Employment Discrimination Cases

Kowaleski v. New York State Department of Correctional Services, 30 Misc 3d 1228 (A) (SC Albany Co 2007), affirmed 61 AD3d 1081 (3d Dept 2009), reversed 16 NY3d 85 (2010). (Whistleblower- Protection from retaliation)

            Barbara Kowaleski was among the first female correction officers to work in an upstate prison and began working as a correction officer with the State Department of Correctional Services (DOCS) in 1981. In 2002 while assigned to the Hale Creek Correctional Facility Kowaleski observed a fellow officer use excessive force on an inmate, and she refused to sign a report that she had seen the inmate assault the officer. A sergeant who was her supervisor told her “keep her mouth shut or else she would be escorted off the premises.” Ms. Kowaleski reported the excessive force incident up the chain of command, and thereafter she became the subject of a campaign of hate and harassment by a large group of correction officers. In October of 2004 she was given a notice of discipline (NOD) which made bogus charges that she violated provisions of the employee’s manual on three separate occasions and called for her termination.

            Mr. Oliver argued that the disciplinary action was brought as retaliation for reporting a fellow officer’s misconduct in 2002, and that Kowaleski was entitled to the whistleblower defense pursuant to Civil Service Law 75-b, which prohibits public employers from retaliating against employees for reporting their coworkers’ improper conduct. In January 2007 the arbitrator determined that the collective bargaining agreement limited his authority “to determinations of guilt or innocence and the appropriateness of proposed penalties”, and that, even though he found Kowaleski had been the victim of harassment by her fellow officers and it may have originated when she informed her superior of the 2002 excessive force incident, he lacked the authority to consider Kowaleski’s retaliation defense under section 75-b. The arbitrator found Kowaleski guilty of two of the three charges and determined that termination was appropriate.

            Mr. Oliver represented Kowaleski and filed a CPLR 7511 petition to vacate the arbitrator’s award and direct that Kowaleski be reinstated with full back pay and benefits. The New York Court of Appeals held that Civil Service Law 75-b prohibited a public employer from taking disciplinary actions against any employee to retaliate against an employee for reporting “improper governmental action”, and that if the employee is terminated or disciplined for making the report and raises section 75-b as a defense, “…the merits of such defense shall be considered and determined as part of the arbitrators award or hearing officer decision.” The Court of Appeals held it was mandatory for the arbitrator to determine the merits of the whistleblower defense once raised, and that in order for whistleblower protection laws to be effective to shield employee from retaliation, an arbitrator must dismiss charges based solely on retaliation motives. The Court stated the arbitrator’s finding that under the collective bargaining agreement he did not have authority to consider Ms. Kowaleski’s retaliation defense was not only an error of law, but also violated a strong public policy and was in excess of an explicit limitation on his power contained in section 75-b. The Court held that the arbitrator’s award exceeded his power because it violated a “specifically enumerated limitation on the arbitrator’s power” in section 75-b which mandated that the arbitrators shall decide the retaliation defense.  The Court of Appeals reversed the decision of the lower courts, granted the application to vacate the arbitration award, and Kowaleski was reinstated with full back pay and benefits.

            A civil rights action in federal court against the Superintendent of Hale Creek was ultimately settled for several hundred thousand dollars. Kowaleski v. Hazel Lewis, 643 FSupp2d 259 (NDNY 2009). The Court of Appeals’ decision in Kowaleski reversed a long standing practice of arbitrators not to enforce the whistleblower protections in Civil Service Law 75-b and set a precedent that continues to protect all state, county, city, town, and village employees from retaliation for reporting misconduct by fellow employees throughout the state.

 

Kenneth Michaelis v. State of New York, 135 AD2d 1005 (3d Dept 1987), 244 AD2d 636 (3d Dept 1997), 258 AD2d 693 (3d Dept 1999), leave to appeal denied 93 NY2d 806 (1999)(Racial discrimination)

            In July 1985 Frank Irvin, a black man who was Deputy Superintendent for Security at Orleans Correctional Facility, alleged that on several occasions Kenneth Michaelis, the Deputy Superintendent for Programs, and the Superintendent of Orleans Correctional Facility, both of whom are white men, subjected him to racial insults. The most notable of the incidents occurred when both Michaelis and the Superintendent posted a photograph on Irvin’s office door that showed a bird-like stuffed animal with a long, multicolored beak and black body, wearing a black and white striped shirt, with a ball and chain attached to one of its ankles, placed behind the nameplate on Irvin’s desk. Irvin reported the occurrence to his superiors because he felt that it was racist and redolent of Jim Crow. As a result of the incident, the Department of Correctional Services’ (DOCS) demoted Michaelis.

            Michaelis felt that he was punished more harshly for an ill-advised prank than a minority employee who had engaged in similar conduct would have been. Mr. Oliver represented Mr. Michaelis and commenced an action against the State of New York alleging that he was illegally discriminated against on the basis of his Caucasian race in violation of Executive Law 296(1)(a). Evidence was produced about how African Americans at the executive level were disciplined for somewhat similar acts, and an expert witness in labor relations testified that the bird in the photograph was multi-colored and did not resemble a crow. A jury found that Michaelis had been discriminated against and was reinstated and awarded damages for lost wages, benefits, emotional pain and suffering in the amount of $328,000.  The State of New York appealed to the Appellate Division, Third Department and the jury’s verdict was affirmed.

Goodwin v. Oswald, 462 F2d 1237 (2d Cir 1972) (First amendment right of state prisoners to join a labor union)

After the rebellion at Attica state prison, Mr. Oliver was the first lawyer to work in the newly formed Prisoners’ Rights Project of the Legal Aid Society of the City of New York. A small group of prisoners at Greenhaven State Prison wished to form a union and contacted Legal Aid, and Oliver represented them.  The leadership group circulated prisoner union sign up cards at Greenhaven, and 980 prisoners, representing almost half of the population and the leadership of all inmate groups at Greenhaven, signed union membership cards.

            Mr. Oliver authored a seven page organizing letter dated February 7, 1972 which went out to all 980 inmates and included copies of the union constitution and a letter to Commissioner Russell Oswald, who had presided over the Attica massacre of prisoners and correction officers, requesting that he recognize the union as bargaining agent for the prisoners at Greenhaven. The prison administration at Greenhaven illegally intercepted all of the 980 letters, opened at least one of them marked as “CONFIDENTIAL – ATTORNEY – CLIENT PRIVILEGE”  and refused to distribute them to the inmate members.   The organizing letter contained language about the union that “… undoubtedly seemed unwarranted and threatening to the state” because of the “tense” atmosphere in state prisons after Attica.  Outside supporters of the union movement included David Livingston, president of District Council 65, Eugene Callender, president of the New York Urban Coalition, Congressman Herman Badillo from the Bronx, and the NAACP Legal Defense Fund, among others.  As a result of their backing, the higher ups at the Legal Aid Society were forced to back up Oliver in sending the organizing letter. The Legal Aid Society filed an action in the United States District Court for the Southern District of New York, and the District Court judge granted a preliminary injunction holding that the prisoners must be allowed to receive the letter concerning formation of the Union.  

            Commissioner Oswald appealed to the United States Court of Appeals for the Second Circuit. Oswald argued that the prison should be permitted to ban distribution of the organizing letter because formation of a prisoners’ union was illegal, a prisoners’ union would establish a center of power in the prison in opposition to the correction department’s administration, and distribution of the organizing letter would create a clear and present danger of disruption by the inmates at Greenhaven.  The Second Circuit ruled that whether formation of a prisoners’ union was legal was dependent upon a separate proceeding before the State Public Employment Relations Board (PERB) and was not an issue on appeal, that the correction department’s fears about disruption at Greenhaven was speculative and unsupported by any factual evidence, and affirmed granting the preliminary injunction requiring distribution of the letter to the inmates at Greenhaven.

          Circuit Judge James Oakes issued a concurring opinion based on the rights of Freedom of Speech and the right to counsel of inmates under the First and Sixth Amendments in which he wrote that there is nothing in state or federal law that forbids prison inmates from seeking to form an organization or agency representing groups of inmates concerned with prison conditions and inmate grievances. Judge Oakes stated: that the tragic experience at Attica would make correction officials open to

 “…the tragic experience at Attica, see inmates of Attica Correctional Facility v. Rockefeller, 453 F2d 12 (2d Cir 1971), would make correctional officials, and an observer might think, seek more peaceful ways of resolving prison problems than in the old, ironclad, solitary–confinement, mail censoring, and dehumanizing methods that have worked so poorly in the past.  Promoting or at least permitting the formation of a representative agency might well be, in the light of past experience, the wisest course for correctional officials to follow.***The formation of a prisoners’ “union,” even in its non rhetorical sense, does not strike me is a proposal totally unacceptable to society. Indeed, unless positive steps are taken by “management”– –the correctional authorities themselves– –to meet legitimate grievances, radically to change a system that is at least 100 years behind the times, and wholly to alter what Chief Justice Burger has referred to as the tendency “to regard all criminals as human rubbish,” one may surmise that inmate “unions,” or at least some form of collective inmate representation, are inevitable.”   Goodwin v. Oswald, supra, 462 F2d at 1246 (Oakes, J, concurring). 

Hon. Henry Friendly, Chief Judge, who had voted to approve the electrocution of Ethel Rosenberg even though there was no proof she knew that her husband Julius Rosenberg had supplied atomic bomb secrets to Russia, filed a dissent.   Mr. Oliver continues to hope that prisoners will get collective power through unions or union type organizations, rather than inside the prison walls being controlled by racial groups or gangs.

​

Russell v. Catherwood, 33 AD2d 592 (3d Dept 1969), cert. denied 399 US 936 (1970) (Constitutional right of employee not to join a union)

            Mr. Oliver was the attorney in the only case in the Supreme Court of the United States in which Chief Justice Warren Burger, one of the most conservative justices to sit on the court, and Justice William O.  Douglas, one of the most liberal justices to sit on the court, wrote an opinion together.   In the spring and summer of 1969 Ralph Russell worked as a grinder at Frietal Gratz Co., but quit after a dispute with his Teamsters Union over the lack of payment of certain disability benefits.  Mr. Russell worked in South Carolina for a while and returned to New York in December. He was unable to find work, and applied to the Labor Department for unemployment compensation. Then Frietal Gratz offered him his former employment as a grinder back, but Russell rejected the offer on the grounds that, since there was a union shop clause between Frietal Gratz and the Teamsters, he would be required to join the union which he was morally opposed to doing. The Commissioner of Labor ruled Russell was disqualified from receiving unemployment benefits on the grounds that he refused employment for which he was reasonably fitted by training and experience without good cause.   The Unemployment Insurance Appeals Board found that Russell’s rationale was “a personal and non-compelling reason” and therefore was not good cause to reject the employment offer. The Appellate Division, Third Department unanimously affirmed the decision of the Unemployment Insurance Appeal Board. Mr. Oliver represented Mr. Russell in a writ of certiorari to the Supreme Court of the United States.

           Chief Justice Burger wrote a dissent, in which Justice Douglas joined, stating that the writ of certiorari should have been granted: “It may be that on plenary consideration we would conclude that the Constitution requires the respondent to provide employment that does not conflict with the workers freedom of association, as might be indicated under Sherbet v. Verner, 374 U.S. 398, 85 S.Ct.1790, 10 L. Ed. 2d 965 (1963).***I believe that the petitioner has presented a substantial question and possibly one of important constitutional dimensions that warrants plenary – – not summary – – consideration.”   Russell v. Catherwood, supra, 399 US at 936 – 937 (Burger, CJ, dissenting, joined by Douglas, J)

This is the only case in the Supreme Court in which Chief Justice Burger and Justice Douglas ever dissented together. The issue presented in Russell v. Catherwood was not resolved by the Supreme Court until almost 50 years later in the 2022 in the decision by the Supreme Court in Groff v. Dejoy,  __US__ (6/29/23), 143 SCt 2279 (2023), in which the court unanimously held that an employer must accommodate an employee’s religious beliefs unless it creates an extreme hardship on the operation of the employer’s business.

​

NOTIFICATION:

​

This website contains attorney advertising and general informational materials. The information provided is for advertising and general informational purposes only. None of the contents on this website constitute legal advice. The cases cited in this website are representative of the kinds of legal work performed by the Oliver Law Office, the case summaries are simplified to focus on the main issue, and the reader can read the court decisions for themselves. Every case is based on different facts, many similar cases have negative outcomes, and no information in this website is a prediction about the outcome of your legal matter. Do not act on any of the information in this website without actually consulting an attorney.

 

The Oliver Law Office requires a signed, written retainer agreement as a prerequisite to representing any client. A review of any documents you send, including but not limited to intake-related materials, does not constitute an agreement to advise or represent you in connection with any matter. No statement contained herein constitutes a guarantee, warranty, or prediction regarding the outcome of your legal matter.

​