Application to file late claim alleging disability-based employment discrimination by defendant against claimant/employee pursuant to Human Rights Law is denied as Court of Claims Act 10 (6) factors weigh against claimant where claimant has a superior alternative remedy in Supreme Court, where requested reinstatement is available and where proposed claim fails to show appearance of merit in that proposed claim fails to allege facts tending to show constructive discharge of claimant who resigned from employment and fails to allege facts tending to show that defendant's actions raised inference of unlawful discrimination.
|Claimant(s):||GERALD E. BRIFFA|
|Claimant short name:||BRIFFA|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :||The caption is amended to state the proper defendant in the Court of Claims.|
|Judge:||FRANK P. MILANO|
|Claimant's attorney:||MAYNARD, O'CONNOR, SMITH & CATALINOTTO,
By: Andrea P. Demers, Esq., Of Counsel
|Defendant's attorney:||HON. LETITIA JAMES
New York State Attorney General
By: Anthony Rotondi, Esq.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||August 6, 2020|
|See also (multicaptioned case)|
Claimant moves for permission to file a late claim pursuant to Court of Claims Act 10 (6) to allege a cause of action for disability-based discrimination in his employment with the New York State Department of Health (DOH) in violation of New York State Human Rights Law (HRL) 296 (1) (a). Defendant opposes the claimant's application.
The proposed claim alleges that claimant is an attorney suffering from an undisclosed disability who was hired as a Senior Attorney with DOH in March 2017. Claimant's employment was secured through a program intended to "assist persons with disabilities to obtain employment positions within New York State."
The claim further alleges that after claimant had begun his employment with defendant, DOH agreed that claimant would eventually be offered a three (3) day per week telecommuting schedule, to be phased in over time, as a reasonable accommodation for his disability.
The claimant's telecommuting schedule began in April 2017 with one (1) day per week telecommuting provided to claimant. In June 2017, claimant began a two (2) day per week telecommuting schedule and, in August 2017, claimant "intended to formally request a third day per week of telecommuting."
The proposed claim further asserts that in August 2017, prior to claimant's request for a third day per week of telecommuting, "defendant implemented a department wide policy change rescinding all telecommuting, including both individuals who that [sic] telecommuted as a reasonable accommodation as well as for other reasons, and required employees requesting telecommuting as a reasonable accommodation to reapply."
The proposed claim states that claimant "thereafter requested three (3) days per week of telecommuting specifically as a reasonable accommodation for his disability."
On August 17, 2017, DOH denied claimant's request "for a third day per week of telecommuting."
The proposed claim alleges that "[u]pon information and belief, claimant was unable to complete his job activities in a reasonable manner without the reasonable accommodation of three (3) days per week of telecommuting, and as a result was forced to resign his position with the New York State Department of Health in August 2017."
The proposed claim asserts that "the defendant discriminated against claimant on the basis of disability" and that "claimant was caused to suffer damages, including but not limited to, lost wages and benefits, job search costs, and mental anguish and emotional distress, both past and future."
Significantly, the primary relief sought in the proposed claim requests claimant's "reinstatement of his prior position."
Initially, the Court notes that the claim accrued in August 2017 and is untimely whether it is considered a tort claim pursuant to Court of Claims sections 10 (3) or 10 (3-a), or a statutory cause of action subject to a six-month filing period pursuant to Court of Claims Act 10  (see Clauberg v State of New York, 19 Misc 3d 942 [Ct Cl 2008]).
Court of Claims Act 10 (6) provides that the Court, upon application and in its discretion, may permit the late filing and service of a claim "at any time before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules."
Claimant's cause of action to recover damages pursuant to the New York State Human Rights Law for disability discrimination is subject to the three-year statute of limitations contained in CPLR 214 (2) (Koerner v State of New York, 62 NY2d 442, 446 ).
The claimant's late claim application made on December 10, 2019 is not time-barred by CPLR Article 2.
In determining the application, Court of Claims Act 10 (6) provides that:
"[T]he court shall consider, among other factors, whether the delay in filing the claim was excusable; whether the state had notice of the essential facts constituting the claim; whether the state had an opportunity to investigate the circumstances underlying the claim; whether the claim appears to be meritorious; whether the failure to file or serve upon the attorney general a timely claim or to serve upon the attorney general a notice of intention resulted in substantial prejudice to the state; and whether the claimant has any other available remedy."
In reviewing a late claim application, "the Court of Claims is required to consider, among other factors, those enumerated in Court of Claims Act § 10 (6), no one factor being controlling" (Matter of Donaldson v State of New York, 167 AD2d 805, 806 [3d Dept 1990]; see Matter of Duffy v State of New York, 264 AD2d 911, 912 [3d Dept 1999]). In fact, "[n]othing in the statute makes the presence or absence of any one factor determinative" (Bay Terrace Coop. Section IV, Inc. v New York State Employees' Retirement System Policemen's and Firemen's Retirement System, 55 NY2d 979, 981 ).
Further, "it is well settled that the Court of Claims' broad discretion in this area should be disturbed only in the face of clear abuse" (Calco v State of New York, 165 AD2d 117, 119 [3d Dept 1991], lv denied 78 NY2d 852 ).
Claimant fails to offer a reasonable excuse for the delay in filing and serving the claim and that factor bears against claimant. Claimant, an attorney, states that it was his "understanding that the filing timeframe provisions contained in the Court of Claims Act § 10 are not applicable to a claim based solely on Human Rights Law," without offering any basis for his mistaken belief. Ignorance of the law does not excuse failure to comply with the applicable filing and service requirements (Sevillia v State of New York, 91 AD2d 792 [3d Dept 1982]; Powell v State of New York, 187 AD2d 848, 849 [3d Dept 1992]).
Whether the defendant had notice of the essential facts constituting the claim, had an opportunity to investigate the circumstances underlying the claim and whether claimant's failure to file and serve a timely claim resulted in substantial prejudice to the defendant are interrelated and are considered together.
With regard to notice of the essential facts underlying the claim, claimant states that "there were many discussions, both orally and in writing, between myself and my managers and supervisors during the course of my employment with defendant regarding the need for the reasonable accommodation." Neither the Court nor the defendant have been provided the content of any such purported oral or written discussions and the Court cannot credit claimant's argument as to defendant's notice of the essential facts, especially in view of the fact that claimant resigned from his position.
Despite claimant's failure in that regard, the Court finds that the defendant's access to claimant's employment records provides defendant some opportunity to investigate the claim, although defendant's ability to interview claimant's managers, supervisors and co-employees has potentially been compromised by claimant's failure to commence a claim for nearly two (2) years and four (4) months after resigning from defendant's employ.
The Court cannot conclude that defendant is without prejudice in defending the claim, and the interrelated factors of notice, opportunity to investigate and prejudice are not in claimant's favor.
Claimant had available alternative remedies through an administrative claim submitted to either the New York State Division of Human Rights or the Equal Employment Opportunity Commission and could have commenced a CPLR Article 78 proceeding or a federal court action.
Furthermore and importantly, claimant has a superior alternative remedy available in New York State Supreme Court based upon HRL 296 (1) (a). As set forth earlier, such an action is subject to a three (3) year statute of limitations (Koerner, 62 NY2d at 446)
Koerner (62 NY2d at 448-49 [internal citations omitted]), explains that:
"[T]he State is clearly subject to the provisions of the Human Rights Law. It has been held, moreover, that the State Division of Human Rights may award compensatory damages against the State as employer, and that such an award may be enforced without recourse to the Court of Claims . . . In granting the Division power to award compensatory damages against an employer . . . the Legislature must be deemed to have waived both the State's immunity to suit and the requirement that it be sued in the Court of Claims. That being so, we can find no justification for concluding that a different rule should be applicable to judicial actions commenced against the State. In light of the Legislature's admonition that the provisions of the Human Rights Law must be construed liberally for the accomplishment of their purposes . . . we conclude that the Legislature has provided implicit consent that the State be sued in a forum other than the Court of Claims. Inasmuch as the Court of Claims has no power to order such equitable relief as reinstatement . . . a contrary conclusion would lead to the manifestly unfair result of requiring the person against whom the State has unlawfully discriminated to institute separate lawsuits to fully redress the wrong committed. Given the broad, ameliorative purposes of the Human Rights Law, we cannot ascribe such an intent to the Legislature." (Emphasis added).
The point is further made at 18A NY Jur 2d Civil Rights § 218 :
"A civil action against the state alleging job discrimination in violation of the Human Rights Law, and seeking not only damages but reinstatement and back pay, is properly brought in the supreme court, rather than the court of claims, since the court of claims has no power to order such equitable relief as reinstatement. To hold otherwise would require a person against whom the state has unlawfully discriminated to institute separate lawsuits to fully redress the wrong committed."
The availability of a superior alternative forum, where claimant can seek the equitable relief of reinstatement unavailable in the Court of Claims, weighs against claimant.
Section 10 (6) requires that the proposed claim not be "patently groundless, frivolous or legally defective, and [that] upon consideration of the entire record, there is cause to believe that a valid cause of action exists" (Rizzo v State of New York, 2 Misc 3d 829, 834 [Ct Cl 2003]; see Dippolito v State of New York, 192 Misc 2d 395 [Ct Cl 2002]; Remley v State of New York, 174 Misc 2d 523 [Ct Cl 1997]; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 11 [Ct Cl 1977]).
Regarding the elements of a disability-based employment discrimination claim, Sommerville v R.C.I. (257 AD2d 884 [3d Dept ), instructs that: "To support a cause of action under Executive Law § 296(1)(a), [claimant] was required to show that (1) he was a member of the class protected by the statute, (2) he was actually or constructively discharged, (3) he was qualified to hold the position, and (4) the discharge occurred under circumstances raising the inference of unlawful discrimination."
First, it is questionable whether claimant "was actually or constructively discharged" (Sommerville, 257 AD2d at 884). The proposed claim does not allege that claimant was denied a continuation of his two (2) day a week telecommuting schedule but instead alleges that "defendant denied the application or request for a third day per week of telecommuting."
The proposed claim further alleges that "claimant was unable to complete his job activities in a reasonable manner without the reasonable accommodation of three (3) days per week of telecommuting." This, despite the proposed claim also stating that there was "successful implementation and use" of the one (1) day per week telecommuting schedule from April 2017 to June 2017 and further asserting that claimant had "successfully utilized" a two (2) day per week telecommuting schedule from June 2017 until claimant resigned on or after August 17, 2017.
Claimant offers no explanation as to why he was unable to continue his employment on a two (2) day per week telecommuting schedule. Neither the proposed claim, nor claimant's affidavit, suggest a reason why the defendant's denial of a third telecommuting day per week transformed his admitted resignation into a constructive discharge even though claimant was able to successfully utilize a one (1) day per week telecommuting schedule from April 2017 to June 2017 and a two (2) day a week telecommuting schedule from June 2017 to August 17, 2017.
The proposed claim also fails to adequately show that "the discharge occurred under circumstances raising the inference of unlawful discrimination" (Sommerville, 257 AD2d at 884).
The proposed claim expressly acknowledges that the denial of claimant's plan for a three (3) day per week telecommuting schedule on August 17, 2017 occurred after "defendant implemented a department wide policy change rescinding all telecommuting, including both individuals who that [sic] telecommuted as a reasonable accommodation as well as for other reasons, and required employees requesting telecommuting as a reasonable accommodation to reapply."
In considering the overall merit of the proposed claim, case law is clear that where the employer has "a facially valid, independent and nondiscriminatory reason for the questioned conduct, the burden shifted to [claimant] to raise a question of fact with respect to whether the claimed reason for his termination is, in reality, merely a pretext for illegal discrimination" (Wozniak v Components Assembly Div. Inc., 220 AD2d 934, 935 [3d Dept 1995]; see Horwitz v L. & J.G. Stickley, Inc., 305 AD2d 956 [3d Dept 2003]).
Here, the proposed claim itself acknowledges that all DOH employees, disabled or not, were subject to the new DOH telecommuting policy and that claimant was not singled out for disparate, discriminatory treatment. Despite this admission, the proposed claim offers no factual allegation tending to show that the defendant's reason for denying a third telecommuting day per week to claimant was "merely a pretext for illegal discrimination" (Wozniak, 220 AD2d at 935).
The merit of the proposed claim has not been sufficiently established and this factor bears against claimant's application.
Based upon a balancing of the factors set forth in Court of Claims Act 10 (6), the claimant's application to file and serve a late claim is denied.
August 6, 2020
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
1. Notice of Motion, filed December 12, 2019;
2. Affirmation of Andrea P. Demers, dated December 10, 2019, and attached exhibits, including Proposed Claim of Gerald E. Briffa, verified November 7, 2019 and Affidavit of Gerald E. Briffa, sworn to November 7, 2019;
3. Affirmation in Opposition of Anthony Rotondi, dated February 4, 2020;
4. Reply Affirmation of Andrea P. Demers, dated February 11, 2020.