No. 518718 To Be Submitted Without Argument

NEW YORK SUPREME COURT

Appellate Division- Third Department

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - In the Matter of

the Claim of

ROBERTA P. KATZ, Claimant - Appellant.

-against-

COMMISSIONER OF LABOR OF THE STATE

OF NEW YORK, Respondent.

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - ------------------------------------------------------------------------------------------------------------ ------------------------------------------------------------------------------------------------------------ CLAIMANT - APPELLANT'S REPLY BRIEF ------------------------------------------------------------------------------------------------------------ ------------------------------------------------------------------------------------------------------------ ABRAHAM J. KATZ Attorney for Claimant-Appellant ROBERTA P. KATZ Office & P.O. Address 1979 Marcus Avenue, Suite 210 Lake Success, New York 11042 Tel. No. (718) 747-0100

TABLE OF CONTENTS

Page ARGUMENT

THE RESPONDENT FAILED TO REBUT CLAIMANT’S ARGUMENT THAT THE TERM “GOOD CAUSE” FOUND IN LABOR LAW 593 (1) DID NOT IMPOSE A REQUIREMENT UPON THE CLAIMANT, A VICTIM OF RELIGIOUS HARASSMENT, TO PROVIDE HER EMPLOYER A SECOND CHANCE AS A CONDITION PRECEDENT TO THE CLAIMANT BEING AWARDED

UNEMPLOYMENT INSURANCE BENEFITS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

1

ARGUMENT

THE RESPONDENT FAILED TO REBUT CLAIMANT’S ARGUMENT THAT THE TERM “GOOD CAUSE” FOUND IN LABOR LAW 593 (1) DID NOT IMPOSE A REQUIREMENT UPON THE CLAIMANT, A VICTIM OF RELIGIOUS HARASSMENT, TO PROVIDE HER EMPLOYER A SECOND CHANCE AS A CONDITION PRECEDENT TO THE CLAIMANT BEING AWARDED UNEMPLOYMENT INSURANCE BENEFITS

Attorney General Eric Schneiderman, on behalf of the Respondent, Department of

Labor, in his brief opposing the Claimant’s appeal from the Unemployment Insurance

Appeal Board denial of her application for unemployment benefits, fails to address the

primary issues raised by the Claimant. Attorney General Schneiderman argues that the

Claimant voluntarily separated from her employment without good cause because after

being subjected to two acts of religious harassment by her trainer, each of which violated

New York City Human Rights Law Section 8-107 and the Employer’s Zero Tolerance

Policy (A-11 and A-121), the Claimant resigned without affording her employer an

opportunity to address her concerns. That the Claimant did not afford her employer an

opportunity to address her concerns is not true. Shortly after the Claimant sent an e-mail

tendering her resignation (A-23), the Claimant engaged in a telephone conversation with

her supervisor, Chief Financial Officer Michael Kurtz (A-24). During that conversation,

Chief Financial Officer Kurtz apologized for the behavior of the Claimant’s trainer but did

not ask the Claimant to withdraw her resignation nor did he offer that the Employer had a

process by which it could remedy the egregious conduct to which she had been subjected.

The next day, the Claimant engaged in a telephone conversation with Dayneen Caldwell,

1 All references to Appendix pages are to the pages of the Appendix appended to Claimant’s brief)

2

Vice President of Human Resources at the Employer (A-25). She too apologized to the

Claimant. She too did not ask the Claimant to return to work and she too did not offer that

the Employer had a process by which it could address her concerns.

That the Unemployment Insurance Appeal Board and Attorney General

Schneiderman focus entirely on the reasons why the Claimant did not return to work as

opposed to concentrating on why the Claimant resigned is in error as well. Although

Administrative Law Judge Benjamin Reyes (“ALJ Reyes”) was required to make findings

of fact, he failed to do so. After reviewing ALJ Reyes’s decision, the court will confirm

that at no point did ALJ Reyes make a finding that the Claimant had been a victim of

religious harassment. He ignored the issue but made a point of mocking the Claimant’s

allegations by stating that the Claimant “believed” that she had been a victim of religious

harassment (A-6). He then minimized her alleged claim of being a victim of religious

harassment by declaring that it involved “a few minutes.” (A-6) Attorney General

Schneiderman in his brief also failed to acknowledge that the Claimant was a victim of

religious harassment. On those grounds alone this Court should overturn the decision of

the Unemployment Insurance Appeal Board. Because the Claimant put forth a prima

fasciae case of religious harassment, and no evidence to the contrary was submitted by the

Employer, the Court must find that the Claimant resigned because she was the victim of

two acts of religious harassment.

Once this Court finds that the Claimant was the victim of two acts of religious

harassment, the Court will then be faced with two other issues. Must a victim of religious

harassment return to her place of business to give her employer an opportunity to address

3

her concerns even when the conduct of the employer violated the New York City Human

Rights Law and the employer’s own Zero Tolerance policy? The second issue is whether

the two conversations that the Claimant engaged in with representatives of the Employer

were sufficient to constitute an opportunity for the Employer to address the Claimant’s

concern?

In response to the first issue, this court must hold that the definition of “good

cause” advocated by the Unemployment Insurance Appeal Board and Attorney General

Schneiderman is too broad. Both the Unemployment Insurance Appeal Board and

Attorney General Schneiderman need to acknowledge there are circumstances in which the

conduct of the employer towards an employee is so egregious that an employee is not

required to afford the employer an opportunity to address the employee’s concerns as a

condition precedent to the employee being awarded unemployment benefits. The facts of

this case present such egregious conduct.

It may be easier to understand the question through the eyes of a victim of religious

harassment if the issue is rephrased as follows: must an employee always give her

employer a second chance no matter what conduct the employer perpetrates against the

employee? The answer should be no. This Court must find that certain types of conduct,

if perpetrated by an employer against an employee, relieves the employee of the

requirement that the employee give her employer a second chance. Religious harassment

in the form experienced by the Claimant is an example of the type of conduct that if

perpetrated by an employer against an employee, relieves the employee of any obligation

to provide her employer a second chance. The Claimant takes that position for two

4

reasons. First, the Employer in this case violated New York City Human Rights Law

Section 8-107. Second, the Employer violated its own Zero Tolerance Policy. New York

City Human Rights Law Section 8-107, a law that specifically requires employers to

accommodate an employee who must leave work early in order to travel between his or her

place of employment and his or her home in order to observe her Sabbath, was enacted

because the citizens of New York City wanted to institute a zero tolerance policy against

religious harassment. More importantly, the Employer in this case recognized the

importance of following a zero tolerance policy. That is why the Employer required, as a

condition of employment, that the Claimant sign a statement acknowledging that if

Claimant participated in “acts of harassment, including harassment that is based on an

individual’s gender, race, religion, sexual orientation, or any characteristic protected by

Federal, State and/or local law harassment” (A-12), she would be terminated, without

being given a second chance. That the Employer accepted the Claimant’s resignation and

made no offer to address the Claimant’s concerns is the best evidence that the Employer

understood that its Zero Tolerance Policy was reciprocal and that the Claimant was fully

justified in not giving the Employer a second chance.

It is therefore difficult to accept that the chief guardian of the laws of the State of

New York, Attorney General Eric Schneiderman, would hold the position that an

employee who has been a victim of religious harassment must give his employer a second

chance. Essentially Attorney General Schneiderman is arguing that it is more important to

safeguard the maximum of $400.00 a week that the State of New York awards in

unemployment benefits than it is to protect employees from being subjected to religious

5

harassment by their employers. That appears to have been the gist of the argument put

forth by Attorney General Schneiderman when his office writes in its brief that “since the

state administers [the unemployment insurance] program for the benefit of its citizens, it

has a significant interest in assuring that the individuals who are ineligible or disqualified

do not drain the system’s resources at the expense of other citizens” (Brief For Respondent

Commissioner Of Labor, page 8). Attorney General Eric Schneiderman holds the position

that granting unemployment benefits to victims of religious harassment who do not give

their employers a second chance is a circumstance that leads to draining the unemployment

benefit system at the expense of other citizens. In other words, Attorney General Eric

Schneiderman puts dollars ahead of human rights.

Concerning the second issue, whether the two conversations that the Claimant

engaged in with representatives of the Employer were sufficient to constitute an

opportunity for the Employer to address the Claimant’s concern, the court should find that

they were sufficient. How many conversations with the employer must an employee have

before concluding that the employer cannot address her concerns? That the

Unemployment Insurance Appeal Board and Attorney General Schneiderman are

advocating that the Claimant should have confronted her trainer on the next Monday

morning and sought her trainer’s dismissal places an unreasonable demand on a victim of

religious harassment.

It is further worth noting that Attorney General Schneiderman fails to address the

Claimant’s argument that the Employer’s behavior in this case violated New York City

Human Rights Law Section 8-107 nor does Attorney General Schneiderman respond to the

6

argument that the Employer’s behavior violated the Employer’s own Zero Tolerance

Policy. Attorney General Schneiderman further does not address that the Claimant set as a

condition of her employment that she be allowed to leave work early on Fridays during the

winter months; that the condition was accepted by the Employer and that the condition was

breached on the first Friday of the Claimant’s employment. Lastly, Attorney General

Schneiderman fails to refute the Claimant’s argument that the New York State Labor

Department’s definition of “good cause” found in New York Labor Law Section 593 (1) is

unconstitutional because it does not provide equal protection to employers and employees.

In the opinion of Attorney General Schneiderman, “good cause” is defined to mean that if

an employee violates a zero tolerance policy, he may be terminated without being given a

second chance but an employer who violates a zero tolerance policy must always be given

a second chance.

The Court should further find that none of the cases cited by Attorney General

Schneiderman involved facts that matched the circumstances of this case. The Court can

easily distinguish the case of Matter of Schwartz (New York City Department of Citywide

Administrative Services-Commissioner of Labor), 62 A.D.3d 1231 (3rd Dept. 2009) cited

by Attorney General Schneiderman in which the Court upheld the denial of unemployment

benefits to an employee who complained of being subjected to anti-Semitic remarks.

Attorney General Schneiderman knows full well that although anti-Semitic remarks are

reprehensible, they are protected as part of our First Amendment right to free speech. It is

only when anti-Semitic remarks are linked to criminal activity that the remarks become an

element of a hate crime. Not so religious harassment that interferes with the ability of a

7

Sabbath observer to leave work in time to reach her home before the Sabbath. That

conduct is barred by New York City Human Rights Law Section 8-107.

Attorney General Schneiderman further ignores that the Employer chose not to

participate in the administrative hearing nor did the Employer participate at any other stage

of these proceedings. It is significant that the Employer did not contest any of the factual

statements made by the Claimant nor did the Employer submit any evidence that the

Employer had a process in place by which it could to address violations of New York City

Human Rights Law Section 8-107. Their failure to contest the award of unemployment

benefits to the Claimant was the best evidence that the Claimant had afforded the

Employer an opportunity to address her concerns but that the Employer agreed with the

Claimant that the Claimant’s best course of conduct was to resign. In their decision and in

his brief, the Unemployment Appeals Board and Attorney General Schneiderman are

speculating that if Claimant had returned to work, the Employer could have addressed the

Claimant’s concerns. Where in the record does the court find proof that the Employer had

in place a process by which it could address the Claimant’s concerns? This Court should

not be denying unemployment benefits based on factual speculation. What the Court will

find when it reviews the record is that the Employer had in place a Zero Tolerance Policy

which provided that an employee who participated in religious harassment would be

terminated, no second chances. The Court should interpret the conduct of both the

Claimant and the Employer as representing an understanding by both that the Zero

Tolerance Policy also stood for the rule that the Claimant who was a victim of religious

harassment could resign without having to give the Employer a second chance.

8

It is further significant that the office of Attorney General Schneiderman misstates

the facts that constituted the acts of religious harassment. On page 2 of his brief, Attorney

General Schneiderman states that “On Friday, December 7, 2012, claimant’s job trainer

scheduled her to attend a meeting from 2:00 to 3:00 P.M.” In truth, Claimant testified to

the following as summarized in her Statement of Facts:

On Tuesday, December 4, 2012, Liebowitz advised Claimant that Claimant would be required to attend a meeting concerning Employer’s Health and Welfare program, on Friday, December 7, 2013, at 2:00 PM (A-14). At that time, Claimant reminded Liebowitz that Claimant needed to leave no later than 2:45 PM on that Friday to be able to reach home by the commencement of the Sabbath. Liebowitz then advised Claimant that she would attempt to reschedule the meeting. A short time thereafter, Liebowitz advised Claimant that Liebowitz had been unsuccessful in rescheduling the meeting (A-15).

The significance of Attorney General Schneiderman’s misstatement lies in the

Attorney General Schneiderman concealing that the Claimant’s trainer knew three days

before the meeting that Claimant needed to leave work at 2:45 PM on Friday, December 7,

2012. The trainer had three days in which to help Claimant obtain a password to the

software which would generate the report that the Employer apparently needed that Friday;

three days to teach the Claimant how to use the software and three days to teach the

Claimant how to generate the report. Instead, the trainer waited until 2:45 PM of that

Friday to begin the first step in the process; i.e. obtaining a password that would open the

software. That the trainer failed to take the first step in the process of teaching the

Claimant how to generate the report in question until Friday at 2:45 P.M, the time at which

the Claimant was scheduled to leave, but still complained to the Claimant that the Claimant

would not be able to prepare the report that day, played a significant role in why the

Claimant viewed the trainer’s conduct as constituting religious harassment.

9

CONCLUSION

For the reasons set forth herein and in the Claimant’s brief, this court should

overrule the decision of the Unemployment Insurance Appeal Board denying the Claimant

unemployment benefits and provide such other and further relief as the Court deems just

and appropriate.

Dated: Lake Success, New York July 18, 2014 Respectfully submitted, ABRAHAM J. KATZ Attorney for Claimant-Appellant ROBERTA P. KATZ 1979 Marcus Avenue, Suite 210 Lake Success, New York 11042 Tel. No. (718) 747-0100