In re Jaynie S.

— by Sarah Ballard

Case: In re Jaynie S., 2015 WL 8083037 (1st Dept. Dec. 8, 2015)

Abstract: Respondent-father was “clearly informed” to stop sending letters to Petitioner-mother and child and thus committed the family offense of stalking in the fourth degree when he mailed petitioner and child letters after he received a temporary order of protection, which stated that Respondent was not to communicate with Petitioner or child except as necessary to effectuate court-ordered visitation or to discuss child’s welfare, and where Respondent sent letters when there was no order of visitation in place and the contents of the letter went beyond asking for mere visitation with child or inquiring about his welfare. 

 

Summary: A father appealed an order from the Family Court, Bronx County, in which, after a nonjury trial in family offense proceeding, Diane Kiesel, J., determined that the father had committed the offenses of aggravated harassment and stalking against the mother of his child and imposed a five-year order of protection against the father.  The Appellate Division affirmed.  In doing so, it held that the father had committed the family offense of fourth-degree stalking because it could not be seriously argued that he was not “clearly informed” to cease sending petition and the child letters (see Penal Law § 120.45[2]) and that “aggravating circumstances” warranted issuance of a five-year order of protection.  Specifically, the father mailed the mother and child letters after he had received a temporary order of protection which clearly advised the father to stop sending the mother and the child letters.  Although the order did allow the father to to contact the mother “as necessary to effectuate court-ordered visitation or to discuss the child’s welfare,” at the time there was no order of visitation in place when the father sent the letters.  Furthermore, the contents of the letter went beyond asking for visitation with the child or inquiring about his welfare.  Moreover, the mother testified that receiving the letters had frightened her.

 

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.

Mental Illness and Prison Reform

by Aaron Lawson

Summary

In New York State, “nearly one-third of…prisoners in solitary confinement have been diagnosed with either schizophrenia or bipolar disorder.”[1] Mentally ill prisoners fall into a vicious cycle where they are placed into solitary confinement because their mental illness limits their ability to conform to prison regulations. These inmates often find it difficult to “follow straightforward routine orders to sit down, to come out of a cell, to stand up for the count, to remove clothes from cell bars, or to take showers.”[2] As a result, mentally ill inmates are disproportionately and unjustly punished by placement in isolation. Solitary confinement then worsens their condition, resulting in more prison violations and a lengthier sentence.

A Washington Law Review article published this past June outlines the Americans with Disabilities Act (ADA) and Rehabilitation Act’s potential application in releasing mentally ill inmates from solitary confinement. Solitary confinement is a disciplinary procedure that was originally used from the early 1700s to the late 1800s, and fell out of favor as it was mentally “too severe” and “immeasurably worse than any torture of the body.”[3] However, the 1980’s introduced super maximum security (“supermax”) prisons that are designed for indefinite solitary confinement.

Today there are an estimated 25,000 prisoners in supermax prisons. “Solitary confinement is linked to suicidal thoughts, impaired concentration, confusion, depression, anxiety, paranoia, and hallucinations.”[4] Treatment options are limited by lack of access to health care professionals and group therapy sessions.

Despite these historical and medical findings, solitary confinement has not been considered an Eight Amendment violation. (However, the author notes a few exceptions for “Eighth Amendment challenges to solitary confinement for the mentally ill [in] class action suits.”)[5] Eighth Amendment claims require proving (1) subjective intent; (2) qualified immunity; and (3) subjective deliberate indifference, which the ADA and Section 504 have no such requirements:

“Disability discrimination claims against jails or prisons fall under Title II of the ADA, which prohibits discrimination by any ‘public entity.’ Public entities are defined as ‘any department, agency, special purpose district, or other instrumentality of a State or States or local government.’ In Pennsylvania Department of Corrections v. Yeskey, the Supreme Court confirmed that ‘[s]tate prisons fall squarely within the statutory definition of “public entity.”’ Federal prisons are not covered under the ADA, but are covered under Section 504 of the Rehabilitation Act for the purposes of injunctive relief. Private prisons may be covered under both Title II and Title III, the title that prohibits discrimination in ‘public accommodations.’”[6]

Title II additionally requires that these prison services, programs, and activities be administered in “the most integrated setting appropriate.”[7] Because most facilities house a disproportionate number of mentally ill inmates in solitary confinement, this disparate impact alone may be enough to demonstrate a violation of the ADA.

However, disability rights claims have disadvantages as well. Prisons and jails may be able to claim solitary confinement is a “legitimate safety requirement” grounded in an “actual risk” in order to operate its “services, programs, or activities.”[8] In addition, solitary confinement may be justified if the inmate poses a “direct threat to the health and safety of others.”[9] Class certification is another challenge because a group of inmates’ individualized “mental illness” may not create a “common claim of discrimination and a common solution.”[10]

The author concludes by highlighting other measures both states and prison guard unions are taking to minimize the use of solitary confinement. Overall, the article provides a resourceful outline for expanding the ADA and Rehabilitation Act into prison reform.

[1] Jessica Knowles, “The Shameful Wall Of Exclusion”: How Solitary Confinement For Inmates With Mental Illness Violates The Americans With Disabilities Act, 90 Wash. L. Rev. 893, 896 (2015).

[2] Id. at 935.

[3] Id. at 899-902.

[4] Id. at 907.

[5] Id. at 912-14.

[6] Id. at 915-16.

[7] Id. at 935-36.

[8] Id. at 921.

[9] Id. at 921.

[10] Id. at 922.

New Developments in Assisted Suicide Legislation

by Shannon Crane

 

This month, the California legislature passed the “End of Life Option” bill into law. This makes California the fifth state to legalize physician-assisted death by either legislative action or court ruling. Under section 443.2 of the law, an adult resident of California may request a prescription for an “aid in dying” drug if they meet all of the following criteria: (1) diagnosed with a terminal disease, (2) voluntarily wish to receive the prescription, (3) established California residency, (3) documented official request form, (4) establish the physical and mental ability to self-administer the “aid in dying” drug. The law prohibits consideration of any requests made solely because of age or disability. Further, the law prohibits any requests made via proxy or surrogate, including through power of attorney or any other legally recognizable health care decision-maker.

A key aspect of the new law falls under section 443.13. Under this section, the sale or procurement of life, health, or annuity insurance plans “may not be conditioned upon or affected by a person making or rescinding a request for an aid-in-dying drug” and “death resulting from the self-administration of an aid-in-dying drug is not suicide, and therefore health and insurance coverage shall not be exempted on that basis.” Further, a qualified individual’s self-administering of an “aid-in-dying drug shall not have an effect upon” any of the aforementioned policies, and shall be considered in the same way that a natural death from the underlying disease would be treated. This is crucial because many insurance policies can be affected, or even voided by the act of suicide.[1]

In New York, Public Health Law section 2989 specifically prohibits physician assisted death. However, there is pending legislation in the New York Assembly, sponsored by Linda B. Rosenthal, that almost identically mirrors the California law. Past versions of physician-assisted suicide have failed to pass in New York, but with the wave of recent successful laws across the country, there may be a better chance for success. The bill will likely be heavily contested.

 

[1]John Dorfman, How Life Insurance Policies Deal with Suicide, Time: Money (Aug. 15, 2014), http://time.com/ money/3117698/how-life-insurance-policies-deal-with-suicide/