Late Discrimination Suit | Election of Remedy | Park Purposes

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Employment Discrimination Suit Was Untimely

Employment Discrimination Suit Was UntimelyIn Romain v. Capital One, (E.D.N.Y. 2014) a disgruntled former employee made a motion in federal court to set aside a judgment that had dismissed his discrimination complaint as untimely.

The plaintiff commenced the action on May 21, 2013, and following an initial motion to dismiss by the defendant, filed an amended complaint on July 30, 2013. The amended complaint alleged that plaintiff had brought his action “against the defendant on the basis of its failure to reasonably accommodate plaintiff’s disability, its failure to promote plaintiff, unequal terms and conditions of employment, forcible restraint and verbal abuse … and its failure to correct a hostile work environment.”

According to the decision of the Court, the plaintiff’s allegations had related to events that began in March 2007 through the termination of his employment on January 2, 2010. The gist of his complaint was that his former employer had discriminated against him on the basis of his disability in violation of the Americans with Disabilities Act of 1990 (the “ADA”). Although the plaintiff had previously filed a charge with the New York State Division of Human Rights and the United States Equal Employment Opportunity Commission (“EEOC”) in 2010, he maintained that he did not receive a “right-to-sue letter” from the EEOC until May 17, 2013.

The defendant had made a motion to dismiss the amended complaint as untimely, because plaintiff had failed to commence his action within 90 days of receiving the right-to-sue letter from the EEOC, as required under the ADA.

Generally, if one plans to file a lawsuit under federal law alleging discrimination on the basis of race, color, religion, gender, national origin, age (40 or older), disability, genetic information, or retaliation, one must first file a charge with the EEOC, or its agency (unless one plans to bring a lawsuit under the Equal Pay Act, which allows you to go directly to court without filing a charge). The EEOC will then issue what is called a “Notice-of-Right-to-Sue” at the time it dismisses the charge, usually after completion of an investigation. However, the EEOC may dismiss the charge for other reasons, including failure to cooperate in an investigation. This notice gives a plaintiff permission to file a lawsuit in a court of law. Once one receives a Notice-of-Right-to-Sue, a lawsuit must be filed within 90 days. The EEOC cannot extend this deadline except when the District Director gives the parties a written notice of intent to reconsider before the deadline for filing a lawsuit. If the lawsuit is filed beyond that 90-day period, the lawsuit will be dismissed.

In this case, the plaintiff had alleged that he did not receive the right-to-sue letter until May 17, 2013. However, the Court noted that this allegation was flatly contradicted by his allegations in his original complaint that he received the right-to-sue letter on September 27, 2011. The Court also cited to the general presumption in law that a right-to-sue letter is received three days after mailing. Here the EEOC mailed the letter on September 27, 2011. The Court held that it was “highly unlikely,” that the “letter suddenly appeared in the mail nearly two years later.” The plaintiff failed to rebut the presumption. Accordingly, the Court granted defendant’s motion to dismiss the amended complaint on untimeliness grounds, and on plaintiff’s motion “to set aside judgment” the Court adhered to its decision and denied the motion.

Second Bite at Employment Discrimination Apple Precluded

Second Bite at Employment Discrimination Apple PrecludedIn Hernandez v. Edison Properties, an employment discrimination complaint was dismissed because plaintiff had already litigated his claim before the New York State Division of Human Rights.

In New York, a discrimination claim may be filed either with the State administrative agency, the New York Division of Human Rights (DHR) or the federal administrative agency, the Equal Employment Opportunity Commission (EEOC). If you live in New York City, you can also file a discrimination claim with the New York City Commission on Human Rights (CHR). The agencies have what is called a “work-sharing agreement,” which means that the agencies cooperate with each other to process claims. Filing a claim with each agency is unnecessary, as long as you indicate to one of the agencies that you want to “cross-file” the claim with the other agencies. If you live in New York City and have an age discrimination claim, you should not file with CHR, as it does not have a work-sharing agreement for age discrimination claims.

The New York State and New York City anti-discrimination statutes cover some smaller employers not covered by federal law. Therefore, if your workplace has between 4 and 14 employees, you may file with the CHR (if you live in New York City) or the DHR, as the EEOC enforces federal law, which covers only employers with 15 or more employees.

Unlike the federal law where filing first with the EEOC is a requirement, filing with the CHR or DHR is not required to pursue a discrimination claim directly in court. The wrinkle is, you can’t do both and get two bites at the proverbial apple. This is exactly what happened in this case.

Citing to and quoting a higher authority, the Court explained that “Executive Law § 297(9) provides a civil cause of action for discriminatory practice, unless an administrative complaint has already been filed and has not been dismissed for ‘administrative convenience.’ These remedies are intended to be mutually exclusive. Once a complainant elects the administrative forum by filing a complaint with the Commission on Human Rights, that becomes the sole avenue of relief, and subsequent judicial action on the same complainant is generally barred, except in the one instance where dismissal is for ‘administrative convenience.’”

It appears the plaintiff made the argument that he was “unschooled, was without benefit of counsel, and his knowledge of English is ‘rudimentary,’ despite a decade of waiting on tables in a mid-Manhattan restaurant.” In response, the Court held that “there is no indication that the Legislature intended to import any ‘knowledgeable’ prerequisite for the election of remedies delineated in § 297(9) to become valid. The statute does not provide that a grievant have advice of counsel, or a full appreciation of the finality of an election to proceed in the administrative forum. The policy of the statute is result oriented: since plaintiff has had the benefit of a full hearing and determination on the merits of his claim, with the advantages of less expense and swifter resolution than he could have had in the judicial arena, his attempted recourse to the courts was thereby foreclosed.”

A Restaurant Is A Park Purpose At Union Square

A Restaurant Is A Park Purpose At Union SquareThe highest court in New York recently decided a case which will affect anyone who travels into Manhattan, and walks through Union Square Park. In Union Square Park Cmty. Coalition, Inc. v. N.Y. City Dept. of Parks and Recreation, the plaintiffs brought an action against the Department of Parks and Recreation, its Commissioner, the City, and a restaurant operator, challenging an agreement by the Department to allow the operation of a restaurant in Union Square Park. 22 N.Y.3d 648 (2014).

Union Square Park occupies approximately 3.6 acres in lower Manhattan. Since the early 1800s the park has been used for public gatherings, protests and marches, and is a designated national historic landmark. The Department, as part of a citywide restoration initiative, entered into an agreement with the restaurant, allowing it to operate in the paved pavilion area at the northern end of the park. In exchange for the license to operate, the restaurant would pay the city $300,000 in the first year (increasing to about $450,000 in the final 15th year), or 10% of annual gross receipts, whichever amount was greater.

The plaintiff challenged the Department’s right to enter into the agreement, arguing that it violated the “public trust doctrine,” which holds that “dedicated parkland cannot be converted to a non-park purpose for an extended period of time absent the approval of the State Legislature.” Here, there was no such approval. The Court relied on its 1965 decision 795 Fifth Ave. Corp. v. City of N.Y. to decide this case. There, a similar challenge was brought to enjoin the construction of a restaurant in the southeast corner of Central Park, arguing that it would “result in the destruction of 22,000 acres of rural areas.” There, the, plaintiffs pointed out that there were already numerous eating and drinking establishments in the vicinity; the corner was already heavily congested; and the proposed restaurant would principally serve pedestrians entering from the adjacent street rather than park patrons. The Court rejected these claims, stating that the Park’s Commissioner has broad discretion in this area, and “the restaurant served a legitimate park purpose.” The Court also considered that “the undeveloped area was unused and unsightly; the menu prices were reasonable; and the restaurant would be housed in an attractive glass-enclosed pavilion, which would “enhance the beauty and natural appeal of the southeast corner of Central Park.”

Here, for very similar reasons, the Court denied plaintiff’s challenge. Plaintiff could “only show a ‘difference of opinion’ as to the best way to use the park space and that this ‘mere difference of opinion [was] not a demonstration of illegality.’” The Court left open the possibility that a restaurant might not always serve a park purpose in future cases, but concluded that in this case, it did not.

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