Religious Observance Rights of a Parolee
In United States v. Pablo Hernandez, a federal Court ruled that a condition of parole prohibiting the criminal defendant from attending church services violated his First Amendment right to participate in religious observances, and impeded his rehabilitation.
In 2010, the defendant had pleaded guilty to receiving images of child pornography. He was sentenced to five years in custody and five years of supervised release. Post custodial supervision placement in 2014 was conditioned on his not a ssociating with children under age 18, unless a responsible adult was present. In 2016, the defendant violated that condition by having physical contact with several minors while attending religious services in a church. He hugged several minors and developed a friendship with a female minor at his church. A federal magistrate judge ruled that he was not permitted to attend church services with minors present.
A federal District Court vacated, as unconstitutional, the magistrate judge’s condition that defendant not attend religious service with minors. The Court reasoned that “the free exercise clause of the First Amendment ‘embraces both the freedom to believe and the freedom to act according to those beliefs.’ ‘The First Amendment rights of parolees are circumscribed.’ The government may ‘impose restrictions on the rights of the parolee that are reasonably and necessarily related to the interests that the Government retains after his conditional release.’ But, ‘where a condition of supervised release impairs a protected associational interest,’” to be valid, “a supervised release restriction must be ‘reasonably related’ to the sentencing objectives, etc.” “It must be ‘designed, in light of the crime committed, to promote the defendant’s rehabilitation and to insure the protection of the public.’”
“Conditions of supervised release must be ‘narrowly tailored to serve a compelling government interest’ so as not to unnecessarily deprive a defendant of his liberty.”
Here, the Court reasoned that the condition not to attend religious services at which a minor is present “touches on two interests protected under the First Amendment: the right to associate and the right to exercise religion. Defendant’s conviction for receiving child pornography limits some rights under the First Amendment. The court must determine whether conditions are reasonably related to the objectives of his sentence and do not unnecessarily restrict him in his liberty to attend religious services.”
“‘First Amendment rights may be curtailed only by the least drastic means.’ Any limitation on exercise of religious freedom rights must be as narrow as practicable and clearly related to an appropriate governmental need. Limitations must affect prisoners and parolees with ‘the least denigration of the human spirit and mind consistent with the needs of a structured correctional society.’ A condition that prevents defendant from attending his place of worship because minors attend the same services is not the least drastic means of ensuring the public’s safety. It violates defendant’s right to religious observance.”
“No compelling government interest justifies prohibiting attending religious services where a minor is present. The Court takes judicial notice that minors are frequently present at religious services. In the instant case they were usually present so that the condition effectively prevented defendant from attending the church of his choice with his father.”
“Defendant resides with his mother and father, who have expressed their emotional support for him since his release. His father accompanies him to church, and helps ensure that defendant is following the condition of his release that he not interact with minors without supervision.”
“Defendant has a right to attend church services. Preventing him from going to his place of worship because the services are also attended by minors unnecessarily burdens that right. It is reasonable to apply a condition that defendant not physically touch minors while attending church services, unless doing so is a part of his religious obligation. This condition is narrowly tailored. It strikes the necessary balance of allowing defendant to exercise his freedom to associate and participate in religious services, while protecting minors.”
Guaranty Is Strictly Construed
In 504 Associates LLC v. Nason, a landlord sought summary judgment against a guarantor Gilbert Rogin for nearly $88,000. Gilbert signed a guarantee of a one-year lease for Ruth Rogin, the tenant. The lease was modified extending its terms, and at its expiration Ruth became a month-to-month tenant. The landlord had purchased the premises from a prior landlord and sent Ruth a renewal lease for another one-year term. It sent Gilbert a letter in 2010 that it was exercising its right to collect payment under the 2002 guaranty.
Gilbert responded stating the guaranty was terminated, and subsequently argued his guaranty lapsed when Ruth’s initial lease ended in 2003, when she became a month-to-month tenant. The Court noted while the guaranty provided that Gilbert was obligated to pay for any renewal of the lease, it concluded that when the lease lapsed, the subsequent renewal lease could not bind Gilbert. Rather, the Court held that the expiration of the original lease ended Gilbert’s guaranty obligation, finding he could not be bound to terms he did not consent to.
According to the decision, on April 16, 2002, Gilbert signed a guarantee of a one-year lease running from May 1, 2002 to April 30, 2003 for an apartment located at 68 West 13th Street in Manhattan. The lease was modified on December 6, 2002, extending the term to November 30, 2005. Then another lease was entered into for the period August 1, 2006 through July 31, 2007. At the expiration of this second lease, Ruth became a month-to-month tenant from 2007 until 2010.
On Gilbert’s cross-motion to dismiss the guaranty claim, the Court reasoned that a “guaranty is to be interpreted in the strictest manner, particularly in favor of a private guarantor, and cannot be altered without the guarantor’s consent.” Specifically, “a guaranty of a tenant’s obligations under a lease must be strictly interpreted in order to assure its consistency with the lease terms to which the guarantor actually consented. If the original lease is modified without the guarantors consent, a guarantor is relieved of its obligation. Where a guaranty obligates a guarantor as to any ‘renewal, change or extension of the lease,’ upon the expiration of the lease, the guaranty lapses and can no longer bind defendant.”
Here, the Court recognized that the guaranty clause created an obligation on the part of Gilbert “as guarantor as to ‘any renewal of the lease,’ upon the expiration of the lease.” But the lease lapsed and could not be a vehicle to bind him. The Court also reasoned that it “could, with reason, be argued” that Gilbert’s guaranty “was nullified when the lease was modified on December 6, 2002, without his consent and without attaching a copy of the guaranty, inasmuch as the guaranty extended only to renewals of the original lease.” Thus, the Court concluded that “there can be little question” that the expiration of that lease on November 30, 2005 ended Gilbert’s guaranty obligation. Ruth was a month-to-month tenant from December 1, 2005 until she entered into a new lease for the period of August 1, 2006 to July 31, 2007, which was not a renewal of her prior leases and thus Gilbert was not a guarantor of that lease. At the very least, the Court said that Gilbert “certainly cannot be considered a guarantor of the rent for her month-to-month tenancy which began on August 1, 2007 and continued until she was evicted.”
There may have been a different outcome had the guaranty expressly covered, for example, any and all liability which the tenant may have to its landlord “occurring from and after the date of the lease including the period of any extensions or renewals of the term of the lease, and any period of holding over by the Tenant or of a subsequent month-to-month tenancy by the Tenant.” The more expansive the guaranty the better. Landlords should check their forms.
Discrimination or Tardiness
In Sarr v. Saks Fifth Ave. LLC, Sarr sued his ex-employer, Saks Fifth Avenue, and his ex-supervisor “Washburn,” for discrimination and retaliation in violation of the New York State and New York City Human Rights Laws. The defendants moved for summary judgment dismissing the complaint. The Court found Sarr established a “prima facie” case of discrimination, that although the defendants met their burden of setting forth a legitimate, non-discriminatory reason to terminate Sarr—that he violated Saks’ D&A policies, and his record reflected a long history of leaving early or being absent without authorization. Thus, the court ruled that defendants were entitled to summary judgment dismissing Sarr’s retaliation and discrimination claims.
Plaintiff’s initial burden to establish a prima facie case of discrimination requires a showing that: (1) he is a member of a protected class; (2) he was qualified to hold the position; (3) he was terminated from employment; and (4) the termination occurred under circumstances giving rise to an inference of discrimination. “Construing the evidence in the light most favorable to the non-movant,” the Court found “that plaintiff has established a prima facie case of discrimination, demonstrating that (1) he is Muslim and, thus, a member of a protected class; (2) he was qualified to hold the position, as he received numerous awards for his ability to open credit card accounts; (3) Saks terminated his employment on October 17, 2015; and (4) the termination may give rise to an inference of discrimination, as plaintiff alleges that other non-Muslim employees were not questioned about their religious beliefs and habits.”
The Court also found that the defendants had “met their burden of setting forth a legitimate, nondiscriminatory reason to terminate plaintiff, to wit, plaintiff’s violation of defendants’ D&A policies. It is undisputed that defendants have D&A policies, requiring all employees to report to work on time and to give supervisors prior notice if it is necessary to be late or absent for any reason, which defendants provided to plaintiff in his Handbook and discussed during his training. The record reflects plaintiff’s longhistory of leaving early or being absent without authorization: in a mere 5-week period in February and March of 2013, plaintiff was late to work 22 out of the 26 days and was absent three other days; from July 6-22, 2013, plaintiff left early 12 times; and between September 9-23, 2013, plaintiff arrived late on seven occasions and left before the scheduled end of his shift on 13 occasions. Despite receiving four separate warnings over the course of 10 months, plaintiff continued to violate Saks’ D&A policies by repeatedly arriving late to work, leaving earlier than the end of his shift, and failing to give his supervisors prior notice of his absence. Saks has the right to maintain D&A policies as a business decision and to terminate plaintiff after giving him fair warning.
Lastly the Court concluded that Sarr failed to demonstrate that the defendants’ proffered reasons for terminating him were merely pretextual. “Plaintiff argues that defendants’ articulated reasons for terminating him were merely pretext, based on (1) demeaning remarks allegedly made by Washburn, asking plaintiff why he needed to pray so much, telling other employees not to help plaintiff with his work,” and commenting that “[Washburn will] fire you soon, because you Muslim” [sic]; and (2) the fact that non-Muslim employees were not reprimanded for their lack of dependability. The Court finds this argument unpersuasive; plaintiff has not presented sufficient, concrete evidence to support a finding that this treatment was religiously motivated, especially in light of the fact that plaintiff admits he was aware of defendants’ D&A policies and deliberately violated them by continuing to be late or absent from work.”
As for the retaliation, the Court concluded that Sarr had “failed to demonstrate a causal connection between the protected activity — a complaint about Washburn’s comments to Saks’ human resources department — and his subsequent termination. The record demonstrates that defendants provided plaintiff four warnings that he was violating the D&A policies before terminating him. Defendants also provided other employees similarly situated to plaintiff the same warning and termination letters for violating Saks’ D&A policies. Plaintiff is silent in the face of defendants’ demonstrated and documented warnings to plaintiff, over several months prior to his ultimate termination, for the very same conduct that he was warned not to repeat.”
The lesson learned: an employer’s policy to treat tardiness and absenteeism uniformly will most likely trump a discrimination claim based on unfair treatment or disparaging remarks.
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