49 Misc. 3d 832
N.Y. Sup. Ct.2015Background
- Plaintiff, a former NYPD officer involved in the Louima incident, was convicted of perjury in 2002; earlier assault/conspiracy convictions were vacated on appeal.
- In July 2014 plaintiff disclosed the perjury conviction on a ConEd job application; ConEd hired him in November 2014.
- ConEd terminated plaintiff days later citing "potential disruption of business operations" and "damage to the Company's reputation," after co-workers complained that they "knew who he was."
- Plaintiff sued under the NYSHRL and NYC Human Rights Law (both incorporating Correction Law art. 23-A), alleging termination "by reason of" prior convictions and for lack of good moral character based on those convictions.
- ConEd moved to dismiss under CPLR 3211(a)(7), arguing termination was based on plaintiff's notoriety/reputation (not the perjury conviction), vacated convictions are not "convictions" under the law, and plaintiff failed to plead that ConEd relied on the perjury conviction or applied the article 23-A factors.
- Court granted dismissal: held plaintiff failed to plead termination "by reason of" a legally cognizable conviction; reputational concerns and vacated convictions fall outside article 23-A's protection.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether termination was "by reason of" a prior conviction under art. 23-A/NYSHRL/NYC HRL | Termination was motivated by plaintiff's conviction(s) and related notoriety; reputational effect is inseparable from the convictions | Termination was due to workplace disruption and reputational concerns about plaintiff as a police officer, not because of the disclosed perjury conviction | Dismissed — complaint fails to allege termination "by reason of" a legally cognizable conviction; employer's reputational/disruption concerns are not the same as discrimination "by reason of" a conviction |
| Whether discrimination based on reputation/notoriety is covered by art. 23-A | Reputation stemming from convictions is precisely what article 23-A seeks to prevent; terminating for such stigma is unlawful | Art. 23-A protects against discrimination based on actual convictions, not on general reputation or notoriety unrelated to a conviction | Dismissed — art. 23-A does not reach terminations rooted in reputation/notoriety separate from a conviction |
| Whether vacated convictions qualify as "convictions" under art. 23-A | Vacated convictions still produced stigma; discrimination based on perceived/vacated convictions is actionable | A vacated conviction is a legal nullity and cannot be a basis for a claim under art. 23-A | Dismissed — vacated convictions are not convictions for purposes of art. 23-A and cannot support the claims |
| Sufficiency of factual allegations to infer discriminatory intent | Allegations (manager comments, silence on call, hiring then quick termination) permit inference ConEd acted because of conviction-related stigma | Allegations are conclusory; silence and comments are insufficient; plaintiff conceded ConEd knew of the perjury conviction when hiring, undermining a claim it relied on the conviction | Dismissed — plaintiff's allegations do not plausibly show ConEd terminated him because of a conviction; evidentiary silence and "information and belief" assertions insufficient |
Key Cases Cited
- African Diaspora Mar. Corp. v Golden Gate Yacht Club, 109 A.3d 204 (1st Dept 2013) (standard for evaluating CPLR 3211(a)(7) motion).
- Leon v. Martinez, 84 N.Y.2d 83 (N.Y. 1994) (pleading standards and liberal inference rules on motion to dismiss).
- Guggenheimer v. Ginzburg, 43 N.Y.2d 268 (N.Y. 1977) (court may consider evidentiary material on CPLR 3211(a)(7) but dismissal requires showing that alleged material fact is not a fact).
- Matter of Bonacorsa v. Van Lindt, 71 N.Y.2d 605 (N.Y. 1988) (article 23-A protects ex-offenders from employment restrictions based on criminal records).
- Matter of Barash, 20 N.Y.2d 154 (N.Y. 1967) (a reversed or vacated conviction is a legal nullity).
- Van Houdnos v. Evans, 807 F.2d 648 (7th Cir. 1986) (silence alone is insufficient to prove discriminatory intent).
- Sokol v. Leader, 74 A.D.3d 1180 (2d Dept 2010) (dismissal appropriate when movant shows plaintiff has no cause of action).
- People v. Dozier, 163 A.D.2d 220 (App. Div.) (reversal of conviction renders it no longer a conviction).