Articles Posted in Second Circuit

Edgar M. Rivera, Esq.

In Griffin v. Sirva Inc., the New York Court of Appeals announced how New York State Human Rights Law § 296 (Section 296) should be interpreted with respect to employer and nonemployer liability for criminal conviction discrimination. Griffin involves two former employees of Astro Moving and Storage Co. Inc. (Astro), Tranthony Griffin and Michael Godwin. Griffin and Godwin sued Astro, a moving and storage company; Allied Van Lines, Inc. (Allied), a nationwide moving company with whom Astro had contracted to perform moving services­; and Sirva Inc. (Sirva)­, Allied’s parent company, for discriminating against them by terminating their employment for failing to pass Allied’s criminal background screen due to prior criminal convictions for sexual offenses.

After hiring Griffin and Godwin, Astro contracted with Allied to perform moving services. The contract required Astro to adhere to Allied’s Certified Labor Program guidelines, which provide that employees who “conduct the business of Allied at customer’s home or place of business […] must have successfully passed a criminal background screen […] as specifically approved by Allied.” If Astro violated these guidelines by using unscreened labor, it was subject to escalating monetary penalties. Under the Certified Labor Program guidelines, employees automatically failed the criminal background screen if they had ever been convicted of a sexual offense. In 2011, Griffin and Godwin consented to have Sirva investigate their criminal records, which identified their convictions, and Astro terminated them shortly afterward. Griffin and Godwin sued Astro, Allied, and Sirva, alleging criminal conviction discrimination under Section 296.

Edgar M. Rivera, Esq.

On May 22, 2017, in Makinen v. City of New York, the Second Circuit certified the following question: does the New York City Human Rights Law (NYCHRL) preclude a plaintiff from bringing a disability discrimination claim based solely on a perception of untreated alcoholism?  The question will be answered by the New York State Court of Appeals.

Plaintiffs Kathleen Makinen and Jamie Nardini served as New York Police Department (NYPD) officers for several years.  During their employment, each was referred to the NYPD’s Counseling Service Unit (CSU), which offers treatment and rehabilitation for officers struggling with substance abuse. Once an officer is referred to CSU with alleged alcohol-related problems, a trained counselor conducts an intake interview and contacts references to gather information regarding the officer’s reported alcohol use. If an officer is diagnosed with an alcohol use disorder, CSU staff develops a personal treatment plan, which may include educational videos, counseling, Alcoholics Anonymous meetings, outpatient treatment, or inpatient treatment. An officer who refuses treatment is referred to the NYPD’s Medical Division, which may order the officer to undergo treatment or face disciplinary action. The officer is entitled to challenge the disciplinary action in administrative proceedings by filing a grievance with the agency that oversees CSU or through an Article 78 proceeding. Otherwise, once an officer is diagnosed with an alcohol-related problem, receipt by CSU of subsequent evidence of alcohol consumption triggers a mandatory reassessment and, potentially, further treatment.

Lev Craig

On May 9, 2017, the U.S. Court of Appeals for the Second Circuit denied summary judgment in Ahmed v. Astoria Bank, where plaintiff Sherin Ahmed brought religion, race, and national origin discrimination claims against her former employer. The Second Circuit held that the district court had erred in concluding that Ahmed had not presented evidence of discrimination and harassment sufficient to meet the threshold for a hostile work environment claim under Title VII of the Civil Rights Act of 1964 (“Title VII”). As such, the court vacated the lower court’s granting of summary judgment, allowing the case to proceed to trial.

Ahmed, who is originally from Egypt and immigrated to the U.S. in 2001, is a practicing Muslim woman and wears a hijab as part of her religious observance. In 2013, Ahmed interviewed for a quality control analyst position at Astoria Bank, a Long Island City­-based bank serving the New York metropolitan area, and was hired, conditional upon a 90-day probationary period. But, she alleges, Astoria Bank discriminated against her based on her race, religion, and national origin beginning as early as the day of her interview, when Anthony Figeroux, a Vice President at the bank, told her that she and two other Middle Eastern employees were “suspicious” and that he was glad he was “in the other side of the building in case you guys do anything.”

Lev Craig

On May 3, 2017, in Philpott v. State of New York, the U.S. District Court for the Southern District of New York refused to dismiss sexual orientation discrimination claims brought under Title VII of the Civil Rights Act of 1964 (Title VII). Judge Alvin K. Hellerstein of the Southern District of New York joined a growing number of courts across the country in finding sexual orientation discrimination cognizable under Title VII, stating, “I decline to embrace an illogical and artificial distinction between gender stereotyping discrimination and sexual orientation discrimination.”

Plaintiff Jeffery Philpott was employed at the SUNY College of Optometry as Vice President of Student Affairs, where, according to his complaint, he was subjected to years of discrimination and harassment because he is gay. Philpott alleges that his supervisors and coworkers mockingly called him “sensitive” and “flamboyant,” told him that “separate but equal treatment of gay people might be best,” dismissively referred to his relationship with his long-term domestic partner as “this marriage, or whatever you want to call it,” and refused to let him meet their families because they did not “want our children to be around homosexuality.” In addition, SUNY allegedly excluded him from meetings and projects because of his sexual orientation and implied that he deserved a lower salary because he is gay, telling him that “your team [i.e., gay people] doesn’t have kids. You have more than you need.” Shortly after Philpott complained to SUNY of the ongoing discrimination, Philpott claims, SUNY terminated his employment. Philpott filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC), then filed suit in federal court, alleging hostile work environment, wrongful termination, and retaliation claims under Title VII.

Lev Craig

The U.S. Court of Appeals for the Second Circuit recently affirmed the determination of the National Labor Relations Board (NLRB) in NLRB v. Pier Sixty, LLC, a case involving the boundaries of union-related activity protected under the National Labor Relations Act (NLRA). In its April 21, 2017 decision, the Second Circuit held that Pier Sixty, LLC, had violated the NLRA when it terminated an employee over his union-related Facebook post, even though the post used obscenities and disparaged the employee’s supervisor.

The NLRB is a federal agency tasked with the “prevention of statutorily defined unfair labor practices on the part of employers and labor organizations” and is authorized to investigate, prosecute, and adjudicate claims of unfair labor practices. The agency was created by the NLRA, a federal labor law passed in 1935 which protects the rights of employees to organize, engage in collective bargaining, and participate in other union-related activities. The NLRA prohibits an employer from terminating an employee based on “protected concerted activity,” a term referring to employees working together to improve the terms and conditions of their employment—for example, attempting to form a union, discussing pay and safety concerns with other workers, and making complaints about workplace conditions. However, there are exceptions if an employee’s behavior is found to be so “opprobrious” that it no longer falls within the NLRA’s protections. Though the NLRA generally protects union-related activity, “even an employee engaged in ostensibly protected activity may act ‘in such an abusive manner that he loses the protection’ of the NLRA.”

Lev Craig

On April 12, 2017, the Second Circuit affirmed the district court’s decision in Saleem v. Corporate Transportation Group, Ltd., finding that a group of black-car drivers had been properly classified as independent contractors under the Fair Labor Standards Act (FLSA) and New York Labor Law (NYLL). The court held that the drivers’ significant degree of independence prevented them from establishing that they were employees within the meaning of the FLSA or NYLL.

Under New York law, black cars are defined as a “type of for‐hire vehicle (along with livery vehicles and limousines) that provide ground transportation by prearrangement with customers.” The Saleem plaintiffs are a group of black-car drivers serving clients throughout the tri-state area; the defendants were operators and administrators of a black-car dispatch, which sells black-car franchises to individual drivers and refers the dispatcher’s clients to the driver. Each driver signed an agreement with a franchisor, stating that the driver was not an “employee or agent” but instead a “subscriber to [the franchisor’s] services offered,” that the driver would “at all times be free from [the franchisor’s] control or direction,” and that the franchisor would not “control, supervise or direct” the driver’s work. The agreements did not prohibit drivers from transporting customers for other companies, including competitors, but did require that drivers comply with policies set out by each franchisor, such as rules concerning dress code and vehicle cleanliness.

Lev Craig and Harrison Paige

On March 27, 2017, the United States Circuit Court of Appeals for the Second Circuit reversed and remanded in part and affirmed in part the district court’s decision in Christiansen v. Omnicom Group, Incorporated, et al. Plaintiff Matthew Christiansen brought claims against his former employer under the Americans with Disabilities Act (“ADA”) and Title VII of the Civil Rights Act of 1964 (“Title VII”), alleging discrimination on the basis of his HIV-positive status and his failure to conform to gender stereotypes. The lower court dismissed Christiansen’s federal claims for failure to state a claim; the Second Circuit upheld the dismissal of the ADA claim, but reversed the dismissal of the Title VII claim, finding that Christiansen had plausibly alleged a Title VII gender stereotyping claim.

Christiansen, an openly gay man who is HIV-positive, was the creative director for DDB Worldwide Communications Group Incorporated (“DDB”), an international advertising agency and Omnicom subsidiary. According to the complaint, Christian’s direct supervisor, Joe Cianciotto, subjected Christiansen to a “pattern of humiliating harassment targeting his effeminacy and sexual orientation.” Cianciotto allegedly drew offensive, obscene caricatures of Christiansen on an office whiteboard, the most explicit of which depicted Christiansen naked with an erection, captioned with a mocking comment about same-sex marriage. On another occasion, according to the complaint, Cianciotto created a “Muscle Beach Party” poster, which he circulated amongst office members and posted on Facebook, displaying DDB employees’ heads photoshopped onto the bodies of people in swimwear; on the poster, Christiansen’s head was pasted onto a photo of a woman in a bikini, lying on the ground with her legs upright in the air “in a manner that one coworker thought depicted Christiansen as ‘a submissive sissy.’”

Edgar M. Rivera, Esq.

In Perez v. The City of New York, the Second Circuit analyzed what factors were relevant for a district court to determine whether an employer must compensate its employee for time spent putting on and taking off (“donning and doffing”) their uniforms.  Vacating the district court’s decision that donning and doffing of uniforms were not compensable activities under the Fair Labor Standards Act (FLSA), the Perez court found that it could not determine as a matter of law that the donning and doffing of uniforms were not “integral and indispensable to [plaintiffs’] principal activities.”  Plaintiffs, Assistant Urban Park Rangers, claim that defendants—the Parks Department and its Commissioner, along with the City of New York and Mayor de Blasio—provided inadequate compensations for their work by, among things, failing to pay wages for time spent donning and doffing their uniforms before and after each shift.

Assistant Urban Park Rangers are required to wear uniforms comprising both professional clothing and equipment.  The professional clothing includes “olive drab” pants and jacket, ranger-style hats, and various Parks Department insignias; the equipment includes a bulletproof vest and a utility belt holding handcuffs, gloves, a radio, a flashlight, a baton, a can of mace, a summons book, and a tape recorder.  The plaintiffs estimate that to don and doff those uniforms takes five to thirty minutes each day.

Lev Craig and Edgar M. Rivera, Esq.

Determining a school’s liability in a student suicide case is a fraught and complex issue: While plaintiffs argue that schools should make more significant efforts to prevent a student’s suicide—especially since many student suicides are caused by repeated incidents on school campuses, like severe peer bullying—courts have generally been reluctant to impose new or heightened duties on school counselors.

In 1991, the Maryland Court of Appeals in Eisel v. Board of Education of Montgomery County was the first court to hold that school officials may have a legal duty to try to prevent a student’s suicide. In Eisel, a wrongful death and survival action, a 13-year-old girl committed suicide after telling school counselors that she intended to kill herself.  Citing the in loco parentis doctrine—which requires a person or organization, such as a school, to take on some of the functions and responsibilities of a parent—the court concluded that “school counselors have a duty to use reasonable means to attempt to prevent a suicide when they are on notice of a child or adolescent student’s suicidal intent.”

Edgar M. Rivera, Esq.

On July 7, 2016, the Second Circuit ruled that the Southern District Court of New York erred in dismissing a plaintiff’s discrimination case by evaluating each piece of evidence in isolation, rather than viewing that evidence as a whole. In Walsh v. New York City Housing Authority, Rita Walsh claimed that the New York City Housing Authority (“NYCHA”) discriminated against her based on her gender by not hiring her as a bricklayer. The district court dismissed the action, concluding that no reasonable jury could find that NYCHA decided not to hire Walsh because of her sex. The Second Circuit vacated and remanded the decision and order.

Walsh supported her discrimination claim with three pieces of evidence: the NYCHA has never employed any woman as a bricklayer; Walsh was arguably more qualified than two of the successful candidates in the “main, if not primary, task” required of a bricklayer, tile work; and the NYCHA stated that it did not hire her because it was looking for someone “stronger,” without asking her any questions about her physical strength. The district court deemed each piece of evidence insufficient to create a triable issue of fact and granted the NYCHA’s motion for summary judgment. The Second Circuit found that the district court made several mistakes in its procedure.