5'\" BEHEEIIUIEII lllllllllwllul! \""5",\" "ll! . . . . . not have understood plaintiff's request as an JUdge Garcrainaconcurring opinion. application triggering the statutory protections is not Decided October 12' 2021 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 defendantan 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. Concur by: GARCIA 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 2.96 (J5) and Correction Law article 23-Awhich prohibit discrimination based on a "previous" convictiondo not apply to plaintiff's termination based on conviction during employment. 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 DiFlORE, ChiefJudge: Correction Law article 23-A and Executive Law 295 (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 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 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 resources director that he was a "good in the sentenced to jail time," they would allow him to use employee" and, "unlikely event he was accrued benefit time and "re-instate him upon his release." On May 18, 2015, plaintiff was "sentenced to 50 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. however, while plaintiff was incarcerated. defendant terminated him for Soon thereafter, 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 Sassi v. Mobile Life Support Servs., Inc. 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 9' 296 (15) by refusing to "re-employ" him, seeking damages and reinstatement to his former position. 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." Correct/on 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 U7 PSIU r ul 0 I '5 055' E3 U' a FIIUEFU ['7 CF- Page 4 of 4 Sassi v. Mobile Life Support Servs., Inc. this, supporting the inference that an application for a plaintiff's complaint must allege facts employment was made and deniedand 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 pro-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 triggering the statutory protections is not the question before us; to answer that question at this ore-answer stage of litigation, we would have to view the complaint light most favorable to defendantan approach antithetical to the governing in the 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 CPU? 3211 (a) (7) denied. Concur by: GARCIA GARCIA. J. (concurring): | join the majority opinion but write separately to make clear my understanding of the guidelines for assessing claims based on the relevant antidiscrimination Executive Law 296 (15) and 23-Awhich prohibit discrimination based on a "previous" convictiondo not apply to plaintiff's termination based on conviction statutes. First. Correction Law article employment historyhere. termination for Job abandonment"may indeed be relevant in any later hiring decision. 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 CPU? 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 mmron Law 5' I31). I'hus. this case does not ran outside the scope of the antidiscrimination statutes merely because plaintiff previously worked for Mobile Life. Moreover. we disagree with defendant's contention that. even liberally. the complaint fails to adequately allege a post-conviction "application" by read plaintiff. The term "application" is not defined in the pertinent statutes but. employment and given its ordinary meaning. the word read in the context of 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 have understood the would reasonably 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 C00 and the human resources director was a "termination meeting" intended to explain why he was firednot 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 determinationa terminationthat was concededly lawful and did not implicate the antidiscrimination statutes as it arose from a conviction during employment. To be sure, throughout this acknowledged that, upon his incarceration, he could be lawfully terminated by Mobile Life. In a scenario like litigation plaintiff Page 4 of 4 Sassi v. Mobile Life Support Servs., inc. this. supporting the inference that an application for a plaintiff's complaint must allege facts employment was made and deniedand 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 pro-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 employment historyhere, termination for Job abandonment"may indeed be relevant in any later hiring decision. 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 CPU? 3211 (a) (7) denied. Opinion by Chief Judge DiFiore. Judges Rivera, Fahey. Garcia. Wilson. Singas and Cannataro concur. llGr. 0 ca uaaal v. IVIUUIIE' |_III= \\JL'PPUI L \\JUIVD... Illu. saunhMWbLeSmgpdsena,Ma Court of Appeals of New York October 12. 2021. Decided Reporter 37 N.Y.3d 236 '; 175 N.E.3d1246 ":154 N.Y.S.3d 290 *"; 2021 N.Y. LEXIS 2170 "": 2021 NY Slip Op 05449 Richard J. Sassi ll, Appellant, v Mobile Life Support Services, Inc.. Respondent. Judges: Opinion by Chief Judge DiFiore. Judges Rivera, Fahey, Garcia. Wilson. Singas and Cannataro concur. Judge Garcia in a concurring opinion. OMnhn DiFIORE, Chief Judge: Correction Law article 23-A and Executive Law 5? 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 defendant, plaintiff's employer, violated the antidiscriminetion statutes based on the denial of plaintiff's application former for employment following the completion of his criminal sentence. Applying our liberal pleading standard for a pre-answer motion to dismiss pursuant to CPLR3211 (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 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" on the misdemeanor charge was imminent. and he was subsequently convicted. Throughout. plaintiff kept defendant apprised of the status of his trial. his and the report that conviction. investigation incarceration. results of a presentence recommended against 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 (COD) and its human resources director that he was a "good employee" in the sentenced to jail time." they would allow him to use and. "unlikely event he was accrued benefit time and "re-instate him upon his release." On May 18. 2016. plaintiff was "sentenced to 50 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. however, while plaintiff was Soon thereafter, "- Job abandonment." Following his release from jail. plaintiff incarcerated. defendant terminated him for www.mvmmmprvpmmumm stated one" 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 Correction Law 75] broadly states that article 23-A "of specific individuals or the general public" (Correction Law 9," 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. Whether an exception applies depends on factors identified in Correction Law 753 such as. among other things. 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 [I] [A]. [i]. [_d]). 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 Page 3 of 4 Sassi v. Mobile Life Support Servs.. Inc. [of job duties] by reliable and trustworthy persons" 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 While the history suggests that the legislature may not have considered this specific scenarioa request for antidiscri mination statutes. legislative reemployment with a pre-incarceration employerwe conclude that the factual allegations are sufficient to survive defendant's ore-answer motion to dismiss. Nothing language. 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 in the statutory scheme, or statutes. Instead. the statutes broadly refer to "any application by any person for . . . employment at any nublic or create WWW been 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 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 IG'E'CJWl'I' Sassi v. Mobile Life Support Serve... Inc. [ofjob duties] by reliable and trustworthy persons" 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 scenarioa request for reemployment with a pre-incarceration employerwe 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 295 (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" (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 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 . . I . I I. I. I read 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 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 C00 and the human resources director was a "termination meeting" intended to explain why he was firednot 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 determinationa terminationthat was concededly lawful and did not implicate the antidiscrimination staitesasifamsefmmacmcnLduup The Sassi v. Mobile Life Support Services Case INSTRUCTIONS: To complete this assignment, read Sassi v. Mobile Life Support Services case that appears below. You will be divided into groups of three or four. In groups, create a document responding to the following questions. 1. The Parties: a. What is the name of the plaintiff? b. Who is the appellant? c. What does that mean? d. What is the name of the defendant? e? Who is the respondent? f. What does that mean? Facts: a. What facts does the plaintiff allege in his complaint? (BTW what is a complaint?) b. What procedural action did the defendant take upon receiving the complaint? c. What does plaintiff claim he was told by his former employer about its policy about terminating employees who become incarcerated? . Issue: What is the issue? 4. Conclusion: What conclusion does the court reach? a. According to the court, has the plaintiff sufficiently alleged that he applied for employment with his former employer? b. Has the plaintiff sufficiently alleged that his employer denied the application solely because of the prior conviction? c. What does the court do with the lower court's decision which had ruled in favor of the defendant-employer? 5. What is a concurring opinion? a. Why does Justice Garcia write a concurring opinion? What does the justice wish to add? b. According to the concurring opinion, what must a plaintiff allege in order to state a claim? c. Did Justice Garcia make it easier or harder to prove his case? d. What additional requirements does he say that a plaintiff alleging discrimination based on previous incarceration must allege? Page 1 of 4 Sassi v. Mobile Life Support Servs., Inc.1. Issue: What is the issue? 2. Rule or Law: a. What substantive law is at issue in this case? b. What does NY Correction Law Section 751 provide (state)? c. What does the law do? d. Do you think that NY Correction Law Section 751 is a good law? e. The court says that "statutes do not categorically preclude consideration of a prospective employee's criminal history.\" What facts may a business rely upon in denying employment to a prospective employee with a criminal record? 3. Analysis: How does the court apply the law to the facts of the case? a. Does it matter that the legislature may not have considered this specic scenarioa request for reemployment with a pre-incarceration employer? Should it matter? b. What factual argument does the defendant make about the statute? On what basis does the defendant claim that the statute does not apply to the facts of the case? \"I" U 3. Analysis: How does the court apply the law to the facts of the case? a. Does it matter that the legislature may not have considered this specic scenarioa request for reemployment with a pre-incarceration employer? Should it matter? b. What factual argument does the defendant make about the statute? On what basis does the defendant claim that the statute does not apply to the facts of the case? 0. Defendant contends that the complaint alleges discriminatory termination not a post- conviction application for employment. What does that mean? (1. Is it lawful to re an employee upon his incarceration? 4. Conclusion: What conclusion does the court reach? a. According to the court, has the plaintiff sufciently alleged that he applied for employment with his former employer? b. Has the plaintiff sufciently alleged that his employer denied the application solely because of the prior conviction? 0. What does the court do with the lower court's decision which had ruled in favor of the defendant-employer? Sassi v. Mobile Life Support Serve.r Inc. 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 23A 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 CPU? 321] (a) (7). generally asserting. among other things. that Executive Law 296 (15) and Correction Law article 23-Awhich prohibit previous convictionwere inapplicable because plaintiff was convicted during his employment. discrimination based on a 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"... 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 . 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" 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 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 55 752 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 Lawr 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 753. Thus. under the statutory scheme. reliance on a previous criminal offense when denying an application for employment or a license is not necessarily unlawful. Whether an exception applies depends on factors identified in Correction Law 753 such as. among other things. the relationship between the specific employment duties and the criminal offense as well as the amount of time that has elapsed @MMM I 7F1L1J