside Plaintiff.  After this agreement, Plaintiff learned in 2019 that all six employees were over 40 years old and replaced by younger employees.  In response, defendants produced an email dated November 21, 2016 in which Plaintiff discussed the dismantling of her work group with a colleague.  The Court found “that defendants falsely represented that her position was eliminated as part of a reduction in force, on which Plaintiff relied in agreeing to the release, when in fact she was replaced by a younger employee, and her position and division were not eliminated, demonstrate fraudulent inducement that damaged her.”  Plaintiff further alleged that the defendants misrepresented their severance policies and plaintiff’s eligibility to receive severance pay and other benefits, leading Plaintiff to believe they were contingent upon signing the release, even though she was entitled to them anyway.

While the Court granted Defendants’ motion to declare the release was not void due to incapacity, ambiguity, lack of consideration, or violation of statutory requirements, but denied the motion to the extent that it sought to dismiss Plaintiff’s claim that the release was void due to fraudulent inducement.


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