Adverse Action

 

A former teacher who complained of negative evaluations, denial of a transfer and lack of her own classroom failed to establish that she had suffered any adverse employment actions. Gordon v. New York City Bd. of Education, 2003 WL 169800, (S.D.N.Y. 1/23/03) (J. Scheindlin).

The court reasoned that a negative evaluation, without any accompanying adverse consequences, does not constitute an adverse employment action. In addition, the negative evaluation was withdrawn from the employee's record at her request. The employee did not suffer any adverse employment action when her request for a transfer was denied because she sought a lateral transfer rather than a promotion. The employee established that her lack of a classroom was inconvenient but failed to show that it prevented her from doing her job.

Plaintiff pro se.

For defendant: Corporation Counsel of the City of New York, by Cindy M. Schmitt.

Evidence/Hearsay

 

An employee may support his opposition to summary judgment with hearsay statements if he can show that the statements will be available at trial. Murphy v. General Electric Co., 2003 WL 141042, (N.D.N.Y. 1/16/03) (Homer, M.J.).

The employee submitted an affidavit in opposition to the employer's motion for summary judgment, which contained statements made by the employer's Chief Executive Officer and statements made by his manager that she must terminate older employees. The employee was not present when any of those statements were made. The employer contended that the statements were inadmissible hearsay. The court disagreed, reasoning that the statements of the chief executive officer were videotaped, and therefore, were admissions. The manager's statements would also be admissions, rather than hearsay, if offered through the people who heard those statements and relayed them to the employee.

For plaintiff: Harder, Silber & Bergan, by George W. Harder, Albany.

For defendant: Nixon Peabody LLP, by John E. Higgins, Albany.

Hostile Work Environment/Sexual Harassment

Harassment directed at other female employees can support an employee's own claim of hostile work environment even if plaintiff did not directly witness such harassment. Wait v. Beck's North America, 2003 WL 168502 (N.D.N.Y. 1/14/03) (Hurd, D. J.).

In support of her own hostile work environment complaint, plaintiff made several references to alleged sexual harassment by defendants directed at other women employees to which plaintiff was not a witness. In refusing to grant defendants' motion to dismiss, the court ruled that evidence of harassment directed at co-workers can be relevant to an employee's own claim because the crucial inquiry focuses on the nature of the workplace environment as a whole. The alleged incidents of co-worker harassment, therefore, may serve to demonstrate the existence and extent of a hostile work environment.

For plaintiff: Flink, Smith & Associates, LLC, by Edward Flink.

For defendant: BNA, Inc, Nixon Peabody LLP, by John E. Higgins.

For individual defendants: Degraff, Foy, Holt-Harris & Kunz, LLP, by Glen P. Doherty.

Independent Contractor/FLSA

 

Under the Fair Labor Standards Act, workers in drug stores who made deliveries to customers were not independent contractors, but employees of both the drug stores and the placement agency. Ansouana v. Gristede's Operating Corp., 2003 WL 173957 (S.D.N.Y. 1/28/03) (Hellerstein, D.J.).

The placement agency designated the workers as independent contractors and paid them between $20 and $30 a day for working 8 to 11 hours. The Southern District applied the 'economic reality' test in determining that the workers were employees of the placement agency under the FLSA.

The court held that the placement agency controlled the workers' hiring, firing, transfer and pay; that little skill or initiative was required; and that the workers' services were also integral to the business. Only the permanence and duration of the relationship was disputed, but even that did not weigh in favor of finding that the workers were independent contractors: 'the transience of the work force here says less about the status periods of time in this line of work due to the long hours, the low pay, the dangers of the streets, and the vagaries of the weather inherent in delivery work..'

For plaintiffs: National Employment Law Project by Catherine Ruckelshaus and Palyn Hung, New York; Outten & Golden by Adam Klein and Scott Moss, New York; Office of the New York Attorney General by Jennifer Brand and Mary Hughes, New York.

For defendants Duane Reade, Inc.: Putney, Twombly, Hall & Hirson, by James E. McGrath III and Larissa A. Cason, New York.

For defendants Scott Weinstein, Steven Pilavin, Hudson Delivery Service, Inc. and Chelsea Trucking, Inc.: Milman & Heidecker, by Perry Heidecker, Lake Success, NY.

Older Workers Benefit Protection Act

The Older Workers Benefit Protection Act (OWBPA) does not create an independent cause of action under the ADEA. EEOC v. UBS Brinson, Inc., 2003 WL 133235 (S.D.N.Y. 1/15/03) (Berman, D. J.).

As part of its reduction in force, the employer in this case offered a lock-in agreement to some of its 'critical' employees. The agreement provided for certain bonus payments to such employees, but also required them to sign a separation agreement and general release. When plaintiff requested a copy of the release prior to signing the agreement, the employer withdrew the offer of the lock-in agreement and terminated her services. Plaintiff challenged her dismissal under OWBPA, but offered no evidence of any discrimination on the basis of age. In dismissing the complaint, the court ruled that a violation of OWPBA's waiver provision, alone, does not create a cause of action under the ADEA.

No attorneys listed.

Rehabilitation Act/Human Rights Law

A former teacher and guidance counselor presented sufficient evidence for a jury to determine whether she was terminated because of a perceived disability in violation of the Rehabilition Act. Peters v. Baldwin Union Free School Dist., 2003 WL 292002 (2d Cir. 2/12/03) (Leval, Calabresi, and B.D. Parker, Circuit Judges).

The Second Circuit, in reversing the district court's granting of judgment as a matter of law, held that the employee submitted sufficient evidence to show that her employer perceived her as mentally ill and suicidal. For example, the school reassigned her to duties other than counseling until it was clear that she would not attempt suicide. The school then sent the employee to several doctors for evaluations of her mental health. The Second Circuit rejected the employer's contention that the employee was fired for performance reasons and for falsifying records because of unresolved questions of fact, which precluded judgment as a matter of law.

The Second Circuit also held that because the New York Human Rights Law provides broader protection to disabled people than the Rehabilitation Act, evidence sufficient to survive judgment as a matter of law on a Rehabilitation Act claim is a fortiori sufficient to submit a Human Rights Law claim to the jury.

For Plaintiff-Appellant, Wasserman & Steen, by Lewis M. Wasserman and Pamela L. Steen, Patchogue.

For Defendant-Appellee, Cronin & Byczek, LLP, by Linda M. Cronin, Rocco G. Avallone and Eric S. Crusius, Lake Success.

Religious Discrimination

 

A Jewish former deputy police inspector established that his employer engaged in religious discrimination when it denied him promotions and demoted him. Mandell v. County of Suffolk, 316 F.3d 368 (2d Cir. 1/17/03) (Cardamone, F.I. Parker and B.D. Parker, Circuit Judges).

The employer stated only that other officers had been similarly demoted, but failed to explain its reasons for demoting this employee. The Second Circuit held that the employer failed to carry its burden of articulating legitimate nondiscriminatory reasons for demoting the employee. The employer articulated legitimate nondiscriminatory reasons for denying four promotions to the employee, but the employee offered sufficient evidence to permit a jury to find the employer's explanations for denying the promotions were subjective, vague and general enough to permit a jury to believe that Christian religious affiliation was a requirement for the promotions.

For plaintiff-appellant: Alan Polsky, Bohemia, NY.

For defendants-appellees: Diane L. Beckmann, Assistant County Attorney, Hauppauge, NY; Robert J. Cimino, Suffolk County Attorney, Hauppauge, NY, of counsel.

Title VII/Race Harassment

A racial epithet that is reasonably considered to be derogatory, along with other racial jokes directed at an African-American employee, is sufficient to state a race-based hostile work environment claim. Sales v. The YM & YWHA, 2003 WL 164276 (S.D.N.Y. 1/22/03) (Carter, D. J.).

Plaintiff here, an African American employee, was repeatedly referred to as 'Bolunga' by his supervisor and other co-workers. Moreover, statements were made comparing plaintiff to a slave and stereotyping him as an excellent basketball player. Although plaintiff acknowledged that the meaning of 'Bolunga' was ambiguous, the court ruled that a reasonable person could find their work environment altered by such pervasive discriminatory insult and ridicule.

For plaintiff: Robert J. Barsch, New York.

For defendants: Leibowitz & Mars, by Harvey S. Mars, New York.

Adverse Action

 

A former teacher who complained of negative evaluations, denial of a transfer and lack of her own classroom failed to establish that she had suffered any adverse employment actions. Gordon v. New York City Bd. of Education, 2003 WL 169800, (S.D.N.Y. 1/23/03) (J. Scheindlin).

The court reasoned that a negative evaluation, without any accompanying adverse consequences, does not constitute an adverse employment action. In addition, the negative evaluation was withdrawn from the employee's record at her request. The employee did not suffer any adverse employment action when her request for a transfer was denied because she sought a lateral transfer rather than a promotion. The employee established that her lack of a classroom was inconvenient but failed to show that it prevented her from doing her job.

Plaintiff pro se.

For defendant: Corporation Counsel of the City of New York, by Cindy M. Schmitt.

Evidence/Hearsay

 

An employee may support his opposition to summary judgment with hearsay statements if he can show that the statements will be available at trial. Murphy v. General Electric Co., 2003 WL 141042, (N.D.N.Y. 1/16/03) (Homer, M.J.).

The employee submitted an affidavit in opposition to the employer's motion for summary judgment, which contained statements made by the employer's Chief Executive Officer and statements made by his manager that she must terminate older employees. The employee was not present when any of those statements were made. The employer contended that the statements were inadmissible hearsay. The court disagreed, reasoning that the statements of the chief executive officer were videotaped, and therefore, were admissions. The manager's statements would also be admissions, rather than hearsay, if offered through the people who heard those statements and relayed them to the employee.

For plaintiff: Harder, Silber & Bergan, by George W. Harder, Albany.

For defendant: Nixon Peabody LLP, by John E. Higgins, Albany.

Hostile Work Environment/Sexual Harassment

Harassment directed at other female employees can support an employee's own claim of hostile work environment even if plaintiff did not directly witness such harassment. Wait v. Beck's North America, 2003 WL 168502 (N.D.N.Y. 1/14/03) (Hurd, D. J.).

In support of her own hostile work environment complaint, plaintiff made several references to alleged sexual harassment by defendants directed at other women employees to which plaintiff was not a witness. In refusing to grant defendants' motion to dismiss, the court ruled that evidence of harassment directed at co-workers can be relevant to an employee's own claim because the crucial inquiry focuses on the nature of the workplace environment as a whole. The alleged incidents of co-worker harassment, therefore, may serve to demonstrate the existence and extent of a hostile work environment.

For plaintiff: Flink, Smith & Associates, LLC, by Edward Flink.

For defendant: BNA, Inc, Nixon Peabody LLP, by John E. Higgins.

For individual defendants: Degraff, Foy, Holt-Harris & Kunz, LLP, by Glen P. Doherty.

Independent Contractor/FLSA

 

Under the Fair Labor Standards Act, workers in drug stores who made deliveries to customers were not independent contractors, but employees of both the drug stores and the placement agency. Ansouana v. Gristede's Operating Corp., 2003 WL 173957 (S.D.N.Y. 1/28/03) (Hellerstein, D.J.).

The placement agency designated the workers as independent contractors and paid them between $20 and $30 a day for working 8 to 11 hours. The Southern District applied the 'economic reality' test in determining that the workers were employees of the placement agency under the FLSA.

The court held that the placement agency controlled the workers' hiring, firing, transfer and pay; that little skill or initiative was required; and that the workers' services were also integral to the business. Only the permanence and duration of the relationship was disputed, but even that did not weigh in favor of finding that the workers were independent contractors: 'the transience of the work force here says less about the status periods of time in this line of work due to the long hours, the low pay, the dangers of the streets, and the vagaries of the weather inherent in delivery work..'

For plaintiffs: National Employment Law Project by Catherine Ruckelshaus and Palyn Hung, New York; Outten & Golden by Adam Klein and Scott Moss, New York; Office of the New York Attorney General by Jennifer Brand and Mary Hughes, New York.

For defendants Duane Reade, Inc.: Putney, Twombly, Hall & Hirson, by James E. McGrath III and Larissa A. Cason, New York.

For defendants Scott Weinstein, Steven Pilavin, Hudson Delivery Service, Inc. and Chelsea Trucking, Inc.: Milman & Heidecker, by Perry Heidecker, Lake Success, NY.

Older Workers Benefit Protection Act

The Older Workers Benefit Protection Act (OWBPA) does not create an independent cause of action under the ADEA. EEOC v. UBS Brinson, Inc., 2003 WL 133235 (S.D.N.Y. 1/15/03) (Berman, D. J.).

As part of its reduction in force, the employer in this case offered a lock-in agreement to some of its 'critical' employees. The agreement provided for certain bonus payments to such employees, but also required them to sign a separation agreement and general release. When plaintiff requested a copy of the release prior to signing the agreement, the employer withdrew the offer of the lock-in agreement and terminated her services. Plaintiff challenged her dismissal under OWBPA, but offered no evidence of any discrimination on the basis of age. In dismissing the complaint, the court ruled that a violation of OWPBA's waiver provision, alone, does not create a cause of action under the ADEA.

No attorneys listed.

Rehabilitation Act/Human Rights Law

A former teacher and guidance counselor presented sufficient evidence for a jury to determine whether she was terminated because of a perceived disability in violation of the Rehabilition Act. Peters v. Baldwin Union Free School Dist., 2003 WL 292002 (2d Cir. 2/12/03) (Leval, Calabresi, and B.D. Parker, Circuit Judges).

The Second Circuit, in reversing the district court's granting of judgment as a matter of law, held that the employee submitted sufficient evidence to show that her employer perceived her as mentally ill and suicidal. For example, the school reassigned her to duties other than counseling until it was clear that she would not attempt suicide. The school then sent the employee to several doctors for evaluations of her mental health. The Second Circuit rejected the employer's contention that the employee was fired for performance reasons and for falsifying records because of unresolved questions of fact, which precluded judgment as a matter of law.

The Second Circuit also held that because the New York Human Rights Law provides broader protection to disabled people than the Rehabilitation Act, evidence sufficient to survive judgment as a matter of law on a Rehabilitation Act claim is a fortiori sufficient to submit a Human Rights Law claim to the jury.

For Plaintiff-Appellant, Wasserman & Steen, by Lewis M. Wasserman and Pamela L. Steen, Patchogue.

For Defendant-Appellee, Cronin & Byczek, LLP, by Linda M. Cronin, Rocco G. Avallone and Eric S. Crusius, Lake Success.

Religious Discrimination

 

A Jewish former deputy police inspector established that his employer engaged in religious discrimination when it denied him promotions and demoted him. Mandell v. County of Suffolk , 316 F.3d 368 (2d Cir. 1/17/03) (Cardamone, F.I. Parker and B.D. Parker, Circuit Judges).

The employer stated only that other officers had been similarly demoted, but failed to explain its reasons for demoting this employee. The Second Circuit held that the employer failed to carry its burden of articulating legitimate nondiscriminatory reasons for demoting the employee. The employer articulated legitimate nondiscriminatory reasons for denying four promotions to the employee, but the employee offered sufficient evidence to permit a jury to find the employer's explanations for denying the promotions were subjective, vague and general enough to permit a jury to believe that Christian religious affiliation was a requirement for the promotions.

For plaintiff-appellant: Alan Polsky, Bohemia, NY.

For defendants-appellees: Diane L. Beckmann, Assistant County Attorney, Hauppauge, NY; Robert J. Cimino, Suffolk County Attorney, Hauppauge, NY, of counsel.

Title VII/Race Harassment

A racial epithet that is reasonably considered to be derogatory, along with other racial jokes directed at an African-American employee, is sufficient to state a race-based hostile work environment claim. Sales v. The YM & YWHA, 2003 WL 164276 (S.D.N.Y. 1/22/03) (Carter, D. J.).

Plaintiff here, an African American employee, was repeatedly referred to as 'Bolunga' by his supervisor and other co-workers. Moreover, statements were made comparing plaintiff to a slave and stereotyping him as an excellent basketball player. Although plaintiff acknowledged that the meaning of 'Bolunga' was ambiguous, the court ruled that a reasonable person could find their work environment altered by such pervasive discriminatory insult and ridicule.

For plaintiff: Robert J. Barsch, New York.

For defendants: Leibowitz & Mars, by Harvey S. Mars, New York.