Monday, June 11, 2018

Bergstein & Ullrich prevail in transgender discrimination case

Bergstein & Ullrich, LLP, has prevailed in an employment discrimination case alleging that a Port Jervis recycling company terminated an employee because she is transgender. The ruling, from the Appellate Division Second Department, upholds a finding reached by the State Division of Human Rights, which ruled in 2015 that Advanced Recovery, Inc., offered pretextual, or false, reasons for terminating Erin Fuller's employment.

The case is Advanced Recovery, Inc. v. Fuller, issued on June 6. Erin Fuller worked as a mechanic for Advanced Recovery. During that time, she was transitioning, advising management that she identified as a female. On the day of her termination, August 4, 2010, Fuller showed management a court-ordered name change stating that her name was now Erin Fuller, not Edward Fuller. She was fired on the spot. The SDHR ruled that the company president said, "OK, now I have a problem with your condition. I have to let you go." While management said it fired Fuller because she has misappropriated money on July 22, 2010, the SDHR deemed that justification a pretext, since management had forgiven her for that transgression and docked the money from her paycheck. Also, on cross examination at the SDHR hearing, the company president, Christopher Rea, invoked the Fifth Amendment on questions relating to Fuller's termination, most likely because Fuller's attorneys raised questions about the legality of management's personnel practices, in which full-time employees were classified as independent contractors. The SDHR ruled:

On or before July 22, 2010, Respondents were aware that Complainant had used the torch gas money to purchase heating oil for her home. Respondents recovered the torch gas money by docking Complainant’s July 22 paycheck. However, they did not terminate Complainant’s employment at that time. Complainant continued to work for Respondents for another two weeks until she presented Respondents with the court order changing her legal name to Erin Fuller. On the very day that Complainant presented this document to Respondents, Rea terminated her employment and told her that he was terminating her employment because he had “a problem with [her] condition.”

Notably, Rea did not deny making this statement when provided the opportunity to do so at the public hearing. Rea made the decision to terminate Complainant’s employment. Therefore, Rea’s testimony was essential for this tribunal to make a determination regarding the reasons for Complainant’s discharge. At the public hearing, Rea submitted his own affidavit and testimony on direct examination regarding his version ofthe events in issue. However, on cross examination, Rea conveniently chose to invoke his Fifth Amendment privilege against self incrimination in response to virtually every question asked of him by opposing counsel. This inquiry included questions regarding the reasons for Rea's decision to terminate Complainant’s employment.

The Division concludes that these circumstances warrant drawing an inference that any answers Rea provided in response to the questions put to him on cross-examination would have been adverse to him. The taking of this adverse inference applies to questions put to Rea by Complainant’s counsel regarding the termination of Complainant’s employment.

The SDHR awarded Fuller $30,000 in damages for pain and suffering and $14,560 in lost wages. The Division also imposed a $20,000 civil penalty against the Employer.

The Appellate Division affirms the SDHR's findings and damages award, ruling there was substantial evidence to support the determination. "There is substantial evidence in the record to support the SDHR's determination that the complainant established a prima facie case of discrimination, and that the petitioners' proffered reasons for terminating the complainant's employment were a pretext for unlawful discrimination."

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