D'ORAZIO PETERSON, LLP                        518.308.8339
employment law / personal injury
litigation

Plaintiffs were former employees (Assistant Managers) of the ubiquitous purveyor of the mochachino, who claimed that they, as full time salaried employees (the baristas and shift supervisors were part time) were entitled to a portion of the tips collected in stores.  The tips, which were collected and pooled per written company policy, were distributed to each barista and shift supervisor  based upon the number of hours worked in a given week.  Plaintiffs claimed that 
since they were on the floor in front of customers, they were presumed to be tip
eligible and, therefore, should receive their portion.

The court did not agree, finding the the provision of the New York State labor law which in part prohibits an employer from demanding or accepting any part of the gratuities received by an employee did not help the assistant managers.  Essentially, just because they were on the floor doesn't mean they were entitled to take tips from the employees who were paid hourly.  

The case is Winans v. Starbucks Corp. (July, 2011).

Plaintiff, a 62 year old photo editor at Smart Money magazine, was terminated from his employment, and received a severance package which included 20 weeks’salary and other benefits.  In offering the package, as is generally the case, the employer had plaintiff sign a separation agreement which included, among other things, a release and waiver of any claims arising from his termination.

When plaintiff learned, however, that his position had been filled by
a younger individual, after he had previously been advised that he was being
terminated because of its elimination, he sued the employer for age
discrimination.  

The lawyer for the plaintiff correctly argued that in order for a waiver of an age discrimination claim in a severance agreement to be valid it must be written in a "manner calculated to be understood."   The case was dismissed, however, because the court found that the language in the agreement was very clear, that plaintiff had been provided ample opportunity to review the document, and in fact acknowledged having been advised to consult with an attorney.  

Severance agreements nearly always contain language releasing an employer from any and all claims for age discrimination, which is expected, as the employer is generally offering something in exchange for that waiver.  Too often employees find themselves in the position of this plaintiff, realizing too late that they may have been terminated as a result of a prohibited reason.  

The case can be found here: http://scholar.google.com/scholar_case?case=7825219721023606955&q=Ridinger+v.+Dow+Jones+%26+Co&hl=en&as_sdt=2,33

When a former director’s relationship with the corporate president
turned cold, she was terminated, allegedly for insubordination, mismanagement
and personal use of organization funds.
  
She brought an employment discrimination lawsuit under the New York State Human Rights Law (Executive Law 290), alleging that she suffered in a hostile
work environment as a result of sexual harassment and retaliation.  

The Appellate Division of the State Supreme Court, Third Department, affirmed a dismissal of the case, based upon their finding that the plaintiff failed to allege that the conduct toward her was sexual in nature.   Rather, she asserted that the actions taken against her were in retaliation for her complaints to the board about the president’s actions towards other women which, the court found, failed to connect any of the actions taken against her to her gender.  The court also found that
plaintiff had failed to allege that she made any specific complaints that
someone had engaged in sexual harassment or discrimination against her in retaliation for making complaints.

This case presents a good example of the importance of speaking with an employment lawyer where a situation turns sour.  The disctinction between what may and may not constitute discrimination can be very fine, and it is important to timely evaluate the conduct of all parties.
 

The Appellate Division, Third Department, the mid-level appellate Court
governing a large portion of upstate New York, held in a recent ruling that
section 240 of New York's Labor Law, which forms the basis for many construction accident lawsuits, did not protect a worker who was injured when he fell from a ladder. 

The plaintiff in Maloney v. J.W. Pfeil was a construction worker who fell
from the top of a six-foot ladder while installing some sheetrock.  He brought a
lawsuit against the site owner and contractor, alleging that under New York's
Labor Law, they had an obligation to provide him with a safe worksite, which
included appropriate equipment and safety devices. 

During the discovery portion of the lawsuit the testimony established that
there were other, appropriate, safety devices (including an 8 foot ladder,
scaffolding, etc.) available on site, and that the injured construction worker
was aware of their existence.  The worker admitted that he knew the six-foot
ladder was not appropriate, and in fact stated that he conducted a search for a
more appropriate device in his immediate vicinity.  Finding none, he decided
that using the six-foot ladder and standing on the top rung would be the
quickest way to get the job done.

 The Court found that the injured worker's conduct, in failing to look around
other areas of the work site for an appropriate device, and in using a device
that he knew was insufficient for the job, when he was not under a time
constraint or ordered to do so, was ultimately the "sole proximate cause" of the
accident, and affirmed a dismissal of the case.

 This case illustrates that courts are becoming less inclined to permit
recovery in construction accident cases where the injury is caused by what they
consider to be the sole conduct of the plaintiff. 

It is important for an injured construction worker to remember, however, that
the Labor Law is designed to ensure safety on job sites, and requires owners and
general contractors to provide adequate safety devices.  Where those devices are
missing, or are insufficient, the injured worker may recover.

In a case that takes "suffering" to a whole new level, the New York Law
Journal recently had an interesting report on a decision by a Southern
District Federal Judge, who set aside a jury award of $18 million dollars to a
man who spent 21 years in prison following a rape conviction. 

The prisoner, convicted in 1985, began requesting a rape kit for DNA testing
in 1994, however the City claimed that they could not find the kit.  Then, in
2005, police department personnel located the kit, which, when tested against
the DNA of the prisoner in 2006, confirmed that there was no match.

 The now-former prisoner brought claims against the City alleging violation of
his due process rights, among other things, for failing to provide him with the
kit despite his requests.  The Jury found that the City had shown "reckless
indifference," however the judge set aside the award, stating that at best the
City had been negligent in failing to produce the evidence, which did not amount
to a violation of the former-prisoner's due process rights.

 The attorney for the former-prisoner has stated that he will appeal the
decision of the Federal Judge, as expected.  It will be interesting to see what
the Second Circuit Court of Appeals, the highest level Federal Appeals Court in
the state, does with this case.  It would seem that a nine-year delay in
providing what turned out to be exculpatory evidence, during which an innocent
person remained in prison, might move beyond mere negligence and into some other category.

The Appellate Division, Second Department, recently issued a decision
striking a blow to EMT's injured in the course of their duty.  In Weiner v. City
of New York, the downstate appellate Court found that the New York State Workers Compensation Law trumped a section of the New York State General Municipal Law, which under some circumstances allowed those injured in the line of duty to recover for negligence.

In New York, injured worker employees are generally prohibited from bringing lawsuits against their employers for injuries suffered on the job, under a section of the Workers Compensation law.  The theory behind the law was (in part) that the
workers compensation system would provide injured workers a clear and easy way
to recover for their injuries, without having to go through prolonged
litigation.  The law was also meant to protect employers from the
unpredictability of lawsuits.

 The EMT case was brought based upon a provision of New York's General Municipal law, which allows firefighters and police officers to bring lawsuits against their employers in the event that they were injured on the job as a result of
negligence.  The 4th Department of the Appellate Division, a Western New York
court, had previously permitted a non-firefighter municipal employee to proceed
under the section, finding that he was not barred from doing so by the workers
compensation law.

The Second department did not agree, however, and found that the provision of the Workers Compensation law was clear - an EMT under these circumstances was not entitled to the benefit of the General Municipal Law, and was instead entitled
only to recovery under the workers compensation law.

It now appears that the 2nd and 4th Departments of the Appellate Division (the second highest level Civil court in the State) are at odds over the application of the
so-called "firefighters rule" to civilian employees.  This may be something that
the Court of Appeals, the State's highest court, chooses to address at some
point in the future.

In a well publicized case that has been described as "the first lawsuit
brought by a tenant's employee against a commercial landlord and its agents," a
Fox News employee's case for damages from Bed Bugs has been dismissed by a New York County Judge.  2011 NY Slip. Op 30920.

 The case arose following the rampant bed bug problem in New York City over
the past couple of years.  Plaintiff, who could not sue her employer as a result
of the bar on such suits by the NYS Workers Compensation Law, brought an action
against, among others, the owner of the building, alleging that they were
negligent in allowing the building to become infested, in failing to take
necessary steps to remedy the problem, and in failing to warn her of the
problem.

 Plaintiff attempted to argue that the owners of the building had a
"non-delegable duty" to keep it free from bed bugs; in other words that the
owner would be liable if bed bugs ever got into the building.  The Court
rejected this argument, and also found that because Fox had, by contract,
assumed nearly full control of the building, the owner was essentially relieved
from any responsibility for injuries suffered by the plaintiff, unless those
injuries resulted from structural or design defects.

 The Court found that the building owner could not have taken any steps beyond
the "extraordinary measures" taken by Fox, and therefore the owner could not be
liable to the plaintiff, with whom it had no direct contractual relationship.  
 
So what does this mean for victims?  This decision will certainly not be the
last in this area, and the decision makes clear that the theory may not be the
same in instances of private landlords and tenants, or hotel guests. 
Tenants/guests should not, therefore, read the decision as completely limiting
any claims for injuries from these types of bites.

In what was, unfortunately, not a surprise, the United States Supreme Court 
 recently handed down a decision in Wal-Mart v. Dukes, denying class status to
potentially greater than one million current and former Wal-Mart female
employees.  The Court, in denying class status, found that the workers had
failed to establish a company-wide pay and promotion discrimination policy,
which it noted would be required to establish a class.


The plaintiffs in the case alleged that over a nearly ten-year span Wal-Mart
had engaged in a systemic pattern of discrimination against women, both in terms
of pay and promotion.  The case made it to the Supreme Court after the 9th
Circuit Court of Appeals in San Francisco had allowed the class action, in a
split decision in 2010.


Although the nine Justices on the Supreme Court split 5-4 on the issue of
whether the case satisfied "common questions of law or fact" requirement in
class actions, they were unanimous in their agreement that the case had been
sued under an improper portion of rules governing class actions.


The impact of the case, had the court permitted class status, would have been
very substantial, and in all likelihood would have led to settlement.  Not
surprisingly, the impact of the decision denying status, is also likely to be
substantial.


The decision in the Wal-Mart case may limit the ability of plaintiff's
lawyers to take on some cases in the employment discrimination context.  If
courts severely limit the ability of plaintiffs to join together as classes,
plaintiff's lawyers may determine that prolonged litigation against large
corporations - common in Federal Employment Discrimination cases - is simply too great a burden to pursue in many individual cases.


Advocates for employees, including the author, can only hope that the
Wal-Mart decision does not serve as too strong a blow to the rights of victims
of workplace discrimination.

The United States Equal Employment Opportunity Commission announced recently that it had settled a Federal Lawsuit against an Albany area Dunkin' Donuts franchise, which had charged that the manager of the facility had sexually harassed female employees, some 16 and 17 years old.  The EEOC alleged that the manager had "engaged in unwanted touching and hugging and made lewd sexual comments to the female employees."  It contended that the franchise had allowed this conduct to continue, despite two employees having complained about it approximately a year prior to contacting the EEOC.  The manager was only fired
after the employees reported him to and he was arrested by the police.


The company agreed to pay $290,000 to the former employees, and will
additionally be bound by a six-year decree which prohibits it from engaging in
discrimination or retaliation (although the company is legally prohibited from
doing this in the first place, as it just discovered).  The company will have an
EEOC coordinator appointed, will have to train all employers and managers on
sexual harassment prevention (which they should have been doing in the first
place), and will have to implement other policies to prevent discrimination in
the future.  Finally, the company will have to issue a letter of apology to the
female employees.


This case illustrates that even though it can be very difficult, it is
important for employees to summon the courage to come forward when they are
being victimized or subjected to discrimination in the workplace.  The type of
conduct alleged in the Dunkin' Donuts case occurs far too frequently, as we see
on an almost daily basis.  If you are the victim of gender discrimination or any
other form of employment discrimination, do not hesitate to contact an
attorney.

The New York Times reported recently that a company owned by Jim Crane, a potential bidder for Major League Baseball's Houston Astros, settled an EEOC claim several years back following allegations of racial discrimination at the company.

 According to the report, EEOC found that "reasonable cause" existed that
discrimination occurred, in a case involving allegations of failing to promote
African-American's, Hispanics and Women at the Texas-based company Eagle Global  Logistics.  The allegations went on to state that the company demoted women, and  paid less to those classes of individuals mentioned above.  The matter was  settled with a consent decree before the EEOC, avoiding what would likely have been a drawn out and messy trial in Federal Court.


The Equal Employment Opportunity Commission, or EEOC, is the federal agency
tasked with investigation complaints of race/age/gender/disability/national
origin/religion/retaliation or other discrimination.  The majority of federal
discrimination cases start at the EEOC, as filing with the agency is often a
requirement prior to filing a federal lawsuit.


According to the EEOC website, in 2010 the agency received 99,922 charges,
found no reasonable cause in approximately 64%, obtained settlements in
approximately 9%, and obtained approximately $319 million dollars in monetary
benefits.  This data suggests that the EEOC, while a very busy agency, is able
to resolve some cases where discrimination likely occurred.


Whether the previous case involving Mr. Crane's company will impact his
ability to purchase a Major League Baseball team is yet to be seen.  In the end,
however, this case illustrates that despite resolutions at the EEOC, companies
may find it difficult to every totally walk away from charges of
discrimination.