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Obscure Brooklyn Appellate Ruling Protects Transgender People from Discrimination Without Saying So

Posted on: June 14th, 2018 by Art Leonard No Comments

Talk about “hiding the ball!” On June 6, a unanimous four-judge panel of the New York Appellate Division, 2nd Department, based in Brooklyn, confirmed an Order by the State Division of Human Rights (SDHR), which had adopted a decision by an agency administrative law judge (ALJ) ruling that a Port Jervis employer violated the human rights law when it discharged a transgender employee.

But nobody reading the court’s short memorandum opinion, or the short agency opinion and order, would have any idea that the case involved a gender identity discrimination claim. Surprisingly, given the novelty of the legal issues involved, only the administrative law judge’s opinion, an internal agency document, communicates what the case is actually about.

The case is Matter of Advanced Recovery, Inc. v. Fuller, 2018 N.Y. Slip Op 03974, 2018 N.Y. App. Div. LEXIS 3969, 2018 WL 2709861 (N.Y. App. Div., 2nd Dept., June 6, 2018).

Erin Fuller, a transgender woman, was fired by Mark Rea, the owner and chief executive of Advanced Recovery, Inc., the day Fuller presented a supervisor with a copy of a court order authorizing her change of name from Edward to Erin and the supervisor passed the document to Rea. Rea called Fuller into his office and, according to Fuller, said in the presence of the supervisor, “Now I have a problem with your condition.  I have to let you go.”

Rea and other company officials had been aware for some time that Fuller was transitioning, since she had presented them with a letter from her doctor in 2009 explaining her gender dysphoria diagnosis and how she would be transitioning, and on at least one occasion Rea had reacted adversely to Fuller’s mode of dress, but it wasn’t until he was presented with the legal name change that Rea apparently decided that he had enough and no longer wanted Fuller, a good worker who had been with the company more than two years.

When Fuller went back later to pick up her final paycheck, a supervisor told her that “he felt bad, but your job would be waiting for you as long as you came in wearing normal clothes.”

Attempting to escape possible liability, Rea and the company’s lawyer later came up with a termination letter that cited other reasons for terminating Fuller and said nothing about her name change, mode of dress, or gender identity, but they never sent her that letter, which first surfaced when it was offered as evidence at the SDHR law judge’s hearing on Fuller’s discrimination claim.

The discharge took place on August 4, 2010, several years before Governor Andrew Cuomo directed the SDHR to adopt a policy under which gender identity discrimination claims would be deemed to come within the coverage of the state’s ban on sex discrimination.

Fuller filed her complaint with SDHR on October 13, 2010. On the complaint form, she checked the boxes for “sex” and “disability” as the unlawful grounds for her termination.  After the company was notified of the complaint, it apparently prompted local police to arrest Fuller for altering a medical prescription, a spurious charge based on her changing the pronouns on the note written by a doctor on a prescription form after she missed a few days of work due to hospital treatment.  At the time, she didn’t think of amending her discrimination charge to allege retaliation, unfortunately, waiting until the hearing to raise the issue, by which time the judge had to reject her motion because she waited too long to assert the retaliation claim.

The agency concluded, after investigation, that it had jurisdiction over the discharge claim and set the case for a public hearing before an ALJ. At the hearing, Fuller was represented by attorneys Stephen Bergstein and Helen Ullrich, who persuaded the judge that Fuller had a valid claim and that the reasons given by the employer for firing her were pretexts for discrimination.  The same lawyers represented Fuller when the company appealed the judge’s ruling to the Appellate Division.

Relying on a scattering of trial court decisions holding that transgender people are protected from discrimination under the New York Human Rights Law, ALJ Robert M. Vespoli concluded that Fuller “states a claim pursuant to New York State’s Human Rights Law on the ground that the word ‘sex’ in the statute covers transsexuals.”

“Complainant also has a disability,” wrote Vespoli, “as that term is defined in the Human Rights Law.” The New York Human Rights Law’s definition of “disability” is broader and more general than the federal definition in the Americans with Disabilities Act, and New  York law does not have the explicit exclusion of coverage for people with “gender identity disorders” that is in the federal law.  Under New York’s law, a disability is “a physical, mental or medical impairment resulting from anatomical, physiological, genetic or neurological conditions which prevents the exercise of a normal bodily function or is demonstrable by medically accepted clinical or laboratory diagnostic techniques.”  The statute provides that a disability may also be a “record of such impairment or the perception of such impairment.”

“During the relevant time period,” wrote Vespoli, “Complainant was diagnosed with gender dysphoria. This condition falls within the broad definition of disability recognized under the Human Rights Law,” citing a 2011 decision by the agency to recognize its jurisdiction in a transgender discrimination case. The employer could not claim ignorance about Fuller’s transition, because in 2009 she had presented the company with her doctor’s letter explaining the situation, after which she began to dress and groom differently.

In his opinion dated February 20, 2015, Judge Vespoli rejected the employer’s evidence of other reasons for the discharge, finding that the proffered letter was a document created after the discharge for the purpose of litigation, that it had never been delivered to Fuller, and that the reasons it offered were pretexts for discrimination. The judge recommended awarding Fuller $14,560.00 in back pay and $30,000.00 for mental anguish caused by the discrimination.  He also recommended imposing a civil penalty on the company of $20,000.00.

The company filed objections to Vespoli’s recommendations with the Commission, but did not specifically object to Vespoli’s finding that Fuller had a disability or that the agency had jurisdiction over this case on grounds of sex and disability. The Commission’s Notice and Final Order of April 1, 2015, overruling without discussing the company’s evidentiary objections and adopting the judge’s recommendations and findings, said nothing about the details of the case, beyond noting that Fuller had complained of discrimination because of sex and disability.

The company’s appeal to the court again did not explicitly contest the ruling that the statute covers the case, instead urging the court to find that the ruling was not supported by substantial evidence of discrimination. Perhaps because the company’s appeal did not raise the question whether the Human Rights Law bans discrimination because of gender identity, the Appellate Division’s ruling also  did not  mention that the complainant is a transgender woman, and did not discuss the question whether this kind of case is covered under the disability provision.  Rather, the court’s opinion recites that the complainant alleged “that the petitioners discriminated against her on the basis of sex and disability,” and that the agency had ruled in her favor.  “Here 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.  The petitioner’s remaining contentions are either not properly before this Court or without merit.”

Of course, Fuller’s brief in response to the appeal would have mentioned this issue, and SDHR, which cross-petitioned for enforcement of its Order, mentioned the issue as well.

The court wrote that there is “substantial evidence in the record” to support the agency’s ruling, so the court presumably looked at the record, including the ALJ’s opinion, and was aware that this was a gender identity discrimination claim.  The appellate panel surely knew that this was an important issue in the case.

Cursory research in published New York court opinions would show that there is no prior appellate ruling in New York finding that a gender identity claim can be asserted under the Human Rights Law’s prohibited grounds of “sex” and “disability.” The court took its time on this case, waiting until June 6, 2018, to issue a ruling upholding an administrative decision that was issued on April 1, 2015.  Despite taking all this time, the court produced an opinion that never mentions these details, that provides no discussion of the ALJ’s analysis of the jurisdictional issue, and that does not expressly state agreement with the trial court ruling that Judge Vespoli specifically cited in support of his conclusions.

This may be the first case in which a New York appellate court has affirmed a ruling holding that an employer violated the state’s Human Rights Law by discriminating against an employee because of her gender identity, but you wouldn’t know it by reading the court’s opinion. While the court’s failure to mention the doctrinal significance of its ruling may be explainable because the employer did not raise the issue on its appeal, it’s omission nonetheless renders the decision basically useless as an appellate precedent.

One can fairly criticize the court for failing to play its proper role in a system of judicial precedent to produce a decision that can be referred to by later courts. The judges whose names appear on this uninformative opinion are Justices Mark C. Dillon, Ruth C. Balkin, Robert J. Miller, and Hector D. LaSalle.

Governor Cuomo’s directive, issued while this case was pending before the Appellate Division, actually reinforced existing practice at the State Division of Human Rights, as the earlier opinions cited in Judge Vespoli’s opinion show, but in the absence of an explicit appellate ruling, enactment of the Gender Identity Non-Discrimination Act remains an important goal and its recent defeat in a Senate committee after renewed passage by the Assembly is more than merely a symbolic setback for the community.

A legal team of Caroline J. Downey, Toni Ann Hollifield and Michael K. Swirsky represented SDHR before the Appellate Division, which had cross-petitioned for enforcement of its decision. Port Jervis lawyer James J. Herkenham represented the company, and Stephen Bergstein of Bergstein & Ullrich presented Fuller’s response to the appeal.







New York Appellate Division Rebuffs Syracuse D.A. on Felony Charges in HIV Exposure Case

Posted on: November 18th, 2013 by Art Leonard No Comments

A unanimous five-judge panel of the New York Appellate Division, 4th Department, has rejected an argument by the office of Syracuse District Attorney William Fitzpatrick that an HIV-positive man should face felony charges carrying a mandatory minimum prison term for exposing another person to HIV by failing to disclose his infection before engaging in unprotected sex.  The court approved a decision by Onondaga County Supreme Court Justice John J. Brunetti to reduce the charge to a misdemeanor in People v. Williams, 2013 N.Y. Slip. Op. 7636, 2013 N.Y. App. LEXIS 7558 (November 15, 2013).

According to the court’s opinion, Terrance Williams “engaged in unprotected sex with the victim on two to four occasions without disclosing his HIV positive status.  Shortly after their sexual relationship ended, defendant told the victim that a former sexual partner had tested positive for HIV and urged the victim to be tested.  The victim was diagnosed as HIV positive several months later.”  The victim, whose sex is not mentioned in the opinion, then complained to law enforcement.  Williams was indicted under N.Y. Penal Law Section 120.25, “reckless endangerment in the first degree,” a Class D felony with a potential prison sentence of 2-7 years.  That provision states that a person is guilty of the offence when “under circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person.”

Williams, represented by Kristen McDermott of the Frank H.  Hiscock Legal Aid Society in Syracuse, moved to have the charges reduced, arguing that the facts would not support the felony charge.  He had told the police that “he did not disclose his HIV positive status to the victim because he was afraid [the victim] would not want to be with” him, and that he “loved [the victim] so very much.”  When he found out the victim was diagnosed, he wrote a letter apologizing “because he was ‘so upset’ and ‘felt terrible’.”  Williams argued that these facts would not support a finding that he exhibited “depraved indifference to human life” or that his conduct created “a grave risk of death to another person.”

The victim’s doctor offered testimony that ended up supporting Williams’ motion.   As summarized in the Appellate Division’s opinion, the doctor, “an infectious disease expert, testified that the ability to treat HIV has increased dramatically over the past 15 years, with over 20 different anti-viral medications available for treatment.  The expert testified that although an HIV positive diagnosis may have been tantamount to a death sentence in the past, with treatment, the prognosis today is ‘outstanding,’ particularly when a patient promptly learns that he or she is infected and seeks treatment.  Indeed, the expert testified that patients with HIV who take their medication, eat well, do not smoke, and reduce their alcohol intake can live a ‘very healthy, normal lifestyle,’ and he expected a similar prognosis for the victim.”

In light of this testimony, Justice Brunetti agreed with the defendant that he had been over-charged, and reduced the charge to “reckless endangerment in the second degree” under Penal Law section 120.20, which is a Class A misdemeanor with a maximum prison sentence of up to one year, although a trial judge has discretion to impose penalties other than incarceration (such as, for example, community service and/or supervised probation).  The District Attorney appealed Justice Brunetti’s decision to reduce the charges, but the Appellate Division unanimously upheld Justice Brunetti.

“We conclude that, although defendant may have acted with indifference to the victim’s health, his conduct lacked the ‘wanton cruelty, brutality, or callousness’ required for a finding of depraved indifference toward a single victim,” wrote the court.  “The fact that defendant encouraged the victim to be tested for HIV indicates that defendant ‘was trying, however weakly and ineffectively,’ to prevent any grave risk that might result from his conduct.”  Thus, he could not be found to have been totally indifferent to the health of the victim, a necessary finding for “depraved indifference.”  Furthermore, the court found that the doctor’s testimony, which was not contradicted by any evidence from the prosecution, “failed to establish that defendant’s reckless conduct posed a grave or ‘very substantial’ risk of death to the victim.”

This opinion stands in stark contrast to rulings from other jurisdictions that have upheld lengthy prison sentences on similar facts, usually citing outdated medical sources about the mortality prognosis from HIV infection.  Those opinions tend to come from jurisdictions whose legislatures reacted to the AIDS epidemic by passing specific laws criminalizing knowing exposure to HIV and mandating severe sentences.  New York, by contrast, has dealt with HIV transmission under its general penal code provisions, leaving the courts with flexibility to take account of new medical information and the facts of individual cases.  If Williams is a first offende, he may end up not having to serve any prison time in this case, although the prosecutor’s pursuit of a felony charge on appeal doesn’t suggest that a lenient plea-bargain is in the offing.

Another Chapter in the Ranftle Estate Saga Unfolds

Posted on: July 2nd, 2013 by Art Leonard No Comments

 A panel of the New York Appellate Division (1st Department) on July 2 affirmed the New York County Surrogate Court’s ruling that H. Kenneth Ranftle, decedent, had change his state of domicile from Florida to New York prior to his death, rejecting the argument by one of Ranftle’s brothers that the New York court lacked jurisdiction over the estate’s personal property.  One judge dissented, asserting that Ranftle’s husband, the executor and proponent of the will, had failed to meet the burden of showing a change in domicile.  In re H. Kenneth Ranftle, Deceased, No. 4585/08.

 Ranftle and J. Craig Leiby became domestic partners in 1990 and, according to the court, “remained a committed couple until Ranftle’s death” in November 2008.  Leiby maintained his domicile in New York throughout their relationship, but Ranftle also owned  a house in Fort Lauderdale, and in 2003 took steps to make Florida his state of domicile, mainly to escape New York taxes.  Ranftle was careful to document that he spent more than half of each year in Florida from 2003 through 2007.  However, he lived in New York, in the apartment  he owned together with Leiby, for a substantial part of each year, maintaining his concert and theater subscriptions in New York City.  In March 2008, Ranftle was diagnosed with lung cancer while in New York, and never returned to Florida.  He had one of his cars shipped from Florida to New York and settled in full time in the New York apartment, which was in the same neighborhood as his doctors and near Sloan-Kettering Cancer Center, where he was being treated. 

 Around the time that Ranftle was diagnosed with cancer, New York began to recognize same-sex marriages contracted elsewhere, first in a court decision and then in a directive to state agencies from Governor David Paterson, reacting to the court decision.  Ranftle proposed marriage to Leiby, and they went to Canada and got married.  Ranftle took some other steps to re-establish domicile in New York, but fell short of accomplishing everything before he died just days short of the November 2008 presidential election.  He had his will revised, in accordance with his new marital status, but due to oversight, according to his lawyer, the revision still mentioned his domicile as Florida.  He did have various financial accounts shifted to New York, but did not change his driver’s license or voter registration, and took advantage of Florida’s early voting rules to cast an absentee ballot.

 After Ranftle died, Leiby arranged to file Ranftle’s tax returns for 2008 in New York, as Ranftle had contemplated doing in a meeting with his tax advisor over the summer, and Leiby sought to have the will probated in New York County.  After probate was completed by Surrogate Kristin Booth Glenn, one of Ranftle’s brothers, Ronald, sought to have the matter reopened, claiming that the marriage was a nullity and that the surviving siblings of Ranftle should have been notified of the probate proceedings and allowed to intervene.  (Under New York law, such notification is required if a decedent is not survived by a spouse.)   The courts held, consistent with the early 2008 legal developments, that the marriage was recognized and that no notice of probate had to be given to the brothers. 

 Then another brother came forth, challenging probate as to Ranftle’s personal property on the ground that he had died a Florida domiciliary.  The Surrogate’s Court held a hearing and decided that Leiby had met the burden of showing a change of domicile, and the second brother appealed.

“We see no basis for disturbing the Surrogate Court’s finding that Ranftle changed his domicile to New York in the months before his death,” wrote the court.  “We agree with the Surrogate that Leiby met his burden of proof as to the change of domicile. As noted, petitioner’s scattered evidence that Ranftle remained a Florida domiciliary is overwhelmed by the large and consistent body of evidence showing that Ranftle moved back into the New York City apartment he shared with his husband with the intent of permanently remaining there, and that his change of domicile was motivated both by his grave illness and New York’s recognition of same-sex marriages.”

Justice Sweeney disagreed, finding that “the evidence of intent to change domicile, however, is largely ambiguous.”  He argued that redirecting mail and checks to the New York address was practical, given that Ranftle would be staying there because of the medical treatment, but “does not conclusively demonstrate an intent to change domicile.”  He placed greater weight on the documents that still specify Florida as Ranftle’s domicile, including the revised will, and the casting of a ballot in Florida just a week before his death, as well as the failure to change his driver’s license and the registration on his car to New York.  Sweeney found this evidence more persuasive in light of the “meticulousness” in Ranftle’s record-keeping in order to benefit from Florida’s lower tax burdens.

 Resting on the presumption that a “domicile once established is presumed to continue unless and until a new domicile is acquired,” Sweeney noted precedents holding that in the face of ambiguous evidence, the original domicile should prevail.

Since the personal property in question is undoubtedly valuable enough to have inspired the surviving brother to undertake litigation, one suspects that an application for leave to appeal to the Court of Appeals may follow this decision.

 Leiby and the Estate of Ranftle are represented by LeGaL member Erica Bell of Weiss, Buell & Bell, New York.