Dog Is Property | Handbook Not Contract | Paramour In Workplace

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A Dog is Still Property

A Dog is Still Property

In the Matter of the Application of Boyle, a Surrogate Court once again held the fate of a beloved dog in its hands. In a recent newsletter, we wrote about another surrogate court decision in Gellenbeck v. Whitton, wherein Stevie the dog, “for all the joy she brings to this world,” as the court put it, did not have the right to have a court of law predicate a decision on what is best for her. Rather, the court had concluded that the law of property should apply to an award of possession of Stevie.

In this most recent case, Michael Boyle, the administrator of his brother, James’ estate, sought to compel the Donoghue respondents to return property – Darby, a dog – belonging to the estate. According to the decision, shortly after the death of the decedent, an AKC registered Irish Terrier dog named Darby was removed without permission from the decedent’s home and placed in the possession of Patrick and Patricia Donoghue, who continued to possess the dog. Although Michael had made repeated demands for the return of the dog, the Donoghues refused to return the dog to Michael.

The Donoghues argued that on the day of decedent’s funeral a cousin found the dog barricaded into the kitchen of the apartment that had been shared by the decedent and Michael. The dog was allegedly alone and covered in urine and feces. The cousin removed the dog and shortly thereafter the Donoghues offered to care for the dog. They claimed that they spent approximately $3,310.00 for the dog’s medical care, food, and equipment, in addition to training and rehabilitating the dog. They argued that Michael’s relinquishment of the dog to his cousin, and the cousin to them, should be considered a gift to them. They also argued the Court must consider the best interests of the dog, as well as the best interests of Michael. They claimed that directing the return of the dog to Michael would unjustly enrich Michael and would also return the dog to a potentially unsafe environment.

Citing Gellenbeck v. Whitton the Court held that “under current New York law a court cannot predicate a decision on what is best for a dog. ‘The correct law is the law of property and this court will determine and award possession of [a dog] according to that law and no other.’” Further, the Court ruled that “contrary to the arguments made by respondents’ counsel, the elements of a gift are not present, and there has been no unjust enrichment of Michael, whose counsel asserts that he sought the return of the dog almost immediately after his cousin removed the dog from his home.”

The Court went further and found that “even if the Court could consider the welfare of the dog in deciding this case, the November 2, 2015 written report of Marianne Kehoe, Chairperson of the Rescue Committee of the Irish Terrier Club of New York, regarding the advisability of returning the dog to Michael, provides overwhelming assurance that Michael has the means and inclination to give the dog a proper, safe and loving home. The report is based upon the visit of Marianne Kehoe to Michael’s home and her meeting with Michael, his attorney, his attorney-in-fact, two friends, Michael’s housekeeper and the dog walker employed by Michael to walk the dog two to three times daily, once the dog is returned to Michael.”

The Court directed the Donoghues to return the dog, belonging to the estate of James F. Boyle, to Michael within 15 days.

CVS’s Employee Handbook Is Not A Contract

CVS’s Employee Handbook Is Not A Contract

In Kunda v. Caremark PHC, L.L.C., a federal District Court held that even assuming the facts alleged by plaintiff to be true, his claims for breach of contract, based on the defendant’s internal policies as set forth in the Employment Handbook, must be dismissed for failure to state a claim upon which relief may be granted.

The defendant, Caremark PhC LLC does business as CVS Caremark. Hired by CVS in 2006 as an assistant store manager, Kunda was promoted, in 2010, to become a store manager. He was fired in March 2014, based on an interaction a month earlier with another CVS employee. Kunda’s breach of contract action was grounded on employment policies published in CVS’s employment handbook. Kunda argued he was arbitrarily terminated by CVS because he did not engage in any behaviors listed in Section 3 of the handbook. Those behaviors ran the gamut from sleeping on the job, to foul language, to basic insubordination.

In New York, it has long been settled that absent statutory protection (such as teacher tenure, Civil Service protection, or anti-discrimination laws) an employment relationship is presumed to be a hiring “at will,” terminable at any time by either party for any reason. This presumption can be rebutted, however, by establishing an express limitation in an individual contract of employment curtailing an employer’s right to terminate at will. Courts in New York have on occasion found an employee handbook to constitute a form of “contract.”

This is presumably why CVS’s handbook has the typical disclaimers preserving the at-will employment relationship:

“I have received today a copy of the CVS Caremark handbook. I understand that the handbook contains management guidelines only…. I understand that neither this handbook nor any other communication by a management representative, whether oral or written, is intended in any way to create a contract of employment. Since employment with CVS Caremark is voluntarily entered into, I am free to resign at any time. Similarly, the Company may terminate the employment whenever it believes it is appropriate.”

The Court held that even if it didn’t have this language, “plaintiff’s breach of contract claim would still fail because the Employment Handbook does not contain an express limitation on CVS’s ability to fire its employees. In order for the Employment Handbook ‘to become a contract, it would have to contain some specific limitation on CVS’s right to terminate its employees at-will.’ Here, Section 3 of the Employment Handbook does not set out exclusive avenues for termination, but instead provides a non-exhaustive list of conduct that may warrant termination or discipline. The preamble language in Section 3 states that the list includes ‘[e]xamples of conduct that generally lead to discipline and termination’ but that the list is ‘not limited to’ those specified. In fact, the handbook even acknowledges that ‘a handbook cannot cover every behavior or act that would be unacceptable’ but only ‘can provide enough examples to make the point.’ The handbook cautions employees to realize as they read through the handbook that they ‘could lose their job if they disregard or violate any company policy or procedure, whether contained in this handbook or maintained elsewhere.’”

Thus, the Court concluded that the Employment Handbook by its explicit terms cannot be interpreted to contain any limitation on CVS’s ability to terminate its employees, and agreed with defendant’s argument that because Kunda was unable to demonstrate an express policy limiting CVS’s right to terminate his employment, his breach of contract claim must fail.

Favoring a Paramour in the Workplace is Not Actionable

Favoring a Paramour in the Workplace is Not Actionable

In Marcus v. Leviton Manufacturing Co., Inc., Marc Marcus filed a federal action against his former employer, Leviton Manufacturing Company, Inc., alleging, among other claims, a hostile work environment and retaliation.

Marcus worked for Leviton Manufacturing Co. from 2002 until termination in May 2014. He claimed he was fired for complaining that two fellow employees engaged in “inappropriate relations” and were given “preferential treatment.” Marcus alleged that “as a result of the inappropriate relations,” a female employee received “preferential treatment” that included “being allowed inordinate amount of time off, not being accountable for her time and being placed in charge of keeping attendance.” He alleged that “sex was a factor” in how she was treated as an employee, and how other employees “who did not engage in illicit sexual behavior” with the supervisor “were treated worse,” not only creating a hostile work environment but in employee reviews and evaluations. He claimed the “preferential treatment” was “unfair to the other employees,” including himself.

On the employer’s motion to dismiss the complaint, the Court reasoned that to plead a hostile environment claim, a plaintiff must show “the complained of conduct: (1) is objectively severe or pervasive — that is…creates an environment that a reasonable person would find hostile or abusive; (2) creates an environment that the plaintiff subjectively perceives as hostile or abusive; and (3) creates such an environment because of the plaintiff’s sex. ‘Sex,’ as required by the third prong, ‘logically could only refer to membership in a class delineated by gender, rather than sexual activity regardless of gender…. The proscribed differentiation under Title VII…must be a distinction based on a person’s sex, not on his or her sexual affiliations.’ The three prongs of the test are deemed the objective, subjective, and prohibited causal factor requirements, respectively.”

The Court went on to explain that it is “well-settled that favoritism of an employee based upon a consensual romantic relationship, frequently referred to as ‘the paramour preference,’ is not actionable under Title VII or the NYSHRL as a form of gender discrimination.” A plaintiff must “allege far more than that a supervisor engaged in an isolated workplace sexual affair and accorded special benefits to a sexual partner.” Even if the plaintiff “may have been subjected to a hostile and abusive environment because she opposed the sexual relationship” and the “preferential treatment of a colleague, those allegations of hostility are ‘grounded in workplace dynamics unrelated to her sex’ and are insufficient to state a sex-based hostile work environment claim.”

As for his retaliation claim, Marcus argued that he was terminated as a “direct result” of his complaints to “various individuals in management” about the personal relationship and the female employee’s “derivative preferential treatment.”

The Court stated that retaliation claim pursuant to Title VII and the NYSHRL requires a plaintiff to demonstrate: “(1) that [he] was engaged in protected activity by opposing a practice made unlawful by Title VII; (2) that the employer was aware of that activity; (3) that [he] suffered [an] adverse employment action; and (4) that there was a causal connection between the protected activity and the adverse action. A ‘protected activity’ is defined as: 1) an ‘action taken to protest or oppose statutorily prohibited discrimination;’ or 2) ‘even when the underlying conduct complained of was not in fact unlawful,’ the plaintiff ‘establishing that he possessed a good faith, reasonable belief that the underlying challenged actions of the employer violated the law.’”

To be defined as a “protected activity” pursuant to Title VII and the NYSHRL, the Court noted that Marcus’ complaints to management must have been founded upon a “good faith, reasonable belief that the underlying challenged actions of the employer violated the law.” The reasonableness of one’s belief “is to be assessed in light of the totality of the circumstances,” and “mere subjective good faith belief is insufficient.” Instead, the “belief must be reasonable and characterized by objective good faith.”

The Court found that Marcus did not allege any facts to indicate that “a legally unsophisticated employee would have a good faith, reasonable belief” that complaints about the referential treatment “constituted discrimination based on gender.” His complaints that the personal relationship negatively impacted the company “as a whole” were “gender-neutral complaints and are insufficient to constitute a ‘protected activity,’ as he has not demonstrated a good faith, reasonable belief that Defendant’s actions were based upon his sex.” Because he failed to establish the first element required for a retaliation claim, or that his actions constituted a “protected activity,” the Court did not have to analyze remaining elements of the claim and dismissed the retaliation claim.

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