New York State's Human Rights Law bars discrimination against heterosexual individuals

New York State's Human Rights Law bars discrimination against heterosexual individuals

Brennan v Metropolitan Opera Association, Inc, 284 AD2d 66

Martha Ellen Brennan claimed that “on the basis of her [heterosexual] sexual orientation, her former employer, the Metropolitan Opera Association (Met), her former supervisor at the Met, David Kneuss, and the Met's general manager, Joseph Volpe, refused to renew her contract and subjected her to a hostile work environment, in violation of New York City law.”

The essential elements of Brennan's multiple allegations: the Met refused to renew her employment contract and subjected her to a hostile work environment because of her age, her sex and her heterosexual orientation, thereby discriminating against her in violation of:

1. 42 USC 2000e-2[a][1], prohibiting discrimination “because of ... sex”;

2. 29 USC 623[a][1], prohibiting discrimination “because of ... age”;

3. New York's Executive Law Section 296[1][a], prohibiting discrimination “because of ... sex”; and

4. New York City's Administrative Code Section 8-107, prohibiting discrimination because of “actual or perceived ... sexual orientation”.

Following the dismissal of her federal age and sex discrimination claims by the U.S. Court of Appeals, Second Circuit, (Brennan v Metropolitan Opera Association, 192 F.3d 310), Brennan commenced an action in New York State Supreme Court action on her sexual orientation discrimination claims.

The Supreme Court justice, noting that this issue was one “of first impression,” ruled that Brennan “is protected, as a heterosexual female, under the New York City law against employment discrimination based on sexual orientation.” The court explained: The fact that discrimination against heterosexuals is not as pervasive as that found against homosexuals does not change the clear wording of the municipal law nor does it lessen the impact of such prejudices on the individuals involved.

After making this finding, the Supreme Court justice granted the Mets' motion for summary judgment on the grounds that Brennan failed to show that her sexual orientation created a hostile work environment or was the reason for non-renewal of her contract. The Appellate Division affirmed the lower court's determination.

The Appellate Division said that for Brennan to prevail on her claim of a hostile work environment she must show that she was subjected to harassment based on her sexual orientation and that the harassment was so severe or pervasive as to “alter the conditions of [her] employment and create an abusive working environment,” citing Meritor Savings Bank v Vinson, 477 US 57, 67.

The Appellate Division pointed out that “first and foremost is the evidence” and Brennan “simply did not adduce sufficient evidence to sustain her claim that [the Met] created an environment hostile to heterosexuals.”

Brennan's case involved the lack of evidence sufficient to state a prima facie case of discrimination.

In contrast, “unrebutted evidence” of the complainant's prima facie case precludes administrative dismissal of unlawful discrimination charges. In Sauer v NYS Division of Human Rights Appellate Division, 285 AD2d 372, the Appellate Division annulled the New York State's Divisions of Human Rights dismissal of Vincent A. Sauer's age discrimination complaint and remanded it to the Division for an administrative hearing.

The Appellate Division said that Sauer's allegations that he was not hired because of his age and that younger Pan American Airways mechanics with less seniority, whom he specifically identified, were hired by Delta Airlines in his stead, are unrebutted by any evidence in the record.

According to the ruling, “Delta's unsigned and unsworn position statement, submitted in an attempt to settle [Sauer's] complaint,” in which Delta said that Sauer was not hired because he lacked sufficient seniority to be considered, was inadequate for that purpose.

New York City police sergeants not “management” for the purposes of the FLSA and thus entitled to payment for overtime

New York City police sergeants not “management” for the purposes of the FLSA and thus entitled to payment for overtime

Edward D. Mullins, et al v City Of New York, US Court Of Appeals, Second Circuit, Docket No. 09-3435-cv

The Fair Labor Standards Act, subject to certain exceptions, mandates overtime pay for employees who work more than 40 hours per week. Specifically, 29 U.S.C. § 207(a)(1) of the Act provides that no employer shall employ any of his employees who in any workweek is engaged in commerce or in the production of goods for commerce, or is employed in an enterprise engaged in commerce or in the production of goods for commerce,* for a workweek longer than forty hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed."

Noting that the FLSA exempts workers who are “employed in a bona fide executive . . . capacity” from the Act’s overtime requirement, the Second Circuit supported the United States Secretary of Labor’s holding that New York City Police Department sergeants are not “management,” and thus the sergeants “do not qualify for the “bona fide executive” exemption from the overtime pay requirements of the Fair Labor Standards Act of 1938.”

The sergeants had sued the City, alleging denial of overtime pay under the FLSA to which they were entitled for overtime they worked from April 19, 2001 to the present.

* Presumably the Circuit Court found that the New York City Police Department is an employer “engaged in commerce or in the production of goods for commerce, or is employed in an enterprise engaged in commerce or in the production of goods for commerce.” 


 

Application for unemployment insurance after resignation rejected

Application for unemployment insurance after resignation rejected

Barry v Commissioner of Labor, 284 AD2d 701

Miriam R. Barry, a part-time teacher, applied for unemployment insurance benefits after resigning from her position. The Unemployment Insurance Appeal Board ruled that Barry was disqualified from receiving unemployment insurance benefits because she voluntarily left her employment without good cause.

The Appellate Division found that substantial evidence supported the Board's decision since Barry resigned from her part-time employment as a teacher to avoid possible scheduling conflicts with any potential new employment.

Although Barry was in the process of looking for a new job, she had no firm offer of new employment at the time she resigned. Since she resigned notwithstanding the fact that “continuing work was available,” the court said that it found “no reason to disturb the Board's decision.”

Challenging not being selected for a provisional appointment

Challenging not being selected for a provisional appointment

Cameron v Church, 309 AD2d 747

Is an individual entitled to a court order directing his or her provisional appointment or promotion to a position if there is proof that the reason for the applicant's nonselection was bias on the part of the individual making the employment decision? This was the issue in the Cameron case.

Terence R. Cameron challenged Westchester County's Commissioner of Transportation Marvin Church's appointment of Florence Petronio as a provisional “Program Specialist.” He obtained a court order from State Supreme Court Justice Nastasi directing Church to appoint him to the position.

Although the Appellate Division vacated Justice Nastasi's ordering Cameron's appointment to the position, it upheld the lower court's finding that Church's decision to reject Cameron's promotion request was arbitrary and capricious. The court said that the County failed to introduce any proof to controvert Cameron's evidence that he was denied the requested promotion “because of the personal animosity of Church towards his cousin.”

Although the Appellate Division held that Cameron was not entitled to an order directing that he be given the provisional promotion he wanted, it said that he was entitled to “consideration of his application on the merits, without improper factors” and remanded the matter to the lower court for further action. 

Disciplinary penalty vacated as too harsh

Disciplinary penalty vacated as too harsh

Lagala v NYC Police Dept., 286 AD2d 205; Leave to appeal denied, 97 NY2d 605

Courts have consistently ruled that an administrative disciplinary penalty imposed on an individual must be upheld “unless it shocks the judicial conscience and, therefore, constitutes an abuse of discretion as a matter of law.” A leading case setting out this principle: Pell v Board of Education, 34 NY2d 222. In Pell, the Court of Appeals said that a disciplinary penalty “shocks the judicial conscience when it is so graven in its impact that it is disproportionate to the offense.”

In the Lagala case the Appellate Division, First Department, applied the Pell standard and determined that the disciplinary penalty imposed on Lagala -- dismissal -- “shocks the judicial conscience.” The court directed that the matter be returned to the Commissioner for his reconsideration of the appropriate penalty to be imposed.

New York City police officer Anthony Lagala challenged his dismissal after he was found guilty of disciplinary charges alleging that he had (1) improperly issuing summonses for parking violations and (2) used a Department scooter without authorization.

The reasons given by the Appellate Division for vacating the disciplinary penalty imposed on Lagala and remanding the matter to the Commissioner of Police:

1. Lagala's sergeant testified that she never noticed deficiencies in the summonses he wrote, nor did she speak to him regarding the summonses he issued, although she spoke to 30 or 40 other officers about their deficiencies.

2. Lagala's performance evaluation for the period in question rated him between competent and highly competent.

3. The record showed that Lagala could not have taken the scooter without having obtained a supervisor's consent.

4. There is no evidence in the record that Lagala's misconduct involved dishonesty, venality or threat to public safety.

The court, referring to Pell, ruled that considering the relevant circumstances, the sanction of dismissal was so disproportionate to these “minor offenses” as to shock “one's sense of fairness.” 

DiNapoli’s Office Completes School Audits

New York State Comptroller Thomas P. DiNapoli announced his office completed the following audits: the Central Islip Union Free School District; the Eden Central School District; and, the Fonda-Fultonville Central School District..

In addition, Comptroller DiNapoli posted his completed audits of the City of Binghamton; the Town of Elma; the Elmont Fire District; the Town of Farmersville; Orange County; the Town of Orange; the Village of Penn Yan; and, the Village of Sherman.

These audits have been posted on the Internet and may be accessed by clicking on the name of the school district or municipality.

And the winner is….

And the winner is….

Goggle statistics

Goggle Statistics reports that as of August 1, 2011 “Any administrative action in the nature of discipline taken against a tenured teacher must be taken pursuant to Education Law §3020-a exclusively” the most read item posted on NYPPL.

Originally posted on July 13, 2010, it is found at: http://publicpersonnellaw.blogspot.com/2010/07/any-administrative-action-in-nature-of.html