Friday, February 24, 2017

No wrongful discharge case for ex-officer involved in Louima incident

It is illegal in New York to fire someone because of his criminal record. There are some exceptions to that law, such as an embezzler cannot work at a bank and a child abuser cannot work in a day care center. But your average felon is usually protected under the law. But as this case shows, that law has some gaping holes in it.

The case is Schwartz v. Consolidated Edison, a First Department decision issued on February 7. Schwartz was involved in the infamous Abner Louima incident, where a New York City police officer was convicted of assaulting and sodomizing an arrestee. Schwartz was convicted of perjury. His assault-related convictions were vacated on appeal years ago. But he is still a convicted perjurer. Schwartz got a job at Con Ed, but the company terminated his employment. The First Department says the lawsuit does not allege that he was fired because of his perjury conviction "rather than due to the disruption of Con Ed's workplace and its employee and customers [sic] relations stemming from his perceived involvement in the underlying assault." Yet, here are the allegations in the complaint offered to support plaintiff's argument that he was in fact fired over this incident:

The allegations relevant to any discriminatory intent state only that shortly after he was hired, one Con Ed construction supervisor told plaintiff that people were "talking," that everyone "downstairs" knew who he was, and that his hiring "blew up the building." The complaint alleges, "Upon information and belief," without elaborating, that the supervisor was referring to plaintiff's perjury conviction (and vacated convictions), but the allegation is speculative and therefore insufficient.

In addition,

The complaint also alleges that Con Ed's director of employee and labor relations advised plaintiff that he was being terminated due to "potential disruption of business operations" and "damage to the Company's reputation" if he continued in its employ. There is no mention of his perjury conviction or any associated dishonesty, or any allegation that anyone mentioned the Louima case. When plaintiff himself commented that he was being terminated due to his "convictions," the director allegedly did not deny it, but under these circumstances, his silence alone does not suffice to show that plaintiff was terminated on account of his perjury conviction.
It sure sounds like Schwartz's conviction at least played a role in his termination, but the First Department does not see it that way.

Schwartz also argued that he was fired because of his "assault-related" conviction. Here is where the holes in the statute come in. Yes, plaintiff was convicted of that, but the convictions were vacated on appeal. Since the conviction is a nullity, he is merely claiming that he was fired over his arrest. But the law does not protect you from terminations based on your arrest, only your convictions.

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