Labor and Employment Law Journal a Publication of the Labor and Employment Law Section of the New York State Bar Association

NYSBA FALL 2019 | VOL. 44 | NO. 1 Labor and Employment Law Journal A publication of the Labor and Employment Law Section of the New York State Bar Association

In This Issue: •Workplace Right to Privacy: An Overview of the Developing Law in New York - Geoffrey A. Mort and Steven T. Sledzik •Enough Is Enough: Eliminating the Manager Rule in Title VII Retaliation Cases - Gregory C. Brown, Jr. •An Employee’s Best Friend: Handling Requests for Animals as Reasonable Accommodations in the Workplace - Jill L. Rosenberg and Jeffrey J. Lorek www.nysba.org/LaborEmployment ANNUAL MEETING AND EXPO

CONNECT • INSPIRE • LEARN

JANUARY 27 – 31 NEW YORK CITY

20 20 Message from the President: Diversifying the Legal Profession: A Moral Imperative By Hank Greenberg

No state in the nation is more diverse than New NYSBA Leads On Diversity York. From our inception, we have welcomed immi- On diversity, the grants from across the world. Hundreds of languages New York State Bar are spoken here, and over 30 percent of New York resi- Association is now dents speak a second language. leading by example. Our clients reflect the gorgeous mosaic of diversity This year, through that is New York. They are women and men, straight the presidential ap- and gay, of every race, color, ethnicity, national origin, pointment process, all and religion. Yet, the law is one of the least diverse pro- 59 NYSBA standing fessions in the nation. committees will have a Indeed, a diversity imbalance plagues law firms, chair, co-chair or vice- the judiciary, and other spheres where lawyers work. As chair who is a woman, members of NYSBA’s Labor and Employment Law Sec- person of color, or tion, you have surely seen this disparity over the course otherwise represents of your law practices. diversity. To illustrate the magnitude of this Hank Greenberg Consider these facts: initiative, we have celebrated it on the cover of the June-July Journal. [www. • According to a recent survey, only 5 percent of nysba.org/diversitychairs] active attorneys self-identified as black or African American and 5 percent identified as Hispanic or Among the faces on the cover are the new co-chairs Latino, notwithstanding that 13.3 percent of the of our Leadership Development Committee: Albany total U.S. population is black or African American City Court Judge Helena Heath and Richmond County and 17.8 percent Hispanic or Latino. Public Administrator Edwina Frances Martin. They are highly accomplished lawyers and distinguished NYSBA • Minority attorneys made up just 16 percent of law leaders, who also happen to be women of color. firms in 2017, with only 9 percent of the partners being people of color. Another face on the cover is Hyun Suk Choi, who co-chaired NYSBA’s International Section regional meet- • Men comprise 47 percent of all law firm associates, ing in Seoul, Korea last year, the first time that annual yet only 20 percent of partners in law firms are event was held in Asia. He will now serve as co-chair of women. our Membership Committee, signaling NYSBA’s com- • Women make up only 25 percent of firm gover- mitment to reaching out to diverse communities around nance roles, 22 percent of firm-wide managing the world. partners, 20 percent of office-level managing part- This coming year as well we will develop and ners, and 22 percent of practice group leaders. implement an association-wide diversity and inclusion • Less than one-third of state judges in the country plan. are women and only about 20 percent are people In short, NYSBA is walking the walk on diversity. of color. For us, it is no mere aspiration, but rather, a living work- This state of affairs is unacceptable. It is a moral ing reality. Let our example be one that the entire legal imperative that our profession better reflects the di- profession takes pride in and seeks to emulate. versity of our clients and communities, and we can no longer accept empty rhetoric or half-measures to realize that goal. As Stanford Law Professor Deborah Rhode has aptly observed, “Leaders must not simply acknowledge the importance of diversity, but also hold individuals Hank Greenberg can be reached at hgreenberg@ accountable for the results.” It’s the right thing to do, nysba.org. it’s the smart thing to do, and clients are increasingly demanding it.

NYSBA Labor and Employment Law Journal | Fall 2019 | Vol. 44 | No. 1 3 Message from the Chair By Alyson Mathews

Even for those of us who have not been students in latest employee-friendly years, the start of a new school year feels like an opportu- legislation in New York nity for a fresh start. The possibilities seem endless, and State. Keep apprised the same is true for the New York State Bar Association. of our events at www. Under the leadership of NYSBA President Hank Green- nysba.org/labor. berg, the organization is looking to move the needle forward and achieve its full potential. As NYSBA undertakes a website over- Like NYSBA, the Labor and Employment Law Sec- haul, the Section is look- tion has continued to examine the steps it can take to ing to step up its social improve the services it provides to its members. Over the media game. We will be past few years, we have reinstituted and expanded our improving the way our five year Fall Meeting schedule to include new and excit- 2,000-plus members re- ing locations like Washington D.C., Montreal, Longboat ceive information about Key, FL and Toronto. Section events, as well as the latest decisions and legisla- We also added group outings in between our larger tion impacting the labor and employment law field. Of Annual and Fall Meetings. Last summer, we took in a course, we will continue to provide our members with Mets game at Citi Field. In February, we celebrated the high-quality CLE programs, both in-person and online, as 25th anniversary of the New York Rangers winning the well as staples like the Labor and Employment Law Journal. Stanley Cup with a trip to Madison Square Garden; we As always, our members come first, and we want to have a return trip scheduled for February 8, 2020 for a hear from you how we can improve your membership game between the N.Y. Rangers and the Buffalo Sabres. experience. Contact me at [email protected] with We hope you will join us January 31st for our Annual your ideas. Meeting program at the Midtown Hilton with CLE panels addressing ethics in mediation, gig economy issues, and Thank you for being part of the Labor and Employ- ment Law Section. We look forward to a fantastic 2020!

NEW YORK STATE BAR ASSOCIATION

Request for Articles

If you have written an article you would like considered for publication, or have an idea for one, please contact: Colin Leonard Bond, Schoeneck & King, PLLC One Lincoln Center Syracuse, NY 13202-1355 [email protected]

Articles should be submitted in electronic document format (pdfs are NOT acceptable), along with biographical information.

4 NYSBA Labor and Employment Law Journal | Fall 2019 | Vol. 44 | No. 1 Table of Contents

Message from the President...... 3 (Hank Greenberg)

Message from the Chair...... 4 (Alyson Mathews)

Workplace Right to Privacy: An Overview of the Developing Law in New York...... 7 (Geoffrey A. Mort and Steven T. Sledzik)

Enough Is Enough: Eliminating the Manager Rule in Title VII Retaliation Cases...... 13 (Gregory C. Brown, Jr.)

#MeToo and Separating Arbitration from Non-Disclosure Agreements...... 18 (Ann-Elizabeth Ostrager and Lisa M. Ebersole)

Filing and Opposing Statements of Material Fact on Motions for Summary Judgment in New York Federal Courts...... 22 (Michael G. Langan)

2019 Section Events Photos...... 36

Education Due Process—Not!...... 44 (Roger Bennet Adler)

Practical Differences Between Mediation and Arbitration...... 48 (Ira B. Lobel)

New FLSA and New York “White Collar” Salary Thresholds...... 53 (Evan J. Spelfogel)

The Second Circuit Should Emulate Discrimination Law in Adjudicating Simultaneous FLSA and NYLL Misclassification Claims...... 55 (David Krauss and Julio Sharp-Wasserman)

An Employee’s Best Friend: Handling Requests for Animals as Reasonable Accommodations in the Workplace...... 59 (Jill L. Rosenberg and Jeffrey L. Lorek)

The Labor and Employment Law Section Welcomes New Members...... 65

NYSBA Labor and Employment Law Journal | Fall 2019 | Vol. 44 | No. 1 5 NYSBA GALA DINNER

Special Guest of Honor & Keynote Speaker to be announced

THE NEW YORK STATE COURT OF APPEALS and other state court appellate judges will also be honored

THURSDAY, JANUARY THIRTIETH two thousand and twenty

SIX THIRTY IN THE EVENING

AMERICAN MUSEUM OF NATURAL HISTORY Central Park West at 79th Street, NYC

FOR MORE INFORMATION, VISIT nysba.org/galadinner

Hanging on by a thread? You are not alone. When life has you frazzled, call the New York State Bar Association’s Lawyer Assistance Program. We can help. Unmanaged stress can lead to problems such as substance abuse and depression.

NYSBA’s LAP offers free, confidential help and has been a trusted resource for thousands of attorneys, judges and law students since 1990. All LAP services are confidential and protected under Section 499 of the Judiciary Law.

Call 1.800.255.0569 NEW YORK STATE BAR ASSOCIATION LAWYER ASSISTANCE PROGRAM www.nysba.org/lap

6 NYSBA Labor and Employment Law Journal | Fall 2019 | Vol. 44 | No. 1 Workplace Right to Privacy: An Overview of the Developing Law in New York By Geoffrey A. Mort and Steven T. Sledzik

Introduction In an era of rapid advances in information technology where social media plays a dominant role in our other digital communications; (2) does the company lives, the issue of workplace privacy has never been more monitor employees’ emails or computer use; (3) do third important. As employees increasingly rely on electronic parties have a right of access to the computer or emails; devices for communicating and a host of other purposes, and (4) did the company inform the employee of its use employers have simultaneously acquired a powerful and/or monitoring policies? array of potent, new technologies that allow them to not Two other principles also play an important role in only monitor employee emails, text messages and the like determining the extent of an employee’s privacy interest but even to track employee movements. in the workplace: notice of privacy policies and whether Notwithstanding the growing tensions between em- an employee consents to intrusions on his or her privacy ployees’ right to privacy in their communications while by the company. at work and employers’ ability to control the use of their Notice to employees of the extent of their workplace communications devices and monitor workers’ activi- privacy protections is a tool often used by employers to ties, there remains no comprehensive privacy legislation narrow employee expectations of privacy in both elec- tailored to the workplace on either a federal or state tronic and physical locations.3 A company’s no-privacy level. As a result, “courts are continuing to develop the notice with regard to certain areas of activity or informa- law through statutory interpretation and decisions under tion usually means that there is no expectation of privacy 1 common law privacy principles.” Workplace privacy in those spheres. Notice, of course, is one-sided—the law in New York today, as in many other states, consists employer provides it and the employee is required to essentially of a patchwork of federal and state court deci- comply. sions, state laws pertaining to a few specific employee privacy issues, NLRB cases and generally adhered-to On the other hand, notice is not unlimited. The practices. current consensus seems to be that employers cannot use notice to limit privacy with regard to information of a This article will provide an overview of privacy law personal nature. The Restatement of Employment Law in New York today, in those areas where it is somewhat suggests that an employer cannot use notice to restrict settled and others where it is not, as well as a look at privacy with regard to an employee’s physical person, emerging areas where workplace privacy protections are bodily functions or personal possessions.4 Yet some still in flux and where New York seems likely to go in ad- observers of developing privacy law are nonetheless con- dressing those areas. cerned that notice can be used by employers to expand and even abuse their authority.5 The Fundamentals of Privacy Law The third principle of privacy law is employee con- The extent to which New York employees have a sent to privacy infringements by an employer. This is workplace right to privacy and how that is offset by a critical concept. Failure to respect genuine employee employers’ interests and fiduciary obligations cannot consent in privacy cases compromises the interests that be fully understood without at least a quick look at the privacy is there to protect.6 Perhaps the most vexing primary concepts in privacy law. Employers’ ability to question with regard to consent is the extent to which read employees’ emails, search their offices and the like it is truly voluntary, a consideration that is difficult to is limited by an employee’s reasonable expectation of pri- measure or monitor. What does seem clear is that consent vacy. This principle underpins many court decisions— obtained by threatening termination or discipline is not including a few in New York where the court ruled on consent at all.7 And consent or the lack thereof is certainly an employer’s alleged violation of an employee’s right a factor in determining the degree to which an intru- to privacy. To measure what constitutes an employee’s sion is offensive. In assessing whether lack of consent is reasonable expectation of privacy, the Southern District a viable defense to an employer’s privacy intrusion, key of New York in In re Asia Global Crossing, Inc.2 devised a factors to take into account are: (1) the invasiveness of the four-part test: (1) does the company have a policy ban- privacy intrusion; (2) the level of employer pressure; and ning personal or other objectionable use of emails and

NYSBA Labor and Employment Law Journal | Fall 2019 | Vol. 44 | No. 1 7 (3) the employer’s legitimate business interests in seeking did state that the case “touches issues of far-reaching the privacy invasion.8 significance”13 and observed that “rapid changes in the dynamics of communication” were causing significant It is against this backdrop that the evolution of priva- changes “in what society accepts as proper behavior.”14 cy law in New York must be assessed. Employee privacy But the Quon Court avoided as many issues as it resolved. is a sensitive and complex issue. As New York gradually Some commentators have observed that the Supreme moves to address it, judges and legislators need to be Court essentially declined to better define employee pri- aware of the troubling balancing tests involved in de- vacy rights and instead handed the matter off to the states termining where to draw lines between employee and to pass legislation. company interests.

Employee Privacy and the NLRA Notable Supreme Court Decisions Under several National Labor Relations Board deci- Although case law in the area of employee privacy sions, employees may find privacy rights they would not remains sparse, several Supreme Court decisions have otherwise have where their electronic and other commu- examined workplace privacy issues, particularly with nications can be characterized as “concerted activity”— respect to digital devices such as cellphones, and offer activity involving “two or more employees [who] take some guidance. action for their mutual aid or protection regarding terms One of the more notable decisions is O’Connor v. and conditions of employment.”15 Protection for con- Ortega,9 which concerns workplace privacy rights under certed activity, known as Section 7 (of the National Labor the Fourth Amendment. In O’Connor, hospital officials Relations Act) rights, prohibits employers from interfer- searched the office of Dr. Ortega (a physician employee) ing with employee discussions of such topics as wages or because he was suspected of mismanaging a residency working conditions. Predictably, many employee work- program. The issue was whether the search violated Dr. place communications with co-workers that qualify as Ortega’s reasonable expectation of privacy. The Court concerted activity are now by email, text and the like. concluded that while hospital officials had the right to In recent years, the NLRB has issued several deci- investigate Dr. Ortega’s office, he did have a reasonable sions relating to this issue. In Purple Communications,Inc.,16 expectation of privacy with regard to his desk and file the board ruled that employees, with several exceptions, cabinets and that that aspect of the search was unlawful. could engage in protected concerted activity on their em- Justice O’Connor observed that “the question whether an ployers’ email systems during off time. The board felt that employee has a reasonable expectation of privacy [in the employees have a reasonable expectation of privacy when workplace] must be addressed on a case-by-case basis.”10 discussing such issues as union matters, even on compa- Although the standard set forth in O’Connor is still ny email. However, the board also stated that as a general relied upon in many federal and state courts, it is lim- rule, employers are permitted to monitor employee emails ited in nature. The decision was based on Dr. Ortega’s without violating the NLRA. reasonable expectation of privacy under the Fourth Amendment, and thus would not strictly apply to private The topical subject of employees’ use of websites employers. Moreover, the decision is limited in its ap- to discuss workplace issues outside of working hours was addressed by the Second Circuit in an appeal of an plicability because it does not address digital devices. 17 Nevertheless, O’Connor does provide lower courts with NLRB decision in Three D, LLC v. NLRB. In Three D, two at least a guideline as to where to draw the line between employees made accusations against their employer on what workplace interests do and do not warrant privacy Facebook and were fired. The NLRB and Second Circuit protection. rejected the employer’s argument that it had the right to monitor employees’ social media use and to terminate Another more recent and often referred to public sec- employees who use social media in a way that hurts its tor employee privacy case that did involve digital devices image. The Court and the board found that the Face- is City of Ontario v. Quon.11 In Quon, a police officer’s text book postings were work-related discussions that were messages were reviewed to determine if a character limit concerted activity protected by the NLRA. The Second had been exceeded; in the process, the supervisor saw a Circuit declared that its decision “accords with the reality number of private, non-work-related texts. The Supreme of modern-day social media use.”18 The Three D case is Court held that Quon’s Fourth Amendment rights had significant. Although employee privacy in the workplace not been violated because the search was a legitimate is very limited, communications that constitute concerted “efficient and expedient way”12 of determining whether activity are an exception—particularly when the commu- the officer’s violation of the character limit was for busi- nications take place outside the workplace. ness or personal reasons. The Court did not, however, address the core question of whether Quon had a reason- Indeed, any employer rule that specifically restricts able expectation of privacy in personal text messages activities protected by Section 7 is unlawful. This is the on his employer-supplied device. The Supreme Court case even where a particular rule may not be explicit, but

8 NYSBA Labor and Employment Law Journal | Fall 2019 | Vol. 44 | No. 1 employees could reasonably construe it to restrict Section passwords saved in the work computer did not equate 7 activity. to authorizing employer access.31 The employer had accessed three personal email accounts belonging to an Lutheran Heritage In this light, applying its decision in allegedly disloyal former employee using the employer’s Village-Livonia,19 the NLRB has ruled that many employer on-site work computers.32 The employee had not stored social media and email policies are unlawful under the any of the contested emails on his work computer prior to Thrifty Dollar Auto. Group,20 the NLRA. For example, in his departure, but the employer utilized the automatical- board held unlawful an employer policy that stated ly-saved passwords for one such account to access it, and “[a]ny inappropriate or prohibited internet, voice mail then used passwords found through that means to access or email access or use may result in discipline up to and the two other accounts.33 including termination from employment.”21 And, in T-Mobile USA, Inc.22 the NLRB invalidated an employer Finally, the Computer Fraud and Abuse Act (CFAA) policy that prohibited employees from taping or other- provides civil and criminal penalties for anyone who “in- wise making sound recordings of workplace discussions. tentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains … infor- The NLRA’s prohibition of employer interference mation from any protected computer[.]”34 The New York with protected, concerted activity remains one of the courts that have considered the applicability of CFAA in most important, if not the most significant, protection of the workplace have issued divergent opinions.35 employee privacy rights in the workplace.

New York State Laws and Procedures Related to Federal Laws on Electronic Equipment Electronics and Privacy in the Workplace Several federal statutes govern technology broadly While there is no New York statute per se governing and arguably apply in the workplace. The Stored Com- privacy in the workplace, several statutes that govern munications Act (SCA), 23 generally prohibits an in- technology arguably apply broadly to its use in the work- dividual from accessing an electronic communication place. New York’s wiretapping law is a one-party consent service, or obtaining an electronic communication while law. New York makes it a crime to record to record or it is still in electronic storage, without authorization. The eaves drop on an in-person or telephone conversation Electronic Communications Privacy Act (ECPA)24 creates unless one party to the conversation consents.36 Because criminal sanctions and a civil cause of action against per- of these criminal eavesdropping laws, employees cannot sons who “intercept” electronic communications. These record conversations of which they are not a part. Simi- laws are part of the Wiretap Act passed in 1986. larly, employer surveillance of the workplace can have a While the ECPA could apply to workplace behav- video but no audio component. ior, interpretations of it and exceptions to it render it of New York law protects employees from work- limited applicability in the workplace. The ECPA has not place surveillance in extremely limited circumstances. been found to apply to emails that have already been de- It prohibits employers from making video recordings livered25 or to systems for electronic communications that of employees in locker rooms, restrooms or changing are “configured so that such electronic communication rooms.37 Employers cannot use any such recording made is readily accessible to the general public.”26 Under the “for any purpose” and they can be subjected to dam- ECPA, employers that provide electronic communications ages and attorney fees as well as an injunction if such services or internet access to employees for work-related recordings were made.38 New York also attaches criminal purposes may access those and all communications.27 penalties to unauthorized surveillance of an individual The ECPA has a separate exception permitting a person dressing or undressing or of the intimate or sexual parts to intercept communications where “such person is a of an individual’s body.39 It is also a crime under New party to the communication or where one of the parties York Law for a person to “unlawfully engage in wire- to the communication has given prior consent to such tapping, ... or intercepting or accessing [an] electronic interception,” unless the interception is for criminal or communication.”40 tortious purposes.28 Covert monitoring by an employer of an employee’s electronic communication can also “be Under New York State Civil Practice Law and Rules, justified by a valid business purpose,” or be shown to be evidence obtained by illegally intercepted electronic com- undertaken normally in the course of business.29 munications is inadmissible.41 There is no comparable evidentiary exclusionary rule under the Federal Rules of In one case, a New York federal court found that an employer violated the SCA.30 The Pure Power court found Evidence. that an employee of a private company had a reasonable expectation of privacy in his password protected email accounts which could only be accessed with his authorization, and that his carelessness in leaving his email account

NYSBA Labor and Employment Law Journal | Fall 2019 | Vol. 44 | No. 1 9 New York State’s Recreational Activities Law of medical testing and disability related questioning of Under New York Labor Law, an employer is prohib- employees is limited, although the ADA includes a safe ited from discriminating against or discharging an em- harbor exception to those restrictions for both employer ployee because of his or her legal recreational or political mandated and voluntary medical examinations tied to 50 activities outside of work hours, or off-hours consump- employers’ insurance and wellness plans, respectively. tion of legal products.42 The statute defines “recreational The EEOC issued, but later rescinded, proposed rulemak- activities” as “any lawful, leisure-time activity, for which ings and regulations as to the parameters and criteria the employee receives no compensation and which is for such wellness programs and their voluntariness. In generally engaged in for recreational purposes, includ- late 2018, EEOC indicated that it will re-issue proposed ing but not limited to sports, games, hobbies, exercise, regulations in June 2019 with a proposed effective date in reading and the viewing of television, movies and similar 2021. 43 material.” Romantic relationships engaged in by off- Additionally, Family and Medical Leave Act regula- duty employees have not been found to be recreational tions require that employee leave records be maintained 44 activities, but friendships between employees outside so as to protect their confidentiality.51 While there are no 45 the office were. reported cases as to liability for breach of these confiden- The statute sometimes referred to as the “legal tiality requirements, failure to follow these regulations activities law” protects employee privacy to the extent coupled with an adverse action taken by management it prohibits employers from taking adverse employ- against an employee could give rise to a disability dis- ment actions because of off-duty activities which one crimination claim. could argue are covered within the broad penumbra of a right to privacy. (In another jurisdiction, a job applicant New York Courts and Employee Privacy in Both claimed his potential employer learned of his protected the Private and Public Sectors characteristic—his religion—through a social media The Fourth Amendment protects individuals and posting and then discriminated against him by not hiring employees from unreasonable searches conducted by him because of it.46 The employer’s motion for summary the government, even when the government acts as an judgment was denied and the case settled.) employer.52 In a pre-Quon case, a New York federal court An internet search may reveal information about an found that a government employer becomes engaged in applicant’s or employee’s criminal history, status as a vic- a search only when the inquiry intrudes upon an area tim of domestic violence, disability or sexual orientation. where the employee has a reasonable expectation of With the expansion of social media into everyday lives privacy.53 For public employers, courts will analyze the and activities, employers have greater access to informa- physical nature of workplace enclosures and any limitation about the non-working activities of their employees. tions (or lack thereof) to access by the public or others. While New York’s recreational activities law has not often This analysis is done on a case-by-case basis. Public been litigated, perhaps because of its relatively narrow employees have not been found to have a general right wording, with the explosion of digital data this law could of privacy in an employee locker room, but a municipal become a more active area of litigation. employer’s use of a GPS device placed on the private car of an employee was found to be an unreasonable search.54 State and Federal Laws Related to Health and As to employees’ expectation of privacy in their Disability physical work place for private employers, courts have Federal laws related to health issues intertwine with found Fourth Amendment jurisprudence as to the con- workplace privacy issues. Under both New York State cept of a reasonable expectation of privacy to be in- 55 and federal law, employers are prohibited from dis- structive. In Nicofero v. UBS Global Asset Management criminating against employees based upon disabilities, Americas, Inc., the court considered configuration of the perceived disabilities47 or genetic information.48 workspace; the openness of a cubicle was as an indicia that the employee did not have a reasonable expectation Under the Affordable Care Act (“Obamacare”), of privacy. The Nicofero court did note that desks and file employers are permitted to offer health promotion and cabinets inside private offices blocked from view could disease prevention programs “or wellness programs” to be treated differently, suggesting employees might in employees. These programs may offer rewards such as some circumstances have an expectation of privacy in the reduced health insurance premiums.49 Such programs workplace.56 The court further noted that “employees’ ask employees to answer questions on a health risk as- expectations of privacy . . . [in the workplace] may be sessment and/or undergo biometric screenings for risk reduced by actual office practices and procedures, or by factors such as high blood pressure or cholesterol. Other legitimate regulation.”57 The Nicofero court considered wellness programs collect employee health information the employer’s argument that because workplace pri- through devices such as Fitbits or smart watches. Under vacy policies gave the employer ownership of digital and the Americans with Disabilities Act (ADA), employer use

10 NYSBA Labor and Employment Law Journal | Fall 2019 | Vol. 44 | No. 1 physical property at its premises, the employee could employer that an employee is stealing goods or services; not have had a reasonable expectation of privacy at the it might also indicate the onset of a disabling condition workplace. such as Parkinson’s disease and serve as the source of a discrimination claim. Privacy of Employee Electronic Communications New legislative initiatives protective of either em- with Counsel from the Workplace ployees or employers in the arena of workplace privacy State procedure and evidentiary law in New York are possible and perhaps desirable. Other states have recognizes the confidentiality of communications be- passed legislation impacting workplace privacy, such as tween an attorney and a client.58 New York CPLR 4548 limiting private individuals’ use of GPS devices on ve- states: “no communication under this article shall lose hicles or requiring notice of employer electronic monitor- 61 its privileged character for the sole reason that it is ing policies. Additionally, federal legislation has been communicated by electronic means or because persons proposed to allow employers to collect genetic informa- 62 necessary for the delivery or facilitation of such electronic tion from employees as part of wellness plans. communication may have access to the content of the This overview suggests that the best future course for communication.” However, an employer’s email poli- both employers and employees is to attempt to achieve cies regarding ownership or prohibiting private use of its middle ground, recognizing reasonable expectations of email system may result in an employee’s at-work email privacy of employees coupled with providing protection communications with counsel being deemed non-priv- for the safety, proprietary information or confidentiality 59 ileged. Employee use of an employer-provided email that public or private employers might also expect. There- system to communicate with an attorney has also been fore, any new legislation in New York related to technol- found to be non-privileged even where the employer had ogy in the workplace as it may impact privacy should be 60 no formal email policy. broadly written so it can be flexibly applied as technology further evolves. Conclusion The lack of New York legislation regulating privacy in the workplace can be viewed differently depending upon an attorney’s perspective or clientele. Endnotes The management bar may view it as an appropriately 1. Timothy J. Darby & William L. Keller, International Labor and Employment Laws (4th ed. Cumulative Supplement, Bloomberg under-regulated area while the individual employees’ bar BNA 2017). may see it as an area in need of legislation. 2. 322 B.R. 247, 257 (S.D.N.Y. 2005). 3. See Restatement of Employment Law Section 7.03 Reporter’s Notes The SCA and ECPA are over 30 years old. They are to Cmt. A (2015). being applied to technology that could not have been 4. Restatement of Employment Law, supra, Section 7.03(a)(1). imagined at the time of their passage. Cases addressing 5. Steven L. Wilborn, Symposium: Assessing the Restatement of both private and public employees try to balance em- Employment Law: Essay: Notice, Consent and Nonconsent: Employee ployer ownership and control of its premises, electronic Privacy in the Restatement, 100 Cornell L. Rev. 1423, 1424 (2015). systems or proprietary information with employees’ rea- 6. See Richard Carlson and Scott Moss, Employment Law 13 (3rd sonable expectations of privacy. Employers, employees, Ed. 2013); Steven L. Wilborn, Consenting Employees: Workplace legislators and judges clearly struggle with a changing Privacy and the Role of Consent, 66 La. L. Rev. 975, 992 (2006). technological landscape. 7. Restatement of Employment Law, Section 7.05(b) (2015). 8. Wilborn, supra, at 1001-08. Frequently the technology itself cuts both ways, 9. 480 U.S. 709 (1987). providing benefits or detriments to both employers and employees. A smart phone may allow an employee to 10. Id. at 718. document workplace harassment. At the same time, a 11. 560 U.S. 746 (2010). smart phone’s GPS can allow the employer to determine 12. Id. at 761. if an employee is a malingerer. A GPS on a vehicle or a 13. Id. at 750. smart phone might allow an employer to determine the 14. Id. at 759. religion, politics or sexuality of an employee because 15. Employee rights, NLRB, https://www.nlrb.gov/rights-we- the employee’s vehicle is parked at a religious institu- protect/employee-rights (last visited February 5, 2019). tion, political headquarters or gay bar. Fitbit data can 16. 361 N.L.R.B. No. 126 (Dec. 11, 2014). demonstrate that an employee is in perfect health and 17. 629 F. App’x 33 (2d Cir. 2015). should receive reduced health insurance costs, but it also 18. Id. at 36-37. may show an employee suffers from sleep deprivation or symptoms of substance abuse. Technology that moni- 19. 343 N.L.R.B. 646 (2004). tors an employee’s movement at work can inform an

NYSBA Labor and Employment Law Journal | Fall 2019 | Vol. 44 | No. 1 11 20. Employee Rights, NLRB, https://www.nlrb.gov/rights-we- 59. Peerenboom v. Marvel Entertainment, 148 A.D.3d 531, 532 (1st Dep’t protect/employee-rights (last visited February 5, 2019). 2007); Scott v. Beth Isreal Med’l Center, Inc., 17 Misc.3d 9434 (Sup. Current Med’l Directions v. Salomone, 21. Id. Ct. New York Co. 2007); 26 Misc.3d 1229A (Sup. Ct. New York Co. 2010). 22. 363 N.L.R.B. No. 171, 2016 WL 1743244, at 4 (Apr. 29, 2016). 60. Long v. Marubeni America Corp., 2006 WL 2998671 (S.D.N.Y. 2006). 23. 18 U.S.C. § 2701 et seq. 61. Sprague, The Piper Lecture: Survey of (Mostly Outdated and 24. 18 U.S.C. §§ 2510-11. Ineffective) Laws Affecting Work-Related Monitoring, 93 Chi.- 25. Pure Power Boot Camp v. Warrior Fitness Boot Camp, 587 F. Supp. 2d Kent L. Rev. 221, 237, 243-45 (2018) (noting 12 states have passed 548 (S.D.N.Y. 2008). two party consent electronic monitoring statutes, two states require employers to provide notice of electronic monitoring to 26. 18 U.S.C. § 2511(2)(g)(i). employees, 25 states have general social media privacy statutes 27. 18 U.S.C. § 2511(2)(a)(i). prohibiting employers from requesting social media and internet access information and passwords from employees and job 28. 18 U.S.C. § 2511(2)(d). applicants, and eleven states prohibit private citizens from placing 29. Arias v. Mutual Alarm Services, Inc., 202 F.3d 553 (2d Cir. 2000). GPS monitors on cars without the owner/lessee’s consent). 30. Pure Power Boot Camp, supra note 25. 62. H.R. 1313, 115th Cong. (2017). 31. Id. 32. Id. at 552. 33. Id. at 552, 559–60. 34. 18 U.S.C. § 1030(a)(2)(C). 35. JBC Holdings, NY LLC v. Patker, 931 F.3d 514, 522-23 (S.D.N.Y. Geoffrey Mort is of Counsel to Kraus & Zuchlewski 2013)(citing cases); University Sports Publications Co. v. Playmakers Media Co., Schaeffer v. Kessler, 2013 WL 1155587 (S.D.N.Y. 2013) LLP in New York City where he represents employees (discussing cases); Schaeffer v. Kessler, 2013 WL 1155587 (S.D.N.Y. in employment law matters. He is Co-Chair of the Labor 2013) (court denied former employee’s motion to dismiss & Employment Law Section’s Workplace Rights & Re- employer’s claims that the former employee violated the CFAA sponsibilities Committee. because the complaint alleged the former employee exceeded the scope of his authorized computer access). Steven T. Sledzik is a partner at the Morrison Law 36. N.Y. Penal Law §§ 250.00, 250.05. Firm, P.C., with offices in White Plains and Greenwich. 37. N.Y. Labor Law § 203-c. He represents individuals and businesses in employ- 38. Id. ment law and commercial cases in state and federal 39. N.Y. Penal Law § 250.40. courts and before administrative agencies in a full range 40. N.Y. Penal Law § 250.05. of matters. 41. C. P. L. R. 506. 42. N.Y. Labor Law § 201-d. 43. Id. 44. See, e.g., McCavitt v. Swiss Reinsurance America Corp., 237 F.3d 166 (2d Cir. 2001). 45. Aquilone v. Republic Nat’l Bank of New York, 1998 WL 872425 (S.D.N.Y. Dec.15, 1998). 46. Gaskell v. Univ. of Kentucky, 2010 WL 4867630 at * 4 (E.D.Ky 2010). 47. Americans with Disabilities Act, 42 U.S.C. § 121010, et seq. (ADA); New York State Executive Law §§ 296(b). 48. The Genetic Information Non-Discrimination Act, 42 U.S.C. § 2000ff(4)(A); New York State Executive Law §§ 296(b). 49. 29 U.S.C. § 1182(b)(2)(B); 26 U.S.C. § 9802(b); 42 U.S.C. § 300gg– 4(b); 26 C.F.R. § 54.9802–1(f)(1)(i) 50. 42 U.S.C. § 12112(d)(4)(B). 51. 29 CFR § 825.500(g). 52. Divittorio v. Hall, 589 F.Supp.2d 247, 255 (S.D.N.Y. 2008) (citations omitted). 53. Id. 54. Cunningham v. New York State Dep’t of Labor, 21 N.Y.3d 515 (2013). 55. Nicofero v. UBS Global Asset Management Americas, Inc., 20 F. Supp. 3d 428, 434 (S.D.N.Y. 2014). 56. Id. 57. Id. 58. CPLR § 4503.

12 NYSBA Labor and Employment Law Journal | Fall 2019 | Vol. 44 | No. 1 Enough Is Enough: Eliminating the Manager Rule in Title VII Retaliation Cases By Gregory C. Brown, Jr.

Introduction The #MeToo movement has brought workplace sexual harassment out of the shadows and into the light of (City Law) prohibit retaliation against employees for op- public awareness and conversation. From the resignation posing unlawful employment practices. However, some courts apply a heightened standard to HR managers in of Les Moonves, the former chairman and CEO of CBS, 3 to the firing of Kevin O’Brien, the former chief of staff for determining what opposition activity is protected. This the de Blasio administration, there is a plethora of recent “manager rule” requires an HR manager to “step out- examples of workplace sexual harassment across all areas side his or her role of representing the company” and do of employment. more than just pass along a complaint of discrimination in order to be protected from retaliation.4 Essentially, the Consider Sandeep Rehal.1 Rehal was a former per- manager rule requires an HR manager to take an ad- sonal assistant to Harvey Weinstein. In her recent lawsuit versarial position against the employer, which does not against Weinstein, she alleged that she was subject to a facilitate the proper handling of employee complaints of barrage of sexually degrading and harassing actions. For discrimination. Accordingly, the manager rule should not example, Rehal was be applied in Title VII, required to take “Essentially, the manager rule requires an State Law, and City Law dictation of emails retaliation cases where from Weinstein HR manager to take an adversarial position an HR manager claims while he was naked. against the employer, which does not facilitate retaliation for fulfill- When Rehal accom- ing his or her job duties panied Weinstein the proper handling of employee complaints of in connection with the in his chauffeured discrimination.” employer’s discrimina- car, he would rub tion policies or the anti- between her thighs discrimination laws. and touch the back of her legs and buttocks. Rehal was also forced to assist Weinstein in his sexual escapades What Is the Manager Rule? by, inter alia, managing his supply of erectile dysfunc- Under Title VII, the State Law, and the City Law, tion medication and picking up his used condoms off his an employer may not retaliate against an employee for office floor. Before Rehal quit she complained to others opposing unlawful employment practices or participating within The Weinstein Company regarding Weinstein, in enforcement proceedings.5 To prove a prima facie case including Frank Gil, the Senior Vice President of Human of retaliation, plaintiffs must show that they engaged in Resources, but all of her complaints were made in vain. protected activity, the employer took an adverse action In fact, Gil encouraged Weinstein’s behavior by authoriz- against them, and there was a causal connection between ing a bonus payment for Rehal as a reward for locating the protected activity and the adverse action.6 The man- additional erectile dysfunction medication for Weinstein.2 ager rule states that protected activity does not include an HR manager’s “involvement, as part of his routine job The Weinstein Company is not an isolated situation. duties, in reporting or investigating incidents of harass- Although many companies and organizations have poli- ment between employees under his supervision.”7 cies and procedures in place, conduct periodic training, and have dedicated HR staff to address these situations, The manager rule originated in the context of retali- people like Harvey Weinstein are still getting away ation claims under the Fair Labor Standards Act (FLSA). with misconduct. Part of the problem could be that HR Courts were concerned that “nearly every activity in the departments are afraid to take on the C-suite harassers normal course of a[n HR manager’s] job would poten- by properly investigating harassment complaints. This tially be protected activity” and “[a]n otherwise typical problem is aggravated by the fact that HR representatives at-will employment relationship could quickly degrade have less protection from retaliation than the individual into a litigation minefield.”8 This rule was later imported who complains of harassment. into Title VII retaliation cases.9 Title VII, the New York State Human Rights Law The State Law and City Law suffer from the same (State Law), and the New York City Human Rights Law defects as Title VII. The defects in the State Law exist

NYSBA Labor and Employment Law Journal | Fall 2019 | Vol. 44 | No. 1 13 because its retaliation analysis mirrors that of Title VII. Even when courts decide not to apply the manager Also, even though the Local Civil Rights Restoration Act rule, they apply a modified version that has the same of 2005 called for a more liberal construction of the City practical effect. In Littlejohn v. City of New York, the Sec- Law, it is unclear how this impacts the application of the ond Circuit rejected the manager rule while still holding manager rule.10 HR managers to a higher standard as compared to other employees.27 The Littlejohn court held that HR managers Reasons to Eliminate the Manager Rule engage in protected activity when they “actively support other employees in asserting their Title VII rights or A. Title VII’s Broader Protections personally complain or [are] critical about the discrimina- The FLSA’s anti-retaliation provisions are narrower tory employment practices of [their] employer.”28 Even than Title VII’s anti-retaliation provisions. The FLSA though the court explicitly rejected the manager rule, the prohibits retaliation against an employee “because such standard in Littlejohn has the same practical effect—the employee has filed any complaint or instituted or caused HR manager still needs to stand toe-to-toe with his or her to be instituted any proceeding under or related to [the employer in opposing the employer’s discriminatory con- FLSA], or has testified or is about to testify in any such duct in order to gain protection from retaliation. Taking proceeding, or has served or is about to serve on an prompt and effective action to investigate a complaint or industry committee.”11 Thus, the FLSA restricts protected implement corrective measures is not enough for the HR activity to three narrow categories: (1) making complaints manager to be protected from retaliation. Littlejohn has about one’s pay; (2) testifying in a proceeding about one’s been inconsistently applied by district courts throughout pay; and (3) serving on an industry committee. the Second Circuit,29 and there are many cases like Little- john throughout the United States that impose higher bur- In contrast, Title VII’s anti-retaliation provision dens on HR managers in retaliation cases where the HR covers a wide range of activity. Title VII prohibits retali- manager investigated discrimination complaints.30 Due ation against an employee “because he has opposed to the inconsistencies in how courts apply the manager any practice made an unlawful employment practice by rule, eliminating the manager rule is necessary to provide [Title VII], or because he has made a charge, testified, uniform standards for HR managers across the country assisted, or participated in any manner in an investiga- and for HR managers in national firms who handle dis- tion, proceeding, or hearing” under Title VII. 12 Not only crimination and harassment complaints across multiple does this provision encompass participation in an EEOC jurisdictions and states. proceeding, but it also includes opposition to any unlawful employment practice under Title VII, including C. HR’s Failure to Investigate discrimination based on race,13 color,14 national origin,15 sex,16 religion,17 pregnancy,18 and sexual harassment.19 In Above all, the manager rule discourages HR manag- addition, as Title VII’s coverage expands to include more ers from investigating complaints of discrimination. HR protected classes, Title VII’s opposition clause expands managers may not be willing to put their jobs and liveli- to cover more oppositional conduct.20 Since Title VII’s hoods at risk to ensure each complaint of discrimination anti-retaliation provision was intended to provide more is properly addressed and resolved. This leaves com- coverage than the FLSA, the purposes for adopting the plaints unaddressed, which creates an environment that manager rule in the FLSA context are not transferrable to fosters discrimination. This discriminatory environment Title VII cases.21 is the most disturbing effect of the manager rule on the workplace.

B. Inconsistent Application of the Manager Rule In the backdrop of the #MeToo movement, many current and former employees have recounted failures by HR Courts that apply the manager rule deprive HR to investigate complaints of discrimination and the im- managers of protection from retaliation for investigating pact it had on the workplace. For example, a former em- discrimination complaints. For example, in Brush v. Sears ployee at Vice Media claimed that a high-level executive Holdings Corporation, plaintiff was responsible for investi- grabbed her breasts and buttocks at a company holiday gating a complaint of workplace sexual harassment.22 party. 31 When the employee reported this incident to the During a one-on-one investigative interview, the com- HR manager, Nancy Ashbrooke, the employee said that plaining employee told plaintiff that the accused harasser Ashbrooke told her to “just forget about it and laugh it raped her multiple times.23 Plaintiff reported this to the off.”32 This behavior creates an environment that tolerates, employer and encouraged the employer to contact the if not endorses, sexual harassment in the workplace. police, but the employer declined to do so.24 Instead, plaintiff was subsequently fired.25 In applying the man- An HR manager’s failure to investigate can also sub- ager rule, the court held that the actions plaintiff took to ject the employer to future liability. For example, in a Title investigate the sexual harassment complaint were not VII sexual harassment case, employers will be unable to protected under Title VII.26 avail themselves of the Ellerth/Faragher defense to avoid liability. This defense has two prongs: (1) the employer exercised reasonable care to promptly prevent and correct

14 NYSBA Labor and Employment Law Journal | Fall 2019 | Vol. 44 | No. 1 any sexually harassing behavior, and (2) the employee (c) Human Resources Managers; Protected Activity unreasonably failed to take advantage of any preventive As used in subparagraph (a), the phrase 33 or corrective opportunities provided by the employer. “opposed any practice” shall include If the HR manager ignored sexual harassment com- (1) when an employer’s human resources plaints and declined to investigate them, then the em- manager receives an oral or written ployer did not exercise reasonable care to promptly complaint of discrimination alleging an correct the sexually harassing behavior. Also, if the sexual unlawful employment practice under this harassment complaints are routinely not addressed, an subchapter, and (2) any conduct that an employee who does not make a formal complaint to the employer’s human resources manager HR manager cannot be found to have unreasonably failed reasonably undertakes or recommends to take advantage of the employer’s complaint system, to investigate discrimination complaints, for the employee would have rightly believed that no implement corrective action, remedy vio- action would be taken after making a complaint. Thus, lations, or institute policies, procedures, as recent news events have shown, a “do-nothing” HR or training to promote compliance with manager will certainly have negative legal implications anti-discrimination and anti-retaliation for the employer and the complaining employee. laws, rules, and regulations. As used in the preceding sentence, the term “human Rejecting the Floodgates Argument resources manager” includes any person who is authorized by the employer to Proponents of the manager rule claim that HR perform any function in connection with managers should not be able to build a retaliation claim reporting, receiving, investigating, pro- simply by doing their jobs. They justify the manager rule cessing, or resolving complaints under, or as necessary to control litigation floodgates. This argu- conduct covered by, applicable discrimi- ment fails for two reasons. nation laws, rules, or policies. The Supreme Court recently reiterated that “[w]hen Similarly, the following amendment should be made an employee communicates to her employer a belief that to the State Law, New York Executive Law § 296(7):37 the employer has engaged in . . . a form of employment discrimination, that communication virtually always constitutes the employee’s opposition to the activity,” which It shall be an unlawful discriminatory means that protected activities are not limited to com- practice for any person engaged in any plaints of discrimination against the complainant.34 activity to which this section applies to Communicating “a belief” that the employer engaged retaliate or discriminate against any per- in discrimination also includes “complaints of discrimi- son because he or she has opposed any nation on behalf of other employees and complaints of practices forbidden under this article or discriminatory practices generally.”35 Thus, Supreme because he or she has filed a complaint, Court precedent supports the idea that an HR manager testified or assisted in any proceeding un- can engage in protected oppositional activity by simply der this article. As used in this subdivi- processing complaints made by other employees. sion, the phrase “opposed any practices” shall include (1) when an employer’s Moreover, even when processing a complaint is con- human resources manager receives an sidered protected activity, the HR manager still needs to oral or written complaint of discrimina- prove the other elements for a prima facie case of retaliation alleging an unlawful employment tion, including that processing the complaint was a “but practice under this subchapter, and (2) for” cause of the alleged adverse action against the HR any conduct that an employer’s human manager.36 “But for” causation is a difficult standard to resources manager reasonably under- meet, and it will serve to protect employers from a flood takes or recommends to investigate tide of meritless retaliation claims by HR managers. discrimination complaints, implement corrective action, remedy violations, or Conclusion institute policies, procedures, or train- The manager rule has no place in Title VII retalia- ing to promote compliance with anti- tion cases. HR managers are in the best position to assist discrimination and anti-retaliation laws, employees that have discrimination complaints, so they rules, and regulations. As used in the should be given the same level of Title VII protection that preceding sentence, the term “human other employees have. To ensure HR managers enjoy resources manager” includes any person the same protections as other employees, the follow- who is authorized by the employer to ing amendment should be made to Title VII, 42 U.S.C. § perform any function in connection 2000e-3: with reporting, receiving, investigat-

NYSBA Labor and Employment Law Journal | Fall 2019 | Vol. 44 | No. 1 15 ing, processing, or resolving complaints with reporting, receiving, investigat- under, or conduct covered by, applicable ing, processing, or resolving complaints discrimination laws, rules, or policies. under, or conduct covered by, applicable discrimination laws, rules, or policies. In addition, the following amendment should be made to the City Law, New York City Administrative Armed with the same protection as individuals who Code § 8–107(7):38 complain of harassment, this proposed solution will encourage HR managers to thoroughly investigate discrimination complaints and take corrective action against the Retaliation. It shall be an unlawful culprits. In light of the recent proposed amendments to discriminatory practice for any person the State Law, I encourage the New York State Legislature engaged in any activity to which this to codify this protection for HR managers. chapter applies to retaliate or discriminate in any manner against any person because such person has (i) opposed any Endnotes practice forbidden under this chapter, (ii) 1. The following facts are excerpted from plaintiff’s complaint in Rehal v. filed a complaint, testified or assisted in Weinstein, No. 151738/2018 (Sup. Ct. N.Y. Cty. Feb. 27, 2018). The facts any proceeding under this chapter, (iii) alleged in the Rehal complaint are recited for purposes of illustration only, and the author does not express a belief as to their ultimate truth commenced a civil action alleging the or falsity, which will be determined by the judge and jury in that case. commission of an act which would be an 2. In his answer, Gil denied that he authorized this bonus payment and unlawful discriminatory practice under that Rehal complained to him about Weinstein. Answer at 6, Rehal v. this chapter, (iv) assisted the commission Weinstein, No. 151738/2018 (Sup. Ct. N.Y. Cty. Aug. 16, 2018), NYSCEF or the corporation counsel in an investi- No. 29. gation commenced pursuant to this title, 3. In this article, the term “HR manager” includes personnel managers, or (v) provided any information to the EEO officers, and other employees who are charged with investigating reports of discrimination in the workplace. commission pursuant to the terms of a conciliation agreement made pursuant to 4. McKenzie v. Renberg’s Inc., 94 F.3d 1478, 1486 (10th Cir. 1996). section 8-115 of this chapter. The retali- 5. 42 U.S.C. § 2000e-3(a); N.Y.C. Admin. Code § 8-107(7). ation or discrimination complained of 6. Some circuits also require plaintiffs to show that the employer had under this subdivision need not result knowledge of plaintiff’s protected activity. See, e.g., Hicks v. Baines, 593 F.3d 159, 164 (2d Cir. 2010). in an ultimate action with respect to employment, housing or a public ac- 7. Littlejohn v. City of New York, 795 F.3d 297, 317 (2d Cir. 2015) (citations omitted) (internal quotation marks omitted). commodation or in a materially adverse 8. Hagan v. Echostar Satellite, L.L.C., 529 F.3d 617, 628 (5th Cir. 2008). change in the terms and conditions of employment, housing, or a public accom- 9. See, e.g., Brown v. Xerox Corp., 170 F. Supp. 3d 518, 527 (W.D.N.Y. 2016). modation, provided, however, that the 10. N.Y.C. Local L. No. 85, § 1 (noting that the City Law was “construed retaliatory or discriminatory act or acts too narrowly to ensure protection of the civil rights of all persons covered by the law” and the City Law must “be construed complained of must be reasonably likely independently from similar or identical provisions of New York state to deter a person from engaging in pro- or federal statutes”). tected activity. As used in this subdivi- 11. 29 U.S.C. § 215(a)(3). sion, the phrase “opposed any practice” 12. 42 U.S.C. § 2000e-3(a). shall include (1) when an employer’s 13. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). human resources manager receives an oral or written complaint of discrimina- 14. Bryant v. Bell Atl. Md., Inc., 288 F.3d 124, 132 n.5 (4th Cir. 2002). tion alleging an unlawful employment 15. Espinoza v. Farah Mfg. Co., 414 U.S. 86, 88 (1973). practice under this subchapter, and (2) 16. L.A. Dep’t of Water & Power v. Manhart, 435 U.S. 702, 711 (1978). any conduct that an employer’s human 17. Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 66 (1977). resources manager reasonably under- 18. Pregnancy Discrimination Act of 1978, 42 U.S.C. § 2000e(k) (amending takes or recommends to investigate Title VII to prohibit discrimination “because of or on the basis of discrimination complaints, implement pregnancy, childbirth, or related medical conditions”). corrective action, remedy violations, or 19. Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65 (1986). institute policies, procedures, or train- 20. See Zarda v. Altitude Express, Inc., 883 F.3d 100, 112-13 (2d Cir. 2018) ing to promote compliance with anti- (holding that Title VII prohibits sexual orientation discrimination). discrimination and anti-retaliation laws, 21. See DeMasters v. Carilion Clinic, 796 F.3d 409, 422 (4th Cir. 2015) rules, and regulations. As used in the (“[W]hatever place [the manager rule] may have in FLSA jurisprudence, [it] . . . does not apply to Title VII.”). preceding sentence, the term “human resources manager” includes any person 22. 466 F. App’x 781 (11th Cir. 2012). who is authorized by the employer to 23. Id. at 784. perform any function in connection 24. Id.

16 NYSBA Labor and Employment Law Journal | Fall 2019 | Vol. 44 | No. 1

#MeToo and Separating Arbitration from Non-Disclosure Agreements

By Ann-Elizabeth Ostrager and Lisa M. Ebersole

Introduction Stanley filed an employment discrimination claim alleg- In response to the #MeToo movement and na- ing that he was subjected to harassment based on his sex- tional attention on sexual harassment in the workplace, ual orientation and religion. Latif, however, had agreed a number of states have enacted laws purporting to to mandatory arbitration of all claims against Morgan prohibit or limit pre-dispute agreements that require ar - Stanley, including sexual harassment claims, when he bitration of sexual harassment claims. This summer, these signed his employment contract. Morgan Stanley filed proposed provisions began to be tested in federal court. a motion to compel Latif to arbitrate his claims, arguing Consistent with clear Supreme Court precedent favoring that § 7515 was preempted by the FAA, which provides enforcement of arbitration agreements and interpreting that an agreement to arbitrate “shall be valid irrevocable, the Federal Arbitration Act (FAA) expansively, Judge and enforceable, save upon such grounds as exist at law Denise Cote of the Southern District of New York ruled or in equity for the revocation of any contract,” 6 and in Latif v. Morgan Stanley & Co. LLC, 2019 WL 2610985 applies to all arbitration agreements affecting interstate (S.D.N.Y. June 26, 2019), that one such law, Section 7515 commerce. of the New York Civil Practice Law and Rules (NYCPLR), is preempted by the FAA. 1 Looking to the Supreme Court’s holding in AT&T Mobility LLC v. Concepcion that “[w]hen state law prohibits outright the arbitration of a particular type of claim . 7 In light of the trajectory set by Supreme Court au- . . [t]he conflicting rule is displaced by the FAA,” Judge thority and rulings like Latif—and absent congressional Cote granted Morgan Stanley’s motion and ordered the parties to proceed according to the terms of their pre-dis- action on the FAA—state legislatures may seek to enact 8 prohibitions on confidentiality clauses, or impose other pute arbitration agreement. Judge Cote also found that conditions on arbitration that arguably avoid a preemp- § 7515 specifically targeted arbitration, and thus is not a broad defense applicable to “any contract,” i.e., defenses tion problem by not undermining the “fundamental at- 9 tributes” of arbitration as a method of dispute resolution. such as unconscionability and duress. In a footnote, Judge Cote also addressed New York Preemption State Senate Bill S6577, which had been passed just days earlier, and which seeks to expand the ban on arbitration The Supreme Court has consistently ruled in favor agreements for sexual harassment claims found in § 7515 of an expansive reading of the FAA, and declined to find to a ban on arbitration agreements for all claims of un- exceptions to its application. The Court has found that lawful discrimination. Although not yet signed into law employment contracts are subject to the FAA (Circuit at the time, Judge Cote wrote that S6577, would “for the City Stores, Inc. v. Adams),2 that arbitration agreements same reasons,” “not provide a defense to the enforcement are valid in cases of personal injury and wrongful death of the Arbitration Agreement.” 10 (Marmet Health Care Center v. Brown), 3 that arbitration clauses prohibiting class action litigation and compel- Limitations on the Use of Non-Disclosure ling the arbitration of antitrust claims are enforceable Agreements (American Express Co., et al. v. Italian Colors Restaurant), 4 and that arbitration agreements forbidding arbitration on Much of the controversy surrounding mandatory 5 a class level are valid (Epic Systems Corp. v. Lewis). Latif arbitration agreements in sexual harassment cases has followed suit. focused on the “silencing” effect of arbitration 11 that em- The 2018-2019 New York State budget created § 7515 ployment agreements requiring any future proceedings of the NYCPLR, which provided that no written contract be kept confidential result in employers and perpetrators shall contain a mandatory arbitration clause for claims of of harassment avoiding accountability and appropriate sexual harassment. In Latif, a former employee of Morgan

18 NYSBA Labor and Employment Law Journal | Fall 2019 | Vol. 44 | No. 1 penalties. However, this is more centrally a critique of ality agreements indirectly threatens what has become a confidentiality clauses, rather than arbitration itself. core quality of arbitration. A second provision of S6577, signed by the governor in August, amends § 5003-b of the NYCPLR to expand Key Takeaways a ban on nondisclosure agreements for “any settlement, • Consistent with a clear trend at the Supreme Court agreement, or other resolution of any claim, the factual favoring enforcement of arbitration agreements, foundation for which involves discrimination,” subject to a court in the Southern District of New York has some exceptions, like where nondisclosure is the com- ruled that N.Y. 7515, which purports to prohibit plainant’s preference.12 This ban was previously appli- pre-dispute agreements to arbitrate sexual harass- cable only to sexual harassment claims in § 7515. Unlike ment claims, is preempted by the FAA. the outright ban on clauses requiring arbitration, there is an argument that a prohibition on confidentiality clauses • Similar state statutes that contain outright prohi- would not be preempted by federal law because it does bitions on arbitration or that implicitly disfavor not undermine a “fundamental attribute” of arbitration, arbitration are also likely preempted by the FAA. nor does it clearly disfavor arbitration specifically. • Legislation that bans confidentiality requirements In addition to laws that directly prohibit arbitra- in settlement or arbitration of discrimination tion of a particular type of claim, the Supreme Court has claims, such as the language in NY S6577, may not found that state laws, which apply a general contract or be preempted by the FAA. The same goes for other equity defense in a manner that disfavors arbitration, conditions of an arbitration/settlement agreement or laws that undermine a “fundamental attribute” of arbi- that do not affect the “fundamental attributes” of tration, are preempted by the FAA. As the Court in Con- arbitration. cepcion explained, “[a]n obvious illustration of this point would be a case finding unconscionable or unenforceable Conclusion as against public policy consumer arbitration agreements Prohibitions on confidentiality could be one way that that fail to provide for judicially monitored discovery.”13 states will try to constrain arbitration around sexual ha- In that example, the general defenses that a condition is rassment and discrimination claims without running into unconscionable or against public policy are being em- a preemption problem. These bans in combination with ployed in a manner that disfavors arbitration. The dispro- the effect of extralegal pressure from the public to end the portionate impact on arbitration would ultimately subject use of arbitration in discrimination cases generally may such a case to FAA preemption.14 offer the most promising avenue of change, other than A law undermining a “fundamental attribute” of the unlikely event of congressional action on the FAA.19 arbitration will also be preempted by the FAA; Jus- tice Gorsuch in Epic Systems Corp. v. Lewis, wrote that Endnotes “the saving clause does not save defenses that target 1. Plaintiff has filed a notice of appeal with the Second Circuit. arbitration either by name or by more subtle methods, such as by ‘interfer[ing] with fundamental attributes of 2. 532 U.S. 105 (2001). arbitration.”15 The Supreme Court has suggested that 3. 565 U.S. 530 (2012). fundamental attributes of arbitration include speed, sim- 4. 570 U.S. 228 (2013). plicity, inexpensiveness, informality, and the traditional 5. 138 S. Ct. 1612 (2018). 16 individualized process, but has not yet included confi- 6. 9 U.S.C. § 2. dentiality on this list. There is no law requiring confiden- 7. AT&T Mobility LLC v. Concepcion, 563 U.S. 339, 341 (2011). tiality in arbitration and barring confidentiality clauses 8. Latif v. Morgan Stanley & Co. LLC, No. 18CV11528 (DLC), 2019 WL does not necessarily interfere with the primary goals 2610985, at *1 (S.D.N.Y. June 26, 2019). and characteristics of arbitration. In fact, the American 9. Id. at 3; Epic Sys. Corp. 138 S. Ct. at 1622. Arbitration Association Statement of Ethical Principles 10. Latif, 2019 WL 2610985, at n.2. specifies that “the AAA takes no position on whether parties should or should not agree to keep the proceeding 11. See, e.g., Julia Carpenter, The ways companies silence women at work, CNN Money (April 18, 2018), https://money.cnn. and award confidential between themselves. The parties com/2018/04/18/pf/forced-arbitration-sexual-harassment/ always have a right to disclose details of the proceeding, index.html?iid=EL; Elizabeth Dias and Eliana Dockterman, The unless they have a separate confidentiality agreement.”17 Teeny Tiny Fine Print That Can Allow Sexual Harassment Claims to The JAMS rules and the Revised Uniform Arbitration Act Go Unheard, Time (October 21, 2016), https://time.com/4540111/ arbitration-clauses-sexual-harassment/. both contain permissive provisions allowing an arbitra- 12. S.B. S6577, 2019-2020 Leg. Sess. (N.Y. 2019). tor to issue a protective order to prohibit disclosure of confidential or privileged information.18 Nonetheless, it 13. Concepcion, 563 U.S. at 341-42. remains an open avenue to argue that barring confidenti- 14. The analysis in Latif together with this reasoning from Concepcion suggests that other recent state laws targeting arbitration in sexual harassment and discrimination claims may also be subject to

NYSBA Labor and Employment Law Journal | Fall 2019 | Vol. 44 | No. 1 19 preemption. Though no other law contains an outright prohibition on arbitration for a particular type of claim like New York, the New Jersey, Washington, Vermont and Maryland laws prohibit NEW YORK STATE waiver of an available substantive or procedural right in relation BAR ASSOCIATION to a sexual harassment or discrimination claim, in effect barring pre-dispute agreements to arbitrate in those circumstances. See Epic Sys. Corp., 138 S. Ct. at 1623 (“Just as judicial antagonism toward arbitration before the Arbitration Act’s enactment ‘manifested itself in a great variety of devices and formulas CONNECT declaring arbitration against public policy’ Concepcion teaches that we must be alert to new devices and formulas that would achieve much the same result today.”) (citing Concepcion, 523 U.S. at 342). WITH NYSBA 15. Epic Sys. Corp., 138 S. Ct. at 1622. 16. Id. at 1623; Lamps Plus, Inc. v. Varela, 139 S. Ct. 1407, 1416 (2019). Visit us on the Web: 17. AAA Statement of Ethical Principles, Am. Arbitration Ass’n, https://www.adr.org/StatementofEthicalPrinciples (last visited 8/27/2019). www.nysba.org 18. See, e.g., Uniform Arbitration Act (revised 2000) § 17e; JAMS Comprehensive Arbitration Rules & Procedures, Rule 26(b). 19. The authors thank Emily T.L. Armbruster, a summer associate Follow us on Twitter: with Sullivan & Cromwell LLP, for her substantial contributions to this article. www.twitter.com/nysba

Like us on Facebook: www.facebook.com/ Ann-Elizabeth Ostrager is a litigation partner at nysba Sullivan & Cromwell LLP, co-head of the firm’s Labor and Employment Group and a member of the firm’s Criminal Defense and Investigations Group. Join the NYSBA Lisa M. Ebersole is an associate at Sullivan & Crom- well LLP. LinkedIn group: www.nysba.org/LinkedIn

VISIT US ONLINE AT www.nysba.org/GEN

20 NYSBA Labor and Employment Law Journal | Fall 2019 | Vol. 44 | No. 1 NEW YORK STATE BAR ASSOCIATION “Pro Bono in Your PJs” Volunteers Needed! Whether you are a government attorney, solo practitioner, part-time attorney, or any other type of attorney looking for an easier way to do pro bono work, Free Legal Answers is for you!

NY.freelegalanswers.org is a website where low-income members of the public can go to post basic legal questions that attorneys can answer for free. Attorneys may, at their leisure, log on to the website and respond to questions from anywhere at any time. You can even do pro bono in your PJs!

Log onto NY.freelegalanswers.org and sign up to be a volunteer today!

Questions? Contact Thomas Richards Director, Pro Bono Services, NYSBA [email protected] Labor and | 518.487.5640 Employment Law Journal | Fall 2019 | Vol. 44 | No. 1 21 Filing and Opposing Statements of Material Fact on Motions for Summary Judgment in New York Federal Courts By Michael G. Langan

In 2018, approximately 3,839 labor and employment Practice Tips for Preparing a Statement of cases were filed in federal district courts in New York State.1 Assuming that the rate of summary judgment Material Facts activity in labor and employment cases is approximately the same as that in civil rights cases generally, a third of •Is your Statement of Material Facts part of your those cases, or 1,279 of them, will involve the briefing of memorandum of law? If so, separate them. motions for summary judgment,2 probably within the Rule: A Statement of Material Facts must be separate 4 next year (given the courts’ median-time-to-disposition from a memorandum of law. statistics).3 •Is your Statement of Material Facts part of an affidavit or declaration? If so, separate them. While motions for summary judgment are of course Rule: A Statement of Material Facts must be separate governed by Fed. R. Civ. P. 56, they are also governed from the record evidence on which it relies.5 by district courts’ local rules of practice. This is because Fed. R. Civ. P. 83(a)(1) allows district courts to adopt local •Is your Statement of Material Facts limited to a list of the rules of practice as long as the local rules are consistent exhibits on which you rely? If so, expand the list into as- with (but not duplicative of) the Federal Rules of Civil sertions of facts that are established by the exhibits. Procedure. And each federal district court in New York Rule: A Statement of Material Facts must be complete State has adopted a local rule regarding the briefing of enough to warrant the granting of the motion.6 motions for summary judgment. S.D.N.Y. & E.D.N.Y. L.R. •Does your Statement of Material Facts unnecessarily 56.1; N.D.N.Y. L.R. 7.1(a)(3); W.D.N.Y. L.R. 56(a). While recite the action’s procedural history (e.g., when the mo- these rules differ in certain aspects, they are similar in tion is not based on the statute of limitations, the doctrine that they all (1) require a motion for summary judg- of res judicata, or a failure to exhaust one’s available ment to be supported by a statement of material facts, administrative remedies)? If so, delete that portion of the (2) require a non-movant to file a response to such a Statement. statement and (3) prohibit numerous practices that occur Rule: A Statement of Material Facts must be limited to with regard to the preparation of, and response to, such those facts that are relevant to the motion.7 statements. •Have you provided a record cite for each of your factual This article is intended to help practitioners become assertions? If not, do so, preferably after each sentence in more effective in filing or opposing motions for summary your paragraphs and not simply after each paragraph. judgment in federal district court in New York State, as Rule: Each fact asserted in a Statement of Material Facts well as those practitioners venturing into federal court in must be supported by a record cite.8 Vermont and Connecticut. More specifically, the article sets forth tips formatted as a checklist for ease of use to •Are all of your cites to specific parts of the record as op- help practitioners avoid errors commonly committed posed to documents generally? If not, make your cites while preparing and responding to statements of material specific, citing, for example, (1) paragraph numbers of fact. affidavits, complaints and answers, (2) page numbers of contracts, and (3) page and line numbers of deposition These practice tips are broken up into five categories: transcripts. (1) practice tips for preparing a statement of material Rule: Each record cite in a Statement of Material Facts facts; (2) practice tips for preparing a response to a state- must be specific.9 ment of material facts; (3) practice tips for preparing a statement of additional material facts in dispute; (4) prac- •Do you cite any exhibits that are not introduced some- tice tips for preparing a response to a statement of addi- where by an affiant who possesses personal knowledge tional material facts in dispute; and (5) additional practice sufficient to admit the exhibit into evidence? If so, find tips regarding a cross-motion for summary judgment. It such an affiant. is respectfully recommended that practitioners use the Rule: Material cited in support of a fact must be pre- checklist each time they have completed a statement of sented in a form that would be admissible at trial.10 material facts or response thereto.

22 NYSBA Labor and Employment Law Journal | Fall 2019 | Vol. 44 | No. 1 •Do you cite an attorney’s affidavit? If so, reconsider do- •Before filing, have you scanned your Statement of Mate- ing so. rial Facts and exhibits thereto into your computer system Rule: To the extent an attorney’s affidavit is not based and saved them as text-formatted PDFs (Portable Docu- on personal knowledge of the events it regards, it ment Format) instead of as image-formatted PDFs? Do so, does not constitute admissible record evidence on a to help the court easily search through it (and perhaps motion for summary judgment. While an attorney’s even copy and paste it into a decision). affidavit may of course attach exhibits of which he or Rule: A Statement of Material Facts should be filed elec- she possesses personal knowledge (e.g., interrogatory tronically in PDF text format.18 responses, etc.), what constitutes evidence is those exhibits themselves, not the attorney’s affidavit (which •Are you moving for summary judgment against a pro merely renders the exhibits admissible).11 se opponent? If so, be sure to include a notice of the consequences of failing to properly oppose the motion, and be •If you are the plaintiff, do any admissions in the defen- sure to use any model language or form provided by the dant’s answer help you? If so, remember you may cite court rather than creating the language yourself. them. Rule: Summary judgment movants must advise pro se Rule: A plaintiff may rely on an admission in a de- non-movants of the specific consequences of failing to fendant’s answer to support its motion for summary properly oppose the motion.19 judgment.12 •If the plaintiff’s complaint is verified, do any of its al- Practice Tips for Preparing a Response to a legations help you? If so, remember you may cite them. Statement of Material Facts Rule: A party moving for summary judgment may rely •Is your Response to the Statement of Material Facts on allegations in a verified complaint (to the extent they separate from your opposition memorandum of law? If 13 are based on personal knowledge). not, separate them. •If you are the defendant, do any allegations in the plain- Rule: A Response to a Statement of Material Facts must 20 tiff’s complaint help you? If so, remember you may cite be separate from an opposition memorandum of law. them as admissions, regardless of whether the complaint •Is your Response to the Statement of Material Facts part is verified. of an affidavit or declaration? If so, separate them. Rule: A defendant may rely on an allegation in a Rule: A Response to the Statement of Material Facts plaintiff’s complaint to support its motion for summary must be separate from the record evidence on which it 14 judgment. relies.21 •Do you cite your own responses to your opponent’s Re- •Have you responded to the Statement of Material Facts quest for Admissions? If so, delete — you may not do so. in matching numbered paragraphs? If not, do so. Rule: A party moving for summary judgment may not Rule: A Response to a Statement of Material Facts must 15 rely upon its own answer to a Request for Admission. mirror the Statement of Material Facts in matching 22. •Have you relied on a post-deposition affidavit that numbered paragraphs. contradicts the affiant’s deposition testimony without •Before each response, have you reproduced the factual amplification or explanation? If so, delete — you may not assertion and its supporting cites? If not, do so. The Court so rely. can then examine both the factual assertion and response Rule: A party moving for summary judgment may not (and their competing record cites) without possibly erring rely on a post-deposition affidavit that contradicts the while flipping back and forth between motion papers. affiant’s deposition testimony without amplification or Rule: A party opposing a motion for summary judgment 16 explanation. should (and, depending on the court or judge, must) •While summarizing or paraphrasing any material, do reproduce each entry in the moving party’s Statement of you use any adverbs or adjectives? If so, consider strik- Material Facts and set out the opposing party’s response 23 ing those words and simply quoting the material (fairly directly beneath it. excerpted). •Have you made sure each response is complete? If not, Rule: Statements of Material Fact may contain only do so. 17 factual assertions, no arguments. Rule: Each factual assertion contained in a paragraph must be expressly either admitted or denied.24 •Have you provided a record cite for each denial? If not, do so, preferably after each denial in your paragraphs and not simply after each paragraph. Rule: Each denial must be supported by a record cite.25

NYSBA Labor and Employment Law Journal | Fall 2019 | Vol. 44 | No. 1 23 •Are all of your cites to specific parts of the record as or denying the assertions “generally,” without specifying opposed to general documents? If not, make your cites which facts are being denied and which facts are being specific, citing, for example, (1) paragraph numbers of admitted)? If so, correct that failure. affidavits, complaints and answers, (2) page numbers of Rule: Each factual assertion by the movant must be ex- contracts, and (3) page and line numbers of deposition pressly admitted or denied by the non-movant.33 transcripts. Rule: Each record cite in a Response to a Statement of •Have you begun a response with the word “Admit,” Material Facts must be specific.26 then added words meant to controvert the fact asserted, or added a fact intended to contradict it? If so, then do •Do you cite any exhibits that are not introduced someone of the following three things: (1) change the word to where by an affiant who possesses personal knowledge “Admit in part and deny in part” (with a description of sufficient to admit the exhibit into evidence? If not, find what facts are admitted and what are denied); (2) simply such an affiant. change the word to “Deny”; or (3) keep the word “Ad- Rule: Material cited in support of a fact must be pre- mit” and either delete the subsequent words or move the sented in a form that would be admissible at trial.27 subsequent words to the statement of additional facts in dispute. •Do you cite an attorney’s affidavit? If so, reconsider Rule: An “admission” precludes a denial; it is only an doing so. “admission in part” that permits a denial; and it is only Rule: To the extent an attorney’s affidavit is not based a “denial in part” that permits further explanation.34 on personal knowledge of the events it regards, it does not constitute admissible record evidence on a •Have you neglected to either admit or deny a fact and motion for summary judgment. While an attorney’s then added commentary or analysis not related to the ex- affidavit may of course attach exhibits of which he or istence or non-existence of the asserted fact? If so, delete she possesses personal knowledge (e.g., interrogatory the commentary or analysis and then expressly admit or responses, etc.), what constitutes evidence is those deny the fact. exhibits themselves, not the attorney’s affidavit (which Rule: In a Response to a Statement of Material Facts, merely renders the exhibits admissible).28 the only permitted responses are (1) “admit,” (2) “deny” (including a denial on the ground that the material cited •If you are the plaintiff, do any admissions of the defen- by the movant does not support the fact asserted), and dant’s answer help you? If so, remember you may cite (3) “objection” on the ground that the material cited is them. not presented and cannot be presented in a form that Rule: A plaintiff may rely on an admission in a de- would be admissible in evidence.35 fendant’s answer to oppose a motion for summary judgment.29 •Do you try to set forth any additional material facts anywhere in your response that you contend are in dis- •If the plaintiff’s complaint is verified, do any is allega- pute? If so, delete them and insert them in your statement tions help you? If so, remember you may cite them. of additional facts in dispute (in separately numbered Rule: A party opposing a motion for summary judg- paragraphs). ment may rely on allegations in a verified complaint (to Rule: The place for the assertion of additional mate- the extent they are based on personal knowledge).30 rial facts that a non-movant contends are in dispute is •If you are the defendant, do any allegations of the plain- not in the Response to a Statement of Material Facts tiff’s complaint help you? If so, remember you may cite but in a Statement of Additional Material Facts in them as admissions, regardless of whether the complaint Dispute, which is contained in separately numbered is verified. paragraphs.36 Rule: A defendant may rely on an allegation in a •Have you included argument in any of your responses? plaintiff’s complaint to oppose a motion for summary If so, then delete it and either (1) move it to your memo- judgment.31 randum of law or (2) move it to the statement of addi- •Have you relied on a post-deposition affidavit that tional facts in dispute. contradicts or disputes the affiant’s deposition testimony Rule: A Response to a Statement of Material Facts may without amplification or explanation? If so, delete — you not include argument.37 may not so rely. •Have you attempted to controvert the implication of an Rule: A party opposing a motion for summary judg- asserted fact and/or place it in context? If so, delete it. ment may not rely on a post-deposition affidavit that Rule: A Response to a Statement of Material Facts is not contradicts the affiant’s deposition testimony without the means by which to dispute an arguably implied fact amplification or explanation.32 but the means by which to dispute an expressly asserted •In a paragraph, have you failed to expressly “admit” fact. If you have other facts to insert, do so in your State- or “deny” a factual assertion in that paragraph (e.g., by ment of Additional Facts in Dispute.38 denying the assertions in a paragraph merely “in part,”

24 NYSBA Labor and Employment Law Journal | Fall 2019 | Vol. 44 | No. 1 •Have you tried to create a genuine dispute of material are sought to resist the motion and how they are to be fact by simply challenging the credibility of a witness? If obtained, (2) how those facts are reasonably expected so, find a basis on which to challenge the admissibility of to create a genuine issue of material fact, (3) what effort the witness’s testimony or simply admit the fact asserted. the affiant has made to obtain them, and (4) why the af- Rule: A genuine dispute of material fact may not be fiant has been unsuccessful in those efforts.43 created by merely a challenge to the credibility of a •Have you argued that the fact is not material? If so, ei- witness.39 ther (1) cite record evidence creating a genuine dispute or •Have you tried to deny a fact merely by arguing that (2) change the response to an admission, then object to the the fact has not been “conclusively established?” If so, materiality of the fact in your memorandum of law. then (1) argue that only some part of the fact has not been Rule: The materiality of an assertion of fact on a motion established by the evidence cited, (2) cite record evidence for summary judgment is a legal conclusion to be made controverting the fact, or (3) simply admit the fact. by the Court (and, if the Court rules against the non- Rule: A fact may not be denied by merely arguing that movant on the issue, the non-movant will be left with it has not been conclusively established.40 an admission, absent a citation to evidence creating a genuine dispute).44 •Have you argued merely that the evidence cited to support a fact is inadmissible? If so, go a step further and •Before filing, have you scanned your statement and show how it cannot be presented in a form that would be exhibits into your computer system and saved them as admissible in evidence at trial. text-formatted PDFs (Portable Document Format) instead Rule: Rather than merely object that the evidence cited of as image-formatted PDFs? Do so, to help the Court eas- to support a fact is inadmissible, a non-movant must ily search through it (and perhaps even copy and paste it show that the material cited to support or dispute into a decision). a fact cannot be presented in a form that would be Rule: A Response to a Statement of Material Facts admissible.41 should be filed electronically in PDF text format.45 •Do you respond that you lack memory, knowledge or information regarding a fact asserted by the movant? If Practice Tips for Preparing a Statement of so, delete that statement and admit the fact. Additional Material Facts in Dispute Rule: A denial of fact may not be supported by a state- •If you are filing one of these, have you labeled it (and ment that the non-movant lacks memory or knowledge conceived of it) appropriately? Remember that this is a 42 of, or information regarding, the fact. Statement of Additional Material Facts in Dispute, not a •Have you argued that you have not had enough discov- statement of additional undisputed material facts. ery to respond without meeting the requisite standard Rule: A Statement of (Undisputed) Material Facts is ap- under Fed. R. Civ. P. 56(d)? If so, meet the standard. propriate only for a motion for summary judgment, not an opposition to such a motion.46 Rule: A party resisting summary judgment on the ground that it needs discovery in order to defeat the motion must submit an affidavit showing (1) what facts

NEW YORK STATE BAR ASSOCIATION

Find us Online The Labor and Employment Law Journal Is Online: • Past Issues (2000-present) of the Labor and Employment Law Journal* • Labor and Employment Law Journal Searchable Index (2000-present)

*You must be a Labor and Employment Law Section member and logged in to access the Journal. Need password help? Visit our website at www.nysba.org/pwhelp. For questions or log-in help, call 518-463-3200.

www.nysba.org/LaborJournal

NYSBA Labor and Employment Law Journal | Fall 2019 | Vol. 44 | No. 1 •Have you followed the practice tips for preparing a •If your opponent has filed a cross-motion for summary Statement of (Undisputed) Material Facts above? If not, judgment, have you filed a separate Response to the do so. cross-motion’s Statement of Material Facts? If not, do so. Rule: Each of the asserted factual disputes in a State- Rule: The rule requiring a Response to a Statement of ment of Additional Material Facts in Dispute must be Material Facts applies not only to motions for summary supported by a specific citation to admissible record judgment but to cross-motion for summary judgment.55 evidence.47

Practice Tips for Preparing a Response to a Endnotes Statement of Additional Material Facts in 1. See Justia Dockets Search for Employment Civil Rights, ADA Employment and Labor Case Filings in New York Federal District Dispute Courts for 2018, https://dockets.justia.com (last visited Feb. 27, •Have you checked whether your judge expects you to 2019). file a separate response to the non-movant’s Statement of 2. See Joe S. Cecil, Rebecca N. Eyre, Dean Miletich, and David Rindskopf, A Quarter-Century of Summary Judgment Practice in Six Additional Material Facts in Dispute or permits you to Federal District Courts, 4 Journal of Empirical Legal Studies merely include a response in your reply memorandum 884 (Dec. 2007) (tracking increase of frequency of summary of law? Beware that judges often disagree on this issue. judgment motions in civil rights cases in six federal district courts Rule: Some judges require a movant to file a separate between 1975 and 2000, and finding that such motions were filed in 31 percent of such cases in 1995 and 34 percent of such cases response to a non-movant’s Statement of Additional in 2000); cf. Vivian Berger, Michael O. Finklestein, and Kenneth Facts in Dispute (and not simply include a response in Cheung, Summary Judgment Benchmarks for Settling Employment the movant’s reply memorandum of law).48 Discrimination Lawsuits, 232 Hofstra Lab. & Emp. L.J. 45, 53 (2005) (concluding that “the rate of summary judgment dispositions •Regardless of whether you have filed a separate [i.e., not mere filings] in cases filed in [the S.D.N.Y. and E.D.N.Y] response or you have simply responded in your reply for the . . . periods [of 2000 and the first half of 2001] comes out to memorandum of law, have you responded to each of the 22.8%”) (emphasis added); Elizabeth M. Schneider, The Dangers of Summary Judgment, 59:4 Rutgers Law Rev. 705, 709 (“Recent data asserted factual disputes? If not, do so. suggests that seventy percent of summary judgment motions in Rule: A failure to respond to an asserted factual dispute civil rights cases and seventy-three percent of summary judgment will likely result in an admission of the existence of the motions in employment discrimination cases are granted . . . .”); factual dispute.49 Peter J. Ausili, Summary Judgment in Employment Discrimination Cases in the Eastern District of New York, 16:4 Touro Law Note: There appear to be only four ways to respond to an Review 1403, 1403 (2000) (“In my experience with employment discrimination cases, it is rare for a defendant employer not to asserted factual dispute: move for summary judgment challenging the plaintiff’s claim of invidious discrimination.”). (1) asserting that the material cited in support of the dis- 50 3. See Table C-5, Statistical Tables for the Federal Judiciary (Admin. puted fact is inapposite; Office of U.S. Courts, June 30, 2018), https://www.uscourts.gov (2) objecting to the material cited in support of the (last visited Feb. 27, 2019). disputed fact on the ground that it is not presented, and 4. Local Rules: S.D.N.Y. & E.D.N.Y. L.R. 56.1(a) (“Upon any motion for summary judgment . . . there shall be annexed to the notice cannot be presented, in a form that would be admissible of motion a separate, short and concise statement . . . of the 51 in evidence; material facts as to which the moving party contends there is no genuine issue to be tried.”) (emphasis added); W.D.N.Y. L.R. 56(a) (3) persuading the Court that it can disregard the evi- (1) (“Upon any motion for summary judgment . . . there shall be dence cited as incredible pursuant to the strict standard annexed to the notice of motion a separate, short, and concise set forth in Jeffreys v City of New York, 426 F.3d 549 (2d Cir. statement, in numbered paragraphs, of the material facts as to 52 which the moving party contends there is no genuine issue to 2005); or be tried.”) (emphasis added); D. Conn. L. Civ. R. 56(a)(1) (“A 53 party moving for summary judgment shall file and serve with (4) arguing that such a factual dispute is immaterial. the motion and supporting memorandum a document . . . which sets forth . . . a concise statement of each material fact as to which the moving party contends there is no genuine issue to be tried.”) Additional Practice Tips Regarding a Cross- (emphasis added); D. Vt. L.R. 56(a) (“Any motion for summary Motion for Summary Judgment judgment . . . must be accompanied by a separate and concise statement of undisputed material facts.”) (emphasis added). •If you have filed a cross-motion for summary judgment, have you filed a separate Statement of Material Facts? If Cases: Fox v. Lee, 15-CV-0390, 2018 WL 1211111, at *8 (N.D.N.Y. Feb. 2, 2018) (“Plaintiff failed to submit a Statement of Material not, do so. Facts in conjunction with his Motion for Summary Judgment; Rule: Unless the original movant’s Statement of Mate- instead, his memorandum of law contains a “Facts” section with rial Facts actually somehow entitles the non-movant to numbered paragraphs.”); Ames v. Jillian Mech. Corp., 06-CV-1533, judgment as a matter of law, a cross-motion for sum- 2008 WL 858992, at *1 n.1 (E.D.N.Y. Mar. 26, 2008) (“Contrary to Local Civil Rule 56.1, the Defendant did not ‘annex[ ] to the notice mary judgment must be supported by a separate State- of motion a separate, short and concise statement, in numbered ment of Material Facts.54 paragraphs, of the material facts as to which the moving party [here, the Defendant] contends there is no genuine issue to be tried.’ This failure alone is a basis for denying the Defendant’s

26 NYSBA Labor and Employment Law Journal | Fall 2019 | Vol. 44 | No. 1 motion.”) (emphasis added); Tross v. Ritz Carlton Hotel Co., LLC, separate, short, and concise statement, in numbered paragraphs, 928 F. Supp. 2d 498, 503-04 (D. Conn. 2013) (“[T]his court does of the material facts as to which the moving party contends not agree that the defendants have substantially complied with there is no genuine issue to be tried. . . . Failure to submit such the Local Rules. The defendants are the ones who moved for a statement may constitute grounds for denial of the motion.”) summary judgment, and yet they failed to provide the required (emphasis added); D. Conn. L.Civ.R. 56(a)(1) (“A party moving statement in any of their motion papers. . . . The fact that the for summary judgment shall file and serve with the motion and defendants have provided citations and stated facts in their supporting memorandum a document . . . which sets forth . . . a moving papers does not satisfy this requirement. For example, concise statement of each material fact as to which the moving it does not indicate to this court, or to the Trosses, exactly which party contends there is no genuine issue to be tried. The Local Rule statements the defendants intended to constitute their Local Rule 56(a)1 Statement should include only those facts that are material 56(a)1 Statement. If this court were to deem the statements in to the decision of the motion.”) (emphasis added); D. Vt. L.R. 56(a) the defendants’ Motion a substitute for their Local Rule 56(a)1 (“Any motion for summary judgment . . . must be accompanied Statement, this would require the Trosses to mine the defendants’ by a separate and concise statement of undisputed material facts. papers and identify statements to admit or deny for purposes of Failure to submit a statement of undisputed facts constitutes their Local Rule 56(a)2 Statement. . . . This court refuses to burden grounds for denial of the motion.”) (emphasis added). the Trosses because of the defendants’ failure to comply with the Cases: Pharm., Inc. v. Am. Pharm. Partners, Inc., 511 F. Supp. 2d 324, Local Rules, of which the defendants had ample notice.”). 332 (E.D.N.Y. 2007) (“Pursuant to Local Rule 56.1, the movant 5. Local Rules: N.D.N.Y. L.R. 7.1(a)(3) (“Each fact [in a Statement is required to include not just some but all of the facts material of Material Facts] shall set forth a specific citation to the record to its motion that movant contends are undisputed, properly where the fact is established. . . . [The record] does not . . . include supported by citation to evidence. . . . Here, APP did not include attorney’s affidavits.”) (emphasis added); W.D.N.Y. L.R. 56(a) any statements in its 56.1 relevant to its argument that lost profits (1) (“Upon any motion for summary judgment . . . there shall be damages for Steri-Tamp and Quali-Quick are too speculative annexed to the notice of motion a separate, short, and concise because Pharmacy’s damages expert relied on unsupported statement, in numbered paragraphs, of the material facts as to assumptions provided by Pharmacy. On this basis alone, that which the moving party contends there is no genuine issue to portion of APP’s summary judgment motion should be denied.”); be tried. Each such statement must be followed by citation to Tractebel Energy Marketing, Inc. v. AEP Power Marketing, Inc., 03- admissible evidence . . . .”) (emphasis added); cf. S.D.N.Y. & CV-6731, 2005 WL 146807, at *1 n.1 (S.D.N.Y. Jan. 21, 2005) (“AEP E.D.N.Y. L.R. 56.1(a) (“Upon any motion for summary judgment . has not aided in this task, given that its Local Rule 56.1 Statement . . there shall be annexed to the notice of motion a separate, short of Material Facts contains only an enumerated list of exhibits and and concise statement . . . of the material facts as to which the makes no attempt to synthesize the purportedly undisputed facts. moving party contends there is no genuine issue to be tried.”) This is not the purpose of the statement . . . .”). (emphasis added); D. Vt. L.R. 56(a) (“Any motion for summary 7. Local Rules: S.D.N.Y. & E.D.N.Y. L.R. 56.1(a) (“Upon any motion judgment . . . must be accompanied by a separate and concise for summary judgment . . . there shall be annexed to the notice of statement of undisputed material facts.”) (emphasis added). motion a separate, short and concise statement . . . of the material Cases: Cusamano v. Sobek, 604 F. Supp. 2d 416, 432 (N.D.N.Y. facts as to which the moving party contends there is no genuine 2009) (“[Plaintiff’s] . . . 40-page, 139-paragraph, single-spaced, issue to be tried. Failure to submit such a statement may constitute handwritten document that attempted to serve as the following grounds for denial of the motion.”) (emphasis added); N.D.N.Y. four things at the same time: (1) a partial Rule 7.1 Response L.R. 7.1(a)(3) (“The Statement of Material Facts shall set forth . . . (and counter-statement of facts); (2) a Rule 7.1 Statement of each material fact about which the moving party contends there Material Facts (in support of Plaintiff’s cross-motion for summary exists no genuine issue. . . . Failure of the moving party to submit judgment); (3) a declaration; and (4) a document containing legal an accurate and complete Statement of Material Facts shall result arguments (including ad hominem attacks on defense counsel). in a denial of the motion.”) (emphasis added); W.D.N.Y. L.R. 56(a) . . . Such a document is in flagrant violation of numerous local (1) (“Upon any motion for summary judgment . . . there shall be rules. As a result, the document in question was, and is, properly annexed to the notice of motion a separate, short, and concise disregarded by the Court.”); Zimmerman v. Burge, 06-CV-0176, statement, in numbered paragraphs, of the material facts as to 2008 WL 850677, at *14 n.64 (N.D.N.Y. Mar. 28, 2008) (“I note that which the moving party contends there is no genuine issue to Plaintiff’s attachment of a (self-serving) affirmation at the end be tried. . . . Failure to submit such a statement may constitute of his Rule 7.1 Statement, pursuant to 28 U.S.C. § 1746, is not grounds for denial of the motion.”) (emphasis added); D. Conn. sufficient to transform the factual assertions therein into factual L.Civ.R. 56(a)(1) (“A party moving for summary judgment shall assertions supported by record citations, as required by Local file and serve with the motion and supporting memorandum Rule 7.1. . . . As an initial matter, Local Rule 7.1 implicitly makes a a document . . . which sets forth . . . a concise statement of each distinction between a Statement of Material Facts and the record. material fact as to which the moving party contends there is no . . . Moreover, such a verification cannot serve as admissible genuine issue to be tried. The Local Rule 56(a)1 Statement should evidence in the event of trial because it fails to demonstrate how include only those facts that are material to the decision of the the affiant is competent to testify to the facts he or she alleges . . . motion.”) (emphasis added); D. Vt. L.R. 56(a) (“Any motion for . Finally, such a verification cannot transform several of Plaintiff’s summary judgment . . . must be accompanied by a separate and factual assertions into evidence since they are devoid of necessary concise statement of undisputed material facts. Failure to submit a specifics.”) (internal quotation marks and citations omitted). statement of undisputed facts constitutes grounds for denial of the 6. Local Rules: S.D.N.Y. & E.D.N.Y. L.R. 56.1(a) (“Upon any motion motion.”) (emphasis added). for summary judgment . . . there shall be annexed to the notice Cases: Chiaramonte v. Animal Med. Ctr., 13-CV-5117, 2016 WL of motion a separate, short and concise statement . . . of the 299026, at *1 n.1 (S.D.N.Y. Jan. 7, 2016) (“Plaintiff chastises material facts as to which the moving party contends there is Defendants for filling their statement of Material Undisputed no genuine issue to be tried. Failure to submit such a statement Facts’ with irrelevant details of the procedural history of the case may constitute grounds for denial of the motion.”) (emphasis and allegations unrelated to their legal arguments. . . . The Court added); N.D.N.Y. L.R. 7.1(a)(3) (“The Statement of Material Facts does not disagree with this assessment . . . .”) (internal quotation shall set forth . . . each material fact about which the moving marks omitted); Stephenson Equip. v. ATS Specialized, Inc., 10- party contends there exists no genuine issue. . . . Failure of the CV-1517, 2013 WL 4508444, at *4 n.4 (N.D.N.Y. Aug. 23, 2013) moving party to submit an accurate and complete Statement of (chastising movant’s two-page statement of material facts, which Material Facts shall result in a denial of the motion.”) (emphasis was largely limited to the procedural history of the action). added); W.D.N.Y. L.R. 56(a)(1) (“Upon any motion for summary judgment . . . there shall be annexed to the notice of motion a

NYSBA Labor and Employment Law Journal | Fall 2019 | Vol. 44 | No. 1 27 8. Federal Rule: Fed. R. Civ. P. 56(c)(1)(A) (“A party asserting that a (“The parties’ failure to appropriately cite to the record has made fct cannot be . . . genuinely disputed must support the assertion the Court’s duty that much more difficult. When a party cites to a by . . . citing to particular parts of the record . . . .”). transcript, not only must the page be cited, but also the lines relied Local Rules: S.D.N.Y. & E.D.N.Y. L.R. 56.1(d) (“Each statement upon. Counsel and pro se parties are hereby notified that failure by the movant . . . pursuant to Rule 56.1(a) and (b) . . . must be to provide specific citations to evidence in the record as required followed by citation to evidence which would be admissible, set by this Local Rule [Loc. R. Civ. P. 56] may result in sanctions . . . .”) forth as required by Fed. R. Civ. P. 56(c).”) (emphasis added); (internal quotation marks omitted). N.D.N.Y. L.R. 7.1(a)(3) (“The Statement of Material Facts shall set 10. Federal Rule: Fed. R. Civ. P. 56(c)(2) (“A party may object that the forth, in numbered paragraphs, each material fact about which material cited to support or dispute a fact cannot be presented in a the moving party contends there exists no genuine issue. Each form that would be admissible in evidence.”) (emphasis added). fact listed shall set forth a specific citation to the record where Local Rules: S.D.N.Y. & E.D.N.Y. L.R. 56.1(d) (“Each statement by the fact is established.”) (emphasis added); W.D.N.Y. L.R. 56(a)(1) the movant . . . must be followed by citation to evidence which (“Each such statement must be followed by citation to admissible would be admissible, set forth as required by Fed. R. Civ. P. 56(c).”) evidence or to evidence that can be presented in admissible form (emphasis added); W.D.N.Y. L.R. 56(a)(1) (“Each such statement at trial . . . .”) (emphasis added); D. Conn. L. Civ. R. 56(a)(1) (“Each must be followed by citation to admissible evidence or to evidence material fact set forth in the Local Rule 56(a)1 Statement and that can be presented in admissible form at trial . . . .”) (emphasis supported by the evidence will be deemed admitted . . . unless added); D. Conn. L. Civ. R. 56(a)(3) (“Each statement of material such fact is controverted . . . .”) (emphasis added). fact by a movant . . . must be followed by a specific citation to (1) Cases: Suares v. Cityscape Tours, Inc., 603 F. App’x 16, 16 (2d Cir. the affidavit of a witness competent to testify as to the facts at trial, 2015) (“Plaintiff’s Local Rule 56.1 statement contained no record or (2) other evidence that would be admissible at trial.”) (emphasis citations. . . . The district court therefore acted within its discretion added); D. Vt. L.R. 56(c) (“The statement required in subsection[] in denying plaintiff’s motion.”); Giannullo v. City of New York, (a) . . . above must be supported as required by Fed. R. Civ. P. 56(c) 322 F.3d 139, 140 (2d Cir. 2003) (“[U]nsupported assertions [in a as effective December 1, 2010.”) (emphasis added). Holtz v. Local Rule 56.1 statement] must . . . be disregarded.”); Cases: In re Ancona, No. 14-10532, 2016 WL 828099, at *11 (Bankr. Rockefeller & Co. , 258 F.3d 62, 73 (2d Cir. 2001) (“A district court S.D.N.Y. Mar. 2, 2016) (“The Debtor, in his Motion, makes the has broad discretion to determine whether to overlook a party’s conclusory argument that ‘the Landlord is, in fact, now in a failure to comply with local court rules . . . [and] is not required better position than if the Landlord and the Project Manager/ to consider what the parties fail to point out in their Local Rule Tenant had actually completed the Renovations and sold the Janneh 56.1 statements . . . .”) (internal quotation marks omitted); condominium Units, and has suffered no actual damages.’ As v. Regal Entm’t , 07-CV-0079, 2009 WL 2922830, at *1 n.3 (N.D.N.Y. purported evidence, the Debtor references a page-print of an Sept. 8, 2009) (“In . . . support of his own motion for summary online listing that appears to show an asking price of $29,500,000 judgment, Janneh filed a ‘Statement of Material Facts Not in for the Building. See Motion at 27; Ancona Aff. in Support of Dispute.’ . . . The document consists of . . . a phrase at the end of Summary Judgment ¶ 55; Webpage printout (Ex. O to Ancona Aff. the document stating simply: ‘See Attached Exhibits.’ Janneh’s in Support of Summary Judgment). No details were provided as statement fails to comply with the Local Rules which Janneh has to how or from whom this web page was obtained, when such NOSAW v. Acquest Wehrle, repeatedly been advised about . . . .”); listing was posted, for what purpose, how long ago it was taken LLC , 07-CV-0297, 2008 WL 5243926, at *4 (W.D.N.Y. Dec. 16, 2008) down, who had determined the asking price of $29.5 million (“Plaintiffs did submit a Local Rule 56.1 statement, but none of the and by what method this valuation was arrived at, making its 34 separate factual averments contain a citation to evidence which reliability and admissibility entirely questionable.”); Jean v. Acme the court might consider as sufficient to establish the existence of Bus Corp., 08-CV-4885, 2012 WL 4171226, at *6 (E.D.N.Y. Sept. 19, an element essential to that party’s case, and on which that party 2012) (“Although a declarant may offer evidence in her declaration will bear the burden of proof at trial.”) (internal quotation marks based on personal knowledge obtained from the contents of Walsh v. Sousa omitted); , 01-CV-1872, 2004 WL 717169, at *1 (D. company records she reviewed in her official capacity, . . . , Conn. Mar. 25, 2004) (“In violation of Local Rule 56, . . . Walsh’s with respect to the exhibits attached to the declarations at issue, Statement of Facts does not contain a single citation to the record . defendants fail to address or satisfy the authentication issue raised . . . The court grants the defendants’ motion.”) (citations omitted). in plaintiff’s opposition papers. To the extent that defendants 9. Federal Rule: Fed. R. Civ. P. 56(c)(1)(A) (requiring a citation to would argue that these exhibits are admissible under the business “particular parts of materials in the record”) (emphasis added). records exception to the hearsay rule, neither Ouellette nor Local Rules: S.D.N.Y. & E.D.N.Y. L.R. 56.1(d) (“Each statement Lawrence state in their respective declarations that the documents by the movant . . . must be followed by citation to evidence at issue were prepared by the declarants or others in the ordinary which would be admissible, set forth as required by Fed. R. Civ. course of business and that it was the ordinary business practice Koon Chun Hing Kee P. 56(c).”) (emphasis added); N.D.N.Y. L.R. 7.1(a)(3) (“Each fact of the Company to prepare such records.”); Soy & Sauce Factory, Ltd. v. Star Mark Mgmt., Inc. listed shall set forth a specific citation to the record where the , 04-CV-2293, 2007 fact is established.”) (emphasis added); W.D.N.Y. L.R. 56(a)(1) WL 74304, at *2 (E.D.N.Y. Jan. 8, 2007) (“[W]hen offering business (“Each such statement must be followed by citation to admissible records in support of a motion for summary judgment, in order to evidence or to evidence that can be presented in admissible form avoid the bar against hearsay, the offering party should present an at trial as required by Fed. R. Civ. P. 56(c)(1)(A) . . . .”) (emphasis affidavit from a document custodian that explain[s] whether [the added); D. Conn. L. Civ. R. 56(a)(3) (“Each statement of material records] were kept in the ordinary course of business, although fact by a movant . . . must be followed by a specific citation to that person need not have personal knowledge of the actual (1) the affidavit of a witness competent to testify as to the facts creation of the document.”) (internal quotation marks and citation at trial, or (2) other evidence that would be admissible at trial.”) omitted). (emphasis added); D. Vt. L.R. 56(c) (“The statement required in 11. Federal Rules: Fed. R. Civ. P. 56(c)(4) (“An affidavit or declaration subsection[] (a) . . . above must be supported as required by Fed. used to support . . . a motion must be made on personal R. Civ. P. 56(c) as effective December 1, 2010.”). knowledge, set out facts that would be admissible in evidence, Cases: Robert H. Law, Inc. v. Woodbine Bus. Park, Inc., 13-CV-1393, and show that the affiant or declarant is competent to testify on 2018 WL 851382, at *5 (N.D.N.Y. Feb. 12, 2018) (“[T]he Court does the matters stated.”); Fed. R. Evid. 601 (“A witness may testify not accept this as an undisputed fact [because] . . . Defendant cited to a matter only if evidence is introduced sufficient to support a generally to the entire affidavit of Derek Tarolli rather than to a finding that the witness has personal knowledge of the matter.”). specific portion of that affidavit where its assertion is supported Local Rules: N.D.N.Y. L.R. 7.1(a)(3) (“The record for purposes . . . .”); Mercer v. Brunt, 299 F. Supp. 2d 21, 23 n.1 (D. Conn. 2004) of the Statement of Material Facts includes the pleadings,

28 NYSBA Labor and Employment Law Journal | Fall 2019 | Vol. 44 | No. 1 depositions, answers to interrogatories, admissions and affidavits. specific citation to . . . the affidavit of a witness competent to testify It does not, however, include attorney’s affidavits.”) (emphasis as to the facts at trial . . . .”) (emphasis added). added); D. Conn. L. Civ. R. 56(a)(3) (“Each statement of material Cases: Jamison v. Metz, 541 F. App’x 15, 18 (2d Cir. 2013) (“[A] fact by a movant in a Local Rule 56(a)1 Statement or by an pplying the standard set forth by the district court in its opinion, opponent in a Local Rule 56(a)2 Statement, and each denial in the verified complaint and Brown’s affidavit were properly before an opponent’s Local Rule 56(a)2 Statement, must be followed by the district court.”); Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. a specific citation to (1) the affidavit of a witness competent to 1995) (“A verified complaint is to be treated as an affidavit for testify as to the facts at trial, or (2) other evidence that would be summary judgment purposes, and therefore will be considered in admissible at trial.”) (emphasis added). determining whether material issues of fact exist, provided that it Cases: Patterson v. Cty. of Oneida, 375 F.3d 206, 219 (2d Cir. meets the other requirements for an affidavit under Rule 56(e).”); 2004) (“Affidavits submitted in support of or in opposition to Franco v. Kelly, 854 F.2d 584, 587 (2d Cir. 1988) (“We believe that the summary judgment motion must ‘be made on personal those submissions, along with the sworn complaint itself, were knowledge, shall set forth such facts as would be admissible sufficient to create a factual dispute when compared with the in evidence, and shall show affirmatively that the affiant is denials and averments contained in the defendants’ pleadings and competent to testify to the matters stated therein.’”); Kamen v. affidavits.”). Am. Tel. & Tel. Co., 791 F.2d 1006, 1011 (2d Cir. 1986) (“Attorneys’ 14. Federal Rules: Fed. R. Civ. P. 56(c)(4) (“An affidavit or declaration affidavits not based upon personal knowledge have been held used to support or oppose a motion must be made on personal Automatic Radio not to comply with Rule 56(e) at least since knowledge, set out facts that would be admissible in evidence, Manufacturing Co. v. Hazeltine Research, Inc. , 339 U.S. 827, 831, and show that the affiant or declarant is competent to testify on 70 S.Ct. 894, 896, 94 L.Ed. 1312 (1950), a position this court has the matters stated.”); Fed. R. Evid. 601 (“A witness may testify Beyah v. Coughlin frequently reiterated . . . .”); , 789 F.2d 986, 989 (2d to a matter only if evidence is introduced sufficient to support a Cir. 1986) (“The first flaw in the granting of summary judgment finding that the witness has personal knowledge of the matter.”). to defendants in the present case was the court’s reliance on the materials submitted by defendants as having established the Local Rules: N.D.N.Y. L.R. 7.1(a)(3) (“The record for purposes of contents of the soaps provided to plaintiffs. The only affidavit the Statement of Material Facts includes . . . affidavits.”) (emphasis submitted was that of Cream, defendants’ attorney. Cream, added); D. Conn. L. Civ. R. 56(a)(3) (“Each statement of material however, did not suggest that he had personal knowledge of any fact by a movant in a Local Rule 56(a)1 Statement or by an of the facts he asserted.”); Stephenson Equip. v. ATS Specialized, Inc., opponent in a Local Rule 56(a)2 Statement, and each denial in an 10-CV-1517, 2013 WL 4508444, at *4 n.4 (N.D.N.Y. Aug. 23, 2013) opponent’s Local Rule 56(a)2 Statement, must be followed by a (reminding defendants that, “with regard to the attorney affidavit specific citation to . . . the affidavit of a witness competent to testify submitted in support of their motion [for summary judgment] . . as to the facts at trial . . . .”) (emphasis added). . , attorneys generally do not possess personal knowledge of the Cases: Jamison v. Metz, 541 F. App’x 15, 18 (2d Cir. 2013) (“[A] underlying facts sufficient to render them competent to adduce an pplying the standard set forth by the district court in its opinion, affidavit in support of a summary judgment motion”). the verified complaint and Brown’s affidavit were properly before 12. Federal Rule: Fed. R. Evid. 801(d)(2) (excluding from the the district court.”); Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. definition of hearsay an opposing party’s statement). 1995) (“A verified complaint is to be treated as an affidavit for summary judgment purposes, and therefore will be considered in Local Rule: N.D.N.Y. L.R. 7.1(a)(3) (“The record for purposes determining whether material issues of fact exist, provided that it of the Statement of Material Facts includes the pleadings . . . .”) meets the other requirements for an affidavit under Rule 56(e).”); (emphasis added). Franco v. Kelly, 854 F.2d 584, 587 (2d Cir. 1988) (“We believe that Cases: Balestriere PLLC v. CMA Trading, Inc., 11-CV-9459, 2014 those submissions, along with the sworn complaint itself, were WL 929813, at *12 n.13 (S.D.N.Y. Mar. 7, 2014) (“The allegations sufficient to create a factual dispute when compared with the of a complaint may be used on a summary-judgment motion if denials and averments contained in the defendants’ pleadings and the defendant has admitted them; in effect, the movant would affidavits.”). PNCEF, LLC v. Omni Watch be relying on party admissions.”); 15. Case: Jorgensen v. Epic/Sony Records, 351 F.3d 46, 54 n.7 (2d Cir. and Clock Co., LLC , 09-CV-0975, 2010 WL 3861009, at *2 (E.D.N.Y. 2003) (“[A] party responding to Requests for Admission under Sept. 28, 2010) (granting plaintiff’s motion for summary judgment Rule 36 of the Federal Rules of Civil Procedure may not rely upon because, among other things, “[i]n their Answer, Defendants his own answers to a Request for Admission as the basis for a admit substantially all of National City’s allegations as to their summary judgment motion.”). liability under the MLA. . . . The only ‘genuine issue of material fact’ even potentially at issue is whether Omni Watch has failed 16. Cases: Hayes v. New York City Dept. of Corr., 84 F.3d 614, 619 (2d Cir. to make monthly payments to National City as required by 1996) (“[A]n affidavit . . . that, by omission or addition, contradicts the MLA”); Dawkins v. Williams, 511 F. Supp. 2d 248, 271 n.54 the affiant’s previous deposition testimony” is insufficient to (N.D.N.Y. 2007) (“I note that considering Defendant’s admission create a genuine issue of fact.); Trans-Orient Marine Corp. v. Star in his Answer in deciding his summary judgment motion does not Trading & Marine, Inc., 925 F.2d 566, 572 (2d Cir. 1991) (“The rule violate Rule 56(e) because Plaintiff is not relying on the allegations is well-settled in this circuit that a party may not, in order to or denials of his own Amended Complaint but merely relying on defeat a summary judgment motion, create a material issue of a (deemed) admission in Defendant’s Answer.”). fact by submitting an affidavit disputing his own prior sworn testimony.”); Mack v. U.S., 814 F.2d 120, 124 (2d Cir. 1987) (“It is 13. Federal Rules: Fed. R. Civ. P. 56(c)(4) (“An affidavit or declaration well settled in this circuit that a party’s affidavit which contradicts used to support or oppose a motion must be made on personal his own prior deposition testimony should be disregarded on a knowledge, set out facts that would be admissible in evidence, motion for summary judgment.”); Miller v. Int’l Tel. & Tel. Corp., and show that the affiant or declarant is competent to testify on 755 F.2d 20, 24 (2d Cir. 1985) (“This sworn admission . . . could not the matters stated.”); Fed. R. Evid. 601 (“A witness may testify later be contradicted for the purpose of creating an issue of fact . . . to a matter only if evidence is introduced sufficient to support a .”); Lotz v. Charles Crosby & Son, Inc., 07-CV-1282, 2009 WL 2156916, finding that the witness has personal knowledge of the matter.”). at *6 (N.D.N.Y. July 15, 2009) (“[I]t is well-settled that a party Local Rules: N.D.N.Y. L.R. 7.1(a)(3) (“The record for purposes opposing summary judgment may not create a genuine issue of of the Statement of Material Facts includes . . . affidavits.”) material fact simply by submitting an affidavit disputing his own (emphasis added); D. Conn. L. Civ. R. 56(a)(3) (“Each statement of prior testimony.”); Dollard v. Perry’s Ice Cream, 99-CV-0594, 2001 material fact by a movant in a Local Rule 56(a)1 Statement or by WL 1117137, at *1 (W.D.N.Y. Sept. 10, 2001) (“[T]o the extent that an opponent in a Local Rule 56(a)2 Statement, and each denial in plaintiff seeks to defeat defendant’s summary judgment motion an opponent’s Local Rule 56(a)2 Statement, must be followed by a by creating material issues of fact by contradicting her prior

NYSBA Labor and Employment Law Journal | Fall 2019 | Vol. 44 | No. 1 29 deposition testimony, such will not succeed.”); cf. Rule v. Brine, or unless the assigned judge otherwise authorizes.”); W.D.N.Y., Inc., 85 F.3d 1002, 1011 (2d Cir. 1996) (“[A] material issue of fact Administrative Procedures Guide for Electronic Filing, at 6, 21 may be revealed by [a party’s] subsequent sworn testimony that (2018) (“A document created with a word processor, or a paper amplifies or explains, but does not merely contradict, his prior document, must be converted to Portable Document Format to be testimony, especially where the party was not asked sufficiently electronically filed with the court and must be text searchable. . . precise questions to elicit the amplification or explanation.”); . A PDF document filed in CM/ECF or submitted to the Court in Langman Fabrics v. Graf Californiawear, Inc., 160 F.3d 106, 112 (2d addition to any required paper copy of the document must be text Cir. 1998) (“If there is a plausible explanation for discrepancies in searchable. The Court deems any PDF that is not text-searchable a party’s testimony, the court considering a summary judgment to be non-conforming and the Court may return or strike a PDF motion should not disregard the later testimony because of that is not text-searchable to a filer for resubmission.”) (emphasis an earlier account that was ambiguous, confusing, or simply in original); D. Conn. Electronic Filing Polices and Procedures, at incomplete.”). 4, 6 (2018) (“If scanned documents can be formatted as OCR test 17. Local Rules: S.D.N.Y. & E.D.N.Y. L.R. 56.1(a) (“Upon any motion searchable, they should be. . . . Documents filed electronically must for summary judgment . . . there shall be annexed to the notice of be submitted in PDF format and should be OCR text searchable, motion a separate, short and concise statement . . . of the material except as provided in Section XII pertaining to proposed orders.”); facts as to which the moving party contends there is no genuine D. Vt. Administrative Procedures for Electronic Case Filing (ECF), issue to be tried.”) (emphasis added); N.D.N.Y. L.R. 7.1(a)(3) (“The at 1 (2018) (“Although there are two types of PDF documents, electronically Statement of Material Facts shall set forth . . . each material fact electronically converted PDFs and scanned PDFs, converted PDFs are preferred Electronically converted PDFs about which the moving party contends there exists no genuine . . . . issue.”) (emphasis added); W.D.N.Y. L.R. 56(a)(1) (“Upon any . . . may be ‘text searchable’ and their file size is relatively small.”) motion for summary judgment . . . there shall be annexed to (emphasis in original). the notice of motion a separate, short, and concise statement, 19. Local Rules: S.D.N.Y. & E.D.N.Y. L.R. 56.2 (containing required in numbered paragraphs, of the material facts as to which the language); N.D.N.Y. L.R. 7.1(a)(3) and 56.2 (containing link to moving party contends there is no genuine issue to be tried.”) sample language); W.D.N.Y. L.R. 56(b) (referring to form posted on (emphasis added); D. Conn. L.Civ.R. 56(a)(1) (“A party moving website); D. Conn. L. Civ. R. 56(b) (containing required language); for summary judgment shall file and serve with the motion and D. Vt. L.R. 56(e) (containing required language). supporting memorandum a document . . . which sets forth . . . a Cases: Cruz v. Church, 05-CV-1067, 2008 WL 4891165, at concise statement of each material fact as to which the moving *2-3 (N.D.N.Y. Nov. 10, 2008) (“[I]t is questionable whether party contends there is no genuine issue to be tried.”) (emphasis Defendants’ purported ‘Notice Under Local Rule 56.2’ satisfies the added); D. Vt. L.R. 56(a) (“Any motion for summary judgment . requirements of Local Rule 56.2. . . . Defendants’ purported ‘Notice . . must be accompanied by a separate and concise statement of Under Local Rule 56.2’ did not specifically notify Plaintiff that, if undisputed material facts.”) (emphasis added). he did not submit a response to Defendants’ Statement of Material Individual Rules of Practice: Rule 2(E)(iii) of the Individual Facts, all material facts set forth in Defendants’ Statement of Practices of U.S. District Judge Victor Marrero (S.D.N.Y.) (“Local Material Facts would be deemed admitted.”); Caidor v. Harrington, Rule 56.1 Statements shall . . . not be used for argumentation of 05-CV-0297, 2009 WL 174958, at *2 (N.D.N.Y. Jan. 26, 2009) legal issues.”). (“Defendants’ ‘Local Rule 56.2 Notice’ to Plaintiff . . . may leave Cases: Touchtunes Music Corp. v. Rowe Int’l Corp., 07-CV-11450, 2010 something to be desired in terms of specificity . . . .”). WL 3910756, at *3 (S.D.N.Y. Oct. 5, 2010) (“The excerpted language 20. Local Rules: N.D.N.Y. L.R. 7.1(a)(3) (“The opposing party shall from the Rice Declaration is mischaracterized by TouchTunes. file a response to the Statement of Material Facts.”); W.D.N.Y. Read in context, Rice’s statement did not constitute a disavowal L.R. 56(a)(2) (“The papers opposing a motion for summary of claim scope or a definition of any specific claim terminology.”) judgment shall include a response to each numbered paragraph (emphasis added); Am. Med. Ass’n v. United Healthcare Corp., 00- in the moving party’s statement . . . .”); D. Conn. L. Civ. R. 56(a) CV-2800, 2007 WL 1771498, at *3 n.7 (S.D.N.Y. 2007) (“The Court, (2) (“A party opposing a motion for summary judgment shall in deciding the motion for summary judgment, disregards any file and serve with the opposition papers a document . . . which such arguments and conclusory statements and relies, of course, shall include a reproduction of each numbered paragraph in on the record itself rather than on either party’s representations the moving party’s Local Rule 56 (a)1 Statement followed by a regarding the record.”) (emphasis added); Epstein v. Kemper Ins. response to each paragraph admitting or denying the fact and/ Cos., 210 F. Supp. 2d 308, 314 (S.D.N.Y. 2002) (“Statements in an or objecting to the fact as permitted by Federal Rule of Civil affidavit or Rule 56.1 statement are inappropriate if they are not Procedure 56(c).”) (emphasis added); cf. D. Vt. L.R. 56(b) (“A party based on personal knowledge, contain inadmissible hearsay, opposing summary judgment or a motion under Fed. R. Civ. P. are conclusory or argumentative or do not cite to supporting 12(b)(6) or 12(c) that has been converted to a summary judgment evidence.”) (emphasis added); Promuto v. Waste Mgmt., Inc., motion must provide a separate, concise statement of disputed 44 F. Supp. 2d 628, 642 (S.D.N.Y. 1999) (“Plaintiffs claim that material facts.”) (emphasis added). the Exchange Agreement includes ‘an express warranty of the Case: Wright v. Goldman Sachs & Co., 387 F. Supp. 2d 314, 318 accuracy of WMX’s public financial statements for year ending (S.D.N.Y. 2005) (“Although Goldman submitted a Rule 56.1 December 31, 1995, and prior periods.’ . . . Defendants argue statement of undisputed facts as part of its motion papers, Wright that this is a mischaracterization of the express language of did not submit a separate counterstatement of disputed facts as the warranty. We will therefore rely solely upon the language the Local Civil Rule requires. Moreover, contrary to the Rule, of the Exchange Agreement which this Court finds to be clear much of the discussion of facts in Wright’s memorandum of law U.S. ex rel Drayton v. and unambiguous.”) (emphasis added); opposing summary judgment is bereft of citations to admissible Hayes , 451 F. Supp. 339, 339 n.1 (E.D.N.Y. 1978) (“This Court has evidence, and many of the citations which are given refer to eliminated certain editorial comments of the petitioner Drayton documents that do not support Wright’s factual assertions. For in the Statement of Facts and has shown such eliminations by these reasons, the facts set forth in Goldman’s Rule 56.1 statement appropriate ellipses.”). must be deemed admitted.”). 18. General Orders: E.D.N.Y. NextGen CM/ECF User’s Guide, at 21. See supra, note 5. 8 (“The scanned pdf must be text-searchable (optical character recognition (‘OCR’)).”) (2018) (emphasis in original); N.D.N.Y. 22. Local Rules: S.D.N.Y. & E.D.N.Y. L.R. 56.1(c),(d) (“Each numbered General Order #22, at 1 (2017) (“All documents filed by attorneys paragraph in the statement of material facts set forth in the in the Northern District of New York shall be filed electronically statement required to be served by the moving party will be as ‘PDF text format,’ regardless when a case was originally deemed to be admitted for purposes of the motion unless filed, unless these Administrative Procedures otherwise permit specifically controverted by a correspondingly numbered

30 NYSBA Labor and Employment Law Journal | Fall 2019 | Vol. 44 | No. 1 paragraph in the statement required to be served by the opposing the Individual Rules & Practices in Civil Cases of U.S. District party. . . .”) (emphasis added); N.D.N.Y. L.R. 7.1(a)(3) (“The Judge Vernon S. Broderick (S.D.N.Y.) (“The opposing party must non-movant’s response shall mirror the movant’s Statement of reproduce each entry in the moving party’s Rule 56.1 Statement Material Facts by admitting and/or denying each of the movant’s and set out its response directly beneath it.”); Rule 2(F) of the assertions in matching numbered paragraphs.”) (emphasis Individual Practices of U.S. District Judge Naomi Reice Buchwald added); W.D.N.Y. L.R. 56(a)(2) (“Each numbered paragraph in the (S.D.N.Y.) (“Opposing parties must reproduce each entry in the moving party’s statement of material facts may be admitted for moving party’s Rule 56.1 Statement, and set out the opposing purposes of the motion unless it is specifically controverted by a party’s response directly beneath it.”); Rule 4(H)(ii)(b) of the corresponding numbered paragraph in the opposing statement.”) Individual Practices in Civil Cases of U.S. District Judge Valerie (emphasis added); D. Conn. L. Civ. R. 56(a)(2) (“A party opposing Caproni (S.D.N.Y.) (“Opposing parties must reproduce each a motion for summary judgment shall file and serve with entry in the moving party’s Rule 56.1 Statement, and set out the opposition papers a document . . . which shall include a the opposing party’s response directly beneath it.”); Rule 2(E) reproduction of each numbered paragraph in the moving party’s (i) of the Individual Practices of U.S. District Judge Andrew L. Local Rule 56 (a)1 Statement followed by a response to each Carter, Jr. (S.D.N.Y.) (“Opposing parties must reproduce each paragraph admitting or denying the fact and/or objecting to entry in the moving party’s Rule 56.1 Statement, and set out the fact as permitted by Federal Rule of Civil Procedure 56(c).”) the opposing party’s response directly beneath it.”); Rule 3(G) (emphasis added). (ii) of the Individual Practices of U.S. District Judge P. Kevin Cases: Suares v. Cityscape Tours, Inc., 603 F. App’x 16, 16 (2d Cir. Castel (S.D.N.Y.) (“The Local Rule 56.1(a)(2) Statement by the 2015) (“Local Rule 56.1 requires a par-ty opposing summary party opposing summary judgment shall set forth verbatim the judgment to submit a counterstatement with numbered text of each paragraph of the Local Rule 56.1(a)(1) Statement of paragraphs corre-sponding to each paragraph in the moving the movant immediately preceding its response thereto.”); Rule party’s statement. . . . The rule states that each paragraph of the 3(H)(i) of the Individual Practices in Civil Cases of U.S. District movant’s statement that is not “specifically controverted by a Judge Paul A. Engelmayer (S.D.N.Y.) (“Opposing parties must correspondingly numbered para-graph in” the counterstatement reproduce each entry in the moving party’s Rule 56.1 Statement, ‘will be deemed to be admitted for purposes of the motion.’ . . and set out the opposing party’s response directly beneath . Here, plaintiff did not submit a counterstatement and, thus, it.”); Rule 5(C)(ii) of the Individual Rules of Practice in Civil failed to controvert any paragraphs in defend-ants’ statements. Cases of U.S. District Judge Katherine Polk Failla (“Except in Moreover, plaintiff has not identified any paragraphs in pro se cases, opposing parties must reproduce each entry in the defendants’ Local Rule 56.1 statements that are not supported by moving party’s 56.1 Statement, and set out the opposing party’s citations to admissible evidence. . . . Accordingly, the district court response directly beneath it.”); Rule 3(C)(ii) of the Individual acted within its discretion in deeming all facts in defendants’ Rules and Practices in Civil Cases of U.S. District Judge Jesse Local Rule 56.1 statement admit-ted.”); Liles v. New York City Dept. M. Furman (S.D.N.Y.) (“Opposing parties must reproduce each of Educ., 516 F. Supp. 2d 297, 308 (S.D.N.Y. 2007) (“Defendants, as entry in the moving party’s Rule 56.1 Statement, and set out the the moving parties, properly submitted a separate statement of opposing party’s response directly beneath it.”); Rule II.D. of facts under Local Rule 56.1(a), which contains concise recitations the Individual Rules of Practice of U.S. District Judge Kenneth of forty-six (46) facts . . . . It was then incumbent on Plaintiff, as M. Karas (S.D.N.Y.) (“Opposing parties must reproduce each the non-moving party, to submit in its papers ‘a correspondingly entry in the moving party’s Rule 56.1 Statement, and set out the numbered paragraph responding to each numbered paragraph opposing party’s response directly beneath it.”); Rule 3(G)(iv) in the statement of the moving party.’ Plaintiff failed to do so, of the Individual Practices in Civil Cases of U.S. District Judge instead submit-ting his own statement of fifteen (15) allegedly Alison J. Nathan (S.D.N.Y.) (“Opposing parties must reproduce undisputed facts, which does not dispute any of Defendants’ each entry in the moving party’s Rule 56.1 Statement, and set out factual assertions.”); Meaney v. CHS Acquisition Corp., 103 F. Supp. the opposing party’s response directly beneath it.”); Rule III(E) 2d 104, 108-09 (N.D.N.Y. 2000) (deeming assertions in movant’s (3) of the Individual Practices in Civil Cases of U.S. District Judge Rule 7.1 Statement where non-movant’s Rule 7.1 Re-sponse did J. Paul Oetken (S.D.N.Y.) (“Opposing parties must reproduce not mirror the Rule 7.1 Statement); Phipps v. New York State Dept. of each entry in the moving party’s Rule 56.1 Statement, and set Labor, 53 F. Supp. 2d 551, 556 (N.D.N.Y. 1999) (“Because plaintiff’s out the opposing party’s response directly beneath it.”); Rule 129 paragraph response did not mirror the 7.1(a)(3) Statement III(E) of the Individual Practices in Civil Cases of U.S. District submitted by the defendant, the facts set forth in defendant’s Judge William H. Pauley III (S.D.N.Y.) (“Opposing parties must 7.1(a)(3) Statement are deemed admitted.”). reproduce each entry in the moving party’s Rule 56.1 Statement, and set out the opposing party’s response directly beneath it.”); 23. Local Rule: D. Conn. L. Civ. R. 56(a)(2) (“A party opposing a Rule 2(C)(i) of the Individual Practices of U.S. District Judge motion for summary judgment shall file and serve with the Edgardo Ramos (S.D.N.Y.) (“Opposing parties must reproduce opposition papers a document entitled ‘Local Rule 56(a)2 each entry in the moving party’s Rule 56.1 Statement, and set out Statement of Facts in Opposition to Summary Judgment,’ which the opposing party’s response directly beneath it.”); Rule 3(G)(iii) shall include a reproduction of each numbered paragraph in of the Individual Practices in Civil Cases of U.S. District Judge the moving party’s. Local Rule 56(a)1 Statement followed by a Nelson S. Román (S.D.N.Y.) (“Opposing parties must reproduce response to each paragraph admitting or denying the fact and/ each entry in the moving party’s Rule 56.1 Statement, and set or objecting to the fact as permitted by Federal Rule of Civil out the opposing party’s response directly beneath it.”); Rule Procedure 56(c).”). III(C)(6) the Individual Rules and Procedures for Civil Cases of Individual Rules of Practice: Rule 4(D)(i) of the Individual Rules U.S. District Judge Lorna G. Schofield (S.D.N.Y.) (“Opposing & Practices in Civil Cases of U.S. District Judge Ronnie Abrams parties shall reproduce each entry in the moving party’s Rule 56.1 (S.D.N.Y.) (“The opposing party must reproduce each entry in Statement, with a response directly beneath it.”); Rule 2(C)(i) of the moving party’s Rule 56.1 Statement, and set out its response the Individual Practice Rules of U.S. District Judge Cathy Seibel directly beneath it.”); Rule II.B.2. of the Individual Practices of (S.D.N.Y.) (“The opposing party must reproduce each entry in U.S. District Judge Deborah A. Batts (S.D.N.Y.) (“The response to the moving party’s Rule 56.1 Statement, and set out the opposing the Rule 56.1 Statement must quote each numbered paragraph party’s response directly beneath it.”); Rule III(C)(2) of the from movant, in movant’s Rule 56.1 Statement, followed by Individual Practices in Civil Cases of U.S. District Judge Analisa response for that paragraph.”) (emphasis removed); Rule 2(E) Torres (S.D.N.Y.) (“Opposing parties shall reproduce each entry in (i) of the Individual Practices of U.S. District Judge Vincent L. the movant’s Rule 56.1 Statement and set out the opposing party’s Briccetti (S.D.N.Y.) (“Opposing parties must reproduce each response directly beneath it.”); Rule 3(E)(ii) of the Individual entry in the moving party’s Rule 56.1 Statement, and set out the Rules of Practice in Civil Cases of U.S. District Judge Gregory H. opposing party’s response directly beneath it.”); Rule 4(F) of Woods (S.D.N.Y.) (“The party opposing summary judgment must

NYSBA Labor and Employment Law Journal | Fall 2019 | Vol. 44 | No. 1 31 reproduce each statement in the moving party’s 56.1 Statement to respond to paragraph 17-19, 1, 12, 34-40, 52, 60, 64, 68, 73, 74, and set out the opposing party’s response directly beneath each 80, 81, 84-89, 94-97, 99-103 and 106-123 in Defendants’ Rule 56.1 statement.”). statement. Those assertions are assumed to be true for purposes of Sea-Land Serv., Inc. v. Citihope Int’l, Inc. Case: Silverberg v. SML Acquisition LLC, 15-CV-7129, 2017 WL this motion.”); , 176 F.R.D. 758520, at *1 n.1 (S.D.N.Y. Feb. 27, 2017) (“Plaintiff . . . failed to 118, 121 (S.D.N.Y. 1997) (granting summary judgment to plaintiff abide by my Individual Practices, which require that a party where defendant failed to respond to plaintiff’s Local Rule 56.1 opposing summary judgment reproduce each entry in the moving statement, “a failure that independently results in the facts there party’s Local Rule 56.1 Statement and set out the opposing party’s set forth being deemed admitted”). response directly beneath it.”). 25. Federal Rule: Fed. R. Civ. P. 56(c)(1)(A) (“A party asserting that 24. Federal Rule: Fed. R. Civ. P. 56(e)(2) (“If a party . . . fails to a fact . . . is genuinely disputed must support the assertion by . properly address another party’s assertion of fact as required by . . citing to particular parts of the record . . . or . . . showing that Rule 56(c), the court may . . . consider the fact undisputed for the materials cited do not establish the absence . . . of a genuine purposes of the motion . . . .”). dispute, or that an adverse party cannot produce admissible evidence to support the fact.”). Local Rules: S.D.N.Y. & E.D.N.Y. L.R. 56.1(b) (“The papers Each opposing a motion for summary judgment shall include a Local Rules: S.D.N.Y. & E.D.N.Y. L.R. 56.1(d) (“ statement correspondingly numbered paragraph responding to each by the . . . opponent pursuant to Rule 56.1(a) and (b), including numbered paragraph in the statement of the moving party . . each statement controverting any statement of material fact, must . .”); N.D.N.Y. L.R. 7.1(a)(3) (“The opposing party shall file a be followed by citation to evidence which would be admissible, response to the Statement of Material Facts. The non-movant’s set forth as required by Fed. R. Civ. P. 56(c).”) (emphasis added); response shall mirror the movant’s Statement of Material Facts N.D.N.Y. L.R. 7.1(a)(3) (“The non-movant’s response shall mirror by admitting and/or denying each of the movant’s assertions the movant’s Statement of Material Facts by admitting and/or each in matching numbered paragraphs.”); W.D.N.Y. L.R. 56(a)(2) denying of the movant’s assertions in matching numbered Each (“The papers opposing a motion for summary judgment shall paragraphs.”) (emphasis added); W.D.N.Y. L.R. 56(a)(1) (“ include a response to each numbered paragraph in the moving numbered paragraph in the moving party’s statement of material party’s statement . . . .”); D. Conn. L. Civ. R. 56(a)(2) (“A party facts may be deemed admitted for purposes of the motion unless opposing a motion for summary judgment shall file and serve it is specifically controverted by a corresponding numbered with the opposition papers a document . . . which shall include a paragraph in the opposing statement.”) (emphasis added); D. Each material fact reproduction of each numbered paragraph in the moving party’s Conn. L. Civ. R. 56(a)(1) (“ set forth in the Local Local Rule 56 (a)1 Statement followed by a response to each Rule 56(a)1 Statement and supported by the evidence will be paragraph admitting or denying the fact and/or objecting to the deemed admitted . . . unless such fact is controverted . . . .”) fact as permitted by Federal Rule of Civil Procedure 56(c).”). (emphasis added). N.Y. Teamsters v. Express Servs., Inc. Cases: T.Y. v. New York City Dep’t of Educ., 584 F.3d 412, 418 (2d Cases: , 426 F.3d 640, 648-49 Cir. 2009) (“A nonmoving party’s failure to respond to a Rule 56.1 (2d Cir. 2005) (upholding grant of summary judgment where statement permits the court to conclude that the facts asserted “[t]he district court, applying Rule 7.1[a][3] strictly, reasonably in the statement are uncontested and admissible.”); Pavers and deemed [movant’s] statement of facts to be admitted” because the Rd. Bldgs. v. Nico Asphalt Paving, Inc., 248 F. Supp. 3d 374, 376 non-movant submitted a responsive Rule 7.1[a][3] statement that (E.D.N.Y. 2017) (“Defendant, the non-moving party here, failed “offered mostly conclusory denials of [movant’s] factual assertions Jamison v. Metz to file a Rule 56.1 statement, and therefore the facts within and failed to include any record citations”); , 865 pro se Plaintiff’s Statement of Undisputed Material Facts . . . are deemed F. Supp. 2d 204, 207 n.1 (N.D.N.Y. 2011) (“[W]herever [the ] admitted.”); Fed. Trade Comm’n v. Vantage Point Servs., LLC, 266 Plaintiff has [wilfully] failed to cite record evidence in support F. Supp. 3d 648, 655-56 (W.D.N.Y. 2017) (“Here, Defendants of his denials of properly supported facts . . . the Court has have not filed an opposition statement under Local Rule 56(a) deemed such facts admitted to the extent they are not clearly in rev’d in part on other grounds (2). . . . responding to Plaintiffs’ Rule 56 Statement of Facts. . . . dispute.”), , 541 F. App’x 15, 17-19 (2d Prindle v. City of Norwich This Court will deem the Plaintiffs’ Statement of Facts admitted Cir. 2013); , 15-CV-1481, 2018 WL1582429, to the extent that it is supported by admissible evidence and to at *2 n.2 (N.D.N.Y. Mar. 27, 2018) (“In this portion of his Rule 7.1 the extent that it is not contradicted by the admissible evidence Response, Plaintiff made a blanket denial of all of the facts in the of which this Court has notice through Defendants’ motion corresponding paragraph of Defendants’ Rule 7.1 Statement but papers.”); Thurmond v. Bowman, 211 F. Supp. 3d 554, 561-62 cited a portion of the record that disputed only one of the facts (W.D.N.Y. 2016) (deeming admitted movant’s factual assertions asserted by Defendants, in violation of the District’s Local Rules Int’l Gateway Exch., LLC v. W. Union Fin. Servs., Inc. where non-movant failed to adduce a responsive statement of of Practice.”); , material facts); Chen v. New Trend Apparel, Inc., 8 F. Supp. 3d 406, 333 F. Supp. 2d 131, 145 (S.D.N.Y. 2004) (“IGE submits no evidence 433 (S.D.N.Y. 2014) (“The Chen plaintiffs are represented by able to support this assertion; in particular, IGE’s Rule 56.1 [Response] counsel and were unquestionably aware of Local Rule 56.1’s on this point . . . does not cite to a single piece of evidence that requirements, given their submission of a Rule 56.1 Statement Western Union did not provide this documentation to IGE, which in support of their own motion for summary judgment against means that those Rule 56.1 allegations do not comply with the Coan v. the New Trend defendants. Under the circumstances, and in the Local Rules of this Court and I must ignore them.”); Kaufman interest of judicial economy, we recommend that the court decline , 333 F. Supp. 2d 14, 15 n.1 (D. Conn. 2004) (“Ms. Coan’s to overlook the Chen plaintiffs’ omission of a Rule 56.1 Statement Local Rule 56(a)2 Statement . . . is not in compliance with Local in opposition to Hana’s motion.”); Chevron Corp. v. Donziger, 886 Rule 56(a)3. With respect to each of the Defendants’ assertions of F. Supp. 2d 235, 264 (S.D.N.Y. 2012) (“The appropriate time for undisputed facts in their Local Rule 56(a)1 statement, Ms. Coan the SJ Defendants to contest all of Chevron’s factual allegations simply responds with either ‘Admitted’ or ‘Denied.’ Local Rule on this motion was when they filed their response to it. . . . 56(a)2 requires that ‘each denial . . . in an opponent’s Local Rule Thus, the effect of their failure to file the statement required by 56(a)2 Statement, must be followed by a specific citation to [the Jones v. SmithKline Beecham Corp. Local Civil Rule 56.1 in response to Chevron’s 56.1 Statement, record] . . . .’”); , 309 F. Supp. according to the plain terms of the rule, is that they are deemed 2d 343, 346 n.4 (N.D.N.Y. 2004) (“In her responsive statement to have admitted for purposes of this motion all of the facts of material facts required under N.D.N.Y.L.R. 7.1(a)(3), Plaintiff detailed in the 245 paragraphs of the 56.1 Statement, at least to denies many of Defendant’s factual assertions. However, Plaintiff the extent they are supported by admissible evidence.”) (internal fails to provide any citations to the record in support of her quotation marks and citations omitted); Santiago v. The Newburgh denials. . . . In light of the foregoing, where Plaintiff has failed to Enlarged City Sch. Dist., 485 F. Supp. 2d 327, 331 (S.D.N.Y. 2007) provide specific references to the record in support of her denials (“In this case, plaintiff’s counsel, in opposing the motion, failed or has otherwise failed to completely deny Defendant’s assertions

32 NYSBA Labor and Employment Law Journal | Fall 2019 | Vol. 44 | No. 1 of fact, those assertions will be taken as true.”); Ozenne v. Univ. ‘See Attached Exhibits.’ Janneh’s statement fails to comply with Conn. Health Care, 292 F. Supp. 2d 425, 429-30 (D. Conn. 2003) the Local Rules which Janneh has repeatedly been advised about (“Defendants complain that plaintiff’s submission of twenty-five . . . .”); Univ. Calvary Church v. City of New York, 96-CV-4606, 2000 material facts does not contain any citation to either an affidavit WL 1538019, at *2 n.6 (S.D.N.Y. Oct. 17, 2000) (“Despite the clear of a witness competent to testify as to the facts at trial or other language of Rule 56 requiring specificity, Plaintiffs rarely offers an admissible evidence pursuant to the local rules. . . . [T]he court exact cite in support of their version of the facts. . . . [A] vague cite agrees that plaintiff’s Local Rule 56(a) 2 Statement does not to all of the exhibits is simply unacceptable.”). comply with the local rules. . . . [T]he court will deem admitted 27. Federal Rule: Fed. R. Civ. P. 56(c)(2) (“A party may object that the for purposes of this motion all facts set forth in defendants’ Local material cited to support or dispute a fact cannot be presented in a Archie Comic Publ’ns, Inc. v. DeCarlo Rule 56(a) 1 Statement.”); , form that would be admissible in evidence.”) (emphasis added). 258 F. Supp. 2d 315, 319 (S.D.N.Y. 2003) (holding that “the facts set forth in [plaintiff’s] statement are deemed established” where Local Rules: S.D.N.Y. & E.D.N.Y. L.R. 56.1(d) (“Each statement defendant denied assertions in plaintiff’s S.D.N.Y. Local Rule 56.1 by the . . . opponent . . . including each statement controverting statement but declined to provide record citations in support). any statement of material fact, must be followed by citation to evidence which would be admissible, set forth as required by Fed. 26. Federal Rule: Fed. R. Civ. P. 56(c)(1)(A) (requiring a citation to R. Civ. P. 56(c).”) (emphasis added); D. Conn. L. Civ. R. 56(a)(3) particular “ parts of materials in the record”) (emphasis added). (“Each statement of material fact by . . . an opponent . . . must Local Rules: S.D.N.Y. & E.D.N.Y. L.R. 56.1(d) (“Each statement be followed by a specific citation to (1) the affidavit of a witness by the . . . opponent . . . including each statement controverting competent to testify as to the facts at trial, or (2) other evidence that any statement of material fact, must be followed by citation to would be admissible at trial.”) (emphasis added); D. Vt. L.R. 56(c) evidence which would be admissible, set forth as required by Fed. (“The statement required in subsection[] . . . (b) above must be R. Civ. P. 56(c).”) (emphasis added); N.D.N.Y. L.R. 7.1(a)(3) (“Each supported as required by Fed. R. Civ. P. 56(c) as effective December denial shall set forth a specificcitation to the record where the 1, 2010.”) (emphasis added). factual issue arises.”) (emphasis added); W.D.N.Y. L.R. 56(a)(1) Cases: Fall v. New York State United Teachers, 289 F. App’x 419, (“Each numbered paragraph in the moving party’s statement 421 n.3 (2d Cir. 2008) (affirming grant of summary judgment of material facts may be deemed admitted for purposes of the to defendant because, among other things, “[t]he unsworn specifically motion unless it is controverted by a corresponding audiologist reports offered by [plaintiff] constitute inadmissible numbered paragraph in the opposing statement.”) (emphasis hearsay evidence” and thus were not able to be considered); Raskin added); D. Conn. L. Civ. R. 56(a)(3) (“Each statement of material v. Wyatt Co., 125 F.3d 55, 66 (2d Cir. 1997) (“[O]nly admissible specific fact . . . by an opponent . . . must be followed by a citation evidence need be considered by the trial court in ruling on a to (1) the affidavit of a witness competent to testify as to the facts motion for summary judgment.”); Estate of D.B. vs. Thousand at trial, or (2) other evidence that would be admissible at trial.”) Islands CSD, 15-CV-0484, 327 F. Supp. 3d 477, 499 n.41 (N.D.N.Y.

(emphasis added); D. Vt. L.R. 56(c) (“The statement required in 2018) (“[T]he document cited by Plaintiff is a combination of as required by Fed. R. subsection[] . . . (b) above must be supported handwritten and typed notes dated May 17, 2012, unsigned and Civ. P. 56(c) as effective December 1, 2010.”). unsworn by anyone. . . . Plaintiff includes all its exhibits in its Cases: Alex v. Gen. Elec. Co., 149 F. Supp. 3d 253, 280 (N.D.N.Y. opposition papers unattached to any affidavit, which makes it 2016) (“[T]he Court draws the line at Plaintiff’s practice, in her impossible for the Court to identify Plaintiff’s exhibits. Regardless, Rule 7.1 Response, of routinely citing a section of her deposition the exhibit cited by Plaintiff to support its contention that this transcript spanning 196 pages, and often adding references to fact is disputed is clearly hearsay as well as being unsigned and one or more deposition transcripts in their entirety.”); Rizzo v. unsworn.”); Hamad v. Cook, 13-CV-3222, 2014 WL 3507340, at *7 Health Research, Inc., 12-CV-1397, 2016 WL 632546, at *2 (N.D.N.Y. n.2 (S.D.N.Y. Jun. 30, 2014) (“[The accident report] is proffered Feb. 16, 2016) (“Of these 136 denials, 117 denials do not contain by the affirmation of defendants’ counsel, who neither attempts a specific citation to the record. Therefore, the facts ‘denied’ by to lay the required foundation nor is likely . . . to be competent these paragraphs will be deemed admitted.”); Clark v. N.Y.S. Office to do so. This lack of foundation is yet another reason to deem it of the State Comptroller, 09-CV-0716, 2014 WL 823289, at *1, n. 8 inadmissible.”); Crippen v. Town of Hempstead, 07-CV-3478, 2013 WL (N.D.N.Y. Mar. 3, 2014) (“While Clark responded, . . . she did not 1283402, at *11 (E.D.N.Y. Mar. 29, 2013) (“[I]nadmissible hearsay do so in compliance with Local Rule 7.1(a)(3). For instance, many cannot raise a triable issue of fact sufficient to defeat a motion for of Clark’s denials do not, as Rule 7.1 requires, set forth a specific summary judgment. . . . Because this evidence is inadmissible, citation to the record where the factual issue arises, but instead no rational jury could find that the TOH intentionally treated accompany an instruction to ‘see record evidence’ or ‘see total plaintiff less favorably by dissuading contractors to work on her record evidence,’ contain no citation whatsoever, or generally residence.”) (internal quotation marks and citation omitted); Spies cite an entire document–often, an entire deposition transcript.”); v. Xerox Corp., 08-CV-6211, 2011 WL 2973625, at *7 (W.D.N.Y. July Benson v. Otis Elevator Co., 10-CV-3246, 2012 WL 4044619, at *1 21, 2011) (granting defendant’s motion for summary judgment n.1 (S.D.N.Y. Sept. 13, 2012) (deeming fact asserted by movant because, among other things, “Plaintiff also improperly cites to to be admitted by non-movant where non-movant supported inadmissible evidence from the Glenwright case noted above”); denial “only with non-specific citations to the entire testimony of Parks v. Lebhar-Friedman, Inc., 04-CV-7133, 2008 WL 3833802, at *4 several witnesses”); Wang v. Swain, 09-CV-0306, 2011 WL 887815, (S.D.N.Y. Aug. 11, 2008) (“The court will strike statements in Rule at *1 (N.D.N.Y. Mar. 14, 2011) (“[A] simple citation to an ‘exhibit’ 56.1 Statements when they cite to inadmissible evidence or fail to consisting of numerous documents, or citation to a deposition provide proper response or citation to admissible evidence.”). without a pinpoint citation to where in the deposition support 28. Federal Rule: Fed. R. Civ. P. 56(c)(4) (“An affidavit or declaration Bronner v. Catholic for the denial is contained, is insufficient.”); used to . . . oppose a motion must be made on personal Charities of Roman Catholic Diocese of Syracuse, Inc. , 08-CV-0015, knowledge, set out facts that would be admissible in evidence, 2010 WL 981959, at *1 (N.D.N.Y. Mar. 15, 2010) (“Plaintiff simply and show that the affiant or declarant is competent to testify on cites to the documents generally, i.e., a simple cite to the exhibit the matters stated.”); Fed. R. Evid. 601 (“A witness may testify number, and in many instances, cites to numerous exhibits to to a matter only if evidence is introduced sufficient to support a support a single proposition. Apparently, Plaintiff or his attorneys finding that the witness has personal knowledge of the matter.”). expect the Court to wade through the mass of paper to find whether or not the ‘cite’ supports a proposition made by Plaintiff Local Rules: N.D.N.Y. L.R. 7.1(a)(3) (“The record for purposes . . . .”); Janneh v. Regal Entm’t, 07-CV-0079, 2009 WL 2922830, at of the Statement of Material Facts includes the pleadings, *1 n.3 (N.D.N.Y. Sept. 8, 2009) (“In response . . . Janneh filed a depositions, answers to interrogatories, admissions and affidavits. ‘Statement of Material Facts Not in Dispute.’ . . . The document It does not, however, include attorney’s affidavits.”) (emphasis added); consists of . . . a phrase at the end of the document stating simply: D. Conn. L. Civ. R. 56(a)(3) (“Each statement of material fact by

NYSBA Labor and Employment Law Journal | Fall 2019 | Vol. 44 | No. 1 33 a movant in a Local Rule 56(a)1 Statement or by an opponent in 30. Federal Rule: Fed. R. Civ. P. 56(c)(4) (“An affidavit or declaration a Local Rule 56(a)2 Statement, and each denial in an opponent’s used to support or oppose a motion must be made on personal Local Rule 56(a)2 Statement, must be followed by a specific knowledge, set out facts that would be admissible in evidence, citation to (1) the affidavit of a witness competent to testify as to the and show that the affiant or declarant is competent to testify on facts at trial, or (2) other evidence that would be admissible at the matters stated.”); Fed. R. Evid. 601 (“A witness may testify trial.”) (emphasis added). to a matter only if evidence is introduced sufficient to support a Cases: Kamen v. Am. Tel. & Tel. Co., 791 F.2d 1006, 1011 (2d Cir. finding that the witness has personal knowledge of the matter.”). 1986) (“Attorneys’ affidavits not based upon personal knowledge Local Rules: N.D.N.Y. L.R. 7.1(a)(3) (“The record for purposes of have been held not to comply with Rule 56(e) at least since the Statement of Material Facts includes . . . affidavits.”) (emphasis Automatic Radio Manufacturing Co. v. Hazeltine Research, Inc., 339 added); D. Conn. L. Civ. R. 56(a)(3) (“Each statement of material U.S. 827, 831, 70 S.Ct. 894, 896, 94 L.Ed. 1312 (1950), a position this fact by a movant in a Local Rule 56(a)1 Statement or by an court has frequently reiterated . . . .”); Dressler v. MV Sandpiper, opponent in a Local Rule 56(a)2 Statement, and each denial in an 331 F.2d 130, 131 (2d Cir. 1964) (holding that the response was opponent’s Local Rule 56(a)2 Statement, must be followed by a ineffective where respondent’s attorney submitted only his own specific citation to . . . the affidavit of a witness competent to testify as affidavit, “which contained little more than a summary of the to the facts at trial . . . .”) (emphasis added). Road Dawgs Motorcycle Club allegations set forth in the answer”); Cases: Jamison v. Metz, 541 F. App’x 15, 18 (2d Cir. 2013) (“[A] of the United States, Inc. v. ‘Cuse Road Dawgs, Inc. , 679 F. Supp. pplying the standard set forth by the district court in its opinion, 2d 259, 281-82 & n.54 (N.D.N.Y. 2009) (finding that defense the verified complaint and Brown’s affidavit were properly before counsel’s affidavit was inadmissible for purposes of a motion the district court.”); Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. for summary judgment because he either lacked personal 1995) (“A verified complaint is to be treated as an affidavit for knowledge of facts giving rise to the lawsuit or was a witness summary judgment purposes, and therefore will be considered in to the events giving rise to the lawsuit in apparent violation of determining whether material issues of fact exist, provided that it Vann v. New York City Transit Auth. Rules 3.4 and 3.7); , 4 F. Supp. meets the other requirements for an affidavit under Rule 56(e).”); 2d 327, 330-31 (S.D.N.Y. 1998) (“The factual allegations made in a Franco v. Kelly, 854 F.2d 584, 587 (2d Cir. 1988) (“We believe that memorandum of law in opposition to the instant motion are not those submissions, along with the sworn complaint itself, were supported by any evidence, such as an affidavit by Vann. As just sufficient to create a factual dispute when compared with the one example, the opposition memorandum states that ‘On June denials and averments contained in the defendants’ pleadings and 9, 1994 defendant Mark Gumbs falsely represented, in a letter, affidavits.”). to an NYCTA Superintendent, that Mr. Vann had been ‘AWOL’ from the job site at 4:25 A.M.’ This allegation appears only in the 31. Federal Rule: Fed. R. Evid. 801(d)(2) (excluding from the opposition memorandum signed by Vann’s attorney, who claims definition of hearsay an opposing party’s statement). no personal knowledge of the facts asserted. . . . Accordingly, the Local Rule: N.D.N.Y. L.R. 7.1(a)(3) (“The record for purposes of the Defendants’ uncontradicted contention that Vann was terminated Statement of Material Facts includes the pleadings . . . .”) (emphasis for reasons other than his exercise of free speech rights must be added). accepted.”); Lilenfeld v. Kiepper, 93-CV-5691, 1997 WL 607547, at *1 n.2 (S.D.N.Y. Oct. 1, 1997) (“Where denying the facts as set for in Cases: Biller v. Excellus Health Plan, Inc., 14-CV-0043, 2015 WL Defendants’ statement, Plaintiffs’ responsive 3(g) statement cites 5316129, at *4 (N.D.N.Y. Sept. 11, 2015) (“Defendants may rely on only to the Declaration and Affirmation of Arthur H. Grae, Esq. of admissions contained in their opponent’s Amended Complaint February 6, 1995. This Declaration does not meet the standards of (and/or documents attached to that Amended Complaint and admissibility of Federal Rule of Civil Procedure 56(e), and hence thus part of it under Fed. R. Civ. P. 10[c]) to support their cross- was struck by an Order of this Court . . . .”); Goldberg v. Colonial motion.”); Heletsi v. Lufthansa German Airlines, Inc., 99-CV-4793, Metal Spinning & Stamping Co., 91-CV-3721, 1994 WL 510037, at 2001 WL 1646518, at *1 n.1 (E.D.N.Y. Dec. 18, 2001) (“In Plaintiff’s *1 (S.D.N.Y. Sept. 16, 1994) (“[A]n attorney’s affidavit that is not opposition papers to Defendant’s motion for summary judgment, based upon personal knowledge or supported by admissible Plaintiff alleges a different and inconsistent set of facts than those evidence is insufficient to defeat a summary judgment motion.”); alleged in his Complaint. . . . This Court refuses to credit Plaintiff’s Sciurca v. Chrysler Motor Corp., 712 F. Supp. 303, 307 (E.D.N.Y. new allegation of facts, and takes as true the facts contained in 1989) (“This affidavit purports to set out the facts of the case Plaintiff’s complaint. A party cannot amend their complaint as sworn by [non-movant’s] attorney. Clearly, this affidavit is simply by alleging new facts and theories in their memoranda not based on the personal knowledge of the affiant, and is not opposing summary judgment.”). supported by facts that would be admissible in evidence; both are 32. See supra, note 16. requirements for a motion under the Federal Rules. Fed. R. Civ. 33. Local Rules: S.D.N.Y. & E.D.N.Y. L.R. 56.1(c),(d) (“Each P. 56(e).”); Levy v. Seaton, 358 F. Supp. 1, 3 n.2 (S.D.N.Y. 1973) (“In numbered paragraph in the statement of material facts set forth the Local Rule 9(g) statement counsel ‘denies’ some of these facts in the statement required to be served by the moving party will which he himself averred under oath. That kind of bare denial be deemed to be admitted for purposes of the motion unless will not avoid summary judgment.”). specifically controverted by a correspondingly numbered 29. Federal Rule: Fed. R. Evid. 801(d)(2) (excluding from the paragraph in the statement required to be served by the opposing definition of hearsay an opposing party’s statement). party. . . . Each statement by the . . . opponent pursuant to Local Rule: N.D.N.Y. L.R. 7.1(a)(3) (“The record for purposes Rule 56.1(a) and (b), including each statement controverting of the Statement of Material Facts includes the pleadings . . . .”) any statement of material fact, must be followed by citation to (emphasis added). evidence . . . .”); N.D.N.Y. L.R. 7.1(a)(3) (“The non-movant’s response shall mirror the movant’s Statement of Material Facts Cases: Balestriere PLLC v. CMA Trading, Inc., 11-CV-9459, 2014 by admitting and/or denying each of the movant’s assertions in WL 929813, at *12 n.13 (S.D.N.Y. Mar. 7, 2014) (“The allegations matching numbered paragraphs.”) (emphasis added); W.D.N.Y. of a complaint may be used on a summary-judgment motion if L.R. 56(a)(2) (“Each numbered paragraph in the moving party’s the defendant has admitted them; in effect, the movant would statement of material facts may be admitted for purposes of the be relying on party admissions.”); Dawkins v. Williams, 511 F. motion unless it is specifically controverted by a corresponding Supp. 2d 248, 271 n.54 (N.D.N.Y. 2007) (“I note that considering numbered paragraph in the opposing statement.”); D. Conn. Defendant’s admission in his Answer in deciding his summary L. Civ. R. 56(a)(2) (“A party opposing a motion for summary judgment motion does not violate Rule 56(e) because Plaintiff judgment shall file and serve with the opposition papers a is not relying on the allegations or denials of his own Amended document . . . which shall include a reproduction of each Complaint but merely relying on a (deemed) admission in numbered paragraph in the moving party’s Local Rule 56 (a)1 Defendant’s Answer.”).

34 NYSBA Labor and Employment Law Journal | Fall 2019 | Vol. 44 | No. 1 Statement followed by a response to each paragraph admitting or denying the fact and/or objecting to the fact as permitted by Federal Rule of Civil Procedure 56(c).”) (emphasis added). Local Rules: N.D.N.Y. L.R. 7.1(a)(3) (“The non-movant’s response admitting Cases: Jackson v. Fed. Express, 766 F.3d 189, 195 (2d Cir. 2005) shall mirror the movant’s Statement of Material Facts by and/or denying (“[W]here a partial response to a summary judgment motion by each of the movant’s assertions in matching a counseled party is made . . . a court may, when appropriate, numbered paragraphs.”) (emphasis added); D. Conn. L. Civ. R. infer from the party’s partial opposition that relevant claims or 56(a)(2) (“A party opposing a motion for summary judgment defenses that are not defended have been abandoned.”); Willis shall file and serve with the opposition papers a document . . . reproduction v. Cty. of Onondaga, 14-CV-1306, 2016 WL 7116126, at *5 n.10 which shall include a of each numbered paragraph (N.D.N.Y. Dec. 6, 2016) (“This partial denial is ineffective . . . in the moving party’s Local Rule 56 (a)1 Statement followed by a [because] it fails to specify which part of the fact is denied as response to each paragraph admitting or denying the fact and/ required by Local Rule 7.1(a)(3).”); In re Horowitz, No. 14-36884, or objecting to the fact as permitted by Federal Rule of Civil cf. 2016 WL 1039581, at *1 n.2 (Bankr. S.D.N.Y. Mar. 15, 2016) (“[A] Procedure 56(c).”) (emphasis added); S.D.N.Y. & E.D.N.Y. response contending to neither admit or deny an allegation does L.R. 56.1(c),(d) (“Each numbered paragraph in the statement of not create a genuine issue of fact.”); Costello v. N.Y. State Nurses material facts set forth in the statement required to be served by Ass’n, 783 F. Supp. 2d 656, 661 n.5 (S.D.N.Y. 2011) (“Costello the moving party will be deemed to be admitted for purposes unless specifically controverted frequently fails to refer to any evidence in the record to support of the motion by a correspondingly her contention that certain facts are disputed. . . . Additionally, numbered paragraph in the statement required to be served by many of Costello’s response paragraphs either do not specifically the opposing party. . . .”) (emphasis added); W.D.N.Y. L.R. 56(a)(2) dispute Defendants’ statements or consist of ‘conclusory (“Each numbered paragraph in the moving party’s statement of unless it allegations, speculation or conjecture.’” ); Klein v. Rittenband, material facts may be admitted for purposes of the motion is specifically controverted 09-CV-2019, 2009 WL 3839417, at *2 (E.D.N.Y. Nov. 17, 2009) by a corresponding numbered paragraph (“Klein’s Local Rule 56.1 statement is plainly insufficient. . . . [H] in the opposing statement.”) (emphasis added). is Local Rule 56.1 statement contests several of the Rittenband Case: Nanos v. City of Stamford, 609 F. Supp. 2d 260, 263 (D. Conn. defendants’ assertions not only without citation, but without 2009) (“With regard to Nanos’s responses to Paragraphs 8, 13, 15, indicating with any specificity what is disputed.”); Meaney v. 17, 19, 20, and 26 of the City’s Local Rule 56(a) 1 Statement, the CHS Acquisition Corp., 103 F. Supp. 2d 104, 109 (N.D.N.Y. 2000) Court finds that Nanos does not actually deny the City’s factual (“Because the nonmovant Marion Steel has failed to comply with allegations, but simply adds commentary or analysis not related to the requirements of L.R. 7.1(a)3, and to controvert with specificity the existence or non-existence of the facts alleged by the City. Such the facts set forth in movant Franklin Steel’s Statement of Material commentary or analysis is not appropriate when responding to a Facts, the Court will deem admitted as uncontroverted all the Local Rule Statement, and is best left to the discussion in Nanos’s facts properly set forth in Franklin’s Statement”). memorandum of law. Therefore, the Court deems admitted [these] 34. Cases: Maioriello v. New York State Office for People With Paragraphs . . . of the City’s Local Rule 56(a)1 Statement.”). Developmental Disabilities, 272 F. Supp. 3d 307, 311 (N.D.N.Y. 2017) 36. Local Rules: S.D.N.Y. & E.D.N.Y. L.R. 56.1(b) (“The papers (“[T]hroughout Plaintiff’s Rule 7.1 Response, she ‘admits’ many opposing a motion for summary judgment shall include a of the facts asserted by Defendants in their Rule 7.1 Statement correspondingly numbered paragraph responding to each but then includes additional facts and/or legal argument in those numbered paragraph in the statement of the moving party, and responses. . . . Where this occurs, the Court will deem those facts if necessary, additional paragraphs containing a separate, short admitted and disregard the additional factual assertions and/or and concise statement of additional material facts as to which argument that Plaintiff provides in her responses.”); CA, Inc. v. it is contended that there exists a genuine issue to be tried.”) New Relic, Inc., 12-CV-5468, 2015 WL 1611993, at *2 n.3 (E.D.N.Y. (emphasis added); N.D.N.Y. L.R. 7.1(a)(3) (“The non-movant’s Apr. 8, 2015) (“[T]he Court will consider the statement provided response may also set forth any additional material facts that by [Plaintiff] as undisputed because [Defendant’s] initial response the non-movant contends are in dispute in separately numbered in each instance is, in fact, ‘Undisputed.’”); Baity v. Kralik, 51 F. paragraphs.”) (emphasis added); W.D.N.Y. L.R. 56(a)(2) (“The Supp. 3d 414, 417 (S.D.N.Y. 2014) (holding that plaintiff’s response papers opposing a motion for summary judgment shall include . . to defendant’s Rule 56.1 Statement failed to comply with the rule . , if necessary, additional paragraphs containing a short and concise because “counsel neither admits nor denies a particular fact, but statement of additional material facts as to which it is contended instead responds with equivocal statements such as: ‘Admit, that there exists a genuine issue to be tried.”) (emphasis added); but defendant omits the balance of plaintiff’s testimony’”); D. Conn. L.Civ.R. 56(a)(2)(ii) (“The Local Rule 56(a)2 Statement Washington v. City of New York, 05-CV-8884, 2009 WL 1585947, must also include a separate section entitled ‘Additional Material at *1 n.2 (S.D.N.Y. June 5, 2009) (“[T]he statement provided by Facts’ setting forth in separately numbered paragraphs meeting Defendants is taken as true because Plaintiff[’]s initial response the requirements of Local Rule 56(a)3 any additional facts, not in each instance is ‘Admit.’”); Goldstick v. The Hartford, Inc., 00- previously set forth in responding to the movant’s Local Rule CV-8577, 2002 WL 1906029, at *1 (S.D.N.Y. Aug. 19, 2002) (striking 56(a)1 Statement, that the party opposing summary judgment plaintiff’s Rule 56.1 Statement, in part, because plaintiff added contends establish genuine issues of material fact precluding “argumentative and often lengthy narrative in almost every judgment in favor of the moving party.”) (emphasis added). case the object of which is to ‘spin’ the impact of the admissions Cases: Willis v. Cty. of Onondaga, 14-CV-1306, 2016 WL 7116126, plaintiff has been compelled to make”). To the extent that a at *2 n.1 (N.D.N.Y. Dec. 6, 2016) (“[A]ny additional material fact non-movant desires to set forth any additional material facts that that a non-movant contends is in dispute must be asserted in a he contends are in dispute, he or she is required by Local Rule separately numbered paragraph pursuant to Local Rule 7.1(a) See infra, 7.1(a)(3) to do so in separately numbered paragraphs. (3), which it was not.”), aff’d, 710 F. App’x 47 (2d Cir. 2018); Zuk note 45. v. Onondaga Cty., 07-CV-0732, 2010 WL 3909524, at *2 (N.D.N.Y. 35. Federal Rule: Fed. R. Civ. P. 56(c)(1),(2) (“A party asserting that Sept. 30, 2010) (“Although Plaintiff generally complied with the a fact . . . is genuinely disputed must support the assertion by: requirements of Local Rule 7.1(a)(3), he included several qualifying (A) citing to particular parts of materials in the record . . . ; or (B) statements in his responses. The Court notes that, . . . , in many of showing that the materials cited do not establish the absence . . . of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact. . . . A party may object (continued on p. 40) that the material cited to support . . . a fact cannot be presented in a form that would be admissible in evidence.”).

NYSBA Labor and Employment Law Journal | Fall 2019 | Vol. 44 | No. 1 35 =

Labor & Employment Law Section 2019 Events

@ N.Y. Rangers in February =

Section Meeting September 2019

NEW YORK STATE BAR ASSOCIATION

From the NYSBA Book Store > Lefkowitz on Public Sector Labor and Employment Law

Fourth Edition Key Benefits • Better navigate the regulatory network and the various facets of the Taylor Law in This landmark text is the leading reference on public sector labor relation to employee rights, union rights and employment law in New York State. Editors William Herbert, and employer rights Philip Maier, and Richard Zuckerman bring together leading attor- • Know how to tackle the representation neys in the field to contribute their expertise to this two-volume process with regard to PERBs and mini-PERBs work. • Learn to identify improper practices and understand the duty to negotiate Covering all aspects of this area of law, Lefkowitz on Public Sector Labor and Employment Law includes chapters on the Taylor Law, Editors the representation process, the duty to negotiate, improper prac- William A. Herbert, Esq., tices, strikes, mini-PERBS, arbitration and contract enforcement, Distinguished Lecturer, Hunter College, CUNY and more. Much of the discussion in this two-volume resource has Philip L. Maier, Esq., been revised and contains updated case and statutory references Arbitrator/Mediation, NY, NY throughout. Practitioners new to the field, as well as the non- Richard K. Zuckerman, Esq., Lamb & Barnosky, LLP, Melville, NY attorney, will benefit from the book’s clear, well-organized coverage of what can be a very complex area of law. All practitioners Product Info and Prices will benefit from the exhaustive coverage of this book, whether 2019 / 2,008 pp. / loose-leaf / two volumes they represent employees, unions or management. PN: 42058 NYSBA Members $160 With this edition, this treatise has been renamed to recognize Non-members $195

Jerome Lefkowitz, who served as former Public Employment 2019 Revision (available to past purchasers only) Relations Board chair, as Editor-in-Chief of the first three editions, PN: 520519 and who transformed New York’s labor landscape by helping to NYSBA Members $120 write the Taylor Law. Non-members $145 Order multiple titles to take advantage of our low flat rate shipping charge of $5.95 per order, regardless of the number of items shipped. $5.95 shipping and handling offer applies to orders shipped within the continental U.S. Shipping and handling charges for orders shipped outside the continental U.S. will be based on destination and added to your total. Get the Information Edge 1.800.582.2452 www.nysba.org/pubs Mention Code: PUB9287N

NYSBA Labor and Employment Law Journal | Fall 2019 | Vol. 44 | No. 1 if necessary, additional paragraphs containing a separate, short (continued from p. 35) and concise statement of additional material facts as to which it is contended that there exists a genuine issue to be tried.”) (emphasis added); N.D.N.Y. L.R. 7.1(a)(3) (“The non-movant’s Plaintiff’s qualifying statements, he asserts additional facts. This response may also set forth any additional material facts that is improper.”), aff’d, 471 F. App’x 70 (2d Cir. 2012); Blundell v. the non-movant contends are in dispute in separately numbered Nihon Kohden Am., 15-CV-1503, 2018 WL 4609125, at *1 (N.D.N.Y. paragraphs.”) (emphasis added); W.D.N.Y. L.R. 56(a)(2) (“The Sept. 25, 2018) (“To the extent that Plaintiff wished to assert papers opposing a motion for summary judgment shall include . . additional material facts that precluded entry of summary . , if necessary, additional paragraphs containing a short and concise judgment for Defendant, the place to do so was in a separately statement of additional material facts as to which it is contended numbered statement of additional material facts in dispute, which that there exists a genuine issue to be tried.”) (emphasis added); Plaintiff did not do.”); Maioriello v. N.Y.S. Office for People with Dev. D. Conn. L.Civ.R. 56(a)(2)(ii) (“The Local Rule 56(a)2 Statement Disabilities, 272 F. Supp. 3d 307, 311 (N.D.N.Y. 2017) (“To the extent must also include a separate section entitled ‘Additional Material that Plaintiff desired to set forth additional material facts that she Facts’ setting forth in separately numbered paragraphs meeting contends are in dispute, she was required by Local Rule 7.1(a)(3) the requirements of Local Rule 56(a)3 any additional facts, not to do so in separately numbered paragraphs.”), appeal dismissed, previously set forth in responding to the movant’s Local Rule No. 17-3508, Mandate (2d Cir. filed Dec. 22, 2017); Binghamton- 56(a)1 Statement, that the party opposing summary judgment Johnson City Joint Sewage Bd. v. Am. Alternative Ins. Corp., 12-CV- contends establish genuine issues of material fact precluding 0553, 2015 WL 2249346, at *6 n.3 (N.D.N.Y. May 13, 2015) (“To the judgment in favor of the moving party.”) (emphasis added). extent Defendant is attempting to assert an additional material Cases: Willis v. Cty. of Onondaga, 14-CV-1306, 2016 WL 7116126, fact that is dispute, the place for that assertion is in a ‘separately at *2 n.1 (N.D.N.Y. Dec. 6, 2016) (“[A]ny additional material fact numbered paragraph[ ].’”); Davis v. City of Syracuse, 12-CV-0276, that a non-movant contends is in dispute must be asserted in a 2015 WL 1413362, at *2 (N.D.N.Y. Mar. 27, 2015) (“[T]he assertion separately numbered paragraph pursuant to Local Rule 7.1(a) of additional material facts by a non-movant is permitted only (3), which it was not.”), aff’d, 710 F. App’x 47 (2d Cir. 2018); Zuk if the additional material facts are both (1) in dispute and (2) v. Onondaga Cty., 07-CV-0732, 2010 WL 3909524, at *2 (N.D.N.Y. contained in separately numbered paragraphs.”). Sept. 30, 2010) (“Although Plaintiff generally complied with 37. Cases: Maioriello v. New York State Office for People With the requirements of Local Rule 7.1(a)(3), he included several Developmental Disabilities, 272 F. Supp. 3d 307, 311 (N.D.N.Y. 2017) qualifying statements in his responses. The Court notes that, . . . , (“[T]hroughout Plaintiff’s Rule 7.1 Response, she ‘admits’ many in many of Plaintiff’s qualifying statements, he asserts additional of the facts asserted by Defendants in their Rule 7.1 Statement facts. This is improper.”), aff’d, 471 F. App’x 70 (2d Cir. 2012); but then includes additional facts and/or legal argument in those Blundell v. Nihon Kohden Am., 15-CV-1503, 2018 WL 4609125, at *1 responses. . . . Where this occurs, the Court will deem those facts (N.D.N.Y. Sept. 25, 2018) (“To the extent that Plaintiff wished to admitted and disregard the additional factual assertions and/ assert additional material facts that precluded entry of summary or argument that Plaintiff provides in her responses.”) (emphasis judgment for Defendant, the place to do so was in a separately added); Emanuel v. Griffin, 13-CV-1806, 2015 WL 1379007, at numbered statement of additional material facts in dispute, which *1 (S.D.N.Y. Mar. 25, 2015) (“Plaintiffs’ Rule 56.1 statement Plaintiff did not do.”); Maioriello v. N.Y.S. Office for People with Dev. routinely recites facts that are irrelevant to the paragraph of Disabilities, 272 F. Supp. 3d 307, 311 (N.D.N.Y. 2017) (“To the extent Defendants’ statement to which they ostensibly correspond and, that Plaintiff desired to set forth additional material facts that she just as often, engages in inappropriate legal argument.”); Baity contends are in dispute, she was required by Local Rule 7.1(a)(3) v. Kralik, 51 F. Supp. 3d 414, 418 (S.D.N.Y. 2014) (noting that a to do so in separately numbered paragraphs.”), appeal dismissed, plaintiff’s responses failed to comply with the court’s local rules No. 17-3508, Mandate (2d Cir. filed Dec. 22, 2017); Binghamton- where “Plaintiff’s purported denials . . . improperly interject Johnson City Joint Sewage Bd. v. Am. Alternative Ins. Corp., 12-CV- arguments and/or immaterial facts in response to facts asserted 0553, 2015 WL 2249346, at *6 n.3 (N.D.N.Y. May 13, 2015) (“To the by Defendants, often speaking past Defendants’ asserted facts extent Defendant is attempting to assert an additional material without specifically controverting those same facts”); Risco fact that is dispute, the place for that assertion is in a ‘separately v. McHugh, 868 F. Supp. 2d 75, 85 n.2 (S.D.N.Y. 2012) (“[T]he numbered paragraph[ ].’”); Davis v. City of Syracuse, 12-CV-0276, [Rule 56.1] Statement improperly interjects arguments and/ 2015 WL 1413362, at *2 (N.D.N.Y. Mar. 27, 2015) (“[T]he assertion or immaterial facts in response to facts asserted by Defendant, of additional material facts by a non-movant is permitted only without specifically controverting those facts.”); Costello v. N.Y. if the additional material facts are both (1) in dispute and (2) State Nurses Ass’n, 783 F. Supp. 2d 656, 661 n.5 (S.D.N.Y. 2011) contained in separately numbered paragraphs.”). (“Many of Costello’s response paragraphs also contain legal 39. Cases: Desia v. GE Life & Annuity Assurance Co., 350 F. App’x argument more properly included in her Memorandum of Law . 542, 545 (2d Cir. 2009) (“This general attack on Stewart’s . . .”); Rowe Entm’t, Inc. v. William Morris Agency, Inc., 98-CV-8272, competence, even if credited, provides no evidence . . . . 2005 WL 22833, at *44 (S.D.N.Y. Jan. 5, 2005) (“Paragraphs 39 Accordingly, we uphold the award of summary judgment in and 36 of Plaintiffs’ Counter Jam 56.1 Statement are . . . simply favor of defendants.”); Island Software and Computer Serv., Inc. v. argumentative, stating, ‘Even though Plaintiffs communicated Microsoft Corp., 413 F.3d 257, 261 (2d Cir. 2005) (“Broad, conclusory with Jam only indirectly through CAA regarding this matter attacks on the credibility of a witness will not, by themselves, [co-promotion of Toni Braxton], it is not conceivable, and for present questions of material fact.”); McCullough v. Wyandanch that reason a jury may well conclude, that Jam would not give Union Free Sch. Dist., 187 F.3d 272, 280 (2d Cir. 1999) (explaining up a piece of a concert for which the work was already done to that a plaintiff does not create a genuine issue of fact merely by a promoter with whom it had never co-promoted without being “impugning [a witness’] honesty”); Estate of D.B. v. Thousand told the reason.’ . . . Plaintiffs’ response is deemed an admission . Island Cent. Sch. Dist., 327 F. Supp. 3d 477, 490 n.12 (N.D.N.Y. 2018) . . .”); Goldstick v. The Hartford, Inc., 00-CV-8577, 2002 WL 1906029, (“A non-movant may not create a genuine issue of material fact by at *1 (S.D.N.Y. Aug. 19, 2002) (striking plaintiff’s Rule 56.1 simply challenging the credibility of a declarant.”); Zito v. Fried, Statement, in part, because plaintiff added “argumentative and Frank, Harris, Shriver & Jacobson, LLP, 869 F. Supp. 2d 378, 391 often lengthy narrative in almost every case the object of which is (S.D.N.Y. 2012) (“Neither conclusory assertions, nor contentions to ‘spin’ the impact of the admissions plaintiff has been compelled that the affidavits supporting the motion are not credible, create to make”). a genuine issue of material fact.”); Hamilton v. Mount Sinai 38. Local Rules: S.D.N.Y. & E.D.N.Y. L.R. 56.1(b) (“The papers Hosp., 528 F. Supp. 2d 431, 439 (S.D.N.Y. 2007) (“[T]he burden is opposing a motion for summary judgment shall include a one of production, not persuasion; it can involve no credibility correspondingly numbered paragraph responding to each assessment.”); Chem. Bank v. Hartford Acc. & Indem. Co., 82 F.R.D. numbered paragraph in the statement of the moving party, and 376, 378 (S.D.N.Y. 1979) (“[A] naked attack upon the affidavits of a

40 NYSBA Labor and Employment Law Journal | Fall 2019 | Vol. 44 | No. 1 moving party is, without more, insufficient to place the credibility Cases: Genger v. Genger, 663 F. App’x 44, 49 n.4 (2d Cir. 2016) of the affiant in issue.”). (summary order) (noting that a statement that one “ha[d] no F.D.I.C. v. 40. Federal Rule: Fed. R. Civ. P. 56(c)(1) (“A party asserting that a recollection” of a fact “does not constitute a denial”); Nat’l Union Fire Ins. Co. of Pittsburgh, PA fact . . . is genuinely disputed must support the assertion by . . . , 205 F.3d 66, 75 (2d Cir. showing that the materials cited do not establish the absence . . 2000) (“[V]ague denials and memory lapses . . . do not create Creighton v. City of NY . of a genuine dispute, or that an adverse party cannot produce genuine issues of material fact.”); , 12-CV- admissible evidence to support the fact.”). 7454, 2017 WL 636415, at *40 (S.D.N.Y. 2017) (finding no issue of fact where one witness had a recollection of an event while Case: Cantey vs. County of Albany, 16-CV-0014, 2018 WL2727868, another witness to same event has no specific recollection “one at *2 (N.D.N.Y. June 6, 2018) (“[I]n order to satisfy Defendants’ way or the other”); Percoco v. Lowe’s Home Ctrs., LLC, 208 F. Supp. modest threshold burden on their motion, Defendants need not 3d 437, 440 n.2 (D. Conn. 2016) (“Plaintiff, at various points, cite evidence that conclusively establishes their factual assertion fails to admit or deny facts and instead states that she has ‘no but need only cite evidence that is relevant, i.e., that makes the knowledge.’ . . . The Court deems those facts admitted because factual assertion more probable than it would be without the ‘no knowledge’ is a noncognizable response.”); In re Horowitz, evidence. See Fed. R. Civ. P. 56(c)(2) (requiring that the material No. 14-36884, 2016 WL 1039581, at *1 n.2 (Bankr. S.D.N.Y. Mar. cited “be presented in a form that would be admissible in 15, 2016) (“On a motion for summary judgment, denials based evidence”); Fed. R. Evid. 402 (providing and “[r]elevent evidence on a lack of knowledge or information sufficient to form a belief is admissible” unless a listed rule provides otherwise, and that are insufficient to contest a disputed fact . . . .”); Davis v. City of “[i]rrelevant evidence is not admissible”); Fed. R. Evid. 401(a) Syracuse, 12-CV-0276, 2015 WL 1413362, at *2 (N.D.N.Y. Mar. 27, (defining relevance).”). 2015) (“On a motion for summary judgment, denials of fact that 41. Federal Rules: Fed. R. Civ. P. 56(c)(2) (“A party may object that the are based on a lack of personal knowledge, mere information or material cited to support or dispute a fact cannot be presented in a belief, and/or inadmissible evidence are insufficient to create a form that would be admissible in evidence.”); Fed. R. Civ. P. 56(c) genuine dispute.”); Faruki v. City of N.Y., 10-CV-9614, 2012 WL advisory committee note to 2010 amendments (“The objection 1085533, at *5 (S.D.N.Y. Mar. 30, 2012) (“Plaintiff’s statement that [under Rule 56(c)(2)] functions much as an objection would at she did not recall whether Defendants asked her to leave the trial.”). store is insufficient to create a genuine dispute on that material issue.”); Eiden v. McCarthy, 531 F. Supp. 2d 333, 337-38 (D. Conn. Cases: Mahar v. Warren Cty. Bd. of Supervisors, 17-CV-0201, 2018 2008) (“With regard to Paragraphs 17, 18, 76, 77, 80, and 81 of WL 2727870, at *3 n.3 (N.D.N.Y. June 6, 2018) (“Plaintiff has not the Defendants’ Local Rule 56(a)(1) Statement, the Plaintiff has shown that this material ‘cannot be presented in any form that responded ‘Plaintiff has no knowledge.’ Such a response, however, would be admissible in evidence,’ pursuant to Fed. R. Civ. P. in not permitted under the Local Rules. . . . Thus, the court shall 56(c)(2).”); Ross v. Mannava, 14-CV-1321, 2017 WL 4338883, at *4 deem admitted any statement with which the Plaintiff claims he (N.D.N.Y. Sept. 29, 2017) (“With regard to Plaintiff’s argument lacks sufficient knowledge to agree or disagree.”); N.Y.S. Teamsters that his medical record of October 21, 2013, cannot be relied Conference Pension and Ret. Fund v. Doren Ave. Assoc., Inc., 321 F. on because Defendant Ferguson did not actually observe the Supp. 2d 435, 438 (N.D.N.Y. 2004) (“Of the 45 paragraphs in the administration of Neurontin to Plaintiff in crushed form on that Fund’s response to this statement, 21 are conclusory denials, 16 are date or his cheeking of it, that argument fails because, in addition denied for lack of sufficient information, and none are accompanied to the Fed. R. Civ. P. 803(6) point correctly made by Magistrate by a record citation. Thus, per Local Rule 7.1(a)(3), the factual Judge Stewart, the fact remains that the standard for admissibility allegations in defendants’ statement of material facts may be under Fed. R. Civ. P. 56 is merely whether the evidence can ‘be deemed admitted.”) (emphasis added). presented in a form that would be admissible in evidence’ (which, here, the evidence can be).”); Parks v. Blanchette, 144 F. Supp. 43. Federal Rule: Fed. R. Civ. P. 56(d) (“If a nonmovant shows by 3d 282, 293 (D. Conn. 2015) (“[I]t is well-established that even affidavit or declaration that, for specified reasons, it cannot inadmissible evidence may properly be considered on summary present facts essential to justify its opposition, the court may: (1) judgment if it may reasonably be reduced to admissible form defer considering the motion or deny it; (2) allow time to obtain at trial.”) (internal quotation marks omitted); Am. Honda Fin. affidavits or declarations or to take discovery; or (3) issue any Corp. v. Route 57 Dev., LLC, 13-CV-0260, 2016 WL 843377, at *2 n.2 other appropriate order.”). (N.D.N.Y. Mar. 1, 2016) (“Respondents have made no showing Cases: Gurary v. Winehouse, 190 F.3d 37, 43 (2d Cir. 1999) (“[A] that the material contained in the exhibits cannot be so presented party resisting summary judgment on the ground that it needs at trial.”); Rizzo v. Health Research, Inc., 12-CV-1397, 2016 WL discovery in order to defeat the motion must submit an affidavit 632546, at *3 (N.D.N.Y. Feb. 16, 2016) (“A denial based upon showing (1) what facts are sought to resist the motion and ‘inadmissible evidence,’ without more, is insufficient to object to how they are to be obtained, (2) how those facts are reasonably a material fact under this Court’s Local Rules. Rather, Fed. R. Civ. expected to create a genuine issue of material fact, (3) what effort P. 56 requires merely that the material contained in the exhibits the affiant has made to obtain them, and (4) why the affiant has ‘can [ ] be presented in a form that would be admissible in been unsuccessful in those efforts.”); accord, Miller v. Wolpoff & evidence [at trial].’”); cf. Perpall v. Pavetek Corp., 12-CV-0336, 2017 Abramson, L.L.P., 321 F.3d 292, 303 (2d Cir. 2003). WL 1155764, at *9 (E.D.N.Y. Mar. 27, 2017) (considering medical Zhao-Royo v. New York State Educ. Dep’t records adduced by defendants on their motion for summary 44. Cases: , 14-CV-0935, judgment despite the absence of affidavit of a competent affiant 2017 WL 149981, at *2 n.2 (N.D.N.Y. Jan. 13, 2017) (“[W]here a because plaintiff relied on some of the same medical records, as non-movant has merely objected to the materiality of a fact, and well as reports and notes of the doctors who authored the medical the Court has concluded that the fact is material, the fact will be Sherrard v. City of New York, records). deemed admitted.”); 14-CV-9321, 2016 WL 7489069, at *1 n.2 (S.D.N.Y. Dec. 22, 2016) (“Plaintiff’s 42. Local Rules: S.D.N.Y. & E.D.N.Y. L.R. 56.1(d) (“Each statement by response to defendants’ 56.1 statement asserts that certain facts the movant or opponent pursuant to Rule 56.1(a) and (b), including are ‘irrelevant,’ but does not dispute them or cite to evidence each statement controverting any statement of material fact, must controverting them. Accordingly, we will consider such facts be followed by citation to evidence which would be admissible, set undisputed for purposes of this motion.”); U.S. v. Karron, 750 forth as required by Fed. R. Civ. P. 56(c).”) (emphasis added); F. Supp. 2d 480, 483 n.1 (S.D.N.Y. 2011) (“We note that Karron N.D.N.Y. L.R. 7.1(a)(3) (“The non-movant’s response shall mirror submitted a statement in opposition to the Government’s Local the movant’s Statement of Material Facts by admitting and/or Rule 56.1 Statement, in which she concludes that many facts denying each of the movant’s assertions in matching numbered are ‘moot’ or irrelevant. However, Karron fails to specifically paragraphs. Each denial shall set forth a specific citation to the record controvert those facts in a way that is meaningful for the purpose where the factual issue arises.”) (emphasis added). of this motion. . . . Thus, unless otherwise noted, the facts recited

NYSBA Labor and Employment Law Journal | Fall 2019 | Vol. 44 | No. 1 41 herein are deemed admitted.”); Newmark v. Lawrence Hosp. Ctr., 47. Federal Rule: Fed. R. Civ. P. 56(c)(1)(A) (“A party asserting that 07-CV-2861, 2008 WL 5054731, at *8 n.7 (S.D.N.Y. Oct. 20, 2008) a fact . . . is genuinely disputed must support the assertion by . . . (finding two material facts admitted where the non-movant citing to particular parts of materials in the record . . . .”). Gallimore-Wright merely objected to the materiality of the facts); 48. Individual Rules of Practice: Rule 4(H)(ii)(b) of the Individual v. Long Is. R.R. Co. , 354 F. Supp. 2d 478, 482 (S.D.N.Y. 2005) Rules of Practice in Civil Cases of U.S. District Judge Valerie (“Plaintiff’s Rule 56.1 statement does not respond at all to 32 Caproni (S.D.N.Y.) (“If additional factual allegations are made by of defendant’s paragraphs and responds to nine more only by the opposing party, the moving party must file its own responsive asserting that the facts there stated are not relevant. Hence, the 56.1 Statement addressing the additional assertions.”); Rule facts asserted in those 41 paragraphs of defendant’s Rule 56.1 5(C)(ii) of the Individual Rules of Practice in Civil Cases of U.S. cf. Anderson v. Liberty Lobby, statement are deemed admitted.”); District Judge Katherine Polk Failla (S.D.N.Y.) (“If additional Inc. , 477 U.S. 242, 248 (1986) (“As to materiality, the substantive factual allegations are made by the opposing party, the moving cf. Amaker v. Foley law will identify which facts are material.”); , party must file its own responsive 56.1 Statement addressing 274 F.3d 677, 681 (2d Cir. 2001) (characterizing the choice of not the additional assertions.”); Rule V.C. of the Individual Rules filing a response to a motion for summary judgment as a “perilous of Practice of U.S. District Judge Paul G. Gardephe (S.D.N.Y.) path”). (“If additional factual allegations are made, the opponent must 45. See, supra, note 18. file a responsive 56.1 Statement of its own.”); Rule 3(H)(iv) of 46. Local Rules: S.D.N.Y. & E.D.N.Y. L.R. 56.1(b) (“The papers the Individual Rules & Practices of U.S. District Judge Kimba opposing a motion for summary judgment shall include . . . , . . . M. Wood (S.D.N.Y.) (“If an opposing party chooses to make if necessary, additional paragraphs containing a separate, short additional factual allegations in a 56.1 Counterstatement, the and concise statement of additional material facts as to which it is moving party must file a response to the opposing party’s 56.1 contended that there exists a genuine issue to be tried.”) (emphasis Counterstatement (a ‘56.1 Counterresponse’).”); Rule 3(E)(ii) of the added); N.D.N.Y. L.R. 7.1(a)(3) (“The non-movant’s response may Individual Rules of Practice in Civil Cases of U.S. District Judge also set forth any additional material facts that the non-movant Gregory H. Woods (S.D.N.Y.) (“The moving party must address contents are in dispute in separately numbered paragraphs . . . .”) the additional statements in its own responsive 56.1 Statement in (emphasis added); W.D.N.Y. L.R. 56(a)(2) (“The papers opposing compliance with this rule.”). a motion for summary judgment shall include . . . , if necessary, 49. Cases: Monsour v. N.Y. State Office for People with Developmental additional paragraphs containing a separate, short and concise Disabilities, 13-CV-0336, 2017 WL 3972044, *4 n.6 (N.D.N.Y. July statement of additional material facts as to which it is contended 7, 2017) (“To the extent that the Plaintiff has placed material facts that there exists a genuine issue to be tried.”) (emphasis added); into dispute in this Counter Statement, which have not been D. Conn. L. Civ. R. 56(a)(2)(ii) (“The Local Rule 56(a)2 Statement rebutted, Defendant has failed to meet its burden of showing its must also include a separate section entitled ‘Additional Material entitlement to summary judgment.”); Okeke v. N.Y. and Presbyterian Facts’ setting forth . . . any additional facts . . . that the party Hosp., 16-CV-0570, 2017 WL 1536060, at *1 (S.D.N.Y. Apr. 24, 2017) opposing summary judgment contends establish genuine issues of (“Defendant is correct that Local Rule 56.1 does not technically material fact precluding judgment in favor of the moving party.”) require the moving party to submit a reply to the nonmoving (emphasis added). party’s statement, and that the rule does not say specifically Cases: Binghamton-Johnson City Joint Sewage Bd. v. Am. Alternative that failure to reply will constitute an admission of those facts. Ins. Corp., 12-CV-0553, 2015 WL 2249346, at *11 n.1 (N.D.N.Y. However, once the nonmoving party has put material facts into May 13, 2015) (“Neither the Federal Rules of Civil Procedure dispute via its additional 56.1 statement, the moving party must nor the Local Rules of Practice [for the N.D.N.Y.] permit such a rebut them in order for the Court to grant summary judgment in Desir v. Ray’s Rapid Transp. LLC counterstatement in response to a motion for summary judgment. its favor.”); , 13-CV-0912, 2015 WL . . . This, of course, makes sense, given that what is needed for 9412542, at *3 (E.D.N.Y. Dec. 21, 2015) (finding that Third-party a non-movant to defeat a motion is a genuine dispute of fact; Defendants “created difficulty for this Court” where “Third-party and the only point of asserting undisputed facts would be to Plaintiffs . . . submitted their own statement of additional facts prevail on a cross-motion for summary judgment.”); Davis v. City pursuant to Local Rule 56.1(b)” and “Third-party Defendants, of Syracuse, 12-CV-0276, 2015 WL 1413362, at *2 n.1 (N.D.N.Y. in turn, failed to respond to Third-party Plaintiffs’ statement of Mar. 27, 2015) (“The Court notes that, under Fed. R. Civ. P. 56 additional facts”). and N.D.N.Y. Local Rule 7.1, there is no procedure by which a 50. Federal Rule: Fed. R. Civ. P. 56(c)(1) (“A party asserting that a fact non-movant may assert a ‘counter statement of [undisputed] cannot be . . . genuinely disputed must support the assertion by . . material facts’ in response to a motion for summary judgment: . showing that the materials cited do not establish the . . . presence the vehicle for such undisputed material facts would be a cross- of a genuine dispute . . . .”). motion for summary judgment (i.e., one seeking a judgment due 51. Federal Rule: Fed. R. Civ. P. 56(c)(2) (“A party may object that the CitiBank N.A. to a lack of a genuine dispute of material fact).”); material cited to . . . dispute a fact cannot be presented in a form v. City of Burlington , 11-CV-0214, 2013 WL 6528515 at *5 (D. Vt. that would be admissible in evidence.”). Dec. 10, 2013) (holding non-movant’s “additional statement of ‘further undisputed material facts’” was unauthorized by both 52. Case: Jeffreys v. City of New York, 426 F.3d 549, 554-55 (2d Cir. 2005) federal and local rules); Schroeder v. Makita Corp., 02-CV-0299, (“[I]n the rare circumstances where the plaintiff relies almost 2006 WL 335680, at *3-4 (D. Vt. Feb. 13, 2006) (“Schroeder filed exclusively on his own testimony, much of which is contradictory an ‘Objection/Response’ to Makita’s statement . . . , in which and incomplete, it will be impossible for a district court to he took issue with many of Makita’s purported facts. Schroeder determine whether . . . there are any genuine issues of material then filed his own ‘Statement of Undisputed Facts’ . . . , setting fact, without making some assessment of the plaintiff’s account. forth a list of facts and inviting a response from Makita...... In the circumstances presented in the instant case–where Local Rule 7.1(c)(2) afforded Schroeder the opportunity to bring (1) the District Court found nothing in the record to support relevant disputed factual matters to the Court’s attention, and plaintiff’s allegations other than plaintiff’s own contradictory he took full advantage of this opportunity by filing a 33-page and incomplete testimony, and (2) the District Court, even after response to Makita’s statement of undisputed facts. The Local drawing all inferences in the light most favorable to the plaintiff, Rules make no provision for the second document filed by determined that no reasonable person could believe Jeffreys’ Schroeder. Furthermore, because a party’s ability to withstand testimony . . . we hold that the District Court did not err by summary judgment depends on the existence of disputed facts, awarding summary judgment. Because no reasonable person not undisputed ones, there is no need for Schroeder to establish would undertake the suspension of disbelief necessary to give undisputed facts at this stage of the litigation.”). credit to the allegations made in the complaint, . . . conclude that

42 NYSBA Labor and Employment Law Journal | Fall 2019 | Vol. 44 | No. 1 summary judgment was appropriate.”) [internal quotation marks with Loc.R.Civ.P. 9(c). Loc.R.Civ.P. 9(c) requires that with every and citations omitted]. motion for summary judgment ‘there shall be annexed to the 53. Federal Rule: Fed. R. Civ. P. 56(a) (“The court shall grant motion a separate, short and concise statement of the material facts summary judgment if the movant shows that there is no genuine as to which the moving party contends there is no genuine issue dispute as to any material fact . . . .”) (emphasis added). to be tried.’ The plaintiff’s motion contains no such statement of material facts . . . .”). Cases: Powell v. Nat’l Bd. of Med. Exam’rs, 364 F.3d 79, 84 (2d Cir. Miller v. Elexco Land Servs., Inc. 2004) (“An alleged factual dispute regarding immaterial or minor 55. Cases: , 09-CV-0038, 2011 WL facts between the parties will not defeat an otherwise properly 4499281, at *5 (N.D.N.Y. Sept. 27, 2017) (criticizing plaintiffs supported motion for summary judgment.”); Howard v. Gleason for failing to file a Rule 7.1 response to defendants’ Rule 7.1 Corp., 901 F.2d 1154, 1159 (2d Cir. 1990) (“[S]ummary judgment Statement filed in support of defendants’ cross-motion for Heyliger v. Trombley cannot be avoided by immaterial factual disputes.”); Quarles v. summary judgment); , 14-CV-0603, 2016 WL Gen. Motors Corp., 758 F.2d 839, 840 (2d Cir. 1985) (“[T]he mere 11480156, at *4 (N.D.N.Y. June 9, 2016) (“Although Plaintiff has existence of factual issues–where those issues are not material opposed Defendants’ cross-motion, Plaintiff failed to respond to to the claims before the court–will not suffice to defeat a motion the statement of material facts filed by Defendants as required Brown v. Doe for summary judgment.”), accord Knight v. U.S. Fire Ins. Co., under L.R. 7.1(a)(3).”); , 12-CV-1346, 2014 WL 1239679, 804 F.2d 9, 11 (2d Cir. 1986); Silano v. Wheeler, 13-CV-0185, 2015 at *4 (N.D.N.Y. Mar. 25, 2014) (“Nor, as the local rule requires, WL 477179, at *1 (D. Conn. Feb. 5, 2015) (granting defendant’s did Plaintiff respond to the Statement of Material Facts filed by motion for summary judgment because, “[a]lthough the parties Defendants on their cross-motion for summary judgment.”); Byrne & Storm, P.C. v. Handel dispute a number of facts, those disputes are either immaterial , 12-CV-0716, 2013 WL 2444092, at or unsupported by admissible evidence”); Grant v. City of New *1 n.1 (N.D.N.Y. June 5, 2013) (“Byrne & Storm failed to file any York, 500 F. Supp. 2d 211, 214 n.5 (S.D.N.Y. 2007) (granting response to defendants’ Statement of Material Facts in support of defendants’ motion for summary judgment because, among other their cross motion. . . . Accordingly, the court deems admitted the things, “plaintiff’s other alleged facts ‘in dispute’ are wholly properly supported facts asserted in . . . [defendants’] Statement[] Agronaut Ins. Co. v. Samsung Heavy Indus. Co. immaterial”); Ford v. Weinstock, 93-CV-2830, 1996 WL 148320, at of Material Facts.”); Ltd. *9 (E.D.N.Y. Mar. 25, 1996) (“Since the factual disputes raised by , 929 F. Supp. 2d 159, 162 n.1 (N.D.N.Y. 2013) (“In support plaintiffs are immaterial and defendants are entitled to judgment of the cross motion for summary judgment, defendants filed a as a matter of law, the latter’s motions for summary judgment Statement of Material Facts pursuant to Local Rule 7.1. Plaintiffs, are granted.”); Lord v. Bd. of Educ. of the Fairport Cent. Sch., 92-CV- although represented by counsel, failed to respond to defendants’ In re Dobbs 6286, 1994 WL 16180203, at *4 (W.D.N.Y. Dec. 13, 1994) (granting Local Rule 7.1 Statement of Material Facts.”); , No. 08- defendant’s motion for summary judgment after finding that “[t] 72469, 2009 WL 789402, at *2 (Bankr. E.D.N.Y. Mar. 13, 2009) (“No hese factual disputes are immaterial to this motion because this further pleadings were filed by either party by the January 30, Court’s review is limited to evidence which bears upon State 2009, deadline. Thus, JD has failed to respond to the Cross Motion Review Officer Fernandez’ decision for the 1991-92 academic as required by E.D.N.Y. LBR 2002-1 and has failed to respond to year”); Giovia v. Kiamesha Concord, Inc., 92-CV-3935, 1993 WL the Trustee’s Statement of Material Facts Upon Which There Is Ames v. Jillian 539530, at *1 (S.D.N.Y. Dec. 23, 1993) (granting defendants’ motion No Dispute, as required by E.D.N.Y. LBR 7056-1.”); Mech. Corp. for summary judgment because, “to the extent the parties dispute , 06-CV-1533, 2008 WL 858992, at *1 n.1 (E.D.N.Y. Mar. facts, those facts are immaterial”). 26, 2008) (“Conversely, the Plaintiffs did file the required statement of material facts with its Cross-Motion for Summary Judgment. 54. Cases: Smith v. Palmer, 15-CV-0137, 2016 WL 8116142, at *5 However, the Defendant did not file a response. . . . Thus, since (N.D.N.Y. Nov. 3, 2016) (“Plaintiff has also failed to submit a Defendant Jillian has not specifically controverted any of the Statement of Facts that complies with L.R. 7.1(a)(3) on his cross- material facts set forth by the Plaintiffs . . . , those facts are deemed motion for partial summary judgment.”); Stephenson Equip. v. ATS to be admitted and the facts stated herein are taken from the Specialized, Inc., 10-CV-1517, 2013 WL 4508444, at *9 (N.D.N.Y. Plaintiffs’ Rule 56.1 Statement.”). Aug. 23, 2013) (“[T]he Court denies Plaintiff’s cross-motion for summary judgment . . . . Plaintiff’s cross-motion is not supported by an accurate and complete Statement of Undisputed Material Facts.”); Cross v. State Farm Ins. Co., 926 F. Supp. 2d 436, 451 (N.D.N.Y. 2013) (“As indicated above, Plaintiff failed to file a Michael G. Langan has been the career law clerk Statement of Material Facts in support of his cross-motion as required by Local Rule 7.1(a)(3). The failure of a moving party to a federal court judge in the Northern District of to file a properly supported Local Rule 7.1 Statement of Material New York for 15 years (first to U.S. Magistrate Judge Facts is fatal to a summary judgment motion.”); Golden Archer George H. Lowe and currently to Chief U.S. District Inv., LLC v. Skynet Fin. Sys., 908 F. Supp. 2d 526, 537 n.5 (S.D.N.Y. Judge Glenn T. Suddaby). Before that, he practiced 2012) (“Plaintiff and Rucker also filed a cross-motion for summary judgment, asserting that their conduct does not violate this federal litigation in Washington, D.C., and Syracuse, statute. In violation of the Court’s Individual Practices, Plaintiff N.Y., for six years (first at Piper Rudnick LLP, and and Rucker did not submit a pre-motion letter in advance of then at Bond Schoeneck & King PLLC). He received making this motion, and they failed to submit a 56.1 Statement his J.D. in 1998 from George Mason University in support of this motion, which is a violation of Local Civil Rule 56.1(a). These reasons alone are sufficient grounds for denying the School of Law, where he was the Notes Editor of the cross motion . . . .”); MSF Holding Ltd. v. Fiduciary Trust Co. Int’l, George Mason Law Review. He received his B.A. in 435 F. Supp. 2d 285, 304-05 (S.D.N.Y. 2006) (“Defendant has cross- philosophy in 1991 from Colgate University, from moved for summary judgment . . . ; however, defendant has failed which he graduated cum laude. He has taught more to comply with Local Rule 56.1, which requires a party moving for summary judgment to submit a separate statement of numbered than a dozen continuing legal education courses, material facts as to which the moving party contends there is and a half-dozen college courses in law and writing. no genuine issue to be tried. . . . [T]he Court denies defendant’s The views expressed in this article are his and do not cross-motion on the ground that it has not complied with the necessarily reflect the views of the U.S. District Court requirements of Local Rule 56.1.”) (internal quotation marks and citations omitted); In re Albano, 143 B.R. 323, 323 & n.1 (Bankr. for the Northern District of New York D. Conn. 1992) (“The plaintiff filed a cross-motion for summary judgment which must be summarily denied for failure to comply

NYSBA Labor and Employment Law Journal | Fall 2019 | Vol. 44 | No. 1 43 Education Due Process—Not! By Roger Bennet Adler

The legislative enactment and subsequent implemen- tory due process template applicable to the termination of tation of “mayoral control” at the New York City Depart- tenured educational professionals. ment of Education (DOE) during the administration of Job termination is both a vital and valued contractual Mayor Michael Bloomberg ended what many viewed right for tenured teachers and administrators, and stands as unwieldy and disruptive management by the former separate and apart from the Education Law article (Ar- New York City Board of Education (BOE). Once enacted ticle 52(a)) addressing “mayoral control” of city schools. into law, however, numerous changes and adjustments Tenured teachers were clearly not the intended primary were required to facilitate the implementation of may- target (or subject) of those legislators who granted former oral control, particularly regarding its relationship to the Mayor Michael Bloomberg control over the former BOE. United Federation of Teachers (UFT), which represents classroom teachers, and the Council of School Supervi- Prior to Justice Green’s decision, a number of DOE sors and Administrators (CSA), which represents princi- arbitrators rejected this argument: pals and assistant principals. CASE COUNTY COUNSEL Unaddressed, however, was how Education Law Menchin Rockland Perkins-Cline LLP Article 52-a, creating mayoral control, impacts the due process rights of tenured DOE. employees enumerated White-Grier New York pro se in Education Law Section 3020-a(2). During the ensuing time period DOE crafted and implemented a “delegation Pina-Pena New York unclear model” under which the power to levy employee termi- Free New York Behrins nation charges was delegated from the Schools Chancel- lor’s Office (“Tweed”) to the individual school district superintendents, and in turn by the district superinten- In White-Grier v. Department of Education, 2012 N.Y. dents to individual district school principals. Slip Op. 23466 (U) (Sup. Ct), the Court rejected the re- The DOE Schools Chancellor determined that each spondent’s contention that the multiple delegations from school principal was now empowered to both: (a) investi- chancellor to superintendent (and from superintendent to gate and (b) initiate a job terminating 3020-a proceeding, school principal) was appropriate and proper, and cited with neither the pre-charge advice nor consent of the dis- Education Law Section 2590(f)(1)(b). trict superintendent (or the schools chancellor). Principals The DOE’s predictable “pushback” omitted any dis- were afforded unilateral power to now interact with their cussion concerning the state legislature’s determination employees, who viewed each directive as potentially not to amend Education Law Section 3020-a to include a prompting a possible investigation or initiative leading to provision detailing the removal of tenured personnel. If termination. the legislature intended to dramatically alter the pro- On April 4, 2018 this came crashing down in Rich- phylactic protection enjoyed by tenured pedagogues, it mond County Supreme Court. Justice Desmond Green would have done so both clearly and unequivocally—i.e., (Staten Island) unexpectedly ruled in favor of Ms. Car- a new subdivision for cities of one million or more would dinale and against the DOE in Cardinale v. Department of have sequentially followed Section 3020-a(2) and trum- Education, __ Misc. 3d __ [Sup. Ct.]. Justice Green held peted such a tectonic change. However, it clearly does that the DOE practice of delegating termination charges not! to a school principal violates Education Law Section The upshot is that the state legislature recognized the 3020-a(2). delegation of many ministerial tasks, minor duties, and responsibilities, except that of the termination of employ- Background ment of tenured faculty and principals, retaining them Section 3020-a is codified in Education Law Article 61 in 3020-a. Nothing contained in the legislation authoriz- (whereas Section 2590 is found in Education Law Article ing mayoral control suggests the legislature knew (much 52(a)). This placement dichotomy is not a trivial distinc- less sanctioned) the power to initiate termination by a tion but rather is consistent with both a legislative deter- dramatic downward delegation to a mere school princi- mination (and intent) to expressly separate the “garden pal. Indeed, lesser tasks such as reviewing unsatisfactory variety” duties of the schools chancellor from the statu- ratings are conducted by designated hearing officers

44 NYSBA Labor and Employment Law Journal | Fall 2019 | Vol. 44 | No. 1 The current 3020-a template has two separate systems—in 57 of the state’s counties 3020-a is the law of the state.

and reviewed by Phil Weinberg, a Tweed-based deputy professionally trained, much less capable, of applying a schools chancellor. disciplinary process which is both fair and uniform. The burden of proof remains on the DOE, and its current “delegation argument” is predicated upon a mixture Due Process and Equal Protection of speculation and a healthy dose of bureaucratic empire The Education Law Section 3020-a statutory proto- building. Instead of a senior board member dispassion- cols established a series of legislatively mandated legal ately applying a 3020-a, the DOE has breathtakingly protections against vindictive or unscrupulous adminis- downgraded the charging process from a high-level trators. These administrators sought to use the threat of mayoral appointee to minor school principals. The goal sanctions and annual “performance ratings” to jawbone of consistency is lost. tenured teachers and supervisory personnel to compel Finally, the DOE Counsel’s Office “delegation model” compliance. results in two distinct and free-standing versions of peda- Accepting that New York City mayoral control was gogical due process in New York State. For those teachers primarily driven by the BOE’s excessive operational employed in the 57 counties outside New York City, the costs and bureaucratic dysfunctionality, the notion that traditional 3020-a due process applies—high-level review curtailing terminating 3020-a protections was never an is required before a principal’s termination applica- advanced component of legislative change. While there tion is initiated by the BOE legal department. However, were periodical voiced concerns addressing the difficulty once one crosses the Bronx County line to the north, or of terminating seriously poorly performing pedagogues, the Queens such con- County line cerns were to the east, “The current 3020-a template has two separate not the pri- that modi- mary driver cum of due systems—in 57 of the state’s counties 3020-a is the of mayoral process sim- control. ply evapo- law of the state. . . . There are no checks and balances rates—school Not un- principals act to ensure that principals are not improperly using like the deep as the equiva- South’s post- lent of both annual ratings to coerce teachers to compromise ped- Civil War pedagogical resistance to investigators agogical integrity. “ civil rights and grand for black juries. Two Americans separate systems exist side by side, dependent solely on (which created a “separate but equal” template), the years whether the teacher works for the DOE or elsewhere. preceding Brown v. Board of Education realized that while This distinction creates a “suspect classification” (and there was governmentally forced separation, there was no disparate treatment), denying New York City teachers comparable equality. equal protection of the law, as guaranteed by Article 1, The current 3020-a template has two separate sys- Section 11 of the New York State Constitution (see Board tems—in 57 of the state’s counties 3020-a is the law of of Education Levittown Union Free School District v. Nyquist, the state. For the five counties of New York City, it is a 83 A.D. 217, 234-39, 443 N.Y.S 2d 843 [2nd Dept. 1981, truncated model in which principals simultaneously act per Lazer, J.]). It is essentially a return to a “separate but as investigators and grand juries. There are no checks equal” approach to education (see Plessy v. Ferguson, 163 and balances to ensure that principals are not improperly U.S. 537 [1896]) long discredited in cases like Brown v. using annual ratings to coerce teachers to compromise Board of Education, 347 U.S. 483 [1954], addressing racial pedagogical integrity. Those in Nassau to the east and discrimination. Westchester to the north receive full 3020-a due process. The quest for mayoral control over public education Their brothers and sisters to the west in Queens and to was hard fought and deeply political. The legislative the south in the Bronx receive far less. Why separate, and enactment invalidated the former BOE’s consolidated why glaringly unequal? (see Village of Willowbrook v. Olech, power exercised by the BOE with the chancellor. How- 528 U.S. 562, 564 [2000]). ever, it is hardly obvious that the legislature’s decision to allow the schools chancellor to exercise significant del- A Bolt out of the Blue egation power of disciplinary responsibilities involving After years of Appellate Division cases vacating post tenured employees to district superintendents included 3020-a arbitrator decisions finding pedagogical failure delegation to a school principal. Indeed, no principal is and ordering termination (see, e.g., Matter of Bolt, 30 N.Y. 3d 1065, 69 N.Y.S. 3d 255 [2018] rev’g 145 A.D. 3d 450 [1st

NYSBA Labor and Employment Law Journal | Fall 2019 | Vol. 44 | No. 1 45 Dep’t 2016]), a strong majority of the New York Court of Appellate Division, First Department, overturned a lower Appeals administered a rare judicial spanking to the Ap- court order finding that DOE: pellate Division, First Department, when it overturned an order vacating an arbitrator’s decision terminating a (a) Was deficient in the teacher performance review tenured DOE employee. Unfortunately, the court elected process, to release its memorandum decision not following oral (b) Failed to notify the tenured teacher Joyce he argument, but rather based upon a summary order of was in danger of receiving an unsatisfactory (U) reversal following a review of the court decision and rating, Appellate Division briefs. In Bolt, the Court of Appeals unanimously vacated the Appellate Division’s affirma- (c) Conducted one observation a week before the end tion of the Supreme Court, New York County (Kenny, J.) of the school year, violating tenured teacher due judgment vacating an arbitrator’s opinion terminating process. Bolt’s employment (see Bolt, 30 N.Y.S 3d at 1068). The In Matter of Browne v. New York City Department of panel felt termination of employment shocked the panel’s Education, __ Misc. 3d __ [Sup. Ct. N.Y. City 2018], Justice sense of fairness believing her charged transgression was Tish, sitting in Supreme Court, New York County, vacated a one-time mistake (see e.g. Matter of Diefenthaler v. Klein, an arbitrator’s ruling terminating a tenured New York 27 A.D. 3d 347, 349 [1st Dep’t 2006]). In his dissent, Jus- City teacher, finding the arbitrator acted “arbitrarily and tice Sweeney contended that a teacher who violated the capriciously.” integrity of a school exam was appropriately terminated.

In vacating Matter of Beatty v. City of New York, 148 Substantial Evidence/Use of Hearsay A.D. 3d 413, 48 N.Y.S. 3d 393 [1st Dep’t 2017], the panel Some 10 months after the Bolt decision, the Court of overturned a judgment of Supreme Court, New York Appeals decided Matter of Haug v. SUNY at Potsdam, 32 County (Chan, J.) vacating an arbitrator’s award (see Bolt, N.Y. 3d 1044, 87 N.Y.S. 3d 146 [2018] rev’g 149 A.D. 3d 30 N.Y.S 3d at 1068). Associate Justices Friedman and 1200 [3rd Dep’t 2017], involving a determination adjudi- Andrias dissented, contending the penalty of termina- cating the petitioner guilty of sexual misconduct contrary tion was disproportionate to the nature and severity of to the state college’s “code of conduct.” the found misconduct, which included inter alia failing to provide instruction as a special education teacher, The Court again reiterated its insistence that interme- and submitting false and fraudulent documentation for diate appellate courts are to accord appropriate deference services not provided. to the facts found by administrative decision makers. And as for the “weight of the evidence,” the opinion noted In Matter of Williams, 142 A.D. 3d 901, 38 N.Y.S 3d that this constitutes less than a preponderance of the 528 [1st Dep’t 2016], the panel overturned a judgment of evidence, requiring no more than the inferences drawn Supreme Court, New York County (Nervo, J.) denying a be factually plausible—not necessarily logically probable. petition to vacate part of an arbitration award terminat- Finally, the Court reiterated the appropriate use of hearing a tenured eighth grade physical education teacher’s say evidence, noting it is sufficient even if contradicted by employment, based upon 12 specifications of inappropri- live witness testimony. In Haug the alleged victim did not ate conversations with his students and a perceived lack even testify. The Appellate Division’s perceived legal sin of remorse (see Bolt, 30 N.Y.S 3d at 1068). The Appellate was (a) reweighing the evidence and (b) substituting its Division ordered a remand for a new penalty, noting that judgment for those at the agency bringing the case.1 Williams had no prior disciplinary conflict. Associate Justice Tom dissented. The Exhaustion of Administrative Remedies The Post-Bolt Pushback Conundrum Notwithstanding the Court of Appeals’ reversal in A key tenet of administrative law is the requirement Bolt chiding the lower court for not showing sufficient that an aggrieved party exhaust its existing and available “legal cavet” (Yiddish for “respect”) to the arbitrator’s administrative remedies. findings, in an aspect of perceived legal pushback the In Kahn v. City of New York, 18 N.Y. 3d 457, 940 intermediate appellate and nisi prius courts have shifted N.Y.S.2d 540 [2012], the Court of Appeals, in a decision focus to a less questionable component of review, docu- by Associate Judge Read, affirmed an Appellate Divi- mented instances of DOE not following its own rules, or sion order (79 A.D. 3d 521 [2010]) addressing whether knowingly violating the collective bargaining agreement probationary DOE employees are required to exhaust (CBA). an available DOE internal appeal procedure after receiv- Thus, in Matter of Joyce v. City of New York, 161 A.D. ing notification of discharge. Judge Read recognized that 3d 488, 77 N.Y.S. 3d 358 [1st Dep’t. 2018], a panel of the under the existing collective bargaining agreement (CBA) and DOE bylaws, probationary employees are afforded

46 NYSBA Labor and Employment Law Journal | Fall 2019 | Vol. 44 | No. 1 an opportunity to seek reconsideration of the determina- C. Review tion terminating employment. For those exercising their contractual right under However, notwithstanding these remedies, the Court a collective bargaining agreement to seek review of an deemed the DOE. termination decisions both “final and unsatisfactory (U) performance rating, the report of the binding” within the meaning of Education Law Section hearing officer, which is provided to the deputy schools 2573(1) (a) (see also Frasier v. Board of Education, 71 N.Y. 2d chancellor, should, if only for transparency, be provided 763, 767, 940 N.Y.S.2d 79, 81[1988]). The failure to move to the appealing employee—if only to provide context for for legal redress within the requisite four-month time the deputy chancellor’s ruling and to assist the court if period was legally fatal. Article 78 relief is judicially sought. The current system does not provide counsel with a copy of the hearing of- A Possible Solution ficer’s report and is shrouded in mystery, likely to hide the low rate of the deputy chancellor’s rulings in favor of New York City’s naked 3020-a power grab is not those DOE employees who appeal. preordained to continue unabated. There is an available legislative remedy to those who perceive it unjust. A Due process on Gold Street too often resembles the “template for reform” can inter alia constitute an amend- “Spanish Inquisition,” where rank hearsay evidence ment to Education Law 3020-a focusing on the due is permitted and “kangaroo court” protocols taken for process rights for tenured teachers in cities of one million granted. We must recapture both dignity and fairness, or more. and speak “truth to power.” Transparency is not a component of DOE’s DNA. It is time to appropriately level A. Charging the 3020-a playing field by injecting due process into the It could require that where terminable conduct is proceeding. suspected by the principal, it would be referred to the Special Commissioner of Investigation (SCI) for review. If a legal basis (probable cause) for potential termination is found, the case can be referred to the appropriate district superintendent. Should the superintendent agree, a 3020-a charge would be referred to a designated deputy chancellor. If approved, a 3020-a charge could be filed. Endnote B. Adjudication 1. Not every trial judge accepts these limitations. Thus, in Matter of Browne v. New York City Departmet of Education, _Misc. 3d__ In terms of adjudication, unlike the current arbitrator [Sup. Ct. N.Y. City 2018], Justice Tish vacated an arbitrator’s system, cases would be presented to a single New York ruling terminating a tenured New York City teacher, finding the City Administrative Law Judge who would be paid an arbitrator acted “arbitrarily and capriciously.” annual salary, not per diem compensation. Court report- ers (not electronic recording devices) would be utilized. Tenured teachers would enjoy a “presumption of competence.” The right to confront and cross-examine witnesses would be guaranteed and hearsay evidence prohibited. Roger B. Adler is a solo Manhattan practitioner The statements of DOE witnesses would be provided who has represented teachers and school adminis- to the respondent’s counsel one week prior to the start trators in both Education Law Section 3020-a proof the hearing at a final conference. Stipulations would ceedings, and in connection with CPLR Article 78 be sought, and documents pre-marked; the need to lay proceedings. evidentiary foundations and conduct voir dire would be eliminated. The burden of proof would be altered from a bare “preponderance of the evidence” to “clear and convinc- ing” evidence. Following the conclusion of the testimo- nial phase and closing arguments, findings would be rendered. They would be subject to judicial review in an Article 78 proceeding in State Supreme Court, in the county where the teacher taught and the charges arose. The Appellate Divisions would be authorized to make new findings of fact in the interest of justice.

NYSBA Labor and Employment Law Journal | Fall 2019 | Vol. 44 | No. 1 47 Practical Differences Between Mediation and Arbitration By Ira B. Lobel

Introduction Both mediation and arbitration are extremely useful the opposing side. In this way, one could analyze settle- tools for resolving numerous types of disputes, particu- ment possibilities and then evaluate possible ways of larly in the field of labor and employment relations. As getting to that settlement corridor. The most important one who has served as a neutral for more than 40 years, analysis is determining the range of possible settlements, I am continually amazed at the lack of understanding of not the legal issues that one might use if the case has to the difference between the two processes, even among be decided by an outside third party or through other professionals. This article will attempt to highlight the means. changes between the two processes in the labor and em- In the labor arena, the mediator rarely has any ployment setting from the standpoint of both the neutral knowledge of the dispute before arriving on the scene. and the participating parties. He or she must listen carefully to both sides to try to dis- At the outset, it is important to remember the defini- tinguish between negotiating bluster and the real goals of tions of each process. Simply put, the mediator attempts the parties. In court mediation and other discrimination to help the parties reach an agreement on a particular cases, the parties will usually submit a short brief so the matter, while the arbitrator makes a final and binding de- mediator will have some knowledge of the case before cision. Accordingly, in a mediation session, the parties are mediation begins. Even with this knowledge, however, in control of the outcome. In an arbitration proceeding, the mediator still must listen very carefully to the parties the arbitrator makes the final determination. As in a court to analyze where the case might ultimately settle. case, the parties can always settle before an arbitrator is- In an arbitration setting, regardless of the venue, the sues a decision. arbitrator will know nothing about the specifics of the case except for the name of the parties and, perhaps, a Goal of the Process broad sense of the issue involved. This may be discipline or interpreting, for example, a clause in the contract. In traditional labor relations, mediation is an exten- sion of the collective bargaining process. It is simply a The parties should analyze the law and the facts to tool to help the parties reach an agreement. When me- determine the most appropriate way of being successful diation is used by the courts it is identical; it is a tool to at the arbitration hearing. Obviously, as in any lawsuit, help the parties engage in settlement discussions early this evaluation should not only include an analysis of in the process, rather than on the courthouse steps. The the law and facts benefiting your position, but the law goal of mediation therefore is to help the parties reach an and facts benefiting the other side’s position. Throughout agreement without the intervention of a third party deci- this process it is also proper to evaluate whether a settle- sion maker or some form of economic pressure, such as a ment is possible and appropriate, and at what point it strike or lockout. is advantageous to broach settlement with the opposing side. Pressure to settle occurs at various times—at various Arbitration is an alternative to going to court. The stages of discovery, just before the arbitrator’s cancella- parties retain a third party, or a panel of neutrals, to make tion period, just before the hearing, and at the hearing. a final and binding decision on a matter. The parties op- erate similarly but often more informally than a court The parties should evaluate whether the matter must proceeding. The goal of each party is to win the legal be resolved by an arbitrator. It may be a contract interpre- proceeding. tation in which the parties have different interpretations of the language and there is no middle ground, or it may Preliminary Thought Process for the Parties/ be a discipline which has political ramifications for both sides. Most parties understand which cases fall into this Mediator or Arbitrator category. For all other cases, the parties should keep in Since the purpose of the mediation process is to help mind whether a known settlement could be better for the parties resolve the matter, the parties and the media- the parties and the process than an unknown result in tor should enter the process considering how the dispute arbitration. can and should be resolved. This means not only evaluat- ing how your side believes the matter could be resolved, but also trying to evaluate the goals and aspirations of

48 NYSBA Labor and Employment Law Journal | Fall 2019 | Vol. 44 | No. 1 How the Mediator/Arbitrator Gets Involved whether an employee was disciplined for cause.2 For em- For the most part, the arbitration process is a creature ployment disputes, arbitration is required when the con- of contract. The parties have agreed through a collective tract specifies it is required. Arbitration is a part of many bargaining or employment agreement to use arbitra- employment contracts, which specify the basic rules of tion as a means to settle any disputes arising under the the arbitration proceedings. interpretation and application of a collective bargaining agreement or an employment agreement. This arbitra- Selection of the Mediator/Arbitrator tion agreement is used as an alternative to going to court. In the labor relations setting, the vast majority of la- In employment disputes, arbitration is identified in the bor mediation is conducted through governmental agen- employment agreement, whether in a formal contract, cies such as FMCS or PERB. The mediation is conducted a personnel policy, or electronically (such as the Uber by employees of these agencies or by per diem mediators and Lyft contracts currently being challenged in various appointed by these agencies. For the most part, govern- jurisdictions). mental agencies control the selection of the neutral.3 In the labor relations arena, mediation is much more For labor arbitration, the parties control the selection informal and rarely specified in a contract. For labor of the neutral through a variety of methods, as specified agreements in the private or public sector, governmental in the collective bargaining agreement. The arbitrator may agencies such as the Federal Mediation and Conciliation be named in the contract (either one person specifically Service (FMCS) or the New York State Public Employ- named or a rotating panel) or selected from a number ment Relations Board (PERB) offer the services of me- of possible arbitrators identified from a list provided diators to aid in the resolution of an expiring collective by agencies such as American Arbitration Association bargaining agreement. (AAA), FMCS, PERB, the New Jersey Public Employment Outside the labor relations arena there is less regu- Relations Commission, etc. The names put forth from larity in how a mediator gets involved. In the judicial these agencies are independent arbitrators not employed arena, courts have increasingly ordered the parties to go by any of the agencies. The arbitrators work on an as to mediation, often before the parties get deep in the dis- needed basis. covery process. There are some employment agreements For employment mediation and arbitration, arbitra- or personnel policies that require a mediation step before tors and mediators are almost always selected by the arbitration. There are also cases when the parties have a parties. It may be from a list maintained by the court, the disagreement and mutually decide to have a mediator AAA, or some other selection process mutually agreed assist in resolution. upon by the parties. There are different procedures for how neutrals qualify to be listed on these various agen- When the Mediator/Arbitrator Gets Involved cies. For example, neutrals have to apply to be listed by In the collective bargaining arena, most mediation the AAA, FMCS or PERB. Courts usually require some proceedings are over a dispute regarding the contents type of training before a person can be listed on their me- of the contract—the wage increase, the health insurance diation roster. contribution, the language in the collective bargaining agreement. Accordingly, most mediation sessions occur Payment of the Mediator/Arbitrator at some point close to the expiration of the agreement.1 In labor mediation, the neutral is usually a govern- In addition, mediators at FMCS and other neutrals have ment employee and works without cost to the parties.4 attempted to offer services to mediate grievances before In labor arbitration, the parties usually split the cost of arbitration takes place. the arbitrator. There are some contracts in which the loser In situations where the court orders mediation, it will pays or the percentage is split differently than 50-50.5 be conducted at a time when the court orders it or when In employment arbitration, the cost is determined by the advocates jointly determine when mediation is ap- the terms of the employment agreement. Non-labor medi- propriate. Lawyers in these civil proceedings have to an- ation is usually split evenly, although the final agreement alyze at what point in the process mediation will be most may provide that one side pay the entire cost. effective—before discovery begins, after discovery, etc. Experience suggests that a lack of extensive knowledge often increases the chance of success at mediation. Confidentiality Arbitration occurs when the labor agreement or the Everything said in a mediation session is confidential employment contract requires it. In the labor setting, ar- and the mediator is under an obligation to maintain con- bitration normally occurs as the last step of the grievance fidentiality until the parties allow him or her to disclose process. It will involve the meaning and/or application the information to the other side. In labor mediation, this of a specific provision of the contract or determining confidentiality is assumed and has been upheld by the courts in numerous situations. In court proceedings, the

NYSBA Labor and Employment Law Journal | Fall 2019 | Vol. 44 | No. 1 49 parties often sign a confidentiality statement enforceable How Does the Process Proceed? by the courts. An arbitration proceeding always takes place with In arbitration, substantive ex parte communications both sides in the room. If one side leaves to prepare or are prohibited. This means the arbitrator may talk to the have a discussion, the arbitrator may be left sitting with parties only about scheduling, witness availability, etc. the other side. The arbitrator may discuss the weather, Even in these situations, arbitrators often try to use a sports, politics or other things, but should avoid discuss- conference call instead of ex parte communications.These ing the substance of the case. If a party tries to talk sub- basic rules make the issue of confidentiality a non-issue. stantively, most arbitrators will immediately try to stop the conversation. Approaches of the Parties The process itself is relatively structured If the dispute involves interpretation of the language of a collec- An arbitration proceeding is a quasi-judicial proceed- tive bargaining agreement, the union has the burden of ing. Accordingly, both sides often retain lawyers to pres- proof. If the dispute involves discipline, the employer has ent their cases. Even if lawyers are not present, the case the burden of proof.8 The party with the burden of proof is conducted in a manner similar to a court proceeding: makes its opening statement, at which point the other opening statements, direct and cross examination of wit- side can make an opening statement or wait until the nesses, final statements and/or briefs. There is usually beginning of its case. The party with the burden of proof little deviation from these basic principles. The arbitrator then calls all its witnesses. The other side then makes its acts as a referee, deciding objections when necessary, and opening statement (if it had reserved making the open- rarely taking an active role in the questioning.6 ing statement after the other side made its opening state- Mediation is an informal proceeding. The goal is to ment) and then calls its witnesses. Both sides may offer reach an agreement on terms that are acceptable. The rebuttal witnesses. After both sides complete their cases, mediator will normally ask the parties if a joint session they either make closing arguments or file briefs.The is appropriate.7 In many mediation sessions the parties hearing may be transcribed by a court reporter. will stay in separate rooms and the mediator will try to Employment arbitration operates in relatively the get one side to make an initial proposal and then get the same fashion. other side to make a counter proposal. The parties will go back and forth until an agreement is reached. Depending Contrast this to a mediation session where most of on the situation, the mediator may or may not take an the work is done in separate sessions and there are few, if active role in helping to fashion the counter proposal. The any, hard and fast rules. As noted above, it is increasingly mediator reacts to the needs of the parties to help them rare that a joint session is even held, whether it is the me- reach an agreement. diation of a labor contract or a lawsuit. The mediator will talk to each side separately to try to get an understanding As such, the mediator may take very different ap- of each side’s positions and aspirations and will go back proaches, depending on the makeup of both parties. and forth between the parties to try to get a better un- In some cases the mediator may say nothing and be sim- derstanding of the situation and transmit various offers/ ply a transmitter of counter proposals. In other cases the proposals. The conversation will depend on the desires of mediator may take a much more active role and work to the parties and how the mediator believes he or she can help the parties fashion these proposals. The key is that help the parties resolve their dispute. Depending on the the process belongs to the parties and not the mediator. situation, the mediator may push the parties to go very Accordingly, the parties, formally or informally, will let quickly or very slowly. It is a psychological process rather the mediator know what his or her role should be. than a legal process. It is a method used to assist the The differences in approach between the two pro- parties in resolving a dispute. The mediator reacts to the cesses impact how the parties approach the process. needs of the parties, and it is usually the parties, with the In an arbitration proceeding, the parties should treat it guidance and advice of the mediator, who determine the as a court proceeding where only the spokesperson talks pace of the proposals and the final outcome. and the parties proceed much like an informal court The mediator will ask many questions in these sepa- proceeding. In a mediation session, while the spokesper- rate sessions that hopefully will raise doubt about the son should still take a leading role, it is often valuable parties’ respective positions. This doubt often leads to to have members of the labor or management commit- changes in position and hopefully gets the parties closer tee (in a labor negotiations setting) or a client (in a court to an agreement. Depending on the situation, the me- proceeding) talk directly to the mediator. This provides a diation can last for an hour or two or many days (much mechanism to influence the parties and eventually aid in more typical in a labor setting). The mediator reacts to the settlement. It also provides an outlet for the person doing needs of the parties and tries to work with them to help the talking. reach an agreement.

50 NYSBA Labor and Employment Law Journal | Fall 2019 | Vol. 44 | No. 1 During a mediation proceeding, I spend a great deal cuss possible settlement. The arbitrator will not meet with of time just talking to both sides. Much of it is meaning- one side separately unless it is approved by the other less chatter, but if I have the opportunity I will try to side. probe more deeply and informally into the various positions. I will also tell numerous stories, indirectly compar- There are times when it is helpful for the representa- ing the current negotiations with other similar matters tive of a party (usually the grievant) to have the arbitrator that I have mediated over the years. My purpose is to let discuss some of the issues present in the case. I have been each side know that their situation may not be terribly involved in numerous settlement discussions where one unique and other parties in the past have used a variety of the advocates might request that I speak directly to his of techniques to solve one or more of the problems facing or her client. In such discussions, at the outset, I empha- them. In some cases I will let a plaintiff or defendant or size to the person I am speaking to that I have not heard the members of the negotiating teams in a labor setting one piece of evidence and will make no evaluation until “vent” about how badly they have been treated or how all the evidence is heard. I will try to raise some questions the other side fails to understand the issues. This is all in about the matter before me. Even then I am extraordinari- a separate session and will never be disclosed to the other ly careful about what I say and how I say it. side. A mediator may hear some of the substance in the Let me use a couple of examples. A young employee “venting” and suggest a different approach to resolving a is accused of incompetence. I might say to the employee dispute. directly, “You must understand I have no idea what the Such private discussions would never take place in evidence is, but even if the employer cannot prove the alan arbitration proceeding. Many arbitrators are very cau- leged conduct, is this the place you want to spend the rest tious about even asking questions, usually limiting them of your career?” to a needed clarification. Just like a judge in a civil pro- In another situation, a 58-year-old retirement-eligible ceeding, many arbitrators are very careful not to disclose employee is accused of misconduct. I might say to the em- any feelings about the substance of the matter. ployee, “Without knowing anything about the evidence, do you want to risk health insurance into retirement over Final Result of the Process this matter? That could be $10,000 per year over the rest of your life. Please think about the total picture.” Simply put, in a mediation situation the parties agree or disagree. If the parties agree, they should try to reduce In both examples, I try to emphasize that no decision the result to writing. Depending on the situation, there has been made. Most settlement discussions will take may be a simple memorandum of agreement that must place before any evidence is introduced. This is not medi- be memorialized in a new collective bargaining agree- ation, as some arbitrators might infer. It is simply an effort ment or a settlement agreement in a civil lawsuit. As to try to resolve the dispute. technology has developed, in civil cases the parties can often have a settlement agreement finalized right at the Summary mediation session. Most of the above information should be intuitively The arbitration proceeding ends with a decision that obvious to most of us. However, it also serves a reminder is typically harder to overturn than any court proceeding. that the two processes are very distinct and should not It serves no useful purpose in this article to describe the be combined, except in very rare situations. In these rare possible bases for overturning a decision. Suffice it to say, situations the parties should know up front that the pro- it can be extremely difficult. cesses are being co-mingled.This allows for the med-arb or arb-med experiments that have taken place over the Crossover of the Two Processes years. As indicated in the paragraphs above, the two pro- For the vast majority of cases, however, mediation cesses are very different, with different purposes and and arbitration are two separate and distinct processes different outcomes. There have been times when, as and should be treated as such. a mediator, I have been asked to tell the parties how I would decide the case. In such a situation I am usually extremely circumspect and rarely give the parties a de- finitive answer. Arbitrators are often asked to help the parties resolve a dispute. In fact, many arbitrators, myself included, ask the parties at the beginning of a hearing whether there is any reason for the advocates to meet with the arbitrator to explore settlement possibilities. This is not a mediation process. It is a discussion with both parties present to dis-

NYSBA Labor and Employment Law Journal | Fall 2019 | Vol. 44 | No. 1 51 Endnotes Ira Lobel has over 40 years of experience as a labor 1. When I first started as a mediator in the 1970s, at a time when relations neutral. He began this career in 1974 as a com- strikes were more prominent, the expiration date of the contract missioner with the Federal Mediation and Concilia- was very important. Many unions would not allow members to continue work without a new agreement. Over the years, tion Service. Upon his retirement in 2003, he started a particularly in the public sector, contracts are often extended for second career as a private and independent arbitrator/ lengthy periods of time. mediator/fact finder. He is listed on the arbitration pan- 2. The one major exception would be interest arbitration which is els of the American Arbitration Association, the Federal provided for police and fire contract disputes in New York State. Mediation and Conciliation Service, the New York In such a situation, the arbitrator determines the terms of the State Public Employment Relations Board, and numer- contract at some point after the contract expires. ous other organizations. He is a member of the National 3. There are a number of neutrals, myself included, who have a Academy of Arbitrators and the Labor and Employment significant traditional labor mediation practice. However, this labor mediation caseload is probably significantly smaller Relations Association. than the caseload of the full-time mediators from any of the above agencies. 4. In those cases where the parties retain the neutral directly, the cost is normally split between the parties. 5. I once had a case where the split was 60-40. Neither party could explain the rationale for this split. 6. Many arbitrators will only ask a question to clarify a point or help him or her understand what is being said. 7. Many mediators, myself included, discourage the use of a joint session. 8. Some collective bargaining agreements may change these basic rules; my experience has been that this is almost universal.

A fitting and lasting tribute to a deceased lawyer or loved one can be made through a memorial contribution to The New York Bar Foundation…

This meaningful gesture on the part of friends and associates will be appreciated by the family of the deceased. The family will be notified that a contribution has been made and by whom, although the contribution amount will not be specified. Memorial contributions are listed in the Foundation Memorial Book at the New York Bar Center in Albany. In- scribed bronze plaques are also available to be displayed in the distinguished Memorial Hall.

To make your contribution call The Foundation at Lawyers caring. Lawyers sharing. (518) 487-5650 or visit our website at www.tnybf.org Around the Corner and Around the State.

52 NYSBA Labor and Employment Law Journal | Fall 2019 | Vol. 44 | No. 1 New FLSA And New York “White Collar” Salary Thresholds By Evan J. Spelfogel

Introduction The Impact of Increasing Salaries New “white collar” salary thresholds under the For otherwise exempt employees who currently federal Fair Labor Standards Act (FLSA) go into effect do not earn enough to satisfy the new minimum salary on January 1, 2020. The salary thresholds for the execu- thresholds, employers have two choices: increase the sal- tive, administrative, and professional exemptions under ary or convert the employee to non-exempt status with the FLSA will increase from $23,660 ($455 per week) to appropriate straight time and time and one-half hourly $35,568 ($684 per week). rates. The total annual compensation requirement for If, for example, an otherwise exempt employee “highly compensated employees” subject to a minimal currently earns a salary of $35,000 per year, it would be duties test will also increase from $100,000 to $107,432. an easy decision to raise the employee’s pay by $600 to satisfy the new threshold. But what about the employee Under some circumstances, employers may use earning $30,000 or $25,000? Should that employee be commissions, nondiscretionary bonuses, and other given a raise of more than $5,000 or $10,000, or should incentive compensation to satisfy up to 10% of the salary the employee be converted to non-exempt status? requirement, provided that these payments occur at least annually. And what if there are hundreds of employees who might be affected? The financial impact on an employer Employers must decide whether to increase employ- may total millions of dollars. Employers have only six ees’ salaries to retain the exemption or convert them to weeks to sort out these issues. non-exempt status. These decisions will not only impact the affected employees, but may also create unwanted salary compression and force employers to adjust up- The Impact of Reclassifying an Employee as wards the salaries of other employees. Non-Exempt Converting employees to non-exempt status will re- Employers may address the new threshold by con- quire an employer to set new straight time and overtime verting employees from exempt to non-exempt and set- hourly rates for the employees. If that is not done care- ting appropriate straight time and overtime hourly rates. fully, it could result in employees receiving unanticipated Many employers may merely reverse engineer an increases or decreases in compensation hourly rate by taking the employee’s salary and divid- ing it into 52 weeks a year and 40 hours each week. This The Impact on Compensation Structures will result in the employee earning the same amount as before but only if the employee does not work any For otherwise exempt employees whose compensa- overtime. tion is high enough already to satisfy the new minimum salaries, nothing need be done legally. But raising salaries If the employee works much more overtime, the of other employees below them to comply with the new reclassification to non-exempt status would result in the thresholds could create operational and morale issues employee earning significantly more than was earned be- for those whose salaries are not being adjusted and for fore as an exempt employee. On the other hand, calculat- exempt employees who assert they should be given pay ing the employee’s new hourly rate based on an expecta- raises to match the increases being given to others and tion that the employee will work more overtime than is retain pay differentials. actually worked would result in the employee earning less than before. Complying with the rules by only addressing the compensation of those who fall below the threshold could result in lower-level employees receiving more pay What About State Laws? than higher-level employees. The new salary thresholds apply to federal law. Salary shifts could also affect individuals in protected Many states still have higher thresholds for exempt categories. An employer must be careful to ensure that it status—and different criteria than federal law. New York does not increase the pay of males to the detriment of fe- State, for example, now has the following minimum males, or of whites to the detriment of blacks and Asians.

NYSBA Labor and Employment Law Journal | Fall 2019 | Vol. 44 | No. 1 53 salary thresholds for the executive and administrative Evan J. Spelfogel is senior counsel in the Labor and exemptions (but not the professional exemption): Employment Law Practice at Phillips Nizer LLP, representing management and benefit providers in all areas Employers in New York City of employment law, labor and employee relations. A Large employers (11 or more employees) former Chair of the New York State Bar Association’s Labor and Employment Law Section, Evan continues to $1,125.00 per week ($58,500 annually) serve on its Executive Committee and has served two Small employers (10 or fewer employees) terms in the NYSBA House of Delegates. He has also served as a member of the Executive Committee of the $1,012.50 per week ($52,650 annually) and to NYSBA’s Dispute Resolution Section, is a Fellow of The $1,125.00 per week ($58,500 annually) on and after New York Bar Foundation, a Fellow in the College of 12/31/19 Labor and Employment Lawyers, and has been listed in The Best Lawyers in America© (1995 to 2019) in the fields Employers in Nassau, Suffolk, and Westchester of Employment Law–Management and Labor Law, and Counties in the New York Metro Super Lawyers list (2006 to 2019) $900.00 per week ($46,800 annually) on and after in the areas of Employment and Labor, Employment 12/31/18 Litigation: Defense, Employee Benefits, and Alternative Dispute Resolution. In 2014 he received the Samuel M. $975.00 per week ($50,700 annually) on and after Kaynard Award for Excellence in the fields of Labor and 12/31/19 Employment Law. $1,050.00 per week ($54,600 annually) on and after 12/31/20 $1,125.00 per week ($58,500 annually) on and after 12/31/21

Employers Outside of New York City and Nassau, Suffolk, and Westchester Counties $832.00 per week ($43,264 annually) on and after 12/31/18 $885.00 per week ($46,020 annually) on and after 12/31/19 $937.50 per week ($48,750 annually) on and after 12/31/20 New York employers should review the job duties, functions and salaries of their current exempt executive and administrative employees and decide whether to continue with the exemptions (and increase pay), or reclassify certain currently exempt employees as non- exempt. For those currently exempt employees whom the employer decides to reclassify as non-exempt, the employer should ensure that all their work time is accu- rately reported and recorded as of the date of change and going forward. In any event, employers should conduct regular reviews of the primary duties of those employees it wishes to continue as exempt, as merely paying the higher salaries will not be sufficient. The exemptions require employers to meet both the salary test and the job duties test.

54 NYSBA Labor and Employment Law Journal | Fall 2019 | Vol. 44 | No. 1 The Second Circuit Should Emulate Discrimination Law in Adjudicating Simultaneous FLSA and NYLL Misclassification Claims By David Krauss and Julio Sharp-Wasserman

Introduction Independent contractor misclassification litigation list of five control-related factors, developed by the New increasingly occupies the dockets of many courts, as York Court of Appeals in Bynog v. Cipriani Grp., Inc.: changes in the nature of work collide with employment “whether the worker (1) worked at her own convenience; statutes in which workers’ rights are contingent on a (2) was free to engage in other employment; (3) received worker being classified as an “employee.” In New York fringe benefits; (4) was on the employer’s payroll; and 7 federal courts, plaintiffs often assert parallel independent (5) was on a fixed schedule.” These factors, however, contractor misclassification claims under the New are not exhaustive, and New York courts often consider York Labor Law (NYLL) and the federal Fair Labor additional factors that bear on control, such as whether Standards Act (FLSA), both of whose statutory schemes an employee wears a uniform or must attend mandatory 8 are oriented around the term “employee.”1 Courts meetings. determine classification differently for purposes of each statute, with NYLL case law utilizing a “common law The “Economic Realities” Test test” focusing on the employer’s control over the means The “economic realities” test (sometimes called the of work, and FLSA case law utilizing a less formalistic “economic reality” test), in its various manifestations “economic realities” test. across jurisdictions, tends to be fundamentally oriented Federal courts in New York lack a uniform and around a more general and indefinite inquiry into coherent approach to distinguishing between these the degree of “economic dependence” of the putative standards when asked to apply them simultaneously, employee on the putative employer.9 “Economic and the Second Circuit has not provided any guidance realities” tests incorporate an emphasis on contextual on this issue. The Second Circuit should remedy this realities that indicate a worker’s dependence even when confusion by adopting an approach modeled after some technical indicators of control are absent. Courts discrimination law. In assessing parallel discrimination may consider, for example, inequality in bargaining claims brought under a federal civil rights statute and power or the essentiality of the plaintiff’s work to the the New York City Human Rights Law (NYCHRL),2 employer’s business.10 courts deliberately separate the two lines of analysis As applied by New York federal courts, the and clearly demarcate where the NYCHRL is broader in “economic realities” test, developed by the Second Circuit application. In independent contractor misclassification in Brock v. Superior Care, Inc., considers control within cases, New York federal courts should do something a larger non-exclusive list of factors and as a whole is analogous—explicitly acknowledge that the federal test oriented toward a non-formalistic inquiry into “economic is more expansive and analyze NYLL and FLSA claims dependence.” New York federal courts consider the separately. following five factors:

The Common Law Test (1) the degree of control exercised by the employer over the workers, (2) the In determining “employee” status, many workers’ opportunity for profit or loss jurisdictions utilize a “common law” test borrowed from 3 and their investment in the business, tort law jurisprudence concerning vicarious liability. (3) the degree of skill and independent This test focuses on control, and especially on whether initiative required to perform the work, the employer dictates the means as opposed to merely 4 (4) the permanence or duration of the the objects of work. New York State courts adhere to working relationship, and (5) the extent this national pattern in emphasizing control in defining 5 to which the work is an integral part of “employee,” focusing especially on control over the the employer’s business.11 means and methods of work.6 The factors are non-exclusive, and courts are thus State and federal courts interpreting the term permitted take considerations into account that are not “employee” under the NYLL consider a non-exclusive specifically enumerated.12 As detailed in Brock, this is

NYSBA Labor and Employment Law Journal | Fall 2019 | Vol. 44 | No. 1 55 fundamentally a “totality of the circumstances test,” plaintiffs assert misclassification claims under both in which courts are directed to focus on the “ultimate statutes simultaneously, New York federal courts never concern” of “whether, as a matter of economic reality, deny a NYLL claim while granting an FLSA claim.21 the workers depend upon someone else’s business for Invariably, even courts that acknowledge the essential the opportunity to render service or are in business for differences between the two tests awkwardly embrace themselves.”13 this contradiction between theory and practice, by granting or denying federal and state claims together Courts applying this test should find that a plaintiff after noting divergent applicable standards.22 qualifies as an employee in a broader range of situations. The “economic realities” test defines the employer- employee relationship to encompass relationships The Resolution: Emulate Discrimination Law involving implicit control accompanied by actual In contrast to the wage-and-hour independent dependence, in addition to relationships characterized contractor misclassification context, New York federal by mere technical control. The “economic realities” test courts in employment discrimination cases distinguish is thus by design supplemental to and more expansive carefully between federal, state, and local standards. than the “common law” test. As the Supreme Court Subsequent to the Restoration Act of 2005, in which the noted in Nationwide Mut. Ins. Co. v. Darden, the “striking legislature directed courts to interpret the NYCHRL breadth” of the FLSA definition “stretches the meaning of in a broader, more plaintiff-friendly fashion than its ‘employee’ to cover some parties who might not qualify state and federal analogues,23 federal courts have as such under a strict application of traditional agency explicitly assessed simultaneous federal and state law principles.”14 claims independently. For purposes of doctrinal clarity, New York federal courts should take a formally similar The Unresolved Question in Federal Courts approach in the context of simultaneous FLSA and NYLL claims, but with the opposite result, interpreting Despite the clear theoretical difference between the “employee” more broadly in the context of federal claims. tests, lower federal courts are divided on the question of whether the two tests must be distinguished and Federal courts emphasize the NYCHRL’s broader applied separately in cases in which a plaintiff brings coverage and its more plaintiff-friendly remedial claims under both the FLSA and NYLL. Neither the effect in comparison to federal law.24 This approach Second Circuit nor the Court of Appeals has resolved has implications for a variety of specific areas of local this question.15 In the absence of guidance, federal discrimination law. For instance, the NYCHRL has district courts have developed a morass of conflicting been interpreted to permit mixed-motive theories of approaches. Moreover, courts have in some cases created discriminatory intent in age discrimination cases, which elaborate, muddied analyses in an attempt to give the is not permitted under the federal Age Discrimination two statutes consistent interpretations or to ensure in Employment Act.25 Additionally, while the ADA equivalent results under both tests within a particular requires a threshold showing both that a plaintiff has an case. “impairment” and that the impairment “substantially limits” a “major life activity,” the NYCHRL has been Some federal district courts analyze claims interpreted to permit disability discrimination claims under both simultaneously, and treat the two tests as 26 16 by plaintiffs with any “impairment.” Due to the equivalent. Several courts among these have even NYCHRL’s explicitly broader coverage, if a plaintiff explicitly characterized the NYLL test as an “economic 17 prevails on a federal claim, she automatically prevails on reality” test. The latter subcategory of cases reflect an an analogous local claim.27 incorrect reading of New York state court case law and a misunderstanding of the respective larger jurisprudential In the context of independent contractor contexts of these two tests. The Second Circuit in Brock misclassification cases involving simultaneous FLSA and referred to the test it established as an “economic reality” NYLL claims, New York federal courts could provide test, a term derived from Supreme Court jurisprudence.18 better guidance to litigants by explicitly analyzing the No state court has ever used this term to describe the respective claims independently. In a manner modeled Bynog test, likely because “economic reality” is a term after discrimination jurisprudence, courts would note of art with a distinct history in federal jurisprudence. before their analysis of a plaintiff’s claims that the FLSA is The court’s choice in Bynog to emphasize “control” was, to be interpreted more broadly, due to the less formalistic rather, an appeal to a different body of jurisprudence, nature of the “economic realities” test, whose orienting rooted largely in tort law.19 concept of “economic dependence” encompasses more than technical indicators of control. Over time, courts Other lower federal courts emphasize the differences would detail various specific implications of this abstract between the two tests and analyze parallel claims under 20 difference. Whatever the specific differences, logically, the FLSA and NYLL separately. Paradoxically, given if a plaintiff succeeded on an NYLL claim under the the different origins and content of the two tests, when “common law” test, the plaintiff would automatically

56 NYSBA Labor and Employment Law Journal | Fall 2019 | Vol. 44 | No. 1 prevail on an analogous FLSA claim and a plaintiff F. Supp. 2d 327, 342 n.25 (S.D.N.Y. 2005); Campos v. Lemay, 2007 U.S. conceivably could in some circumstances prevail on an Dist. LEXIS 33877, at *12 (S.D.N.Y. May 7, 2007). FLSA claim while losing on an NYLL claim. Both workers 18. See Brock v. Superior Care, Inc., 840 F.2d 1054, 1058-1059 (2d Cir. 1988) and businesses would benefit from the greater clarity and (citing United States v. Silk, 331 U.S. 704 (1947)). predictability of such a legal regime. 19. See Hart v. Rick’s Cabaret Int’l, Inc., 967 F. Supp. 2d 901, 923 (S.D.N.Y. 2013). Endnotes 20. See, e.g., Saleem v. Corp. Transp. Grp., Ltd., 52 F. Supp. 3d 526, 536 (S.D.N.Y. 2014); see also Browning v. CEVA Freight, LLC, 885 F. Supp. 2d See N.Y. Labor Law § 190(2); Fair Labor Standards Act, 29 U.S.C. § 1. 590, 599-611 (E.D.N.Y. 2012). 203(e)(1). 21. See Hart, 967 F. Supp. 2d at 924 (“[T]here appears to have never been 2. N.Y.C. Admin. Code § 8-107. a case in which a worker was held to be an employee for purposes of 3. See Orla O’Callaghan, Comment: Independent Contractor Injustice: the FLSA but not the NYLL (or vice versa).”). The Case for Amending Discriminatory Discrimination Laws, 55 Hous. 22. See, e.g., Saleem, 52 F. Supp. 3d 526; Browning, 885 F. Supp. 2d 590; L. Rev. 1187, 1194-1195 (2018). Velu v. Velocity Express, Inc., 666 F. Supp. 2d 300 (E.D.N.Y. 2009); 4. See Julien M. Mundele, Note: Not Everything That Glitters Is Gold, Agerbrink v. Model Serv. LLC, 293 F. Supp. 3d 470, 480 (S.D.N.Y. 2018). Misclassification of Employees: The Blurred Line Between Independent 23. See N.Y.C. Local Law No. 85 of 2005 § 1 (Oct. 3, 2005) Contractors and Employees Under the Major Classification Tests, 20 Suffolk J. Trial & App. Adv. 253, 273 (2015). 24. See Simmons v. Akin Gump Strauss Hauer & Feld, LLP, 508 F. App’x 10, 13 (2d Cir. 2013) (“Simmons’s claim under the NYCHRL requires 5. See Bynog v. Cipriani Grp., Inc., 1 N.Y.3d 193, 198, 770 N.Y.S. 2d 692, an independent analysis, as the New York statute…was intended 694-695 (2003) to provide a remedy reaching beyond those provided by the 6. See, e.g., Meehan v. Cty. of Suffolk, 144 A.D.3d 640, 642, 40 N.Y.S.3d counterpart federal civil rights laws.”; see also McLeod v. Gen. Vision 494, 496 (2d Dep’t 2016) (“Minimal or incidental control over a Servs., No. 13-CV-6824 (VSB), 2018 U.S. Dist. LEXIS 132395, at *17-18 person’s work product without direct supervision or input over (S.D.N.Y. Aug. 6, 2018). the means used to complete the work is insufficient to establish a 25. See, e.g., Velazco v. Columbus Citizens Found., 778 F.3d 409, 411 (2d Cir. traditional employment relationship.”) . 2015); Okeke v. N.Y. & Presbyterian Hosp., 275 F. Supp. 3d 470, 479 7. 1 N.Y.3d at 198; see also Agerbrink v. Model Serv. LLC, 2017 U.S. Dist. (S.D.N.Y. 2017). LEXIS 33249, at *17 (S.D.N.Y. Mar. 8, 2017). 26. See Weissman v. Dawn Joy Fashions, Inc., 214 F.3d 224, 233 (2d Cir. 8. See Hart v. Rick’s Cabaret Int’l, Inc., 967 F. Supp. 2d 901, 923 2000); see also Pagan v. Morrisania Neighborhood Family Health Ctr., 2014 (S.D.N.Y. 2013). U.S. Dist. LEXIS 14978, at *16 n.4 (S.D.N.Y. Jan. 22, 2014). 9. See Richard R. Carlson, Why the Law Still Can’t Tell an Employee 27. See, e.g., Smith v. City of N.Y., No. 16-cv-9244 (JGK), 2018 U.S. Dist. When It Sees One and How It Ought to Stop Trying, 22 Berkeley J. LEXIS 116389, at *16 (S.D.N.Y. July 11, 2018). Federal courts typically Emp. & Lab. L. 295, 342 (2001). decline to exercise supplemental jurisdiction over an NYCHRL claim 10. See id. when a plaintiff loses on an analogous federal claim. See, e.g., Mohan v. City of N.Y., 2018 U.S. Dist. LEXIS 130933, at *43-44 (S.D.N.Y. Aug. 11. 840 F.2d 1054, 1058-1059 (2d Cir. 1988); see also Grenawalt v. AT&T 3, 2018); Keaton v. Unique People Servs., No. 15-cv-5354 (PKC), 2018 Mobility LLC, 642 F. App’x 36, 37 (2d Cir. 2016) (noting that U.S. Dist. LEXIS 131164, at *17 (S.D.N.Y. Aug. 3, 2018). Brock provides the appropriate test for distinguishing between employees and independent contractors for FLSA purposes). 12. See Brown v. N.Y.C. Dep’t of Educ., 755 F.3d 154, 168 (2d Cir. 2014) (“[A]n economic realities test is not ‘confined to a narrow legalistic definition’ but, rather, looks to all circumstances relevant to the matter in issue.” (citing Velez v. Sanchez, 693 F.3d 308, 330 (2d Cir. 2012))); see also United States v. Silk, 331 U.S. 704, 716 (1947) (“No one [factor] is controlling nor is the list complete.”). 13. See Brock v. Superior Care, Inc., 840 F.2d 1054, 1059 (2d Cir. 1988); see also Saleem v. Corp. Transp. Grp., Ltd., 854 F.3d 131, 139 (2d Cir. 2017). 14. 503 U.S. 318, 326 (1992); see also Murphy v. HeartShare Human Servs. of N.Y., 254 F. Supp. 3d 392, 396 (E.D.N.Y. 2017). 15. See Irizarry v. Catsimatidis, 722 F.3d 99, 117 (2d Cir. 2013); Nuriddinov v. Masada III, Inc., No. 15 CV 5875 (KAM)(RML), 2017 U.S. Dist. LEXIS 116357, at *13 (E.D.N.Y. July 24, 2017); Hart v. Rick’s Cabaret Int’l, Inc., 967 F. Supp. 2d 901, 922 (S.D.N.Y. 2013). 16. See, e.g. Sellers v. Royal Bank of Can., 2014 U.S. Dist. LEXIS 4563, at *16-17 (S.D.N.Y. Jan. 8, 2014) (“The NYLL Bynog analysis for employer status is ‘substantially similar’ to the FLSA Silk analysis. The Court therefore considers the factors simultaneously.” (citations omitted)); Hart v. Rick’s Cabaret Int’l, Inc., 967 F. Supp. 2d 901, 924 (S.D.N.Y. 2013) (“Notwithstanding the separate NYLL inquiry, the Court is, however, mindful that ‘[t]here is general support for giving FLSA and the New York Labor Law consistent interpretations.’ (citing Topo v. Dhir, No. 01 Civ. 10881 (PKC), 2004 U.S. Dist. LEXIS 4134, 2004 WL 527051, at *3 (S.D.N.Y. Mar. 16, 2004))). 17. See, e.g., Slamna v. API Rest. Corp., 2012 U.S. Dist. LEXIS 102043, at *8 (S.D.N.Y. July 18, 2012) Doo Nam Yang v. ACBL Corp., 427

NYSBA Labor and Employment Law Journal | Fall 2019 | Vol. 44 | No. 1 57 David Krauss is an associate at Bantle & Levy. He graduated magna cum laude from Fordham University School of Law in 2015, where he received the Addison M. Metcalf Labor Law Prize and served on the Fordham NYSBA’s Law Review. Prior to working as an associate at Bantle & Levy, David worked as an associate at a major New CLE On-Demand York City-based corporate law firm and as a litigator and policy counsel with Everytown for Gun Safety. David Bringing CLE to you... is a member of the Civil Rights Committee of the New York City Bar Association and of the New York Chapter when and where you want it! of the National Employment Lawyers Association.

Julio Sharp-Wasserman graduated from Columbia University School of Law in May 2019, where he was a Harlan Fiske Stone Scholar and recipient of the Julius Select from hundreds of Silver Prize for the best student note in the area of science and technology. During law school, he worked NYSBA CLE Video/Audio as a law clerk at Neufeld Scheck & Brustin and Bantle & Levy and as an intern at the Legal Aid Society’s On-Demand Courses Employment Law Unit. He currently works as a fellow at the Special Litigation Unit of the New York Legal Assistance Group and will serve as a judicial law clerk www.nysba.org/cleonline to Judge Lawrence E. Kahn (NDNY) between March 2020 and March 2021. Our online on-demand courses combine streaming video or audio with MP3 or MP4 download options that allow you to download the recorded program and complete your MCLE requirements on the go. Includes:

• Closed-captioning for your convenience.

• Downloadable course materials CLE accessible 24 hours a day, 7 days a week.

• Access CLE programs 24 hours a day, 7 days a week.

58 NYSBA Labor and Employment Law Journal | Fall 2019 | Vol. 44 | No. 1 An Employee’s Best Friend: Handling Requests for Animals as Reasonable Accommodations in the Workplace By Jill L. Rosenberg and Jeffrey J. Lorek

6 Introduction cies, “and other similar accommodations.” Allowing an animal in the workplace as a reasonable accommodation Animals in the workplace have recently garnered to a disabled employee when an employer has a general attention. Employers are more frequently encountering “no-pets” or “no-animals” policy constitutes a modifica- employees with mental health impairments like anxiety, tion of workplace policies.7 depression, and post-traumatic stress disorder (PTSD) who ask to bring either a service animal (an animal that helps perform a function, like a seeing eye dog for a visu- Service Dog or Emotional Support (Comfort) ally impaired employee) or an emotional support animal Animal—Does It Matter? (sometimes referred to as a “comfort animal”) to work Neither the ADA (Title I) nor the EEOC’s implement- to alleviate the manifestations of an employee’s impair- ing regulations address the use of a service animal or ments. This article explores just one of the many different an emotional support animal (ESA) in the workplace as types of accommodation requests that employers face in a reasonable accommodation or otherwise.8 The EEOC a modern work environment: the adjustment or modifi- does not define “service animal” or incorporate the De- cation of workplace policies to allow a disabled employee partment of Justice’s (DoJ) Title II and III accommoda- .1 to bring a dog or other animal to work tions provisions into Title I’s employment context. Both Title II and III of the ADA—prohibiting discrimination in Overview on Reasonable Accommodations the context of public entities and accommodations —do discuss service animals. Due to the lack of regulations, Reasonable accommodations can take many different cases and guidance in the Title I employment context forms. Federal, state and local disability law, including regarding ESAs, DoJ’s Title III’s regulations will likely be New York law, govern an employer’s duty to respond relevant if not persuasive authority in an employment to employees’ requests to be reasonably accommodated. failure to accommodate case involving an animal. Title I of the Americans with Disabilities Act of 19902 (ADA) generally prohibits discrimination in the employ- Title III initially limited its definition of a service ani- ment context based on disability. This includes the failure mal to dogs, but in 2010 the DoJ amended the definition to make reasonable accommodation to the known physi- to now allow certain miniature horses to also be classified cal or mental limitations of an employee who is other- as service animals. The DoJ’s defines “service animal” as: wise qualified to perform the essential functions of a job, unless making such accommodation would result in an any dog that is individually trained to do undue hardship on the operation of the business.3 The work or perform tasks for the benefit of Equal Employment Opportunity Commission (EEOC) an individual with a disability, including has promulgated regulations to implement the ADA’s a physical, sensory, psychiatric, intellectu- equal employment provisions.4 al, or other mental disability. Other species of animals, whether wild or domestic, trained The EEOC defines “reasonable accommodation” as: or untrained, are not service animals for the (1) a modification or adjustment to the job application purposes of this definition [with the excep- process to enable a qualified applicant to be considered; tion now of miniature horses as provided in (2) a modification or adjustment to the work environ- 28 C.F.R. 36.302(c)(9)(i)-(ii)]. The work or ment, or the manner/circumstances under which the job tasks performed by a service animal must is performed, to enable a disabled employee to perform be directly related to the individual’s the essential functions of the job; or (3) a modification or disability. Examples of work or tasks adjustment that enables a disabled employee to “enjoy include, but are not limited to, assisting equal benefits and privileges of employment as are en- individuals who are blind or have low joyed by … other similarly situated employees without vision with navigation and other tasks, disabilities.”5 There are many different types of reason- alerting individuals who are deaf or hard able accommodations. The regulation uses the expansive of hearing to the presence of people or language of “not limited to” when listing examples such sounds, providing non-violent protection as making existing facilities more accessible, job restruc- or rescue work, pulling a wheelchair, as- turing, modifying schedules, adjusting or modifying poli- sisting an individual during a seizure,

NYSBA Labor and Employment Law Journal | Fall 2019 | Vol. 44 | No. 1 59 alerting individuals to the presence of able accommodation in the workplace because it would allergens, retrieving items such as medi- be allowed as a public accommodation under Title III.14 cine or the telephone, providing physical The Michigan federal court declared “that Title III is not support and assistance with balance and applicable, and Schultz’s claim fails to meet the elements stability to individuals with mobility under Title I because the dog was not necessary for the disabilities, and helping persons with performance of any essential function of Shultz’s job.”15 psychiatric and neurological disabilities by preventing or interrupting impulsive On the other hand, the Supreme Court of Montana or destructive behaviors. The crime de- relied heavily on Title III’s regulations in the area of ser- terrent effects of an animal’s presence vice animals. In McDonald v. Dep’t of Enviro. Quality, the and the provision of emotional support, court evaluated an employee’s request for her employer to modify the floor of the building where she worked so well-being, comfort, or companionship do not 16 constitute work or tasks for the purposes of that her service dog would not slip. It deemed Title this definition.9 III regulations to be persuasive authority to the extent they do not contradict Title I.17 The Montana court relied DoJ’s regulations added a provision deeming a min- on Title III’s requirement that a public accommodation iature horse to be a service animal if it “has been indi- must “modify policies, practices, or procedures to per- vidually trained to do work or perform the tasks for the mit the use of a service animal by an individual with a benefit of the individual with a disability,”10 but a public disability.”18 accommodation may consider its type, size, weight, whether the facility can accommodate it, its handler’s Recently, in Maubach v. City of Fairfax, the U.S. District control over the horse, whether it is housebroken, and Court for the Eastern District of Virginia examined this whether its presence compromises the safe operation of issue and recognized a significant difference between a 11 service animal under the ADA and an ESA/comfort ani- the facility. Finally, it should be observed that ESAs are 19 allowed to accompany air passengers in the cabins of air- mal. The Virginia federal court noted that Title II and craft under the Air Carrier Access Act.12 III of the ADA “exclude emotional support animals from coverage under the ADA.”20 It highlighted the DoJ’s def- Unlike with service animals, there is no federal le- inition of a service animal and concluded that if Maubach gal definition of an emotional support/comfort animal. were a Title II or III case, the dog at issue—an untrained Perhaps the best description is outlined by the Ameri- support dog who shed and left dander which irritated cans with Disabilities Network, a nonprofit organization co-workers—would not qualify as a service animal.21 whose mission is to provide information, guidance and With respect to Title I, however, the court conceded that training on the ADA. there were no specific regulations or guidance, and very little case law addressing the issue of ESAs as reasonable While Emotional Support Animals or accommodations.22 Comfort Animals are often used as part of a medical treatment plan as therapy Regardless of whether a court looks outside of Title animals, they are not considered service I for guidance on an employee’s request for an animal in animals under the ADA. These support the workplace, a survey of cases demonstrates that the animals provide companionship, relieve traditional principles of reasonable accommodation law loneliness, and sometimes help with will still apply. Accordingly, each individual request for depression, anxiety, and certain phobias, an animal as an accommodation must be evaluated on its but do not have special training to per- own merits, based on the unique facts and circumstances form tasks that assist people with disabil- surrounding the employee’s disability, the essential func- ities. Even though some states have laws tions of the job and the animal at issue. defining therapy animals, these animals are not limited to working with people California and New York Treat Animals in the with disabilities and therefore are not covered by federal laws protecting the Workplace Differently use of service animals. Therapy animals California, unlike federal law and DoJ’’s rigid defini- provide people with therapeutic contact, tion of “service animal,” has a unique definition of an usually in a clinical setting, to improve “assistive animal” that would include ESAs in certain their physical, social, emotional, and/or circumstances. California defines assistive animals much cognitive functioning.13 more liberally to include a broad category of animals that, among other things, provide “emotional, cognitive, Courts appear split on whether to look outside of or other similar support to a person with a disability.”23 Title I for guidance on animals in the workplace. One Nevertheless, for purposes of providing a reasonable federal court, the U.S. District Court for the Western Dis- accommodation to allow an assistive animal in a Cali- trict of Michigan, definitively rejected a plaintiff’s argu- fornia workplace, an employer must still perform “an ment that his service dog should be allowed as a reason-

60 NYSBA Labor and Employment Law Journal | Fall 2019 | Vol. 44 | No. 1 individualized analysis reached through the interactive for an employer to automatically allow an animal—ei- process.”24 Therefore, for purposes of reasonable accom- ther a true “service animal” or a mere ESA or comfort modation, employers should not be concerned about the animal—into the workplace without analyzing the em- label attached to any particular animal. Whether a service ployee’s request under the established framework for rea- animal, comfort animal, emotional support animal or as- sonable accommodations.29 In other words, a request to sistive animal, the same inquiry will predominantly ap- bring an animal into the workplace should be treated like ply under Title I of the ADA in accordance with federal any other request for reasonable accommodation under cases addressing disability law. the ADA. New York has even more expansive laws concern- California does not go as far as New York (addressed ing animals in the workplace. New York goes beyond the below) with respect to requiring animals in the work- DoJ definition of service animal and does not make any place, unchecked by traditional reasonable accommoda- distinction between service animals and ESAs, even in tion principles. However, as explained above, California the employment context. The New York Civil Rights Law employers need to treat an employee’s request to bring an protects persons with disabilities who are accompanied ESA or comfort animal into the workplace as a reasonable by a “guide dog, hearing dog or service dog …,” unless accommodation in the same manner as it would consider it can be shown that the otherwise qualified person’s dis- one involving a service animal.30 It is noteworthy that ability would prevent him or her from performing the before modifying any “no-pets” or “no-animals” policy particular job.25 New York incorporates the meaning of to allow an employee to bring an animal in the work- the terms “guide dog,” “hearing dog” and “service dog” place, and consistent with the usual interactive process, that are provided in Title III of the ADA.26 California employers may require a letter from a health care provider that identifies the disability at issue and New York mandates that employees be permitted to explains why an assistive animal is necessary as a reason- bring their dogs with them to the workplace if those dogs able accommodation for the employee to perform the meet the requirements for a guide, hearing or service essential job functions.31 Moreover, California employers dog. have the authority under regulation to confirm that an Persons with a disability accompanied by animal meets certain standards regarding healthy work- guide dogs, hearing dogs or service dogs place habits (i.e., is free from offensive odors, displays shall be guaranteed the right to have such appropriate urination and defecation habits, and does dogs in their immediate custody while not engage in behaviors that endanger health or safety exercising any of the rights and privi- of either the employee with the disability or others in the leges set forth in this article, provided workplace).32 Employers have a two-week window in that in instances of employment pursu- which to challenge an animal not meeting these standards ant to section forty-seven-a of this article, based on objective evidence of offensive or disruptive ani- such dog has been trained by a qualified mal behavior..33 person. Blind persons shall, further, have New York is significantly different from federal law the right to carry a cane in their immedi- and other jurisdictions concerning employees’ requests ate custody while exercising any of the for animals as reasonable accommodations. Because of rights and privileges set forth in this 27 New York’s broader state statutes, the New York State Bar section. and New York City Bar—in a jointly published 2017 guide It is critical to note that New York does not follow the pursuant to a Joint Task Force on Service Animals in New DoJ’’s regulations that exclude animals with certain func- York State (the “Joint Task Force”)—opined that employ- tional limitations. For example, the DoJ regulations on ees have the “right” to use an animal as a reasonable ac- service animals explicitly exclude from the list of service commodation notwithstanding that such animal may not animals’ qualifying “work tasks” the provision of sup- be a dog or may not meet the requirements of DoJ’s ser- port, well-being, comfort or companionship.28 In other vice animal’s work tasks.34 The Joint Task Force declared: words, the DoJ does not recognize that support, well- [t]here is no ‘reasonable accommodation’ being, comfort or companionship are functions that a limitation on this requirement, so an em- “service animal” could perform for coverage under Title ployer may not challenge such rights under III. Conversely, New York does not make such distinction. the State [Civil Rights Law] by an assertion of undue hardship for the employer Would an Employer Ever Have to Automatically or others (for example, even a coworker’s Allow an Animal in the Workplace? allergy to dogs; the allergic coworker would have to be accommodated reason- There is no federal recognition given to either service ably without limiting the rights of the animals or emotional support/comfort animals under person using a guide, hearing, or service Title I of the ADA pertaining to employment. Currently, dog).35 therefore, there is no general requirement under the ADA

NYSBA Labor and Employment Law Journal | Fall 2019 | Vol. 44 | No. 1 61 It further stated that “the [New York State Human will not typically happen in a vacuum or as a result of one Rights Law] recognizes a right to ‘the use of an animal meeting alone. For a discussion to constitute a true, good as a reasonable accommodation.’ The statute does not faith informational exchange, it will typically require limit the ‘animal’ to a dog, nor does it contain any other careful study of the particular employee’s job functions limitation.”36 The Joint Task Force instructed that the and actual assigned duties and most importantly, close New York City Human Rights Law is construed even scrutiny of medical information that explains how the more liberally that the State Civil Rights Law.37 The employee’s impairment interferes with his or her ability City’s law contains a non-discrimination requirement to perform the essential job functions. Essential functions unencumbered by an employee’s need to prove that use are the basic job duties that employers may require their of an ESA is “reasonable.”38 Even though the Joint Task employees to perform.44 Employers are not required to Force dismissed as irrelevant other employees’ objections eliminate, reallocate or redistribute the essential functions to a disabled employee’s use of an ESA in the work- of an employee’s job when making a reasonable accom- place, it also acknowledged that New York does contain modation. Where the impairment is not obvious or vis- an undue hardship exception to granting an employee’s ible (e.g., many mental health impairments), the employer reasonable accommodation.39 The Human Rights Law may require documentation that establishes how a condi- excludes from the definition of “reasonable accommo- tion limits job performance, and how a particular accom- dation” actions that impose an “undue hardship on the modation would help the employee perform his or her business, program or enterprise of the entity from which job’s essential functions.45 action is requested.”40 Accordingly, the Joint Task Force Laws in some states, such as California, provide spe- Guide seems to be in direct conflict with the New York cific guidance regarding the type of information an em- Human Rights Law on the issue of whether an undue ployer may and may not request from employees when hardship defense would succeed. weighing a request for an animal as an accommodation. Finally, while stating that the employee’s preference For example, employers may require sufficient documen- should be given primary consideration, in the case where tation from a health provider that possesses the requisite an animal is not the only effective means of accommoda- expertise to confirm an employee’s disability and function, the New York Joint Task Force appropriately defers tional limitations on performing the job in question.46 to the EEOC’s guidance that “the employer providing However, California employers may not ask for unrelated the accommodation has the ultimate discretion to choose documentation such as, in most instances, a complete between effective accommodations.”41 New York’s Joint medical file, because that type of overly broad request Task Force Guide served most useful in understanding would capture information not relevant to the accommo- how New York would treat ESAs in the workplace. To dation needed.47 minimize litigation risk, New York employers might A general rule of thumb (except in New York, which consider liberally accepting animals in the workplace if appears to be an outlier) is that before granting any the animal possesses some type of acceptable training employee’s request to bring an animal to work—whether credentials. Nevertheless, given the unique contrast be- a trained, certified service animal or an untrained ESA tween New York and federal law in this area, New York or comfort animal—a specific employee’s request for a employers should seek tailored legal counsel on any ser- specific animal must satisfy the usual prerequisites for a vice or emotional support animal issue. reasonable accommodation under the ADA. That means the employer and employee will have meaningfully An Employer Receives a Request to Bring an engaged in the interactive process to ascertain the nature Animal to Work—Now What? of the disability, how it impacts the employee’s ability to Before deciding to change an established workplace perform the essential functions of his or her job, and how policy or practice to allow animals to share the office any particular reasonable accommodation might enable space, employers should consider all options available the employee to perform those essential functions. The in ascertaining what exactly constitutes a “reasonable” ultimate accommodation chosen should most effectively accommodation for any particular employee under the satisfy both the employer’s and employee’s needs, and ADA. The selected accommodation should most ef- may or may not result in granting a request to bring an 48 fectively satisfy both the employer’s and employee’s animal into the workplace. In many cases outside of needs.42 Remember, there is ample support for the rule California and New York, where employees’ requests that an employee is not entitled to his or her preferred do not involve a bona fide service animal, the resulting accommodation.43 accommodation may very well be something other than bringing an animal into the workplace. The best way to arrive at a mutually/agreeable, cus- tomized accommodation for any particular employee with a specific impairment affecting his or her job func- Closing Thoughts tions is to engage in a robust interactive process. This An employer should not summarily reject or dismiss dynamic dialogue between the employer and employee an employee request for an animal as a reasonable accom-

62 NYSBA Labor and Employment Law Journal | Fall 2019 | Vol. 44 | No. 1 modation in the workplace simply because the employer Opportunity Commission (EEOC), the federal agency that enforces has a “no-pets” or “no-animals” policy in effect. Title I”). See also generally 42 U.S.C. §§ 12101, et seq. and 29 C.F.R. § 1630.1, et seq. Recently, in EEOC v. CRST Int’l, Inc.— a lawsuit that 9. 28 C.F.R. § 36.104 (emphasis supplied); 28 C.F.R. § 36.302(c)(9)(i)- was filed by the EEOC against the employer —the U.S. (ii). District Court for the Northern District of Iowa showed 10. 28 C.F.R. § 36.302(c)(9)(i)-(ii). its concern that an employer may have retaliated against 11. Id. at § 36.302(c)(9)(ii)(A)-(D). a disabled job applicant when it adamantly refused to 12. 42 U.S.C. § 41705 (2003); 14 C.F.R. § 382.117 (excluding, however, make any exceptions to its “no-pets” policy.49 The case snakes, other reptiles, ferrets, rodents and spiders). involved an applicant for a truck driver position who 13. Brennan and Nguyen, Service Animals and Emotional Support asked for a reasonable accommodation to use his pre- Animals: Where Are They Allowed and Under What Conditions?, ADA scribed ESA/service dog as an accommodation for his National Network, available at https://adata.org/publication/ service-animals-booklet. See also Service Animals and Pets in the PTSD and mood disorder. In denying the defendant’s Workplace, Westlaw Practical Law Practice Note (current as of 2019) motion for summary judgment, the court examined (“Some animals are colloquially described as emotional support whether the applicant was a qualified individual with a animals, comfort animals, or therapy animals. These animals may disability and found that a genuine issue of material fact provide therapeutic or companionship benefits to individuals, but they generally are not trained to perform any specific task and … existed as to whether the applicant could perform the es- do not fall within the ADA’s definition of service animal.”). sential functions of his job.50 Of particular concern to the 14. Schultz v. Alticor/Amway Corp., 177 F. Supp. 2d 674, 678-79 (W.D. judge was that the employer may have retaliated against Mich. 2001). the employee even though the employer’s proffered rea- 15. Id. at 679. son for denying the reasonable accommodation request was its unwavering adherence to a “no-pets” policy.51 16. McDonald v. Dep’t of Enviro. Quality, 214 P.3d 749 (Mont. 2009). Subsequent to losing its bid for summary judgment, 17. Id. at 762 (concluding that Title III’s regulations supported the employer’s obligation to modify a floor surface so an otherwise CRST Int’l settled with the EEOC, agreed to pay $47,500 qualified employee with a disability could use her service animal to the disabled applicant, consented to be enjoined from effectively in the workplace; denying employer’s motion for refusing to hire or provide reasonable accommodations summary judgment). to qualified applicants and employees in the future, 18. Id. and agreed to provide anti-discrimination training to its 19. Maubach v. City of Fairfax, 2018 WL 2018552, *6, n. 6 (E.D. Va. Apr. employees.52 30, 2018). 20. Id. Finally, it should be noted that there are several other ways to accommodate disabled employees other than 21. Id. the examples provided in this article. Other accommoda- 22. Id. (assuming, without deciding, that a support animal qualifies as a reasonable accommodation under Title I of the ADA; hinging tions can include modifying leave and absence policies, inquiry on the reasonableness of the particular ESA requested and restructuring non-essential job functions, altering super- the particular employment context at issue). 53 visory methods and even reassigning employees. Ul- 23. Cal. Code Regs. Tit. 2, § 11065(a)(1)(D), (a)(3). timately, through a well-intentioned and comprehensive 24. Id. § 11065(a)(3). interactive process, an employer should be able to arrive at the most mutually beneficial reasonable accommoda- 25. N.Y. Civ. Rights Law § 47-a. tion for an employee consistent with local, state and fed- 26. Id. at § 47-b(4), (7) (stating that a guide, hearing or service dog must be under the control of the person using it or training it, and eral disability law. must have been trained to guide or otherwise aid a person with a disability), citing 28 C.F.R. § 36.302(c). 27. N.Y. Civ. Rights Law § 47-b(1) (emphasis supplied). Endnotes 28. 28 C.F.R. § 36.104. 1. The terms emotional support animal and comfort animal will be referenced collectively throughout this article as “ESAs.” Where 29. EEOC v. CRST Int’l, Inc., 2018 U.S. Dist. LEXIS 206948 (N.D. Iowa appropriate due to legal distinctions, the terms “service dog,” Dec. 7, 2018) (implying, by continuing to analyze truckdriver “service animal,” or “assistive animal” will be specifically used. applicant’s request for a prescribed emotional support animal, that there is no automatic right to one); Schultz v. Alticor/Amway Corp., 2. 42 U.S.C. §§ 12101, et seq. 177 F. Supp. 2d 674, 678-79 (W.D. Mich. 2001) (rejecting employee’s 3. Id. at § 12112(b)(5). argument that his service dog should automatically be accepted in the workplace as a reasonable accommodation because it would be 4. See 29 C.F.R. § 1630.1, et seq. allowed as a public accommodation under Title III; declaring that 5. Id. at § 1630.2(o)(1)(i)-(iii). “discrimination disputes arising out of employment are relegated 6. Id. at § 1630.2(o)(2)(i)-(ii). to Title I claims under the ADA,” and no such requirement exists); Branson v. West, 1999 WL 311717 (N.D. Ill. May 11, 1999) (finding 7. See id. a trained service dog to be a reasonable accommodation under 8. Linda Batiste, Emotional Support Animals in the Workplace: A specific facts and circumstances of the case, but rejecting plaintiff’s Practical Approach, Job Accommodation Network, Vol. 12, Issue 4 broader argument that all federal employers must permit disabled (“there’s nothing in the ADA or its regulations that addresses employees to bring their service animals into the workplace). emotional support dogs as workplace accommodations. There 30. Cal. Code Regs. Tit. 2, § 11065(a)(1)(D), (a)(3). is also nothing in written guidance from the Equal Employment 31. Id. at § 11069(e)(1).

NYSBA Labor and Employment Law Journal | Fall 2019 | Vol. 44 | No. 1 63 32. Id. at §§11069(a)(2) and 11065(a)(2). 49. CRST Int’l, Inc., 2018 U.S. Dist. LEXIS 206948 at *46. 33. Id. at § 11069(e)(2). 50. Id. at *43. 34. A Guide to the Use of Service Animals in New York State, New York 51. Id. at *46. City and State Bar Associations, Joint Task Force on Service 52. EEOC, CRST to Pay $47,500 to Settle EEOC Disability Discrimination Animals in New York State (May 2017) (the “Joint Task Force and Retaliation Lawsuit (Mar. 6, 2019), available at https://www. available at Guide”), http://documents.nycbar.org/files/guide-to- eeoc.gov/eeoc/newsroom/release/3-6-19.cfm. the-use-of-service-animals-in-new-york-state.html#_edn37. 53. For ideas on alternative reasonable accommodations, see Id 35. . (emphasis supplied). Jeffrey J. Lorek, Accommodating Mentally Impaired Employees 36. Id. at Work: How to Alter Supervisory Methods as a Reasonable Accommodation Under the Americans with Disabilities Act, Fed. 37. Id. (citations omitted). Cir. Bar Ass’n Bench & Bar, Vol. 21, No. 9 (Sep. 2016), available 38. N.Y.C. Admin. Code at § 8-107(1), in addition to reasonable at https://www.wc.com/portalresource/lookup/poid/ accommodation, § 8-107(15). Z1tOl9NPluKPtDNIqLMRVPMQiLsSwGZCmW3!/document. 39. Id. name=/PUBLICATION%20-%20Federal%20Circuit%20Bar%20 Association%20NewsLetter-%20September%202016.pdf; Jeffrey 40. N.Y. Human Rights Law § 292(21-e). J. Lorek, ‘Job Restructuring’ as a Reasonable Accommodation in 41. The Joint Task Force Guide, supra at n. 34, citing EEOC Enforcement Federal Employment, FedSmith.com (Aug. 25, 2016), available at Guidance on Reasonable Accommodation and Undue Hardship Under https://www.fedsmith.com/2016/08/25/job-restructuring-as- the Americans with Disabilities Act (2002), available at http://www. a-reasonable-accommodation-in-federal-employment/; Murray eeoc.gov/policy/docs/accommodation.html#N_36_. and Lorek, The Americans with Disabilities Act and Reasonable Accommodation: Does an Employer Have a Duty to Reassign Disabled 42. EEOC v. Agro Distrib., LLC, 555 F.3d 462, 471 (5th Cir. 2009). Individuals Who Can No Longer Perform their Jobs?, Corporate 43. Swanson v. Vill. of Flossmoor, 794 F.3d 820, 827 (7th Cir. 2015) Counsel’s. Guide to the Americans with Disabilities Act, Business (“even if ‘light duty’ would have been Swanson’s preferred Laws, Inc. (August/November 2005). accommodation, the ADA does not entitle a disabled employee to the accommodation of his choice”); Handverger v. City of Winooski, Jill L. Rosenberg is a partner at Orrick, Herrington 605 Fed. Appx. 68, 71 (2d Cir. 2015) (“Employees are ‘not entitled to hold out for the most beneficial accommodation’ (citation & Sutcliffe LLP in New York City where she practices omitted), or even their preferred accommodation (citation employment and labor law on behalf of management. omitted)”); Brudnak v. Port Auth. of Allegheny Cty., 2012 U.S. Dist. She is Co-Chair of the Diversity and Leadership Com- LEXIS 129871, *23 (W.D. Pa. Sep. 12, 2012) (“Simply because mittee of the New York State Bar Association Labor and plaintiff did not receive what he requested … that does not mean that the Port Authority’s accommodation was not reasonable.”), Employment Law Section. citing Agro. Distrib., LLC, 555 F.3d at 471 (“Not all requested accommodations are appropriate, and the ADA only ‘provides Jeffrey J. Lorek, also of Orrick, is a Special Counsel a right to a reasonable accommodation, not the employee’s in the firm’s Washington, D.C. office where he repre- preferred accommodation.’”). sents management in a variety of employment matters. 44. The EEOC provides a list of factors that employers should He has authored numerous articles regarding discrimi- consider in determining whether job functions are essential: (1) whether the job position exists specifically to perform that nation and reasonable accommodation issues, and is particular function; (2) “the number of other employees available actively involved in military veterans’ affairs. to perform the function or among whom the performance of the function can be distributed”; and (3) “the degree of expertise of skill required to perform the function.” 29 C.F.R. § 1630.2(n) (2). The EEOC advises that other evidence as to whether a particular job function is essential includes, but is not limited to, the following: (1) the employer’s judgment as to what is essential; (2) written job descriptions prepared before advertising or interviewing job applicants; (3) the amount of time an employee spends performing the function in question; (4) the consequences of not requiring an employee to perform a function; (5) the terms of any collective bargaining agreement, if applicable; (6) the work experience of past incumbents in the job; and/or (7) the current work experience of incumbents in similar jobs. Id. at § 1630.2(n) (3). 45. See U.S. Equal Employment Opportunity Comm., The Mental Health Provider’s Role in a Client’s Request for Reasonable Accommodation at Work, available at https://www.eeoc.gov/eeoc/ publications/ada_mental_health_provider.cfm (last visited on Jan. 17, 2019). 46. Cal. Code Regs. Tit. 2, § 11069(d)(5) (2013). 47. Id. 48. Alonzo-Miranda v. Schlumberger Tech. Corp., 2014 WL 12489995, *4 (W.D. Tex. 2014) (denying dueling motions for summary judgment where factual disputes remained regarding both the employer’s good-faith accommodation efforts and the sufficiency of the employee’s medical information supporting his request to bring his dog to work to alleviate his PTSD), citing Agro Distrib., LLC, 555 F.3d at 471.

64 NYSBA Labor and Employment Law Journal | Fall 2019 | Vol. 44 | No. 1 The Labor and Employment Law Section Welcomes New Members (Jan. 1, 2019-Oct. 31, 2019)

First District Walter Mack Daniel Wolff Sixth District Allan Bahn Diana Martinez Madhura Banerjee Monica Carol Barrett Aisling Margaret McAllister Third District Daniel Brey Jonathan Blank Erin M. McGinnis Paul M. Aloy Jordan Blue Charnetsky Blaine H. Bortnick Brian D. Murphy Erin Callahan Gabriella Pico Onya Brinson Knar A. Nahikian Mary R. Cotrona Amy Ren Raymundo Alexander Daniel Lawrence O’Neil Ashley Melissa Emery Tina Wayland-Smith Cardenas Sabrina Danielle Obryan Andrew John Ford John Corbin Carter Sheryl Orwel Ashley Manning Hart Seventh District Chen Chen Ann-Elizabeth Ostrager Carla E. Hogan Allison Ariola Evan B. Citron Edward L. Powers Peachie Lynnette Jones Kevin William Connell Barry J. Cohen Kimberly C. Preston Oriana Kiley Carey Ann Denefrio Adam Cohn Roger Raimond Megan M. Mercy Lucinda Odell Lapoff Gillian Costello Diane C. Sherman John F. Queenan Brian Patrick Riley Julie Dabrowski Andrew Sklar Herman Reinhold Kim M. Shaffer Michael C. Danna Cameron Alexander Smith Sarah Delaney Vero Stacey Eve Trien Brian Reed DeShannon Michael J. Spillane Andrea A. Wanner Lynda Marie Van Coske Katherine Kettle Di Prisco Maria Ines Spinnato Eric James Weinhold Alex Dondershine Eighth District Corina N. Stonebanks Megan Thibedeau Williams Christina Salamon Steven A. Toff Daneal Barnaby Dumitrescu Emily M. Wajert Fourth District Julie Ann Bastian Carolene S. Eaddy David S. Warner Benjamin Michael Botelho B. Kevin Burke, Jr. Erica Sabrina Madalyn Castiglione Edwards-O’Neal Gregory J. Watford Jennifer N. Coffey Andrew David Drilling Leslie E. Fourton, Jr. John A. Fantauzzi Second District Franco J. Galbo Naoki Peter Fujita Kathleen Hoffman Petr Benimovich Gregory Lebens-Higgins Pamela P. Fynes Emily Ann Cabrera Candace Lauren Morrison Marc-Joseph Gansah Fifth District Keith Fernandes Thomas C. Pares Ira J. Goldstein Elizabeth Beltran Alexander Huntes Tammy L. Riddle Ronald M. Green Elizabeth Alden Conger Maya Simone Jumper Emily Anne Scioli Bliss Griffin Krista M. Dean Jennifer Liles Claire Therese Sellers Jyotin R. Hamid Whitney M. Kummerow Vladyslav Moroz Courtney Hooper Emily Ann Middlebrook Rita Beth Pasarell Ninth District Danny Jiminian Melanie Jamileh Prasad Melissa Pressley Jack S. Bailey Meredith Lillian Kaufman Gavin Ratcliffe Alan J. Rich Jonathan M. Bardavid Jesse Wagner Klinger Hemaxi Shah Joanne J. Romero Adam Brian Cantor Ryan Joseph Kurtz Imani M. Shaw Aubrey Smith Clotelle Lavon Drakeford David S. Lande Brady Turner Robert Sweet Todd K. Garvelink Joseph Charles Luhrs Erin M. Tyreman William A. Winnick Daniel J. Gillis Michael C. Lydakis

NYSBA Labor and Employment Law Journal | Fall 2019 | Vol. 44 | No. 1 65 New Members, cont’d Sun Eloise Suh Brandon Ellis Carla Gunther Samuel Wiles Nicholas Albert Falcone Kelly Jines Margarett M. Williams Felicia T. Farber Anita D. Khushalani Steven Gerber Daniel A. Kornberg Eleventh District Gregg P. Goumas Sara Kula Walter Albert Ciacci Rina Grassotti Paul A. Lahey Claudia Flores-Montesinos Byron Halford Greely Joan L. Levy Eve C. Guillergan Catherine L. Helde Thomas J. McDonald Joseph Gusmano Yan Huang Ellis R. Mirsky Trenton Hanifin Paul Peter Hughes Leah L. Murphy Lynn Hsieh Daniel Humphreys Michael Trovini David Kim Boryung Hwang Neil Vanderwoude Michelle Nagesar Connor Jackson James Patrick Peter O’Donnell Isaac Landa Tenth District Lanz Romero Scott A. Lazar Elizabeth Atlas Jonathan Silva Aimee Lin John T. Bauer Zubin Daniel Soleimany Julie Alix Claire Maire Matt Bryant Zenith T. Taylor Matthew Malone Stanley A. Camhi Bill Varade Rose Reyes McKiernan Stephen Cheng Wei Zhang Regina Mcneil Nicole Elise Della Ragione Jaclyn Morgese Laura M. Dilimetin Twelfth District Mark Anthony Nehme David A. Feinerman Rafael Gilbert Shareef M. Omar Lauren Fourati Joshua Goldblatt Kendall Noel Onyendu Randy Shawn Gidseg Joshua O. Osime Jayne Guarino Thirteenth District In Young Park Thomas W. Horn George Cartveli Rahool Patel Madison Katz David Carter Casagrande Margaret B. Pritchard Crystal Khemraj Dario Abrahao Rabay Martha Krisel Out of State Jaclyn Reinhart Alan H. Krystal Nadia B. Abed Marie A. Richardson Josh Lomuto Evelyn Ann Ashley Frances Rivera Reyes Josephine M. Lupis Robert H. Avery Manuel Sanchez Marijana Matura Rachita H. Bhatt Leonard Charles Schiro Marolhin Dahianna Mendez Maria Salome Breen Samantha Brittany Scully Jared Mossem Mallory Campbell Benjamin Knox Steffans William Patrick Nolan Xavier Andres Campos Joseph S. Streb Ashlehen Ojanesyan Britt-Marie Khalilah Jimena Villar De Onis Cole-Johnson Alexander Christian Palasek Moshe Warga John William Cook Laura Palmieri David Michael Wissert Julio Cruz John Paul Fatih Yigit Courtney Christine Dutter Ronald J. Rolleri Johanna Gordon Zelman David Edelman Jeremy J. Scileppi Rachael Lee Zichella Yasmeen Eesa Mark B. Stumer

66 NYSBA Labor and Employment Law Journal | Fall 2019 | Vol. 44 | No. 1 Section Committees and Chairpersons You are encouraged to participate in the programs and on the Committees of the Section. Feel free to contact any of the Committee Chairs for additional information.

Alternative Dispute Resolution District Representatives Equal Employment Opportunity Law Ann Lesser MeredithAnne Berger Loren Gesinsky American Arbitration Association Seyfarth Shaw LLP Seyfarth Shaw LLP 120 Broadway 620 8th Avenue 620 Eighth Ave 21st Floor 32nd Floor New York, NY 10018-1405 New York, NY 10271-5643 New York, NY 10018-1618 [email protected] [email protected] [email protected] Sarah Elizabeth Ruhlen Andrew P. Marks Howard Mark Wexler Satter Law Firm, PLLC Dorf & Neslon Seyfarth Shaw LLP 217 South Salina Street 555 Theodore Fremd Ave 620 8th Avenue 6th Floor The International Corporate Center New York, NY 10018 Syracuse, NY 13202 Rye, NY 10580 [email protected] [email protected] [email protected] Diversity and Leadership Finance Class Action Development Sheryl B. Galler Howard Mark Wexler Onya Brinson 275 West 96th Street Seyfarth Shaw LLP 55 Water Street, 23rd floor Apt. 7P 620 8th Avenue New York, NY 10081 New York, NY 10025-6270 New York, NY 10018 [email protected] [email protected] [email protected] Iyana Y. Titus International Employment and Communications Assistant Commissioner, EEO Immigration Law James N. McCauley NYC Parks & Recrreation Patricia L. Gannon 701 West State St. 1234 5th Avenue. Greenspoon Marder LLP Ithaca, NY 14850 New York, NY 10029 598 Madison Avenue [email protected] [email protected] New York, NY 10022 [email protected] Monica R. Skanes Employee Benefits and Compensation Whiteman Osterman & Hanna LLP Stanley Baum Labor Arbitration One Commerce Plaza 20 DeSoto Road Sheila S. Cole Albany, NY 12260 Amityville, NY 11701 80 Huntersfield Road [email protected] [email protected] Delmar, NY 12054 [email protected] Continuing Legal Education Ethics and Professional Responsibility Robert L. Boreanaz Jae W. Chun Timothy Scott Taylor Lipsitz Green Scime Cambria LLP Friedman & Anspach 120 Shaker Road 42 Delaware Avenue 1500 Broadway Albany, NY 12211 Suite 120 Floor 23rd [email protected] Buffalo, NY 14202-3901 New York, NY 10036-4015 [email protected] [email protected] Howard Schragin Sapir Schragin LLP Abigail Levy John Gaal 399 Knollwood Road NYC Office of Collective Bargaining Bond, Schoeneck & King, PLLC Suite 310 100 Gold Street One Lincoln Center White Plains, NY 10603-1936 4th Floor Syracuse, NY 13202-1355 [email protected] New York, NY 10038 [email protected] [email protected]

NYSBA Labor and Employment Law Journal | Fall 2019 | Vol. 44 | No. 1 67 Labor Relations Law and Procedure Paul Jude Sweeney Geoffrey A. Mort Allyson L. Belovin Coughlin & Gerhart, LLP Kraus & Zuchlewski LLP Levy Ratner, PC PO Box 2039 60 East 42nd Street, Suite 2534 80 8th Ave Floor 8th Binghamton, NY 13902-2039 New York, NY 10165 New York, NY 10011-5126 [email protected] [email protected] [email protected] Technology in Workplace and Practice Legislation and Regulatory Eric E. Wilke Developments CSEA, Inc. Joanne Seltzer 143 Washington Avenue 9 Heyward Lane Albany, NY 12210 Rockville Centre, NY 11570 [email protected] [email protected] Wage and Hour Jonathan Weinberger Patrick J. Solomon Law Offices of Jonathan Weinberger Thomas & Solomon LLP 880 Third Ave. 693 East Avenue 13th Floor Rochester, NY 14607 New York, NY 10022 [email protected] [email protected] Robert Whitman Membership Seyfarth Shaw LLP Alyssa L. Zuckerman 620 8th Ave Lamb & Barnosky LLP New York, NY 10018-1618 534 Broadhollow Rd. [email protected] Suite 210 Melville, NY 11747 Workplace Rights and Responsibilities [email protected] Dennis A. Lalli Bond Schoeneck & King PLLC Public Sector Labor Relations 600 3rd Avenue Nathaniel G. Lambright 22nd Floor Blitman & King LLP New York, NY 10016 Franklin Center [email protected] Suite 300 443 North Franklin Street Syracuse, NY 13204 [email protected]

68 NYSBA Labor and Employment Law Journal | Fall 2019 | Vol. 44 | No. 1 Labor and Employment Editor-in-Chief Colin M. Leonard Law Journal Bond, Schoeneck & King, PLLC One Lincoln Ctr Publication and Editorial Policies Syracuse, NY 13202-1355 [email protected] Persons interested in writing for the Labor and Employment Law Journal are welcomed and encour- Section Officers aged to submit their articles for consider ation. Your Chair ideas and comments about the Labor and Employ- Alyson Mathews ment Law Journal are appreciated. Lamb & Barnosky, LLP Publication Policy: If you would like to have an 534 Broadhollow Road article considered for publication, please call or Suite 210 e-mail us. When your article is ready for submis- Melville, NY 11747-9034 sion, please send it to us by e-mail in Microsoft [email protected] Word format. Please include a letter granting per- mission for publication and a one-paragraph biog- Chair-Elect raphy. Christopher A. D’Angelo 511 Manor Lane Editorial Policy: The articles in the Labor and Pelham, NY 10803 Employment Law Journal represent the author’s [email protected] viewpoint and research and not that of the Labor and Employment Law Journal Editorial Staff or Sec- Secretary tion Officers. The accuracy of the sources used and Michael C. Lydakis the cases cited in submissions is the responsibility Kane Kessler, PC of the author. 2 Penn Plaza New York, NY 10121 Deadlines for submission are January 15th, May [email protected] 15th and September 15th of each year. If we receive your article after the submission date, it will be con- Immediate Past Chair sidered for the next issue. Cara E. Greene Outten & Golden LLP Colin M. Leonard 685 Third Avenue, 25th floor Editor-in-Chief New York, NY 10017 [email protected] Non-Member Subscriptions: The Labor and Em- ployment Law Journal is available by subscription to non-attorneys, libraries and organizations. The Corrections in Online Version: subscription rate for 2019 is $135.00. For further information, contact the Newsletter Department at The following have been corrected from the printed copy the Bar Center, 518-463-3200. of this issue:

Accommodations for Persons with Disabilities: -The title of the article by Geoffrey Mort and Steven NYSBA welcomes participation by individuals with Sled-szik had an error. “Development” has been changed disabilities. NYSBA is committed to complying to “Developing.” with all applicable laws that prohibit discrimination against individuals on the basis of disability in the -The article“#MeToo and Separating Arbitration from full and equal enjoyment of its goods, services, pro- Non-Disclosure Agreements” by Ann-Elizabeth Ostrager grams, activities, facilities, privileges, advantages, or and Lisa M. Ebersole was omitted in error. It appears in accommodations. To request auxiliary aids or servic- this online version. es or if you have any questions regarding accessibil- ity, please contact the Bar Center at 518-463-3200.

NYSBA Labor and Employment Law Journal | Fall 2019 | Vol. 44 | No. 1 69 Thank You!

For your dedication, For your commitment, and For recognizing the value and relevance of your membership.

As a New York State Bar Association member, your support helps make us the largest voluntary state bar association in the country and gives us credibility to speak as a unified voice on important issues that impact the profession.

Henry M. Greenberg Pamela McDevitt President Executive Director

NEW YORK STATE BAR ASSOCIATION NON-PROFIT LABOR AND EMPLOYMENT LAW SECTION U.S. POSTAGE One Elk Street, Albany, NY 12207 PAID ALBANY, N.Y. PERMIT NO. 155

Save the Date Labor & Employment Law Section Fall Meeting October 9 - 11, 2020

The Resort at Longboat Key Club Named One of the Top Resorts in FL, 2019 Condé Nast Reader’s Choice Awards Longboat Key, Florida

Info and Hotel Reservations: www.nysba.org/LABRFA20