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Appellate Court Affirms Individual Liability in Employment Discrimination Case

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Peter J. Weishaar
Mar 29, 2021
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The latest batch of decisions from the Appellate Division, Fourth Judicial Department (the “Fourth Department”) included a pair of employment discrimination cases arising out of proceedings before the New York State Division of Human Rights (the “Division”). In Matter of El Agave Mexican Grill, Inc. v. New York State Division of Human Rights, the Court affirmed judgment against the individual petitioner, holding that he “may be held liable for the discrimination inasmuch as he is the sole owner of the corporate petitioner and was a perpetrator of the discrimination against complainant.”

According to the Division’s final order, the employee was hired to work as a waitress at the petitioner’s Mexican restaurant in March 2013. At the time she was hired, she was “visibly pregnant” and the owner of the restaurant knew she was pregnant. After consistently working either the afternoon or evening shifts every Tuesday through Friday each week for nearly three months, she developed bronchitis in mid-May, and needed to call in sick for her shifts.

When she was ready to return to work, the restaurant’s owner told her that she would be changing over to the “morning shift” in the future, but in spite of telling her that he would call her the next day, he never called her with her schedule, and never answered her calls or texts.

About a week later, the employee finally reached the owner, who told her that she would not be on the schedule because of her pregnancy. She was later told that the restaurant had “no room” in the schedule and that another waitress was hired to replace her.

The restaurant never placed her back on the schedule—effectively constructively discharging her—and on June 12, 2013, she filed a verified complaint with the Division, alleging unlawful discriminatory practices relating to employment in violation of the New York Human Rights Law.

Following an investigation, the Division concluded that it had jurisdiction over the complaint and that probable cause existed to believe that the restaurant and its owner had engaged in unlawful discriminatory practices. The case was thereafter scheduled for a public hearing before an administrative law judge (“ALJ”).

After the public hearing, the ALJ concluded that the restaurant and its owner were liable for unlawfully discriminating against their former employee based on her pregnancy. The ALJ awarded damages for lost wages and emotional distress, and also imposed a civil penalty in the amount of $5,000 to “deter Respondents from future discriminatory behavior.” The Division adopted the findings and conclusions of the ALJ, and the restaurant and its owner thereafter appealed to the Fourth Department.

On appeal, the Court concluded that the Division’s determination—which adopted the findings of the ALJ—was supported by substantial evidence that the restaurant and its owner discriminated against their former employee based on her pregnancy. The Court also affirmed the determination in its entirety, including the civil penalty, concluding “that the civil penalty does not constitute an abuse of discretion, particularly in light of petitioners’ constructive discharge of the pregnant complainant, which thrust her into a state of emotional and financial distress.”

Although the restaurant and its owner had an attorney represent them on appeal, the record reflects that they did not have an attorney during the Division’s investigation and subsequent public hearing.

The other case decided by the Fourth Department, Matter of Joseph Hackett v. New York State Division of Human Rights, involved a challenge by an employee against the Division’s determination. The complainant had filed a complaint with the Division, alleging that his former employer unlawfully discriminated and retaliated against him. Following an investigation, the Division dismissed the administrative complaint, finding no probable cause to believe that the employer engaged in discriminatory or retaliatory conduct. The complainant sought to challenge that determination in court, but the challenge was dismissed by the Fourth Department because the complainant failed to name the his former employer as a necessary party. The complainant filed his challenge pro se, meaning that he was representing himself.

One of the benefits of filing a complaint with the Division is that if the Division finds probable cause to believe that the employer engaged in unlawful discriminatory or retaliatory conduct, the Division will appoint a Division attorney to prosecute the case before an ALJ. If a complainant can demonstrate probable cause, they do not need to hire an attorney. However, a respondent should always have an attorney, and the attorney should be involved as early as possible.

We have represented countless employers facing complaints of unlawful discrimination or retaliation before the Division. If your business is facing a complaint of discrimination in the Division or a charge of discrimination before the U.S. Equal Employment Opportunity Commission, please contact us to discuss how we may be able to assist you.

If you would like to schedule a consultation to talk about our firm’s employment litigation practice, please contact Peter Weishaar at or 585.512.3542. Peter's employment practice includes the representation of businesses and individuals in matters involving restrictive covenants, non-compete agreements, discrimination, failure to pay wages in State and Federal Courts, and before administrative agencies, including the New York State Division of Human Rights and the United States Equal Employment Opportunity Commission.

This publication is intended as an information source for clients, prospective clients, and colleagues and constitutes attorney advertising. The content should not be considered legal advice and readers should not act upon information in this publication without individualized professional counsel.

About MCCM

McConville Considine Cooman & Morin, P.C. is a full-service law firm based in Rochester, New York, providing high-quality legal services to businesses and individuals since 1979.  With over a dozen attorneys and a full paralegal support staff, the firm is well-positioned to right-size services tailored to each client. We are large enough to provide expertise in a broad range of practice areas, yet small enough to devote prompt, personal attention to our clients.

We represent a diverse range of clients located throughout New York State and New England.  They include individuals, numerous manufacturing and service industry businesses, local governments, and health care professionals, provider groups, facilities and associations. We also serve as local counsel to out-of-state clients and their attorneys who have litigation pending in Western New York courts.  For more information, please contact us at 585.546.2500.