Cable Technician’s Criminal Conviction Discrimination Claim Continues; Race Discrimination Claim Dismissed

In Pickering v. Uptown Communications & Elec., Inc., the New York Supreme Court (Queens County) denied defendants’ motion for summary judgment on plaintiff’s “prior conviction” discrimination claim, but dismissed his race discrimination claim.

Defendant Uptown, a contractor for Time Warner Cable of New York City, employed plaintiff as a cable technician. A criminal background check revealed that he was convicted of criminal facilitation after being charged with crimes related to the possession and sale of concealed firearms.  Defendant then fired plaintiff.

As to discrimination based on criminal conviction, Section 296(15) of the New York State Human Rights Law provides, in pertinent part:

It shall be an unlawful discriminatory practice for any person … corporation or association … to deny any license or employment of any individual by reason of his having been convicted of one or more criminal offenses, or by reason of a finding of a lack of “good moral character” which is based upon his having been convicted of one or more criminal offenses, when such denial is in violation of the provisions of Article 23–a of the N.Y. Correction Law.

The relevant section of the New York Correction Law, Section 752, provides:

No application for any license or employment, and no employment or license held by an individual, to which the provisions of this article are applicable, shall be denied or acted upon adversely by reason of the individual’s having been previously convicted of one or more criminal offenses, or by reason of a finding of lack of “good moral character” when such finding is based upon the fact that the individual has previously been convicted of one or more criminal offenses, unless:

(1) there is a direct relationship between one or more of the previous criminal offenses and the specific license or employment sought or held by the individual; or

(2) the issuance or continuation of the license or the granting or continuation of the employment would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public.

The court summarized the applicable legal framework:

A “minimal” prima facie case of employment discrimination requires a showing of (i) membership in a protected class, (ii) qualification for the position, (iii) an adverse employment action, and (iv) preference for a person not in the protected class. If the plaintiff makes out the prima facie case, a presumption of discrimination arises. This shifts the burden of production to the defendant to proffer a nondiscriminatory reason for its challenged action or actions. If the defendant provides such a nondiscriminatory reason, the presumption of discrimination is eliminated. The burden of persuasion remains with the plaintiff at all times; ultimately it is the plaintiff’s responsibility to convince the trier of fact that illegal discrimination occurred. Thus, if the defendant proffers a nondiscriminatory reason for his actions and the plaintiff cannot point to evidence that reasonably supports a finding of prohibited discrimination.

Defendant conceded that plaintiff stated a prima facie case of discrimination, and the court found that defendant proffered a nondiscriminatory reason for firing plaintiff – “namely that, as a result of his criminal convictions, plaintiff may pose a safety risk to its customers when he goes into their homes.”

Therefore, the court’s “analysis properly centers on plaintiff’s ability to present evidence that would allow a reasonable jury to conclude that the termination of plaintiff’s employment resulted from prohibited discrimination, i.e. Uptown’s consideration of the fact and/or details of the conviction itself.”

It held that summary judgment was inappropriate on this claim, citing “questions with regard to the truth of Uptown’s proffered explanation.”

However, the court granted defendants’ motion for summary judgment on plaintiff’s race discrimination claim under the State Human Rights Law, reasoning:

The defendants established their prima facie entitlement to judgment as a matter of law dismissing the racial discrimination cause of action by submitting evidence that plaintiff failed to establish that his termination occurred under circumstances giving rise to an inference of discrimination. Indeed plaintiff produced no evidence, aside from his unsubstantiated assertions, of any animus toward him as a result of his race. Furthermore, plaintiff failed to rebut defendants’ proof that the purported termination did not arise under circumstances giving rise to an inference of discrimination.