Professor Newman

Elements of Law

Final Examination

June 23, 2008

Instructions:

This is an open book examination.
Total available exam time is four hours. Read the exam and think about the content and organization of your answer before writing.
The maximum length for typewritten answers is 1,250 words, 12 point font, with one inch margins. For bluebook written exams, write on only one side of a page in the blue book. You may use no more than eight single-spaced or sixteen double-spaced bluebook pages to complete the entire exam. You will be penalized if you exceed the page or word limits. You may have additional bluebooks or paper for “scratch” use. Only your actual answer will be reviewed.

The Green Point Diner is afixtureon Long Island. Locals and vacationers alike make a point of stopping by for a bite any time of the day or night. The diner was first opened in 1978 by Carl Toomey, who turned it over to his son Jack, in early 2006. The diner has always done well, but Jackhas expanded the business in recent years. He hired a marketing agency to take over the branding and publicity and hashad the diner listed in select tourist and restaurant guides. Jack’s next project is to create merchandizing for the diner including T-shirts, cookbooks and spice mix.

There has been significant employee turnoverover the years, but there is one employee who has been therethroughout. Bob Lowry started working at the diner the very first week it opened. He started in his mid-twenties and has been waiting tables now for close to thirty years. At 58, Bob loves interacting with the customers, many of whom he knows well. While he has never earned much more than minimum wages, his tips have afforded him a comfortable income.

After Jack took over, however, Bob’s income from tips declined. Uniformly,Bob has been assigned to the slower shifts. He is no longer given weekend or lunch shifts on week days, both the busiest times at the diner. Additionally, he is assigned to the sections of the diner close to the bathrooms and the kitchen. Because of their location, these sections are the least busy. Working during quieter times in the less busy sections has meant that Bob’s income from tips has decreased by almost half.

While Bob did not raisethese issueswith the management, he did grumble about themto his co-workers. No one else seemed to be having the same problems; rather, they all loved the new schedule because they no longer had to tend to the quieter sectionson slower shifts. Lisa Wilkinson however agreed with Bob that it did not seem fair. She started wondering why Bob was the only one affected by these changes and wondered out loud if it had anything to do with Bob’s age. After all, he was every other employee’s elder by at least twenty years. Lisa told Bob he should say something about it to the management and make a complaint, but Bob did not want to cause trouble.

Lisa felt particularly bad about the situation as she benefitted from it the most. She was always offered the best shifts and the best sections, but felt it was not fair. She thought if Bob would not stand up for himself, someone should do it for him. Lisa had been working at the diner for only a year but she thought her good relationship with Jack would make him receptive to what she had to say. After all, he did tell her she was his best waitress and that she should come to him if she ever needed anything.

Lisa went to see Jack. She told him that she was uncomfortable with the way Bob was being assigned the worst shifts and the worst sections. She told Jack she could not help thinkingBob was being treated differently because of his age and that it was appalling to treat such a loyal employee that way. Jack, usually very friendly, replied abruptly that she should concentrate on waiting tables and leave the management to him.

Lisa told Bob she had spoken to Jack, but that it had not gone the way she expected. The whole process left her disillusioned with the management at the diner and made her reconsider whether she wanted to continue working there. At 22, she thought waitressing would be all right for a while, but she ultimately wanted to do more and so thought this would be a good time to start looking for work elsewhere.

Bob never told Lisa, but he felt embarrassed that she talked to Jack on his behalf while he was not addressing the situation himself. The more he thought about it, the more he was convinced he was being treated differently because of his age. On September 1, 2006, Bob filed a complaint for age discrimination.

The following week, on September 8, 2006, Lisa was let go. Jack explained to her that with the fall coming, the diner would not be as busy and that he was overstaffed. Another waitress mentioned on Lisa’s last day that she heard Jack was angry atLisa because of her concernfor Bob.Lisa was thinking of applying for a hostess position at the Orient Point Resort and leaving the diner encouraged her to go for it.

On March 15, 2008, EmmaLevine, the assistant manager at the Green Point Diner, ran into Lisa at the Orient Point Resort. Catching up on old times, Emma told Lisa she was sorry Lisa had been fired for speaking up for Bob. During the staff meeting on the day Bob filed a complaint for age discrimination, Jack told Emma that it had been Lisa who gave Bob the idea to complain and that she was‘trouble.’ Emma told Lisa it was especially a shame considering that Bob’s case had not prevailed.

Lisa was furious following her conversation with Emma. While her hostess position was working out well, Lisa thought Jack’s actions were out of line and that he should not get away with them.

On May 10, 2008, Lisa filed a complaint in the New York State Supreme Courtunder New York Human Rights Law § 296, claiming she had been fired by theGreen Point Diner in retaliation for her advocacy for a fellow worker who was being discriminated against due to his age.

In response to a Motion to Dismiss by the Green Point Diner, the court dismissed Lisa’s complaint, stating that it was not timely filed. The court held that pursuant to Beckford v. Corning Glass Works, 57 N.Y.3d 866 (New York Supreme Court, 2000) the “one-year period of limitation in which a party may file a complaint as to an unlawful practice is determined by statute and presumably reflects the legislature’s consideration of what constitutes timeliness in this area.” Lisa appealed the Supreme Court’s dismissal of her case to the Appellate Division.

Answer the following two questions:

Question 1: (80%)

(A)Based on the statutory language and case law provided, write the Appellate Division’s majority opinion in response to Lisa’s appeal.(40%)

(B)Now, assume that the Appellate Division grants Lisa’s appeal, resolving the issue of timeliness so as to allow Lisa’s case to go forward.The case is remanded to the Supreme Court for hearing.Back in the trial court, the Green Point Diner now files a Motion for Summary Judgment arguing that there was no discrimination against Lisa. The Motion for Summary Judgment is granted by the Supreme Court and Lisa appeals again to the Appellate Division.

You are a law clerk for the Appellate Division. Prepare a memo to the Appellate Division judge for whom you work,analyzing Lisa’s case on her claim of retaliation and recommending the court’s disposition of the appeal.Support your analysis with relevant statutes and case law. (40%)

Question 2: (20%)

In the last legislative session, the New York State Legislature considered an amendment to Section 296 of the New York Human Rights Law, which stated in part:

1. It shall be an unlawful discriminatory practice:

(b)For any employer to discharge, expel or otherwise discriminate against any person because he or she has filed a complaint or testified in any formal proceeding under this article.

Discuss whether the proposed amendment adequately addresses the issue of retaliation, particularly in the context of Lisa’s claim against Green Point Diner.

Statute

N.Y. Human Rights Law(1995)

Section 296. (Unlawful discriminatory practices)

1. It shall be an unlawful discriminatory practice:

(a) For an employer, because of the age, race, creed, color, national origin, sexual orientation, military status, sex, disability, predisposing genetic characteristics, or marital status of any individual, to refuse to hire or employ or to bar or to discharge from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment.

Section 297. (Procedure)

5. Any complaint filed pursuant to this section must be so filed within one year after the alleged unlawful discriminatory practice.

9. Any person claiming to be aggrieved by an unlawful discriminatory practice shall have a cause of action in any court of appropriate jurisdiction for damages, punitive damages, and such other remedies as may be appropriate.

Case Law

Riches v. Sullivan, 65 N.Y.3d198(New York Supreme Court, 2001)

“The State Legislature has long recognized the damage that discriminatory practices can have in the workplace, and has taken action to curb such practices and punish discriminatorybehavior. When considering the limitation period applicable to Mr. Sullivan’s claim of race discrimination, we must reiterate that the express goal of the NY Human Rights Law is not to inhibit claims for discrimination.”

Heins v. Sunshine Airline Inc.,61 Cal. App.3rd 523 (California, 2005)

“Although an employer may take action that employees view as adverse for legitimate business purposes, the dayHeins learned that he had been transferred because of age discrimination, not because his position was being eliminated, is the date his right to claim started running. Even if he suspected the true motives of the airline after hearing some employees gossiping about it in the staff lounge, it is only when he inquired with his former colleagues about his former position that his suspicions were confirmed.”

Ledbetter v. Toys Emporium Inc., 65 A.D.2d 846 (New York Appellate Division, 1989)

“Although Mrs. Jones only recently became aware that she has been receiving lower wages than her male colleagues for many years, the act of discrimination she suffered was the decision made when she first started to work at the factory to pay her less. Therefore, the limitation period starts running from the date of that decision, and not as she argues, from the day of her last pay check. While it may be tempting in light of the plaintiff’s sympathetic circumstances to decide otherwise, we must remember that to allow the filing deadline to accrue from a later date than that of the day the discrimination first occurred would be to impose a heavier burden on the defendant then what the law originally intended.”

Sklar v. Smith,36 N.E.3d 118 (New York Court of Appeals, 2007)

“While the doctor’s negligence took place during the operation, Mr. Jenkins had no way of knowing of the doctor’s negligence until four years later when an X-ray ordered by his regular physician showed that an instrument had been left inside his chest. It would be unfair to deny Mr. Jenkins his right to sue his doctor because he did not file his claim within three years of the operation considering that he had no way of knowing of the doctor’s negligence earlier. We find that Mr. Jenkins’ claim was timely filed because it was done so within three years of discovering the doctor’s negligence.”

Jackson v. Latin Languages Institute, 866 F. Supp. 21 (Federal District Court for the District of New York, 2006)

“Mr. Jackson argues that he was passed over for promotions on three different occasions in favor of less qualified female teachers. Mr. Jackson filed a claim for sex discrimination under Title IX of the Education Amendments of 1972 (20 U.S.C. §1681), which provides that: “no person in the United States shall, on the basis of sex, … be subjected to discrimination under any education program or activity receiving Federal financial assistance.” He was demoted soon after for having filed a discrimination claim, which in our opinion and in accordance with the spirit of the law is equivalent to another act of discrimination on the employer’s part.”

Romano v. Super Mart Inc., 55 N.E.2d 46 (New York Court of Appeals, 2008)

“This court finds that Mr. Romano is justified under N.Y.Human Rights Law, Section 296, in his claim for racial discrimination against his employer Super Mart. And while Super Mart never acted on its threat to fire Mr. Romano should he complain about his working environment, we would have certainly found that any such act against an employee for making a complaint of discrimination is equivalent to discrimination itself and should not be tolerated.”

Cheng v. Home Security 123,22N.E.2d 899 (New York Court of Appeals, 2005)

“Plaintiff would like us to find that the conversion of his position from full-time to part-time was in fact an act of retaliation for the racial discrimination complaint he filed earlier, and that his employer should be liable under the N.Y. Human Rights Law for such act. We find the statute silent on that issue and are not prepared to insert meaning that was never intended by the legislature. Even if we were to find the statute to apply to acts of retaliation, the employer, Home Security 123,provided sufficient evidence demonstrating a significant drop in business, justifying moving some employees from full-time to part-time positions, including the plaintiff. We are satisfied that the employer’s decision was not racially motivated.”