In Holloway v. City of New York, No. 155025/2023, 2024 WL 3203274 (N.Y. Sup Ct, New York County June 27, 2024), the court denied defendant’s motion to dismiss plaintiff’s claim of arrest-record discrimination under the New York State and City Human Rights Laws.
From the decision:
Turning to CPLR § 3211 (a)(7), the court finds that Plaintiff has advanced sufficient grounds to permit the gravamen of his complaint to proceed at this juncture. To be sure, Plaintiff has adequately pleaded that it is unlawful to take an adverse employment action against a person who is arrested and has that arrest resolved in their favor pursuant to the NYSHRL and NYCHRL. Here, although the criminal charges against plaintiff were dismissed and sealed, Plaintiff pleads that the NYPD used his criminal proceeding to terminate his employment. Notably, even if Plaintiff was convicted of the conduct surrounding the arrest, the actions of the City, to take adverse action against Plaintiff for the conduct which led to the arrest, would only be lawful if the conduct underlying the arrest had a direct relationship to the job or the proven conduct creates an unreasonable risk to the public.
Here, Plaintiff has articulated with specificity that the conduct underlying his arrest neither poses an unreasonable risk to the public nor bears a direct relation to the duties of a police officer. Moreover, Plaintiff provides examples of similarly situated police officers, convicted of domestic violence and other offenses, who retained their employment with the NYPD. This precedent suggests that the NYPD does not view such conduct as inherently incompatible with police duties or a risk to public safety. Consequently, Plaintiff asserts that his termination, rooted in his arrest history, constitutes discriminatory action.
Under the NYSHRL, to establish a prima facie case of employment discrimination, a plaintiff must demonstrate membership in a protected class, qualification for the position, an adverse employment action, and circumstances suggesting discriminatory intent (Stephenson v. Hotel Empts. & Rest. Empts. Union Local 100 of AFL-CIO, 6 NY3d 265, 270 [2006]). While the analysis under the NYCHRL aligns with NYSHRL, the NYCHRL is to be construed more liberally to favor plaintiffs (Romanello v. Intesa Sanpaolo, S.p.A., 22 NY3d 881, 884-885 [2013]).
Plaintiffs under NYCHRL need not show an adverse employment action but only that they were treated less favorably due to their protected status (Dimitracopoulos v. City of New York, 26 F. Supp. 3d 200, 216 [ED NY 2014]). Following amendments effective August 12, 2019, NYSHRL now mirrors the liberal standard of NYCHRL for conduct occurring post-amendment (Henry v. Rising Ground, 2022 NY Slip Op 31859[U], *18 [Sup. Ct., N.Y. County 2022]).
In this case, Plaintiff, having had the criminal charges resolved in his favor, is a member of a protected class (see Complaint ¶ 47, 48, 49, 83, 94, 95, 99). He has detailed that the adverse employment actions he suffered were due to his arrest history (id. at ¶ 103, 104, 155, 159, 244, 245). Plaintiff argues that the criminal charges against him lacked a direct relationship to his job and did not pose a substantial risk to the public, satisfying the pleading requirements for his claims (id. at ¶ 169, 171, 175, 192, 201, 208, 215, 233, 236, 242, 257).
Plaintiff further identifies officers who, despite admitting to criminal conduct or pleading guilty, retained their positions, thereby illustrating potential discriminatory treatment. The City’s attempt to distinguish Plaintiff’s termination as based on conduct rather than arrest does not negate the claim at this stage. The relevant standard here is the sufficiency of the pleadings, not the City’s justification.
Likewise, Plaintiff has sufficiently pleaded that the use of sealed records from Plaintiff’s dismissed criminal case in the disciplinary proceedings contravenes New York State Executive Law § 296. The City asserts that § 296 is inapplicable because it could have independently obtained knowledge of Plaintiff’s arrest and conviction apart from his sealed records. According to precedent, once an employer or licensing agency lawfully discovers an arrest record, they may consider independent evidence of the conduct leading to the criminal charges without violating § 296 (16) (see Johnson v. Assn. for the Advancement of Blind & Retarded, 21 Misc 3d 268, 273 [Sup Ct, NY County 2008]). Furthermore, when a hearing officer’s determination is based not on the fact of the arrest but on the underlying conduct, § 296 (16) is not violated (see Matter of Young v. City of New York, 68 Misc 3d 514, 518 [Sup Ct, Kings County 2020]). However, in the present case, the means by which the City discovered Plaintiff’s record is not fully established in the current record. As such, the City’s purported reliance on such records, despite having a legal obligation to treat them as sealed, constitutes an act of discrimination based on arrest history, irrespective of whether the conduct occurred. Contrary to the City’s assertions, transcripts of the disciplinary proceedings do not categorically establish documentary proof of the City’s arguments so as to warrant judgment in the City’s favor. Indeed, courts may only grant the relief of dismissal premised on documentary evidence where the “documentary evidence” is of such nature and quality — “unambiguous, authentic, and undeniable” — that it utterly refutes plaintiff’s factual allegation, thereby conclusively establishing a defense as a matter of law (see Phillips v Taco Bell Corp., 152 AD3d 806, 806-807 [2d Dept 2017]; VXI Lux Holdco S.A.R.L v SIC Holdings, LLC, 171 AD3d 189, 193 [1st Dept 2019] [“A paper will qualify as ‘documentary evidence’ if … (1) it is ‘unambiguous,’ (2) it is of ‘undisputed authenticity,’ and (3) its contents are ‘essentially undeniable’ ”].) The Appellate Division, First Department, has explained that the documentary evidence must “definitely dispose of the plaintiff’s claim” (Art & Fashion Group Corp. v Cyclops Prod., Inc., 120 AD3d 436, 438 [1st Dept 2014]). The transcripts submitted here by the City plainly do not satisfy this standard.
Finally, it is important to note that Administrative Code § 8-107 [10] [a], [b], and [c] prohibits discrimination based on “pending arrests and criminal accusations, and criminal convictions preceding and during employment.” Section (a) pertains to criminal convictions preceding employment, while Section (f) renders sections (b) and (c) inapplicable to persons employed as police officers. Similarly, Administrative Code § 8-107 [11] [a] incorporates Executive Law § 296 (16), and section (b) (3) states that this part of the NYCHRL does not apply to police officers. Administrative Code § 8-107 [11-a] addresses discrimination based on arrest and conviction records preceding and during employment, with section (g) making this law inapplicable to current police force employees.
Neither the City nor Plaintiff cited this section in their papers, likely because the adverse action against Plaintiff occurred after the dismissal and sealing of his criminal matter. This renders the case outside the scenarios where the NYCHRL would not apply to a police officer such as Plaintiff. Furthermore, more comprehensive discovery may be necessary on this issue, underscoring that dismissal at the pleading stage would be inappropriate. Additionally, even if the NYCHRL were deemed inapplicable to Plaintiff, his NYSHRL claims and other claims still survive at this stage.
Based on this, the court concluded that plaintiff has sufficiently pleaded claims under the state and city laws, and noted that “[t]he comparison to similarly situated officers who retained their employment despite criminal conduct further bolsters the inference of discriminatory treatment.”