Supreme Court
of New York
New York
County
Gina Reynolds,
v.
William Fraser,
Correction Commissioner of
the
New York City Dept. of
Correction, et al.,
Respondent.
No. 122653/ 02
781 N.Y.S.2d 885
2004 N.Y. Misc. Lexis 1446
September 23, 2004, Decided
Louis
York, J.S.C.
Petitioner, a former probationary employee
of the New York City Corrections Department (the “Department”), commenced this
Article 78 proceeding seeking to annul petitioner’s decision to terminate her
employment, be reinstated and receive back pay.
The petition is grounded in an as yet
untested provision of the New York City Human Rights Law (Admin Code § 8-107.1)
which bars employers from discriminating against victims of domestic violence.
There appears to be no reported judicial decision applying or interpreting §
8-107.1.
Petitioner was hired by the NYC Department of Correction (the
“Department”) on June 1, 2000, subject to a two-year probation period. As
alleged in the petition, she is the mother of two pre-teenage children and a
victim of abuse by their father, a crack and alcohol abuser with a criminal
history. In November 2000, petitioner moved out with her children and went to
live with a relative in the Bronx. Things did not work out and she was ejected
from that apartment on March 22, 2002. She requested vacation time to
find a home and was granted leave through April 4, 2002.
On April 5, 2002, petitioner, who was still homeless, asked the
Department’s Health Management Division (“HMD”) for further time off to
continue her search for a place to live. HMD put her on immediate sick leave
due to stress, confiscated her ID, and directed her to obtain a new one which
reflected she was psychologically unfit to carry a firearm (see petition, exhibit
A). At that same meeting, HMD demanded that petitioner provide them with an
address. When petitioner told them she was homeless and lacked an address, she
was told she could not work at the Department without one. Faced with that
threat even after she had explained her homelessness, she gave her husband’s
address.
HMD conducted a visit to petitioner at her husband’s address in April
2002. When she was not found there, they required her to appear at HMD the
following day to explain her unauthorized absence from home. Informed of these
events by her mother-in-law, petitioner appeared at HMD and at their request
wrote a report explaining her circumstances and homelessness. Nonetheless, HMD
made four subsequent visits to the husband’s residence in April and May 2002
expecting to find petitioner there. Petitioner remained homeless, sleeping
variously in her car, hotels, shelters or friend’s homes. Petitioner did return
to her husband’s home on April 27, 2002, and again on May 10, but both times he
assaulted her and she had to seek police intervention and leave again.
Petitioner finally obtained a stable residence upon her admission to a
domestic violence shelter, Safe Horizon, on May 14, 2002. According to
petitioner, Safe Horizon does not allow its residents to divulge their exact
address to anyone who does not sign a confidentiality agreement; [1] so when
she called HMD to apprise them of her new address, she gave them the shelter’s
office address as the place to contact her. When HMD’s monitor attempted to
visit petitioner at the shelter, she was told by staff that petitioner’s
residence would not be disclosed unless she signed a confidentiality agreement
(see Vasquez affidavit), which she did not do.
The day after that visit, May 22, 2002,
petitioner went to the hospital for surgery and returned to the shelter on May
25, having been told by her doctor to stay out of work for six weeks due to the
surgery. HMD approved the leave and scheduled petitioner to return to work on
July 3, 2002. After another abortive visit on June 3, HMD signed the Safe
Horizon confidentiality agreement on June 7, 2002 (at petitioner’s exhibit F),
at which time petitioner was told to return to HMD on June 21. It is unclear
whether any further visits to the shelter were made after that point.
On June 21, 2002, petitioner went to her
appointment at HMD. She was given a termination letter back-dated to June 17,
2002 without explanation, and her shield and identification were taken.
Pursuing an unemployment claim, petitioner learned she was fired for being away
from her residence while on sick leave on June 3, 2002. -
THE SICK LEAVE POLICY
The policy at issue here is the
Department’s sick leave policy for members of the uniformed corrections force
(Directive no. 2262 at petitioner’s exhibit B, the “sick leave policy”), which
requires employees who report sick to furnish their “residence address, floor
and/or apartment number, city or town, zip code, cross street, and telephone
number” (§ II[2]). If reporting sick from somewhere other than their own
residence, the same information must be provided for the location from where
the employee is reporting sick (§ II[3]).
The sick leave policy, which requires all
employees who are on sick leave to remain in their “residence or place of
confinement” at all times except when receiving medical treatment, obtain
prescribed medicines or “where contractually permitted” (§ VIIA). In addition,
HMD may grant “time out of residence ... for therapeutically beneficial
reasons” (§ VIID). HMD may also schedule appointments for a variety of reasons.
If an appointment is missed, the person on sick leave must contact HMD’s
scheduling unit within one hour of the missed appointment to reschedule it (§
XA). Whenever the employee is to be absent from the place of confinement, the
employee must advise HMD of all particulars upon both departure and return (§
VIIB).
Feigning illness to evade work is forbidden
(§ XIA), and if suspected must be investigated and reported by institution or
division heads (§ XIB). Noncompliance with the policy may result in
“disciplinary charges or payroll deductions, depending upon the circumstances”
(§ XIC).
Although under the sick leave policy only
institution or division heads bear the responsibility for investigating
suspected sick leave abuse (§ XIB), and HMD is specifically granted only the
power to dispatch medical professions to the employee’s home to evaluate his
medical condition (§ IIV), it appears to be HMD’s practice to itself police
sick leave abuse by sending monitors to a sick person’s home for surprise
visits.
PUBLIC POLICY CONSIDERATIONS
Domestic violence, often fueled by alcohol
and drugs, is a blight on the American family and society at large. Its victims
come from all walks of life. The one thing they have in common is the
experience of living in fear every day, for themselves and frequently their
children. The combination of constant danger, fruitless vigilance, exposure to
another’s rage, physical and psychic injury and pain, and inability to infuse
sanity into reality all without surcease because it generally happens in one’s
own home, the one place that should be safe and sacrosanct is at best crippling
and at worst lethal. It is well established that the only sure solution is for
the victim to escape the abuser.
Government entities at all levels are
finally beginning to address the problem. There is now a National Domestic
Violence Hotline (800-799-SAFE). The Social Security Administration,
recognizing that a victim must sometimes even change identity to attain a safe
environment, has established a procedure to issue new social security numbers
to victims of domestic violence and mounted a public awareness campaign
stressing the importance of victims developing safety plans. At the state and
municipal levels, various legislation has been enacted to protect domestic
abuse victims and ease their transition to safety.
As of July 1999, 25 states had laws
prohibiting employers from discriminating against crime victims who take time off
to testify in criminal proceedings. New York’s version of such law (Penal Law §
215.14) also encompasses Family Court proceedings and protects victims of domestic abuse who take time off to seek
orders of protection. New York state also created an Office for the Prevention
of Domestic Violence to develop model policies addressing workplace problems
related to domestic violence (Exec L § 575[7]).
Even New York’s judiciary has also joined
the bandwagon. Formerly, the plight of victims of domestic abuse was generally
addressed by the courts of this state in three disjointed contexts: family court proceedings, criminal actions
and matrimonials. In a recent initiative, the Chief Judge of this state
established special integrated domestic violence courts, manned by specially
trained personnel, with the explicit mission “to promote justice and protect
the rights of all litigants while providing a comprehensive approach to case
resolution, increasing offender accountability, ensuring victim safety, integrating
the delivery of social services, and eliminating inconsistent and conflicting
judicial orders” (http://www.courts.state.ny.us/ip/domestic violence).
Following the example set by our Chief Judge, New York state courts are in
general becoming more aware and sensitive to domestic violence issues. Indeed,
the Court of Appeals removed a town and village justice from office because of
his insensitivity to victims of domestic violence (Matter of Romano, 93 N.Y.2d
161, 712 N.E.2d 1216, 690 N.Y.S.2d 849 [1999]).
The impact of domestic violence in the
workplace has received increased attention in recent years (see, e.g., Manese
and Bartlett, “Domestic Violence Comes to Work,” NYLJ May 14, 2001, p 51, col
1); “Is Domestic Violence About to Spill into Your Client’s Workplace?”,
Michigan Bar Journal [October 2002]; Corcoran, “Domestic Violence in the
Workplace: Ensuring a Safe Environment for All,” 7 No. 5 Employment Law
Strategist 1 [Sept 1999]). Lethal results have ensued from employers’ deaf ears
to a victim’s pleas for time off work (e.g., Carroll v. Shoney’s Inc., 775 So.
2d 753 [Ala 2000]) or for protection from the abuser (e.g., La Rose v. State
Mutual Life Assurance Co., No. 9322684 [215th Dist Ct, Harris Co., Texas
1994]).
The ability to hold on to a job is one of a victim’s most valuable
weapons in the war for survival, since gainful employment is the key to
independence from the batterer. “A batterer’s causing the victim’s job loss can
incite financial despair when the victim realizes that she cannot provide for
herself or her children without the batterer’s assistance... Moreover, with
each firing it becomes more difficult for victims to obtain new jobs. They are
labeled as problematic employees while no effort is made to hold the abusers
responsible” (Buel, “Effective Assistance of Counsel for Battered Women
Defendants: A Normative Construct,” 26 Harvard Women’s Law Journal 217 [Spring
2003]; see, e.g., Gregg v. Anchorage,
Alaska Super. Ct., No. 3AN-98-10263-CI, March 15, 2002).
Neither is the domestic violence victim’s
employer in for a picnic. “Domestic violence leads to absenteeism, increased
health care costs, higher turnover, lower productivity, and a greater risk that
a violent incident will occur at [the] workplace” (“Domestic Violence Not Just
a Problem in the Home,” California Employment Law Letter, March 19, 2001),
especially when law prohibits discrimination for lost time. Hence, it is of
mutual advantage to work together, to end the threat of violence.
In 2000, California amended Labor Code §
230 to bar employment discrimination
against victims of domestic violence who took time off to obtain judicial
relief. In 2001, that protection was expanded to encompass time off to seek
medical attention or psychological counseling for domestic violence related
injuries. Under California law (Labor Code §§ 230, 230.1), “employers are
required to maintain employee confidentiality for leave taken under the law,
and employees may use vacation, personal leave or compensatory time off that is
otherwise available to them. However, the law does not create employee rights
to take unpaid leave in excess of the time allowed under the federal Family and
Medical Leave Act of 1993” (“California Prohibits Adverse Employment Action
Against Sexual Assault Victims,” Private Education Law Report, December 2002).
Rhode Island (RI Statutes § 12-28-10[a])
bars employment discrimination by employers, employment agencies and licensing
agencies against those who seek or refuse to seek a protective order under RIS
title 15, ch 15 or title 8, ch 8.1. In 2001, Tennessee’s General Assembly
introduced bills which would (1) make it discriminatory for an employer to fire
or not hire victims of domestic violence; (2) prohibit denying unemployment
benefits because of circumstances stemming from domestic abuse, and require
that unemployment compensation be provided when an employee loses a job due to
domestic abuse; and, (3) allow employers of domestic violence victims
threatened at the workplace to seek a TRO and injunction protecting workplace
and the domestic violence victim while at the workplace.
The law at issue here, New York City
Administrative Code § 8-107.1, is one such initiative.
APPLICABLE LAW
In 2001, based on the foregoing public
policy considerations, the Council enacted an amendment to the City’s Human
Rights Law to prevent employers from discriminating against victims of domestic
violence (Admin Code § 8-107.1). The stated purpose of this amendment was “to
protect the economic viability of victims of domestic violence and to support
their efforts to gain independence from their abusers” by “enabling victims of
domestic violence to speak with their employers without fear of reprisal, about
a domestic violence incident or about possible steps that will enhance their
ability to perform their job without causing undue hardship to the employer”
(Local Law 1 of 2001, § 1).
The section relied on by petitioner
provides that:
“It shall be
an unlawful discriminatory practice for an employer, or an agent thereof, to
refuse to hire or employ or to bar or to discharge from employment, or to
discriminate against an individual in compensation or other terms, conditions,
or privileges of employment because of the actual or perceived status of said
individual as a victim of domestic violence”
(Admin Code § 8-107.1[2] ).
ANALYSIS
“A probationary employee can be dismissed
‘without a hearing and without a statement of reasons in the absence of any
demonstration that dismissal was for a constitutionally impermissible purpose
or in violation of statutory or decisional law.’... Judicial review of such a determination ‘is limited to an
inquiry as to whether the termination was made in bad faith.’... The burden of
raising and proving such ‘bad faith’ is on the employee and the mere assertion
of ‘bad faith’ without the presentation of evidence demonstrating it does not
satisfy the employee’s burden” (Matter of Soto [Koehler], 171 A.D.2d 567, 568,
567 N.Y.S.2d 652 [1st Dept 1991]; see also Matter of Talamo [Murphy], 38 N.Y.2d
637, 639, 345 N.E.2d 546, 382 N.Y.S.2d 3 [1976]). Where bad faith is alleged,
the scope of judicial review is broader (Matter of Johnson [Katz], 68 N.Y.2d
649, 650, 496 N.E.2d 223, 505 N.Y.S.2d 64 [1st Dept 1991], lv den 78 N.Y.2d 955
[1991]).
“The broad discretion enjoyed by those who are empowered to discharge probationary employees is not unbridled, but is, as a matter of law and public policy, contingent upon good faith” (Kroboth v. Sexton, 160 A.D.2d 126, 127, 560 N.Y.S.2d 6 [1st Dept 1990]). “We take as an axiom that the burden of raising and proving bad faith rests upon petitioner’s shoulders” (id. At 130). Nonetheless, the Administrative Code imposes on the employer “the burden of proving undue hardship” to its business whenever it refuses to reasonably accommodate the special needs of a domestic violence victim (Admin Code §§ 8-102[18], 8-107[16-a]).
It is clear that petitioner falls under the statutory definition of a “victim of domestic violence” (Admin Code § 8-107.1[1][b]). The dispositive issue is whether the Department’s sick leave abuse policy or its implementation with respect to petitioner and those similarly situated is impermissibly discriminatory (Admin Code § 8-107.1[2]).
Respondents have produced evidence that petitioner’s job performance,
especially in the first year, was not exemplary. She had excessive tardiness
and absenteeism (perhaps a by-product of the domestic violence) and had an
altercation with a co-worker. Clearly, had they chosen to fire her at that point,
they would have been totally within their rights. However, they did not do so. They kept her on and it was
only when she was living in a shelter for abused women with an apparent
unverifiable address that they terminated her employment. “Although, in an appropriate case,
[protected status]-related chronic absenteeism may be found to prevent an
employee from reasonably performing the duties of the job, the inquiry must
focus on petitioner’s status as of the time of actual termination and not
earlier” (Matter of McEniry [Landi], 84 N.Y.2d 554, 560, 644 N.E.2d 1019, 620
N.Y.S.2d 328 [1994]).
Respondents may not have intentionally acted in bad faith, as
petitioner contends, but they did act in contravention of Local Law 1 in that
they failed to make reasonable accommodations for petitioner’s status as a
homeless victim of domestic violence. The end result here, petitioner’s loss of
a job at the point when she was finally getting her living situation under
control, is exactly the kind of fallout that Local Law 1 was enacted to
prevent. “Fortunately, the law recognizes that the forms and guises of
discriminatory conduct do not always fall neatly into readily identifiable
packages, and affords relief so long as the victim can establish that the
‘conduct occurred under circumstances that give rise to an inference of
discrimination’“ (cf. Sogg v. American Airlines, Inc., 193 A.D.2d at
162, 603 N.Y.S.2d 21). Accordingly, it is
ORDERED and ADJUDGED that the petition is granted to the extent that
respondents’ determination to terminate petitioner’s employment based on her
being unavailable when HMD’s monitors visited her is hereby vacated and the
matter is remanded to respondents for reinstatement and back pay in accordance
with this decision.
September
23, 2004