In considering a motion to dismiss, the court is to give allegations in the complaint a liberal construction and consider facts alleged in the complaint true

In considering a motion to dismiss, the court is to give allegations in the complaint a liberal construction and consider facts alleged in the complaint true

Kaplan v New York City Dept. of Health & Mental Hygiene, 2016 NY Slip Op 06063, Appellate Division, Second Department

Constance Kaplan was serving with the New York City Department of Health and Mental Hygiene [HMH] as a temporary worker. She alleged that after notifying HMH that she had been sexually harassed by her supervisor during a training session and intended to sue under the relevant human rights laws she was terminated from her position. She also alleged that her dismissal constituted reprisal for taking action to seek redress for the supervisor’s alleged sexual harassment.

Supreme Court granted HMH’s motion to dismiss Kaplan's petition alleging sexual harassment pursuant to New York City’s Human Rights Law “for failing to state a cause of action." The court granted HLMH's motion after determining that Kaplan's failed to show that the behavior of her supervisor "constituted more than a petty slight or trivial inconvenience"

The Appellate Division disagreed with Supreme Court’s ruling and said that the lower court should have given Kaplan’s complaint a liberal construction and accepted all facts alleged in the complaint to be true. Further, said the court, a contention that the behavior being complained of “was a petty slight or trivial inconvenience” constituted an affirmative defense, which should be raised in HMH’s answer, and did not lend itself to a pre-answer motion to dismiss. 

A motion to dismiss, said the Appellate Division, “merely addresses the adequacy of the pleading, and does not reach the substantive merits of a party's cause of action.”

The Appellate Division also found that Supreme Court erred in dismissing Kaplan’s cause of action alleging retaliation within the meaning of both the State’s and the City’s human rights laws. 

Kaplan had alleged in her complaint that her employment was terminated approximately two weeks after she informed HMH of her claims of sexual harassment and advised it of her intent to sue. Viewed in the light most favorable to Kaplan, the Appellate Division concluded that these allegations stated a cause of action alleging retaliation within the meaning of the State’s Human Rights Law and New York City’s Human Rights Law, the latter being "more liberal that its state counterpart.”

HMH had also submitted several emails in support of its motion to dismiss which it contended established that Kaplan was not discharged from her employment. 

The Appellate Division said that the emails submitted by HMH did not establish that Kaplan’s allegation that she was discharged from her employment “is not a fact.” Again the Appellate Division found that “Supreme Court erred in determining that emails from [Kaplan] and her temporary employment agency constituted party admissions and were admissible under an exception to the hearsay rule,” as the emails HMH relied upon were not inconsistent with Kaplan’s position that she was terminated from her employment.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_06063.htm

LawBlogs with a New York State focus

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Employee’s continuing to accept public assistance benefits after being employed to manage public assistance benefits held incompatible with such employment

Employee’s continuing to accept public assistance benefits after being employed to manage public assistance benefits held incompatible with such employment

Human Resources Admin. v Charleman, OATH Index No. 1653/16

In disciplinary proceeding conducted in accordance with §75 of the Civil Service Law,  New York City Office Of Administrative Trials And Hearings Administrative Law Judge Susan J. Pogoda recommended the termination of the employment of Desiree Charleman, an eligibility specialist with the New York City Human Resources Administration [HRA], after finding her guilty of failing to report her arrest for shoplifting, her fraudulently accepted food stamps, and her failing to report acceptance of public assistance rent checks from her sister. Judge Pogoda explained that Charleman’s dishonesty did not comport with the duties of her job.

The ALJ noted that the penalty of termination was recommended in a number of other similar disciplinary action such as in OATH Index No. 1381/03 in which the employee was terminated for failing to report purchase of rental income property as required by agency rules and OATH Index Nos. 542/99, in which three employees who failed to report income and received from $3,000 to $11,000 in public assistance to which they were not entitled.

Although Charleman had expressed remorse over her actions, Judge Pogoda found that while she was specifically informed when she was hired that, as a public assistance client she had an obligation to immediately inform her caseworker of her employment, she failed to do so. Also, said the ALJ, Charleman’s defense that she made mistakes because she was preoccupied with family issues during the relevant time period was inconsistent with her statement to an investigator that “she didn’t know why she kept redeeming the benefits”. In addition, Judge Pogoda found that although Charleman was subsequently notified by a mailed notice of a $600 recoupment claim for benefits, she continued to access her benefits without informing her caseworker of her current income.

The ALJ concluded that Charleman’s acceptance and redemption of benefits for up to nine months after she was employed by HRA, “when she must have known that she was not entitled to them, suggests a high level of dishonesty that is incompatible with continuing to be employed to manage public assistance benefits.

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/16_cases/16-1653.pdf

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