Pregnancy Discrimination | Defamation | Broker Commission

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Failure To Congratulate A Pregnancy Is Not Evidence of Discrimination

Failure To Congratulate A Pregnancy Is Not Evidence of Discrimination

In Shultz v. Congregation Shearith Israel of The City of NY., Alana Shultz filed a federal action against Congregation Shearith Israel of the City of New York, the oldest Jewish congregation in the United States, and others, alleging they discriminated and retaliated against her on the basis of her gender. Shultz claimed that defendants fired her because she became pregnant before she was married.

According to the complaint, Shultz worked as the Congregation’s Program Director from 2004 to 2015. Her duties included “planning and coordinating events” and “helping to organize the nursery school program.” She was married on June 28, 2015. At the time of her marriage, she was pregnant. Before leaving for her honeymoon, Shultz told the Executive Director that she was pregnant and asked her to inform the Congregation’s Rabbis. When she returned from her honeymoon the Executive Director inquired about Shultz’s pregnancy, and the two employees “spoke in detail.” The Executive Director then asked Shultz to meet with her, the Rabbi and a Board Member. At that meeting,Shultz was terminated, effective August 14, 2015, “because the Congregation was ‘eliminating’ her position.” Shultz responded that “being fired when she was pregnant and visibly showing would make it extremely difficult, if not impossible, for her to obtain a new job.” Her statement “was met with complete silence” by the Rabbi and Board Member who “refused to speak to her” throughout the encounter.

Shultz was offered a severance agreement, which offered her six weeks of pay in exchange for “a complete waiver of her right to commence an action for pregnancy or gender discrimination or a claim pursuant to the FMLA.” Shultz believed that the restructuring “was a pretextual excuse to terminate her because Defendants disapproved of the fact that she was pregnant at the time of her marriage.” She informed the Congregation that she had hired a lawyer “for her claim arising from gender and pregnancy discrimination,” and six days later, Shultz received a letter reinstating her to her position as Program Director. Shultz did not return to work at the Congregation after August 14, 2015, claiming “constructive discharge. ” A “constructive” discharge or termination, as opposed to an actual one, occurs when an employee is forced to quit because of an intolerable hostile work environment.

In her lawsuit Shultz asserted that the rescission letter was “not a bona fide offer of unconditional reinstatement,” because after she received the letter: (1) she overhead a phone call in which the Executive Director said that, “as an orthodox synagogue, Defendants had a right to disapprove of the fact that she was pregnant before her wedding”; (2) she heard the Executive Director say that Shultz was “looking for a lottery ticket” and had “no problem having this legal claim out in the community”; (3) the Rabbi and Board Member did not speak to her; and (4) the Executive Director “continued to instruct her to complete tasks prior to departure and to transition her responsibilities to other employees.”

On the defendants’ motion to dismiss the complaint, the Court recognized that Title VII makes it unlawful for an employer “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” At the pleading stage, a complaint must “plausibly” be supported by the alleged facts showing that the plaintiff “is a member of a protected class, was qualified, suffered an adverse employment action, and has at least minimal support for the proposition that the employer was motivated by discriminatory intent.”

The “dispositive question” noted by the Court was whether Shultz had plausibly alleged adverse employment action. It said that there was “no question that the termination of Shultz on July 21, 2015, by itself, would constitute adverse employment action. However, Defendants gave her a letter explicitly rescinding that termination shortly thereafter — and more than a week before the termination was to take effect. The question is whether her claim survives in light of the Congregation’s rescission letter and subsequent conduct.”

After an exhaustive analysis, the Court granted defendants’ motion to dismiss each claim, noting that the failure to congratulate Shultz on her pregnancy, the accelerated work assignments, and the disparaging comments made by her boss in one phone call overheard by Shultz, did not constitute adverse employment action. The Court added that, given the “high standard for constructive discharge claims, she had not plausibly alleged that defendants created an environment so intolerable as to compel her resignation.” Although she argued that defendants’ letter rescinding her termination was not a “bona fide” offer of  reinstatement, the Court found that Shultz failed to allege specific facts plausibly showing that her termination was not genuinely being rescinded, which would include either a change in her salary or title or some tangible, material adverse change in her employment conditions.

It’s An Absolute Privilege To Speak In Court

It’s An Absolute Privilege To Speak In Court

In Doscher v. Meyer, the defendants moved to dismiss a defamation action and requested a sanctions award in the amount of attorneys’ feesincurred by them in making the motion. The plaintiffs had sued for slander based on the admitted statements by one of the defendants, an attorney, at a status conference in the  court’s chambers. At the conference, a court appointed receiver informed the court that it was reported to him that the plaintiffs hired an outside accountant and was making unauthorized changes to the company’s financial records. The attorney, now a defendant along with his client, in response to the receiver’s statements stated that the plaintiffs were “cooking the books.”

The matter before the court involved the continuing litigation surrounding the business known as “The Sloppy Tuna,” as well as the real estate upon which the business sits.

Here, the basic claim the defendants sought to have dismissed sounded in “slander,” which is a form of defamation. Defamation includes slander and libel. Libel is the act of defaming another person through writings, such as newspapers, other publications, articles, blogs or social media postings. Slander is the act of making a false oral statement about the character or professional standing of another person. The four elements of defamation are: (1) an oral or written factual and defamatory statement; (2) regarding the plaintiff; (3) that was published without privilege or authorization to others by the defendant; and (4) there was resultant injury, unless the statement falls within a category of “per se” harm.

Here, the plaintiffs could not overcome their burden of proving the third element. The Court noted that there was “no credible debate” that “a counsel or party conducting judicial proceedings is privileged in respect to words or writings used in the course of such proceedings reflecting injuriously upon others, when such words and writings are material and pertinent to the questions involved; and that, within such limit, the protection is complete, irrespective of the motive with which they are used.”

The Court found that the attorney’s statement was absolutely privileged. It noted the attorney’s comment in response to the receiver’s statement was material and pertinent to the questions involved as the receiver took issue with nearly $600,000 of expenses made during the plaintiffs’ tenure. The Court said that the “absolute privilege has been black-letter law for more than one hundred (100) years. Imagine the deluge of litigation, especially in the matrimonial divisions, if comments concerning financial irregularities made in the course of a judicial proceeding became fertile ground for actions sounding in libel and slander.  Overburdened courts would be crushed to a standstill.”

It also chose to impose sanctions against the plaintiffs and their lawyer for the frivolous and “blatantly meritless” and “scorched earth approach” to the defamation suit. “CPLR §8303-a provides that when an action for personal injury is found to be frivolous, the court shall award to the successful party, costs and reasonable attorneys’ fees not exceeding Ten Thousand Dollars ($10,000.00). CPLR §8303-a(c) defines an action or claim . . . to be frivolous when the action, claim, counterclaim, defense or cross claim was commenced or continued in bad faith without any reasonable basis in law or fact and could not be supported by a good faith argument for its extension, modification or reversal of existing law. In the matter at bar, the Plaintiffs’ conduct satisfies all the requirements of CPLR §8303-a(c). Furthermore, and the Court finds, the action was commenced and continued in bad faith, solely to delay or prolong the resolution of litigation and to harass or maliciously injure another. If one considers that the courts are increasingly called upon to enforce sanction provisions because courts are needlessly flooded and clogged with claims that advance no legitimate purpose then the matter at bar mandates sanctions. In fact, as noted in Grosso v. Matthew, 164 A.D.2d 476, where there is a finding of frivolousness, thesanction is indeed mandatory. Sanctions serve to punish past conduct and prevent its reoccurrence.”

Commission Due From the Tenant Who Failed to Tell The Landlord About The Broker

Commission Due From the Tenant Who Failed to Tell The Landlord About The Broker

In Cushman & Wakefield of Connecticut, Inc. v. Access Private Duty Services at HJDOI, Inc. a commercial real estate broker moved for summary judgment arguing breach of a “written Exclusive Broker’s Agreement” by the defendants.

The agreement provided that the broker would “find, negotiate and secure commercial premises” for the defendants. The defendants agreed to “refer all inquiries and offers received” to the broker “regardless of the source of such inquiries or offerings,” and that “all negotiations shall be conducted solely by” the broker. During the effective period of the agreement, defendants on their own found space they wanted to lease, negotiating directly with the landlord. Defendants entered into a lease with the landlord and the broker lost the chance to obtain a commission from the landlord, who had testified that had it known defendants had an exclusive agreement with the broker, it would have paid plaintiff the full commission. The defendants claimed that the broker failed to state a claim because theagreement provided the broker would look to the landlord for commission, and the broker sued for breach of the agreement, not for recovery of commissions. This argument was rejected by the Court as “meritless.”

It reasoned that the broker was “not suing defendants for recovery of a commission under the Agreement. Rather plaintiff is suing defendants based on the breach of their contractual obligation under the Agreement to give it the exclusive opportunity to negotiate the lease on behalf of defendants so that plaintiff would have had the opportunity to be paid a commission by the landlord. Under these circumstances, plaintiff is entitled to recover contractual damages equal to the amount of the commission it would have earned if defendants had not breached their contractual obligation to give plaintiff the exclusive right to lease the  premises on their behalf.” The fact that, under the terms of the agreement, the broker “was to look only to the prospective lessor for a commission is irrelevant.”

The Court concluded that the broker established defendants breached the agreement, “entitling it to recover contractual damages equal to the commission it would have earned but for the breach, awarding it summary judgment” in the amount of $190,023.65.

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