Employment Discrimination | Postal Service Liability | Home Improvement Contract

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You Can Be Fired For Being “Too Cute”

You Can Be Fired For Being “Too Cute”

In Edwards v. Nicolai, plaintiff Dilek Edwards (“Edwards”) sued for employment discrimination based on gender, claiming she was fired for being “too cute.” A Manhattan Supreme Court disagreed – not with how she looked, but that she failed to properly allege a discrimination claim.

The facts alleged by Edwards were straight forward. She was employed as a yoga and massage therapist by Wall Street Chiropractic and Wellness (“WSCW”). Defendant Charles V. Nicolai is a co-owner of WSCW, and oversees all of their chiropractic and therapeutic services. He hired plaintiff, trained her, oversaw her work, and ultimately fired her. Co-defendant Adams is a co-owner and chief operating officer of WSCW and is married to Nicolai.

Throughout the period of her employment at WSCW, Edwards’ work was praised by Nicolai. Although he told her, in June 2013, that his wife might become jealous of her because she was “too cute,” Edwards maintained a strictly professional relationship with him. She met Adams only one time, at the WSCW office, and their meeting was cordial.

On October 29, 2013, at approximately 1:15 a.m., Edwards noticed a missed call on her personal phone from Adams. Approximately fifteen minutes later, she received a text message from Adams “out of the blue,” which stated that she wanted to make it clear to her that “you are NOT welcome any longer at Wall Street Chiropractic, DO NOT ever step foot in there again, and stay the [F***] away from my husband and family!!!!!!! And remember I warned you.” The following day on October 30, 2013, at approximately 9:00 a.m., Edwards received an email from Nicolai, which stated: “You are fired and no longer welcome in our office. If you call or try to come back, we will call the police.” Edwards then tried to call the WSCW office, but found that her number was blocked. She was too afraid to collect her personal belongings from WSCW’s office.

Edwards sued for, among other things, gender discrimination. However, the only allegation in her complaint is that she was terminated by Nicolai because Adams’ jealousy, namely that she thought plaintiff was “too cute.” Her complaint included no other fact or allegation to support a discrimination cause of action, nor did it alleged that she was treated differently than male employees. There was also no allegation in her complaint that she was terminated because of her status as a woman.

Under both the New York State Human Rights Law and the New York City Human Rights Law, it is unlawful for an employer to fire or refuse to hire or otherwise discriminate against an individual in the terms, conditions or privileges of employment because of, as pertinent here, the individual’s sex or gender. Both the NYSHRL and the NYCHRL also require that their provisions be “construed liberally” to accomplish the remedial purposes of prohibiting discrimination. To state a claim for employment discrimination, a plaintiff must allege that she is a member of a protected class, that she was discharged from a position for which she was qualified, and that the discharge occurred under circumstances giving rise to an inference of unlawful discrimination.

On the defendants’ motion to dismiss, the Court ruled that a spouse’s jealousy was a lawful reason for termination, citing cases from other jurisdictions holding that attractive females are not a “protected class” under discrimination law. The Court also reasoned that “with respect to whether appearance can be the basis of a discrimination claim, under other statutory authority, courts have not found discrimination when the subject conduct or policy was not applied differently to men and women. The Court concluded that the “defendants’ behavior, no matter how abhorrent, fails to constitute gender discrimination.”

Postal Service Not Responsible For Errant Wedding Invites

Postal Service Not Responsible For Errant Wedding Invites

In Lombardi v. USPS, newlywed pro se plaintiffs Jacquelyn and Christopher Lombardi sued the United States Postal Service for having failed to inform them that their wedding invitations needed extra postage. Invitations to their September 26, 2015 wedding were undelivered, delayed, defaced, and mutilated. Some intended guests did not receive an invitation, and were offended, according to the complaint.

They filed their complaint in small-claims court in Buffalo, New York and sought the maximum jurisdictional limit of $5,000 in damages. However, the Postal Service removed the proceeding to federal Court pursuant to that Court’s federal-agency removal jurisdiction, and immediately moved to dismiss for lack of subject-matter jurisdiction. The federal removal statute provides, among other things, that a civil action that is commenced in a State court and that is against or directed to any agency of the United States and is related to that agency’s official acts, may be removed by the agency to the district court of the United States for the district and division embracing the place wherein it is pending.

On motion, the Court dismissed the action on the ground that it lacked derivative jurisdiction, and granted the motion of the Postal Service to dismiss for lack of subject-matter jurisdiction.

The Court reasoned that Courts never have subject-matter jurisdiction over a claim barred by sovereign immunity. “Sovereign immunity,” or “crown immunity,” is a time-honored legal doctrine by which the sovereign or state cannot commit a legal wrong and is immune from civil suit or criminal prosecution. This principle is commonly expressed by the popular legal maxim “rex non potest peccare,” meaning “the king can do no wrong.” In the United States, the federal government has sovereign immunity and may not be sued unless it has waived its immunity or consented to suit. The United States has waived sovereign immunity to a limited extent, mainly through the Federal Tort Claims Act, which waives the immunity if a tortious act of a federal employee causes damage, and the Tucker Act, which waives the immunity over claims arising out of contracts to which the federal government is a party.

The Court held “it is well established that in any suit in which the United States is a defendant, a waiver of sovereign immunity with respect to the claim is a prerequisite to subject matter jurisdiction. It is also well established that suits against the United States Postal Service are suits against the United States. Consistent with this status, the Postal Service enjoys federal sovereign immunity absent a waiver. Accordingly, the Court lacks subject-matter jurisdiction over claims against the Defendant Postal Service unless the claims are within an express waiver of the sovereign immunity of the United States.”

Although the action was properly removed under the removal statute, the court recognized that under the derivative jurisdiction doctrine, the Court lacks subject-matter jurisdiction over any action if the court from which the action was removed pursuant to §1442(a)(1) lacked subject-matter jurisdiction.

The specific allegations of the pro se plaintiffs in their small-claims pleading were:

After not being informed our wedding invitations needed extra postage, invites were sent back 1-5 at a time. Our wedding was Sept. 26, 2015. We are still getting invites back to this date: they are defaced with writing, stained and ripped. Some never made it to their destination at all. Created chaos, some guests never made it because of their lack of invite and were offended. One invite was opened and subsequently arrived taped.

“Because Plaintiffs seek money damages for injuries allegedly caused by a wrongful failure of Defendant Postal Service to inform them extra postage was required for their wedding invitations, the allegations sound in tort. Tort claims against the United States are within the Court’s subject-matter jurisdiction only if they are within the waiver of sovereign immunity in the Federal Tort Claims Act.”

The Court found three reasons why the couple’s claims were not within the waiver of sovereign immunity, and not within this Court’s derivative jurisdiction. First, the Act expressly excludes from the waiver of sovereign immunity claims “arising out of the loss, miscarriage, or negligent transmission of letters or postal matter.” Second, the exhaustion of administrative remedies is a prerequisite to the waiver of sovereign immunity under the Act, and a prerequisite to subject-matter jurisdiction over such a tort claim. Third, federal district courts have exclusive jurisdiction over Federal Tort Claims Act claims against the United States. The small-claims court, therefore, lacked subject-matter jurisdiction over Plaintiffs’ tort claims.

Because the court from which this action was removed under 28 U.S.C. §1442(a)(1) lacked subject-matter jurisdiction, the Court held that it lacked derivative jurisdiction, and dismissed the complaint.

Flawed Home Improvement Contact Was Not Fatal To Collection

Flawed Home Improvement Contact Was Not Fatal To Collection

In All Season Awning Corporation v. Hartofelis, an Appellate Court ruled that a local contractor may enforce a judgment against a homeowner for money due under a contract to install an aluminum awning.

On an appeal from a Small Claims Court judgment, the homeowner argued, among other things, that plaintiff should not have been permitted to recover under the contract because the contract violated New York’s General Business Law §771 by not “containing essential statutory provisions” and, in any event, because the judgment did not provide substantial justice.

General Business Law §771 provides that every home improvement contract exceeding $500 in labor and materials must be in writing and be signed by all the parties to the contract, before the work begins. The writing must contain, in plain English, certain information and notice, including the name, address, telephone number and license number, if applicable, of the contractor; the approximate dates, or estimated dates, when the work will begin and be substantially completed; a description of the work to be performed, the materials to be provided to the owner, including make, model number or any other identifying information, and the agreed upon consideration for the work and materials.

Here, there was no dispute that the installation of the awning was a home improvement subject to the General Business Law. In addition, there was no dispute that the contract failed to fully comply with the provisions of General Business Law §771. Although the Court did not explain exactly how the contract failed to comply, it nonetheless ruled that “while there are cases barring recovery by a home improvement contractor where the contractor fails to fully comply with consumer protection legislation, this case falls within the cases that have carved out an exception to the rule requiring full compliance with General Business Law §771.” The cases cited by the Court were situations where there was clearly a meeting of minds between parties, and where none of alleged omissions from the written agreement caused or induced the homeowners to enter into the contract or were relevant to their stated reasons for terminating the contractor’s services.

As for the standard of review from a small claims case, the Court held that “review is limited to a determination of whether ‘substantial justice has…been done between the parties according to the rules and principles of substantive law.’ Furthermore, the determination of a trier of fact as to issues of credibility is given substantial deference, as a trial court’s opportunity to observe and evaluate the testimony and demeanor of the witnesses affords it a better perspective from which to assess their credibility. Upon a review of the record, we find that there is sample support for the District Court’s determination and, thus, that substantial justice was done between the parties according to the rules and principles of substantive law.”

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