Citation Numbers: 21 Misc. 3d 268, 863 NYS2d 323
Judges: Stallman
Filed Date: 7/8/2008
Status: Precedential
Modified Date: 2/5/2022
In this employment discrimination action, plaintiff Darlene Johnson alleges that defendant Association for the Advancement of the Blind and Retarded discriminated against her based on her alleged criminal history, in violation of the State’s and City’s Human Rights Laws, and Correction Law § 752. Defendant moves for an order compelling plaintiff to provide defendant with duly executed authorizations to unseal and copy all sealed records of any criminal arrest or criminal prosecution, and to provide certain documents demanded in defendant’s request for documents dated April 6, 2007, to which plaintiff objected.
Background
Defendant offers people with developmental disabilities and autism and their families a wide range of services, including, among other things, residential services. Plaintiff applied for a job with defendant around August 2005, and in early November defendant extended a job offer to plaintiff as an assistant resident manager at defendant’s Cromwell Avenue location, subject to a background check. On her application, plaintiff answered “No” to the question, “Have you ever been convicted of a crime?” Defendant claims that, during an interview on October 24, 2005, plaintiff was asked whether she had ever been arrested, convicted or had any charges pending against her. Plaintiff allegedly stated that she had never been arrested, had no convictions, and had no pending charges.
By state law defendant is required to conduct a review of the criminal history of prospective employees or volunteers, or persons over the age of 18 residing in a family care home (except a person receiving family care services) “who will have regular and substantial unsupervised or unrestricted physical contact with the clients.” (Mental Hygiene Law § 16.33 [a]; § 31.35 [a]; 14 NYCRR 633.5.) Defendant requested a criminal history record check for plaintiff from the Office of Mental Retardation and Development Disabilities (OMRDD).
The background check revealed that, two months prior to her employment with defendant, plaintiff had been arrested and charged with a class B felony of intent to sell drugs, as well as a class A misdemeanor for possessing drugs and drug paraphernalia. On December 8, 2005, plaintiff pleaded guilty to disorderly conduct and was given a one-year conditional discharge.
Plaintiff commenced this action on February 7, 2007. Plaintiff claims that defendant discriminated against her perceived criminal history, in violation of the State and City Human Rights Laws (Executive Law § 296 [15]; Administrative Code of City of NY § 8-107 [10] [a]) and article 23-A of the Correction Law. She seeks reinstatement, back pay from February 2006 to the present, damages, and attorneys fees.
Defendant served a request for documents dated April 6, 2007, which demanded, in relevant part, documents that describe, evidence or refer to any criminal charge(s) or pending charge(s) against plaintiff since 2004, or documents describing or evidencing communications with the New York City Police Department or District Attorney’s Office concerning such criminal charges or pending charges. Defendant also demanded all documents related to plaintiff’s September 7, 2005 arrest and disposition there, including any certificate of disposition and certificate of release from disabilities. Plaintiff objected to these requests, to the extent that they called for production of documents and information sealed pursuant to Criminal Procedure Law § 160.55. Plaintiff also objected to the demands as unnecessary for the prosecution or defense of the action, and as causing unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice.
The request also demanded documents concerning any lawsuit or administrative action that plaintiff has brought or participated in since 2003, and any and all documents reflecting any bankruptcy or court order against plaintiff. Plaintiff objected to these demands on the ground that the documents sought were not necessary to the prosecution or defense to the action, and would also cause unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice.
Defendant now moves to compel plaintiff to respond to its document demands, and to compel plaintiff to provide authorizations to unseal and copy all sealed records of any criminal arrest or criminal prosecution.
Discussion
Defendant contends that it is entitled to delve into plaintiffs criminal history to find any other evidence justifying plaintiff s
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The discovery sought is material and necessary to the defendant’s tenth affirmative defense, that the employment decisions would have been taken for legitimate, nondiscriminatory reasons. (Parker affirmation, exhibit B.) As defendant indicates, in McKennon v Nashville Banner Publishing Co. (513 US 352 [1995]), the United States Supreme Court held that the employer may use “after-acquired evidence,” i.e., evidence that, if known at the time of termination, would have provided the employer with additional basis for terminating an employee, as a defense to reinstatement and back pay in a discrimination suit.
“Once an employer learns about employee wrongdoing that would lead to a legitimate discharge, we cannot require the employer to ignore the information, even if it is acquired during the course of discovery in a suit against the employer and even if the information might have gone undiscovered absent the suit.” (Id. at 362; see also 10 Ellicott Sq. Ct. Corp. v National Labor Relations Bd., 104 F3d 354 [2d Cir 1996].)
“Although McKennon involved a claim under the ADEA, its rationale is applicable to Title VII.” (Vichare v AMBAC Inc., 106 F3d 457, 468 [2d Cir 1996].) The standards for recovery under New York State’s and City’s Human Rights Laws are in accord with federal standards under title VII of the Civil Rights Act of 1964. (Ferrante v American Lung Assn., 90 NY2d 623, 629 [1997]; Umansky v Masterpiece Intl., 276 AD2d 692, 693 [2d Dept 2000].) Thus, courts have applied McKennon to discrimination claims under New York law. (See Reinach v Wisehart, 209 AD2d 332 [1st Dept 1994] [after-acquired evidence of resume fraud did not defeat claim of religious discrimination].)
“ ‘[P]retrial disclosure extends not only to admissible proof but also to testimony or documents which may lead to the disclosure of admissible proof,’ including material which might
In a surreply, plaintiff argues that a recent amendment to Executive Law § 296 (16) bars defendant’s discovery of any after-acquired evidence. In 2007, the Legislature amended Executive Law § 296 (16) to prohibit, unless specifically required or permitted by statute,
“any inquiry about, whether in any form of application or otherwise, or to act upon adversely to the individual involved, any arrest or criminal accusation of such individual not then pending against that individual which was followed by a termination of that criminal action or proceeding in favor of such individual, as defined in [CPL 160.50 (2)][1 ] . . . or by a conviction for a violation sealed pursuant to [CPL 160.55] in connection with the licensing [or] employment . . . [of] such individual.” (L 2007, ch 639, §1.)
The statute also provides for exceptions which are not applicable here. Plaintiff argues that the effect of this amendment is to bar discovery into sealed criminal records or to act adversely upon sealed convictions for violations on the question of reinstatement and back pay, because these would not be factors that an employer could legitimately consider when hiring an employee. Because plaintiff pleaded guilty to disorderly conduct, a violation, plaintiff maintains that Executive Law § 296 (16) bars defendant from acting upon information related to that violation.
Plaintiffs arguments are unpersuasive. By statute, defendant is mandated to inquire into plaintiffs criminal history, and the use of such information is governed by Executive Law § 845-b. (Mental Hygiene Law §§ 16.33, 31.35; 14 NYCRR 633.5.) Thus, the recent amendment to Executive Law § 296 (16) does not bar
“The scope of disclosure provided by CPLR 3101 is generous, broad, and is to be construed liberally.” (Mann v Cooper Tire Co., 33 AD3d 24, 29 [1st Dept 2006].) It is premature to determine whether defendant may offer the information acquired during discovery as after-acquired evidence. Neither does the court opine on the admissibility of any information obtained from plaintiffs sealed criminal records.
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CPL 160.50 “creates a statutory privilege intended to ensure confidentiality and protect an individual from the potential stigma resulting from a criminal matter.” (Wright v Snow, 175 AD2d 451, 452 [3d Dept 1991].) “Where, however, an individual affirmatively places the underlying conduct at issue by bringing a civil suit, the courts have consistently held that the statutory protection is waived.” (Green v Montgomery, 95 NY2d 693, 701 [2001]; Rodriguez v Ford Motor Co., 301 AD2d 372 [1st Dept 2003].) This also applies to CPL 160.55, which similarly provides for sealing of criminal records.
Therefore, defendant is entitled to an order compelling plaintiff to execute authorizations to unseal and copy all sealed records of any criminal arrest or criminal prosecution of plaintiff. However, the application to unseal the records must be brought before the court who had jurisdiction over the criminal matter. (Lauricella v Tanya Towers, Inc., 8 AD3d 153, 154 [1st Dept 2004].)
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Because plaintiff has waived the privilege attached to sealed criminal records by commencing this action, plaintiff’s objection to items 6, 7, 8, and 35 of defendant’s request for documents dated April 6, 2007 is overruled. Plaintiff must therefore provide all documents responsive to these requests within her custody, possession or control within 60 days.
Plaintiff’s objections to items 40 and 44 (which defendant numbered as items 39 and 43)
Item 44 seeks any and all documents reflecting any bankruptcy or court order against plaintiff. However, defendant has not explained how these documents are relevant, or would be reasonably calculated to lead to admissible evidence to be entitled to disclosure. (Polygram Holding, Inc. v Cafaro, 42 AD3d 339 [2007] supra; Lager Assoc. v City of New York, 202 AD2d 398 [2d Dept 1994]; Wiseman v American Motors Sales Corp., 103 AD2d 230, 237 [2d Dept 1984].)
Conclusion
Accordingly, it is hereby ordered that plaintiff must provide defendant with duly executed authorizations to unseal and copy all sealed records of any criminal arrest or criminal prosecution of plaintiff within 60 days; and it is further ordered that plaintiff must provide all documents responsive to items 6, 7, 8, and 35 of defendant’s request for documents dated April 6, 2007 within her custody, possession or control, within 60 days; and it is further ordered that the remainder of defendant’s motion to compel is denied.
. As in the original. The termination of a criminal action or proceeding in favor of an individual is defined in CPL 160.50 (3).
. CPL 160.55 (1) (c) provides for sealing of “all official records and papers relating to the arrest or prosecution, including all duplicates and copies
. Item 34 was numbered twice on defendant’s document request; plaintiff’s response renumbered the items consecutively.