Decisions of Interest

For Defendants-Respondents, Damon & Morey, LLP, by Michael J. Willett, Buffalo.

Non-compete Found Unenforceable

An employer failed to demonstrate that its business, reputation, or client base was threatened by a former employee who obtained work with its competitor in violation of a non-compete agreement. AM Media Comm. Group v. Kilgallen, 2003 WL 1610774 (S.D.N.Y. 4/29/03)(Marrero, D.J.).

The employee signed a non-compete agreement that prohibited her from soliciting or working with any clients of the employer for 2 years, and from disclosing confidential material for 7 years following termination. The employee obtained employment with a competitor immediately after her employment with the employer ended. The employer argued that the employee solicited its clients and disclosed confidential information in violation of the non-compete agreement. The court rejected the employer's argument because the employee left after the employer's client had already chosen the employee's new employer for certain business, and because the employee was simply not important enough to steal clients. The court also held that the confidential information that the employee allegedly disclosed belonged not to her former employer, but to a client of that former employer.

No attorneys listed.

Division of Human Rights Damages Award Upheld

The Appellate Division confirmed the determination of the State Division of Human Rights (SDHR) that awarded a former employee nearly $700,000 in damages in all discrimination cases. Exxon Shipping Co. v. New York State Div. of Human Rights, 755 N.Y.S.2d 608 (1^st Dep't 3/13/03) (Mazerelli, J.P., Saxe, Sullivan, Ellerin and Gonzalez, JJ.).

Substantial evidence supported the SDHR's determination that the employer's proffered reason for terminating the employee ' that it needed to reduce its workforce ' was false, and that age discrimination was the real reason, which required the Appellate Division to confirm the award.

For Petitioners, Donald J. Fay, New York.

For Respondents, Thomas R. Purcell, New York.

Hostile Environment/'Supervisor'

A mechanic in charge of one of the employer's worksites was the 'supervisor' of an employee he allegedly sexually harassed for purposes of the employer's vicarious liability under Title VII. Mack v. Otis Elevator Co., 2003 WL 1860722, (2d Cir. 4/11/03) (Feinberg, Cardamone and Sack, Circuit Judges).

In overruling the district court, the Second Circuit rejected the 'Parkins' test devised by the Seventh Circuit Court of Appeals that defines 'supervisor' for purposes of Title VII as one who has 'the power to hire, fire, demote, promote, transfer or discipline an employee.' The Second Circuit reasoned that the Supreme Court's holdings in Faragher and Ellerth require a broader definition of superviso, which focuses on whether the authority given by the employer augments the ability of the alleged supervisor to create a hostile work environment. In applying its test, the Second Circuit concluded that the alleged harasser was a supervisor: 'Not only did he direct the particulars of each of [the employee's] work days, including her work assignments, he was the senior employee on the work site. He therefore possessed a special dominance over other on-site employees ' arising out of their remoteness from other with authority to exercise power on behalf of [the employer].'

For Plaintiff-Appellant, Somma, Zabell & Associates, by Saul d. Zabell, Michael G. McAlvin, Farmingdale.

For Defendant-Appellee Otis Elevator Company, Day Berry & Howard LLP, by Kenneth W. Gage, Jamal M. Dawkins, Stamford, CT.

For Defendant-Appellee Local 1 international Union of Elevator Constructors, Markowitz & Richman, by Richard H. Markowitz and Nancy A. Walker, Philadelphia.

For Equal Employment Opportunity Commission, Nicholas, M. Inezo, Philip B. Sklover, Vincent J. Blackwood and Julie L. Gantz, Washington, D.C.

The employee signed a non-compete agreement that prohibited her from soliciting or working with any clients of the employer for 2 years, and from disclosing confidential material for 7 years following termination. The employee obtained employment with a competitor immediately after her employment with the employer ended. The employer argued that the employee solicited its clients and disclosed confidential information in violation of the non-compete agreement. The court rejected the employer's argument because the employee left after the employer's client had already chosen the employee's new employer for certain business, and because the employee was simply not important enough to steal clients. The court also held that the confidential information that the employee allegedly disclosed belonged not to her former employer, but to a client of that former employer.

No attorneys listed.The Appellate Division confirmed the determination of the State Division of Human Rights (SDHR) that awarded a former employee nearly $700,000 in damages in all discrimination cases. Exxon Shipping Co. v. New York State Div. of Human Rights, 755 N.Y.S.2d 608 (1st Dep't 3/13/03) (Mazerelli, J.P., Saxe, Sullivan, Ellerin and Gonzalez, JJ.).

Substantial evidence supported the SDHR's determination that the employer's proffered reason for terminating the employee ' that it needed to reduce its workforce ' was false, and that age discrimination was the real reason, which required the Appellate Division to confirm the award.

For Petitioners, Donald J. Fay, New York.

For Respondents, Thomas R. Purcell, New York.A mechanic in charge of one of the employer's worksites was the 'supervisor' of an employee he allegedly sexually harassed for purposes of the employer's vicarious liability under Title VII. Mack v. Otis Elevator Co., 326 F. 3d 116, (2d Cir. 4/11/03) (Feinberg, Cardamone and Sack, Circuit Judges).

In overruling the district court, the Second Circuit rejected the 'Parkins' test devised by the Seventh Circuit Court of Appeals that defines 'supervisor' for purposes of Title VII as one who has 'the power to hire, fire, demote, promote, transfer or discipline an employee.' The Second Circuit reasoned that the Supreme Court's holdings in Faragher and Ellerth require a broader definition of supervisor, which focuses on whether the authority given by the employer augments the ability of the alleged supervisor to create a hostile work environment. In applying its test, the Second Circuit concluded that the alleged harasser was a supervisor: 'Not only did he direct the particulars of each of [the employee's] work days, including her work assignments, he was the senior employee on the work site. He therefore possessed a special dominance over other on-site employees ' arising out of their remoteness from other with authority to exercise power on behalf of [the employer].'

For Plaintiff-Appellant, Somma, Zabell & Associates, by Saul d. Zabell, Michael G. McAlvin, Farmingdale.

For Defendant-Appellee Otis Elevator Company, Day Berry & Howard LLP, by Kenneth W. Gage, Jamal M. Dawkins, Samford, CT.

For Defendant-Appellee Local 1 international Union of Elevator Constructors, Markowitz & Richman, by Richard H. Markowitz and Nancy A. Walker, Philadelphia.

For Equal Employment Oppor- tunity Commission, Nicholas, M. Inezo, Philip B. Sklover, Vincent J. Blackwood and Julie L. Gantz, Washington, D.C.

An employee may defeat a motion for summary judgment by raising a triable issue of fact relating to either the falsity of the employer's explanation for a challenged action or the employer's discriminatory motive. Morse v. Wyoming Co. Comm. Hosp. and Nursing Facility, 2003 WL 2008825 (4th Dept. 5/2/03) (Wisner, J.P., Scudder, Kehoe, Gorski and Lawton, JJ.).

Discrimination cases decided under the State Human Rights Law (SHRL) are governed by the same standards that govern cases brought under Title VII. Therefore, the Appellate Division held, the United States Supreme Court's rejection of the 'pretext-plus' rule in claims brought pursuant to Title VII rendered the 'pretext-plus' rule inapplicable to discrimination cases brought pursuant to the SHRL. The Appellate Division reversed the lower court, which improperly placed the burden on the employee of proving not only pretext, but also discrimination.

For Plaintiff-Appellant, Offerman, Cassano, Greco & Slisz, LLP, by Kevin P. Wicka, Buffalo.

For Defendants-Respondents, Damon & Morey, LLP, by Michael J. Willett, Buffalo.

Non-compete Found Unenforceable

An employer failed to demonstrate that its business, reputation, or client base was threatened by a former employee who obtained work with its competitor in violation of a non-compete agreement. AM Media Comm. Group v. Kilgallen, 2003 WL 1610774 (S.D.N.Y. 4/29/03)(Marrero, D.J.).

The employee signed a non-compete agreement that prohibited her from soliciting or working with any clients of the employer for 2 years, and from disclosing confidential material for 7 years following termination. The employee obtained employment with a competitor immediately after her employment with the employer ended. The employer argued that the employee solicited its clients and disclosed confidential information in violation of the non-compete agreement. The court rejected the employer's argument because the employee left after the employer's client had already chosen the employee's new employer for certain business, and because the employee was simply not important enough to steal clients. The court also held that the confidential information that the employee allegedly disclosed belonged not to her former employer, but to a client of that former employer.

No attorneys listed.

Division of Human Rights Damages Award Upheld

The Appellate Division confirmed the determination of the State Division of Human Rights (SDHR) that awarded a former employee nearly $700,000 in damages in all discrimination cases. Exxon Shipping Co. v. New York State Div. of Human Rights , 755 N.Y.S.2d 608 (1 st Dep't 3/13/03) (Mazerelli, J.P., Saxe, Sullivan, Ellerin and Gonzalez, JJ.).

Substantial evidence supported the SDHR's determination that the employer's proffered reason for terminating the employee ' that it needed to reduce its workforce ' was false, and that age discrimination was the real reason, which required the Appellate Division to confirm the award.

For Petitioners, Donald J. Fay, New York.

For Respondents, Thomas R. Purcell, New York.

Hostile Environment/'Supervisor'

A mechanic in charge of one of the employer's worksites was the 'supervisor' of an employee he allegedly sexually harassed for purposes of the employer's vicarious liability under Title VII. Mack v. Otis Elevator Co., 2003 WL 1860722, (2d Cir. 4/11/03) (Feinberg, Cardamone and Sack, Circuit Judges).

In overruling the district court, the Second Circuit rejected the 'Parkins' test devised by the Seventh Circuit Court of Appeals that defines 'supervisor' for purposes of Title VII as one who has 'the power to hire, fire, demote, promote, transfer or discipline an employee.' The Second Circuit reasoned that the Supreme Court's holdings in Faragher and Ellerth require a broader definition of superviso, which focuses on whether the authority given by the employer augments the ability of the alleged supervisor to create a hostile work environment. In applying its test, the Second Circuit concluded that the alleged harasser was a supervisor: 'Not only did he direct the particulars of each of [the employee's] work days, including her work assignments, he was the senior employee on the work site. He therefore possessed a special dominance over other on-site employees ' arising out of their remoteness from other with authority to exercise power on behalf of [the employer].'

For Plaintiff-Appellant, Somma, Zabell & Associates, by Saul d. Zabell, Michael G. McAlvin, Farmingdale.

For Defendant-Appellee Otis Elevator Company, Day Berry & Howard LLP, by Kenneth W. Gage, Jamal M. Dawkins, Stamford, CT.

For Defendant-Appellee Local 1 international Union of Elevator Constructors, Markowitz & Richman, by Richard H. Markowitz and Nancy A. Walker, Philadelphia.

For Equal Employment Opportunity Commission, Nicholas, M. Inezo, Philip B. Sklover, Vincent J. Blackwood and Julie L. Gantz, Washington, D.C.

The employee signed a non-compete agreement that prohibited her from soliciting or working with any clients of the employer for 2 years, and from disclosing confidential material for 7 years following termination. The employee obtained employment with a competitor immediately after her employment with the employer ended. The employer argued that the employee solicited its clients and disclosed confidential information in violation of the non-compete agreement. The court rejected the employer's argument because the employee left after the employer's client had already chosen the employee's new employer for certain business, and because the employee was simply not important enough to steal clients. The court also held that the confidential information that the employee allegedly disclosed belonged not to her former employer, but to a client of that former employer.

No attorneys listed.The Appellate Division confirmed the determination of the State Division of Human Rights (SDHR) that awarded a former employee nearly $700,000 in damages in all discrimination cases. Exxon Shipping Co. v. New York State Div. of Human Rights, 755 N.Y.S.2d 608 (1st Dep't 3/13/03) (Mazerelli, J.P., Saxe, Sullivan, Ellerin and Gonzalez, JJ.).

Substantial evidence supported the SDHR's determination that the employer's proffered reason for terminating the employee ' that it needed to reduce its workforce ' was false, and that age discrimination was the real reason, which required the Appellate Division to confirm the award.

For Petitioners, Donald J. Fay, New York.

For Respondents, Thomas R. Purcell, New York.A mechanic in charge of one of the employer's worksites was the 'supervisor' of an employee he allegedly sexually harassed for purposes of the employer's vicarious liability under Title VII. Mack v. Otis Elevator Co., 326 F. 3d 116, (2d Cir. 4/11/03) (Feinberg, Cardamone and Sack, Circuit Judges).

In overruling the district court, the Second Circuit rejected the 'Parkins' test devised by the Seventh Circuit Court of Appeals that defines 'supervisor' for purposes of Title VII as one who has 'the power to hire, fire, demote, promote, transfer or discipline an employee.' The Second Circuit reasoned that the Supreme Court's holdings in Faragher and Ellerth require a broader definition of supervisor, which focuses on whether the authority given by the employer augments the ability of the alleged supervisor to create a hostile work environment. In applying its test, the Second Circuit concluded that the alleged harasser was a supervisor: 'Not only did he direct the particulars of each of [the employee's] work days, including her work assignments, he was the senior employee on the work site. He therefore possessed a special dominance over other on-site employees ' arising out of their remoteness from other with authority to exercise power on behalf of [the employer].'

For Plaintiff-Appellant, Somma, Zabell & Associates, by Saul d. Zabell, Michael G. McAlvin, Farmingdale.

For Defendant-Appellee Otis Elevator Company, Day Berry & Howard LLP, by Kenneth W. Gage, Jamal M. Dawkins, Samford, CT.

For Defendant-Appellee Local 1 international Union of Elevator Constructors, Markowitz & Richman, by Richard H. Markowitz and Nancy A. Walker, Philadelphia.

For Equal Employment Oppor- tunity Commission, Nicholas, M. Inezo, Philip B. Sklover, Vincent J. Blackwood and Julie L. Gantz, Washington, D.C.