On The Job Celebration | Letter of Intent | Intern’s Sexual Harassment

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Christmas Celebration Results In A Four-Year Battle For One’s Job

Christmas Celebration Results In A Four-Year Battle For One’s JobOn August 13, 2013, nearly four years since petitioner was observed drinking a beer and a shot of liquor at a bar on Christmas Eve in 2009 while “on the clock,” the Dutchess County Supreme Court held that termination was not warranted, as such a severe penalty “shocks the judicial conscious.”

In Peterson v. City of Poughkeepsie, 40 Misc.3d 1236(A) (Sup. Ct. Dutchess Cnty. 2013), the petitioner, a “Street Supervisor,” was found guilty on five disciplinary charges resulting from drinking on the job on Christmas Eve 2009. After a hearing on these charges, the Acting City Administrator adopted the hearing officer’s recommendation, which called for termination. The petitioner appealed this determination in an Article 78 petition, seeking judicial review, but the court affirmed his termination. The petitioner then appealed that decision to the Second Department, which vacated Charges 4 and 5, which were based on petitioner’s alleged misuse of a City-owned vehicle, having found that they were not supported by substantial evidence, and remitted the matter to the City to give an appropriate penalty in connection with only Charges 1, 2, and 3, which were based on petitioner’s “on the clock” drinking. See, Peterson v. City of Poughkeepsie, 99 A.D.3d 714, 716–17, 951 N.Y.S.2d 567 (2d Dept. 2012). The City Administrator issued an amended decision once again terminating petitioner’s employment. The petitioner then appealed the determination.

In the second Article 78 petition, the Supreme Court once again looked specifically to the offense to “determine whether or not the penalty, termination, shocks the judicial conscience.” This time, it found that it did:

While this Court recognizes that the petitioner committed a serious infraction, the penalty of termination of his employment is so disproportionate to the offense committed as to be shocking to one’s sense of fairness. There is simply no evidence before this Court that the petitioner during his nineteen (19) years of employment with respondent had presented a disciplinary problem or that the incident was anything but isolated. Accordingly, this matter is remitted to the respondent for the imposition of a lesser penalty.

Peterson, 40 Misc.3d at *2.

As a result, petitioner was reinstated and granted full back pay and benefits, less any compensation derived from other employment or any unemployment benefits received.

Letter of Intent – A Binding Contract or Just the Framework?

Letter of Intent - A Binding Contract or Just the Framework?Is a writing a binding contract, or does it merely express an intent to enter into a binding contract? That is precisely the question posed to a New York trial court with regard to a “letter of intent” in Piller v. Marsham Realty 13th Ave., LLC, 41 Misc.3d 1217(A) (Sup. Ct. Kings Cnty. 2013).

In Piller, the plaintiff sought to purchase two commercial properties in Brooklyn from defendants. The parties met and negotiated the terms of the purchase, which the plaintiff’s attorney memorialized in a letter of intent. The letter of intent specified the $14,250,000 purchase price, set December 31, 2012 as last day to close, with time of the essence, detailed the brokerage fees, and referenced an attached, unsigned Contract of Sale which was to be executed at closing. The letter of intent was signed by the plaintiff’s attorney and the defendants. There was no down payment or deposit, which plaintiff refused to post.

Prior to the closing, the purchaser attempted to renegotiate how and when he would pay for the properties. Plaintiff sought, among other things, to change the time of closing for one of the two parcels from December 31, 2013, as stated in the letter of intent, to “30 days after December 31, 2012.” Plaintiff attempted to renegotiate the sale price on December 28, 2013, by seeking an additional credit of $50,000 because of an open lead paint violation, and due to alleged misrepresentation in the rent roll. Defendants were not willing to negotiate further, and refused to consent to any of plaintiff’s requests.

On January 2, 2013, after several attempted closings, the plaintiff finally tendered payment to defendants, by check in the amount of $13,950,000, which plaintiff claimed was the agreed upon price, and sought to finalize the closing. Defendants, however, rejected plaintiff’s payment, and refused to close. They claimed that since the letter of intent provided December 31, 2012 as the last day close, they no longer had any obligation to sell the properties.

Seven days later, plaintiff commenced an action seeking a declaration that the letter of intent was binding; specific performance compelling the sale of the properties; and damages resulting from the alleged breach of the letter of intent and breach of the implied covenant of good faith and fair dealing inherent in all contracts. The defendants moved for summary judgment, which the Court granted, dismissing all of plaintiff’s claims.

Without reaching the issue of whether there was a breach, the Court held that the letter of intent did not satisfy the “Statute of Frauds,” which mandates that every contract for the sale of real property be in writing, signed by the party against whom enforcement is sought, identify and describe the subject matter, and “state all of the essential terms of a complete agreement.” For the sale of real property, two of such essential terms are the purchase price and the time and terms of payment. It is undisputed that after execution of the letter of intent the parties continued to engage in negotiations over the price and how and when plaintiff would pay for the purchase. According to the Court, this evidenced a lack of “meeting of the minds” with respect to these two essential elements, and thus, rendered the letter of intent nothing more than an “agreement to agree,” rather than a binding agreement — i.e., unenforceable.

No Pay And No Protection From Sexual Harassment?

No Pay And No Protection From Sexual Harassment?A federal Court, having jurisdiction based on diversity of citizenship, issued a recent decision which may come as a shock to those unfamiliar with employment discrimination claims under New York City, State and federal laws. Wang v. Phoenix Satellite Television US, Inc., __ F.Supp.2d__, 2013 WL 5502803 (S.D.N.Y. 2013).

In December 2009, after interviewing with bureau chief, Mr. Zhengzhu Liu, Plaintiff Lihuan Wang, a twenty-two year old master’s degree student, began an unpaid internship with Phoenix Satellite Television US., Inc. (“Phoenix”), a Hong Kong-based media conglomerate that produces news geared towards Chinese-language audiences. Ms. Wang alleged that she took this internship with the prospect of obtaining full time employment, which she discussed with Mr. Liu on several occasions. Soon after she began her internship Mr. Liu began subjecting her to unwanted sexual advances. Ms. Wang alleged that on one occasion under the guise of a performance review, Mr. Liu lured Ms. Wang to his hotel room, and attempted to forcibly kiss and grope Ms. Wang, which Ms. Wang rebuffed and then quickly left. Toward the end of her internship, Ms. Wang contacted Mr. Liu about full-time employment, to which he responded by inviting her to Atlantic City with him “to discuss job opportunities.” Ms. Wang, fearful that Mr. Liu would sexually harass or assault her again, told Mr. Liu that she had other plans. From that date forward, it became clear that Ms. Wang would not be offered a full-time position with Phoenix.

Ms. Wang brought an action for employment discrimination under the New York State (“NYS”) and New York City (“NYC”) Human Rights Laws. Her first claim was under both statutes for “hostile work environment.” The Court stated, unequivocally, that the protections afforded to employees under NYS and NYC Human Rights Laws do not extend to unpaid interns. In order to avail oneself to such protections “she must be an employee of Phoenix,” and since “compensation is a threshold issue in determining the existence of an employment relationship,” her claim was dismissed.

Ms. Wang’s other claim, for “failure to hire” did, however, survive Phoenix’s motion to dismiss. “In order to sustain a claim for failure to hire, a plaintiff must allege that she applied for an available position for which she was qualified and was rejected under circumstances giving rise to an inference of unlawful discrimination.” To qualify as having applied, a plaintiff’s actions must be more than a general request for employment,” but need not always take the form of a “formal application.”

To be excused from the specific application requirement, a plaintiff must show that “(1) the vacancy at issue was not posted” and (2) the employee either had (a) no knowledge of the vacancy before it was filled or (b) attempted to apply for it through informal procedures endorsed by the employer.

Here, Ms. Wang alleged that she was led to believe that her unpaid internship would “serve as a potential basis for later employment.” Ms. Wang was told that she could obtain future full-time employment, discussed this opportunity with other reporters, and at all times, her actions indicated her interest in that of a full-time reporter position. Mr. Liu indicated that such a position was available to Ms. Wang. Ms. Wang’s complaint also alleged that Phoenix hired employees using informal procedures, and at the discretion of Mr. Liu. Indeed, when Ms. Wang inquired about a full-time position, Mr. Liu’s response was an invitation to Atlantic City to discuss permanent employment. Therefore, the complaint plausibly stated a cause of action for “failure to hire” under the NYS and NYC Human Rights Laws.

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