Former Employee who was Fired for Falling Asleep at Work Alleges Discrimination

by Adam Kuhn

 

Singh v. Covenant Aviation Sec., L.L.C., 131 A.D.3d 1158 (N.Y. App. Div. 2015).

Abstract: A former employee alleged that he was wrongfully terminated on the basis of race or national origin. The Appellate Division affirmed defendant employer’s summary judgment on New York State Human Rights Law but struck the defendant’s summary judgment on New York City Human Rights Law.

 

Plaintiff, an Indian, was employed by the defendant as an airport security guard. He fell asleep on duty and his tour supervisor reported him to the defendant’s higher-level management. The supervisor’s report resulted in the plaintiff’s firing. The plaintiff alleged that he was wrongfully terminated from employment on the basis of his race or national origin in violation of New York State Human Rights Law and New York City Human Rights Law. The Supreme Court, Kings County granted the defendant’s motion for summary judgment dismissing the complaint. Plaintiff appealed to the Appellate Division. On appeal, the issue was whether the Supreme Court correctly granted defendant’s motion for summary judgment dismissing the cause of action for (1) violation of New York State Human Rights Law and (2) violation of New York City Human Rights Law.

The New York State Human Rights Law (Executive Law § 296) provides that it is an unlawful discriminatory practice “for an employer … because of an individual’s age, race … [or] national origin … to discharge from employment such individual.” A plaintiff has the burden of showing that “(1) he or she is a member of a protected class; (2) he or she was qualified to hold the position at issue, (3) he or she was terminated from employment, and (4) the termination occurred under circumstances that give rise to an influence of discrimination.” The defendant can successfully establish a motion for summary judgment if the absence of any of these elements is proved. The defendant showed the absence of the fourth element because the plaintiff admitted he was asleep while on duty, which is a violation of company rules. He showed no evidence that his race or ethnicity played a “motivating or substantial” role in the defendant’s decision to terminate his employment. Therefore the Supreme Court properly awarded summary judgment to defendant dismissing the cause of action alleging a violation of New York State Human Rights Law.

The New York City Human Rights Law (Administrative Code § 8-107) says “it shall be an unlawful discriminatory practice … for an employer or an employee or agent thereof, because of the actual or perceived … race, creed, color, [or] national origin … of any person … to discharge from employment such person” (emphasis added). Unlike the State Human Rights Law, the City Human Rights Law says an employer may be liable for the conduct of an employee or agent when the employee or agent exercised supervisory responsibility. Compared with the State Human Rights Law, the City Human Rights Law is interpreted more broadly in favor of the plaintiff. The plaintiff wanted to hold the defendant liable for the discriminatory conduct of an employee (the tour supervisor). The City Human Rights Law requires that unlawful discrimination play “no role” in an employment decision. If the supervisor’s decision to report the plaintiff was motivated by racial or ethnic hostility, even in part, the defendant may be held liable.

The evidence showed that the defendant fired the plaintiff for falling asleep, in violation of company rules. However, the plaintiff presented evidence that his supervisor reported him to management in part out of racial hostility, and did not report other, non-Indian employees who were found sleeping while on duty. Therefore, the plaintiff raised a disputable issue as to whether his supervisor’s unlawful discrimination, which was to be imputed to the defendant, played a role in the termination of the plaintiff’s employment. Therefore, the Supreme Court incorrectly granted the defendant’s summary judgment motion dismissing the cause of action alleging a violation of the City Human Rights Law.

International Child Custody Case at the Second Circuit

by Dalya Bordman

 

Ermini v. Vittori, 758 F. 3d 153 (2d Cir. 2014).

An Italian family, parents Emiliano Ermini, Viviana Vittori, and children Emanuele and Daniele, moved to the United States from Italy in August of 2011 in efforts to find treatment for Daniele who is autistic. The family moved to Suffern, New York and enrolled the children in public school and put their home in Italy up for sale. Daniele started Applied Behavioral Analysis (ABA) therapy shortly after the family moved to New York. After a violent altercation in the U.S. between Ermini and Vittori, divorce proceedings were instituted in Italy and a temporary order of protection issued in New York gave Vittori temporary custody of the children.

In September 2012, Ermini petitioned an Italian court for an order directing Vittori to return to Italy with their children and although granted, several provisions of the order were vacated by the Court of Appeals in Rome. The Rome Order granted Vittori exclusive custody of the children and did not require her to return to Italy with the children. Ermini subsequently filed a petition in the Southern District of New York pursuant to the Hague Convention seeking the return of both Emanuele and Daniele back to Italy. In determining whether the Hague Convention applied, the district court concluded that the boys’ habitual residence was Italy and that Vittori had wrongfully retained the children in the United States without the consent of Ermini. Accordingly, the court found that the Hague Convention did apply, however, ruled in favor of Vittori’s affirmative defense that returning the children to their habitual country posed a grave risk to Daniele. Thus, the court denied Ermini’s petition to return the children to Italy without prejudice.

The Second Circuit, however, called into question the district court’s determinations that (1) the family did not change its habitual residence from Italy to the United States, and (2) that Vittori breached Ermini’s custody rights. Firstly, the Second Circuit reasoned that the family may have changed their habitual residence to the United States as they had leased a house in the United States, put their home in Italy on the market, enrolled their children in public school and extracurricular activities in the United States, planned to open a business in the United States, and shifted all of Daniele’s medical care and treatment to the United States. Additionally, both Ermini and Vittori agreed that the move could be indefinite if Daniele’s treatment was succeeding. Secondly, based on the Rome Order, in which custody of the children was granted to Vittori, the court questioned whether or not Vittori’s keeping the children in the United States against Ermini’s wishes actually breached Ermini’s custody rights, as Ermini did not have legal custody of the children. The Second Circuit, however, did not overturn the district court’s ruling on those grounds because the issues of habitual residency and breach of parental rights were complicated, and instead affirmed the district court’s decision based on the affirmative defense of grave risk of harm to the child if returned. Thus, the Second Circuit assumed, arguendo, that the family had not changed their habitual residence from Italy to the United States and that Vittori did breach Ermini’s parental rights by keeping the children in the United States. The Second Circuit then affirmed the district court’s decision denying Ermini’s petition because the grave risk of harm defense was satisfied as, (1) Daniele would face a grave risk of harm if he was taken out of his therapy in the United States, and (2) the children faced a grave risk of harm in Ermini’s custody because he was physically abusive.  The Second Circuit then amended the district court’s judgment to deny Ermini’s petition with prejudice, reasoning that the Hague Convention is used to decide instances of wrongful child removal and when the Convention is invoked, a child is returned or he is not, once that decision is made, the Convention is no longer needed in that situation. Thus, the court affirmed the district court’s decision and amended its judgment to deny Ermini’s petition with prejudice.