Sassi v. Mobile Life Support Services

• Court: New York Court of Appeals
• Decided: October 12, 2021
• Docket: 55
• Status: Published

Opinion

State of New York OPINION Court of Appeals This opinion is uncorrected and subject to revision before publication in the New York Reports.

No. 55 Richard J. Sassi II, Appellant, v. Mobile Life Support Services, Inc., Respondent.

Jonathan R. Goldman, for appellant. Matthew Cohen, for respondent.

DiFIORE, Chief Judge:

Correction Law article 23-A and Executive Law § 296 (15) protect certain

individuals convicted of criminal offenses from unlawful discrimination in employment

and licensing. In this appeal, the issue is whether plaintiff adequately alleged that

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defendant, plaintiff’s former employer, violated the antidiscrimination statutes based on

the denial of plaintiff’s application for employment following the completion of his

criminal sentence. Applying our liberal pleading standard for a pre-answer motion to

dismiss pursuant to CPLR 3211 (a) (7), and giving plaintiff the benefit of every favorable

inference, we conclude that the courts below erred in concluding the complaint failed to

state a cause of action. We therefore reverse the Appellate Division order and deny the

motion to dismiss.

Assuming the allegations in plaintiff’s verified complaint to be true as we must in

this procedural context, between 2014 and 2016 plaintiff Richard J. Sassi II, a former police

officer, was employed by defendant Mobile Life Support Services, Inc., an ambulance

service. When plaintiff applied to work for Mobile Life in 2014, he disclosed that he “was

facing a misdemeanor charge relating to allegedly calling in a false emergency to 911” as

a police officer in 2012. Defendant hired plaintiff and soon promoted him to a full-time

dispatcher position. In early 2016, plaintiff informed his supervisors that his “retrial” 1 on

the misdemeanor charge was imminent, and he was subsequently convicted. Throughout,

plaintiff kept defendant apprised of the status of his trial, his conviction, and the results of

a presentence investigation report that recommended against incarceration.

In the complaint, plaintiff averred that, during the period between his conviction and

sentencing, he was told by both Mobile Life’s chief operating officer (COO) and its human

1 The record does not indicate when the first trial occurred, how it was resolved, or why a retrial was necessary. -2- -3- No. 55

resources director that he was a “good employee” and, in the “unlikely event he was

sentenced to jail time,” they would allow him to use accrued benefit time and “re-instate

him upon his release.” On May 18, 2016, plaintiff was “sentenced to 60 days’

incarceration” and immediately remanded to custody. When his wife promptly informed

defendant about the sentence, she was told that plaintiff could use accrued benefit time

until he “came back” to work. Soon thereafter, however, while plaintiff was incarcerated,

defendant terminated him for “job abandonment.” Following his release from jail, plaintiff

contacted a Mobile Life employee “who advised that he wanted plaintiff to return to work,”

but indicated “the supervisors were divided” on the issue. “[U]nable to regain his job”

through that contact, plaintiff subsequently met with the COO and the human resources

director who advised him that because Mobile Life “had previously terminated others who

had been incarcerated, they had to be consistent and terminate plaintiff.” Plaintiff then

commenced this action contending that defendant violated Correction Law article 23-A

and Executive Law § 296 (15) by refusing to “re-employ” him, seeking damages and

reinstatement to his former position.

Mobile Life moved to dismiss the complaint for failure to state a claim under CPLR

3211 (a) (7), generally asserting, among other things, that Executive Law § 296 (15) and

Correction Law article 23-A—which prohibit discrimination based on a previous

conviction—were inapplicable because plaintiff was convicted during his employment.

Supreme Court granted the motion and dismissed the complaint and, on plaintiff’s appeal,

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the Appellate Division affirmed (176 AD3d 886 [2d Dept 2019]). This Court granted leave

to appeal (34 NY3d 913 [2020]).

When reviewing a pre-answer motion “to dismiss the complaint for failure to state

a cause of action, we must give the pleadings a liberal construction, accept the allegations

as true and accord the plaintiff[] every possible favorable inference” (Chanko v American

Broadcasting Cos. Inc., 27 NY3d 46, 52 [2016], citing Goshen v Mutual Life Ins. Co. of

N.Y., 98 NY2d 314, 326 [2002]). Giving plaintiff “the benefit of all favorable inferences

which may be drawn from [the] pleading,” this Court determines only whether the alleged

facts “‘fit within any cognizable legal theory’” (Campaign for Fiscal Equity v State of New

York, 86 NY2d 307, 318 [1995], quoting Leon v Martinez, 84 NY2d 83, 87-88 [1994]).

The question is whether the complaint adequately alleged facts giving rise to a cause of

action, “not whether [it] properly labeled or artfully stated one” (Chanko, 27 NY3d at 52,

citing Leon, 84 NY2d at 88).

Where applicable, the Correction Law and the Human Rights Law protect

individuals convicted of criminal offenses from discrimination in the context of

applications for employment or licensing, subject to certain exceptions. In 1976, the

legislature enacted Correction Law article 23-A and Executive Law § 296 (15) in

furtherance of “the ‘general purposes’ of the Penal Law,” including “‘the rehabilitation of

those convicted’ and ‘the promotion of their successful and productive reentry and

reintegration into society’” (Matter of Acosta v New York City Dept. of Educ., 16 NY3d

309, 314 [2011], quoting Penal Law § 1.05 [6]; see Matter of Bonacorsa v Van Lindt, 71

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NY2d 605 [1988]). Correction Law § 751 broadly states that article 23-A applies to “any

application by any person for a license or employment at any public or private employer,

who has previously been convicted of one or more criminal offenses in this state or in any

other jurisdiction.” Correction Law § 752 contains similar language, stating that “[n]o

application for any license or employment, and no employment or license held by an

individual, to which the provisions of this article are applicable, shall be denied or acted

upon adversely by reason of the individual’s having been previously convicted of one or

more criminal offenses.” Executive Law § 296 (15), the Human Rights Law, incorporates

article 23-A, making it “an unlawful discriminatory practice for any person . . . to deny any

license or employment to any individual by reason of [that individual] having been

convicted of one or more criminal offenses . . . when such denial is in violation of

[Correction Law article 23-A].”

The statutes do not categorically preclude consideration of a prospective employee’s

criminal history and expressly permit the denial of employment or licensing if there is (1)

a “direct relationship” between the previous criminal offense and the specific employment

or license, or (2) if granting the request for employment or a license “would involve an

unreasonable risk” to the property, safety, or welfare “of specific individuals or the general

public” (Correction Law § 752). Thus, under the statutory scheme, reliance on a previous

criminal offense when denying an application for employment or a license is not

necessarily unlawful (see e.g. Bonacorsa, 71 NY2d at 614-615). Whether an exception

applies depends on factors identified in Correction Law § 753 such as, among other things,

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the relationship between the specific employment duties and the criminal offense as well

as the amount of time that has elapsed since the offense occurred (Correction Law § 753

[1] [b], [c], [d]).2 Under these provisions, when filling positions, public and private

employers must treat job applicants with prior convictions equitably “while also protecting

society’s interest in assuring performance [of job duties] by reliable and trustworthy

persons” (Bonacorsa, 71 NY2d at 611).

On this appeal, based on the arguments preserved by the parties, the only question

before us is whether plaintiff adequately alleged a violation of the antidiscrimination

statutes. While the legislative history suggests that the legislature may not have considered

this specific scenario—a request for reemployment with a pre-incarceration employer—

we conclude that the factual allegations are sufficient to survive defendant’s pre-answer

motion to dismiss. Nothing in the statutory language, scheme, or legislative history

indicates that the legislature intended for article 23-A or Executive Law § 296 (15) to

exempt a previous employer from the reach of those statutes. Instead, the statutes broadly

refer to “any application by any person for . . . employment at any public or private

employer, who has previously been convicted of one or more criminal offenses”

2 Because this appeal arises in the context of a pre-answer motion to dismiss, the record does not reveal the role, if any, such considerations played here in the decision to deny employment. In a case involving a former employee, the individual’s record with that employer and the circumstances surrounding the prior separation from employment would also be relevant. Our conclusion that defendant’s motion to dismiss should have been denied concerns no more than that procedural question and should not be interpreted as expressing a view on the merits of plaintiff’s claim. -6- -7- No. 55

(Correction Law § 751). Thus, this case does not fall outside the scope of the

antidiscrimination statutes merely because plaintiff previously worked for Mobile Life.

Moreover, we disagree with defendant’s contention that, even read liberally, the

complaint fails to adequately allege a post-conviction “application” by plaintiff. The term

“application” is not defined in the pertinent statutes but, read in the context of employment

and given its ordinary meaning, the word is reasonably interpreted to refer to a request for

employment. Employment applications may take various forms in different contexts

depending on, among other things, the nature of the relevant industry, the manner in which

new employees are solicited or open positions advertised, application protocols

implemented by the employer, and the relationship, if any, between a prospective employer

and employee. The application requirement is met if, viewed in context and from an

objective standpoint, the employer would have reasonably understood the communications

from the prospective employee to be a request for employment.

In this case, plaintiff alleged that he was terminated for job abandonment soon after

he was incarcerated. Applying our liberal standard, the complaint further may be read to

allege that, after he completed his sentence, he applied for reemployment in the dispatcher

position that he previously held, and Mobile Life denied the application solely because of

the prior conviction. Plaintiff alleged that he was advised that, although some supervisors

wanted him to return, defendant’s policy was to terminate employees who had been

incarcerated. Plaintiff’s allegation that he was told that his request was being denied due

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solely to his conviction supports the inference that he was not denied employment for some

other reason (for example, because the position had been filled during his incarceration).

Defendant offered an alternate interpretation of the allegations in the complaint,

contending they allege a “discriminatory termination” and do not reflect a post-conviction

application for employment. To that end, defendant asserts that plaintiff’s post-

incarceration meeting with the COO and the human resources director was a “termination

meeting” intended to explain why he was fired—not a discussion between an applicant and

prospective employer. Viewed in this light, defendant argues that the statutes were never

triggered because there was no “application” by a person who was “previously convicted”

of a criminal offense; there was, in essence, only one employment determination—a

termination—that was concededly lawful and did not implicate the antidiscrimination

statutes as it arose from a conviction during employment.

To be sure, throughout this litigation plaintiff acknowledged that, upon his

incarceration, he could be lawfully terminated by Mobile Life. In a scenario like this, a

plaintiff’s complaint must allege facts supporting the inference that an application for

employment was made and denied—and not merely that there was protest of a termination

decision—because these statutes do not preclude an employer from lawfully terminating

an employee such as plaintiff who by virtue of his conviction and sentence could not report

to work. At this pre-answer stage of the litigation, we conclude only that plaintiff’s

allegations in that regard were adequate. Whether Mobile Life may ultimately establish

that a reasonable employer would not have understood plaintiff’s request as an application

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triggering the statutory protections is not the question before us; to answer that question at

this pre-answer stage of litigation, we would have to view the complaint in the light most

favorable to defendant—an approach antithetical to the governing standard of review on

this motion to dismiss.

Accordingly, the order of the Appellate Division should be reversed, with costs, and

defendant’s motion to dismiss the complaint pursuant to CPLR 3211 (a) (7) denied.

-9- GARCIA, J. (concurring):

I join the majority opinion but write separately to make clear my understanding of

the guidelines for assessing claims based on the relevant antidiscrimination statutes. First,

Executive Law § 296 (15) and Correction Law article 23-A—which prohibit discrimination

based on a “previous” conviction—do not apply to plaintiff’s termination based on

conviction during employment (see Hodge v New York City Tr. Auth., 180 AD3d 490 [1st

Dept 2020]). Second, it is necessary for the plaintiff to allege that he was applying for an

open position. It is not sufficient that plaintiff sought reinstatement or merely requested

that he be rehired into his prior position. An existing position must be available at the time

of the “application.” Lastly, prior employment history—here, termination for “job

abandonment”—may indeed be relevant in any later hiring decision (see majority op at 6

n 2). With that understanding, I agree that, applying our most forgiving of standards, the

motion to dismiss the complaint at this stage of the litigation was properly denied.

Order reversed, with costs, and defendant’s motion to dismiss the complaint pursuant to CPLR 3211 (a) (7) denied. Opinion by Chief Judge DiFiore. Judges Rivera, Fahey, Garcia, Wilson, Singas and Cannataro concur, Judge Garcia in a concurring opinion.

Decided October 12, 2021

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