Friday, December 2, 2016

Appellate Division upholds retaliation findings in SDHR case, but with low damages

We all know about the EEOC, the federal agency that investigates and tries to resolve employment discrimination cases. Less well-known is the State Division of Human Rights, the EEOC's counterpart in New York State. Some people file with the SDHR instead of the EEOC. If the SDHR issues and "probable cause" finding, the case can proceed to an evidentiary hearing before an administrative law judge. The losing party can then appeal to state court. That's what happened here, with interesting results.

The case is In the Matter of Delkap Management, Inc. v. New York State Division of Human Rights, issued by the Appellate Division Second Department on April 5. The plaintiff moved into a housing complex in 1988. She has rheumatoid arthritis. In 2010, her daughter moved in, bringing a dog with her, in violation of the "no dog" policy. Plaintiff sought a reasonable accommodation that would allow her to keep the dog. Her doctor also sent the property management people a letter asking that she keep the dog as well as her parking space near her apartment due to her disability. Defendant instead directed her to remove the dog and fined her for breaking the rules. After plaintiff filed a SDHR complaint, management told plaintiff she would be evicted if she did not get rid of the dog and it revoked her parking privileges. An SDHR judge ruled in plaintiff's favor on her disability discrimination and harassment claims and fined the housing management company.

The Second Department resolves this appeal as follows:

1. The discrimination claim is thrown out even though the SDHR ALJ ruled in plaintiff's favor. While she "demonstrated that she was disabled and was a shareholder in the Coop" and "submitted evidence that the dog helped her with her symptoms by easing her stress and causing her to be more active," she "failed to present medical or psychological evidence sufficient to demonstrate that the dog was actually necessary in order for her to enjoy the apartment." Why is this? Because plaintiff "had resided in the apartment for more than 20 years without the dog. Moreover, the complainant was diagnosed with her disability several years prior to the dog being brought to the apartment by the complainant’s daughter when she moved in with the complainant. The dog was present in the apartment for only two weeks before the complainant asked the Board for a reasonable accommodation." If you are familiar with how federal appellate courts review trial court verdicts, this reasoning seems out of place. It looks like the Second Department is independently reviewing the evidence, which the appellate courts in New York are allowed to do.

2. The retaliation verdict stands, however. Plaintiff proved that she participated in the protected activity of filing an SDHR discrimination complaint, and there was a causal connection between the protected activity and the petitioners’ retaliatory conduct, which included taking away the complainant’s designated parking space for a nine-day period, refusing to accept her maintenance checks, filing eviction proceedings against her, falsely informing her that the SDHR had ruled in the petitioners’ favor, and directing her to immediately remove her dog from her apartment." You read that right. After plaintiff filed her SDHR charge, defendant falsely told her that the SDHR had ruled against her even though it had not done so. Plaintiff also proved she suffered adverse actions, which had caused her to suffer the following:

The complainant established that the adverse action taken by the petitioners caused her
to be confined to her home for the nine days that the designated parking space was taken from her because of the distance between her home and the alternative, designated space assigned to her, that she had to defend against eviction proceedings, and that she was directed to immediately remove the dog which caused her to move out of her apartment with her dog. In response to the complainant’s prima facie showing of retaliation, the petitioners failed to present legitimate, independent, and nondiscriminatory reasons to support their actions.
This reasoning is more like what we see in the federal appellate courts in reviewing a favorable jury verdict.

3. But consider what happened with the damages. The SDHR awarded plaintiff $5,000 in mental anguish and $10,000 in punitive damages, plus a $5,000 penalty against defendant, to be paid to the State. Since only the retaliation claim survives appeal, that award has to be modified. In itself, the original award is modest, but par for the course in the SDHR, which does not allow plaintiffs to break the bank. Here is now the Second Department summarizes the pain and suffering on the retaliation claim:

Here, the petitioners retaliated against the complainant by revoking her parking privileges in connection with her designated parking space after she filed an action with the SDHR. The petitioners also moved to evict the complainant and caused her to move out of her home by informing her, erroneously, that the SDHR had ruled against her and that she had to immediately remove her dog from her apartment. The complainant testified that, as a result of the petitioners’ retaliatory conduct toward her, she experienced mental anguish during the period of time that she was trapped in her apartment due to the loss of her designated parking space, when she had to go to housing court for the eviction proceedings, and when she moved out of her apartment due to the petitioners’ false directives that SDHR had ruled against her and the dog had to be immediately removed. The complainant also showed that the stress caused by the mental anguish exacerbated her physical condition and, on March 24, 2011, she was admitted to the hospital complaining of nausea and experiencing palpitations.
This looks like serious pain and suffering, no? The Appellate Division says it is worth no more than $2,500. The Appellate Division also thinks the punitive damages award cannot exceed $2,500. The same amount applies to the civil penalty that defendant pays to the state. The total monetary result is $7,500. A jury would have awarded much more money than this.

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