MEDIA

September 21, 2001

On Deportation, Title VII and Religious Discrimination

Published in: New York Law Journal | volume 226
Written by: eter R. Schlam and Harvey M. Stone

This column reports on several significant, representative decisions handed down recently in the U.S. District Court for the Eastern District of New York. Issues covered include: deportation, Title VII and religious discrimination.

Deportation

In Cinquemani v. Ashcroft, 00 CV 1460 (EDNY, Aug. 16, 2001), Judge Raymond J. Dearie denied a writ of habeas corpus to an alien under a final order of removal. The court held that, while recent statutes barring discretionary 212(c) relief from deportation for aggravated felons could not retroactively be applied to aliens who pleaded guilty before the date of the legislation, petitioner would have been ineligible in any event for such relief at the time of his plea.

Petitioner, a native of Italy, was admitted into the United States as a lawful permanent resident in 1975. In March 1996 he pleaded guilty in the Eastern District to various firearms offenses as well as conspiracy to distribute heroin and cocaine. He was sentenced to 60 months’ incarceration, of which he served 44 months.

The Immigration and Naturalization Service (INS) commenced removal proceedings in 1998, based on these convictions. An Immigration Judge ordered petitioner removed and found him ineligible for relief under 212(c) of the Immigration and Nationality Act, 8 U.S.C. 1182(2) (1984). The Board of Immigration Appeals dismissed the appeal.

Before its repeal in 1996, 212(c) gave the Attorney General discretion to waive the removal of aliens who (1) had lived in the United States continuously for at least seven years, and (2) had not been convicted of one or more "aggravated felonies" for which they had served prison terms of five years or longer. A legal permanent resident who met the residency requirements was entitled to a discretionary hearing for waiver of deportation. The decision to grant the waiver depended on the weighing of many factors relating to the petitioner’s life and background.

In April 1996 one month after petitioner’s plea Congress amended the INA through the Antiterrorism and Effective Death Penalty Act (AEDPA), which both expanded the category of offenses rendering an alien ineligible for 212(c) relief and provided for ineligibility regardless of the time served in prison. Later the same year, Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act (IRIRA). IRIRA had transitional and permanent rules. Its permanent rules, effective as of April 1997, repealed 212(c) in its entirety and replaced it with a provision entitled "cancellation of removal" (IRIRA 304). This allows the Attorney General to cancel removal of an alien under certain conditions.

The Attorney General, the named respondent, argued here that the Eastern District of New York lacks jurisdiction because the proper respondent would be the warden of the facility in Pennsylvania where petitioner is being held pending deportation. There is no question, Judge Dearie stated, that the Attorney General is a legal custodian of petitioner and a proper respondent.

Turning to the merits, Judge Dearie noted that the Supreme Court recently affirmed the Second Circuit’s decision striking down application of the AEDPA and IRIRA bar to discretionary relief to aggravated felon aliens who pleaded guilty before the effective date of the legislation. INS v. St. Cyr, 121 S.Ct. 2271, 2290 (2001). In such cases, the Supreme Court explained, the alien "almost certainly relied upon [the] likelihood of [receiving an INA 212(c) waiver] in deciding whether to forego [his] right to a trial, [and] the elimination of any possibility of 212(c) relief by IRIRA has an obvious and severe retroactive effect." Id. at 2293.

As Judge Dearie observed, St. Cyr applies to petitioner, who entered his plea before enactment of AEDPA and IRIRA. Petitioner would therefore have been eligible for INA 212(c) relief "at the time he entered his plea under the law then in effect." 121 S.Ct. At 2292.

But petitioner, Judge Dearie held, is not eligible for 212 relief for a completely different reason: a petitioner ordered deported following a conviction on a weapons charge is statutorily ineligible for 212 relief. See Cato v. INS, 89 F.3d 597, 599 (2d Cir. 1996).

Judge Dearie disagreed with petitioner’s argument that the Supreme Court’s holding in St. Cyr made no distinction for aliens convicted of weapons offenses and that aliens convicted of such offenses can thus not be precluded from receiving 212(c) relief. Petitioner’s problem, Judge Dearie reiterated, is that, as an alien convicted of a weapons offense, petitioner would not have been eligible for 212(c) relief "at the time of [his] plea under the law then in effect."

The denial of the underlying petition, in the court’s view, rendered moot petitioner’s motion for release on bond. As Judge Dearie also noted, petitioner is being held pursuant to INA 241, which applies to aliens subject to a final removal order, and the rules governing post-order detention procedures would preclude the court from granting release on bond. Moreover, the INS here has already exercised its discretion and determined to keep petitioner in custody. The court had to defer to that decision. See slip op. 10-15.

Title VII

In Peries v. New York City Board of Education, 97 CV 7109 (EDNY, Aug. 6, 2001), Judge Allyne R. Ross declined to grant summary judgment to defendant in a Title VII case where plaintiff, a public school teacher born in Sri Lanka, claimed that students had harassed and insulted him about his ethnic background and that the administration’s failure to remedy the situation resulted in a "hostile work environment."

In 1987 plaintiff joined the staff of Francis Lewis High School in Queens as a special education teacher. Since the early 1990s, he has allegedly been subjected to a "steady barrage of insults and demeaning conduct from students based on [his] national origin and race." During the 1992-93 school year, he worked as one of three teachers whose classes shared a single room, with different groups separated by partitions. When he went into the section of another teacher to retrieve a book, her students began taunting him, calling him a "fucking Hindu" and asking, "Why are you here? You go home." The taunts continued during the year, as the students called him "Gandhi" and marked up a picture of a polar bear by putting on the animal’s forehead a red dot, which was kept on display for months. Plaintiff also asserted other incidents of harassment, such as the mimicking of his accent. He claimed that, despite his many complaints over the years, defendants did nothing to stop the harassment.

Defendants did not dispute that individual students harassed plaintiff on the basis of his national origin. Rather, they denied that the harassment was "pervasive" and that the administration ignored his pleas for help. Defendants also pointed to regulations severely limiting their power to suspend special education students.

As Judge Ross observed, plaintiff’s claim is unusual in that the alleged harassment came not from coworkers, but from students. The court analogized this case to those in which an employee has been harassed by his employer’s customers. Among the relevant factors are the extent of the employer’s control and any other legal responsibility which the employer may have as to the conduct of nonemployees.

As Judge Ross also observed, a "victim teacher," unlike a "victim student," wields at least nominal disciplinary authority over harassing students. This may create in school officials a greater duty of protection to students than to teachers. "Nevertheless," the court added, "as a general rule, school board administrators have disciplinary authority that exceeds that of a classroom teacher, such as the power to suspend students … ." Slip op. 12.

After finding that plaintiff had made an adequate showing of "hostile work environment" to survive summary judgment, Judge Ross held that the question of whether school officials took appropriate remedial action is also a question of fact, not law. "The jury’s analysis of this question," the court said, "can include such issues as what disciplinary options are available short of suspension and what constitutes a proper division of responsibility between administrators and teachers." Slip op. 13.

Judge Ross dismissed the civil rights claims against the individual defendants on the ground of qualified immunity. As Judge Ross explained, their conduct did not violate any "clearly established" statutory or constitutional obligation. Slip op. 14-16.

Religious Discrimination

In Bengard v. United Parcel Service, 99 CV 8464 (EDNY, Aug. 21, 2001), Judge David G. Trager granted summary judgment to defendant on plaintiff’s disparate treatment, hostile work environment and retaliation claims.

Plaintiff, a practicing Jew, worked for UPS as an auto mechanic beginning in 1992. Plaintiff first worked at UPS’s 43rd Street facility in Manhattan. In 1995 he was transferred to a UPS facility in the Bronx, where he was the only mechanic on the night shift. In March 1997, plaintiff complained to UPS management that he had been questioned about wanting to take a personal holiday for Yom Kippur and that he had been taunted and treated differently because he was Jewish. After an investigation, UPS reprimanded and counseled three supervisors; reassigned them to other departments; counseled plaintiff’s fellow workers concerning the UPS zero tolerance policy on discrimination and harassment; and provided plaintiff with managers’ phone numbers so that he could bring any further problems to their attention.

In 1998, after receiving an anonymous call stating that plaintiff was repairing private cars on company time, UPS arranged to have the mechanic shop videotaped during two of plaintiff’s shifts. The videotape confirmed the allegation. Further investigation showed that plaintiff had falsely recorded on his time cards that he was repairing UPS vehicles when he was working on private cars. Plaintiff was terminated for dishonesty on Oct. 6, 1998. On June 16, 1999, he filed a claim with the EEOC alleging retaliation and discrimination on the basis of his religion.

Concerning his hostile environment claim, plaintiff tried to avoid the 300 day limitations period for filing claims with the EEOC by contending that his termination was part of a continuing violation, so as to relate back to the 1997 harassment. He argued that a letter dated Aug. 20, 1998, exactly 300 days before he filed his EEOC complaint, provided the required continuity.

Judge’s Reaction

Judge Trager, first, characterized the letter as a complaint detailing insulting remarks and verbal harassment rather than discriminatory acts. Accordingly, the acts set forth in the letter were not related to the prior religious discrimination. Slip op. 14-15. Second, plaintiff’s hostile environment claim did not meet the frequency requirement for a continuing violation. Nor was there continuity in the discriminatory acts. The acknowledged religious discrimination occurred before March 1997, and plaintiff was not terminated until October 1998. Plaintiff provided no evidence establishing a link between his termination and the prior discriminatory acts. In fact, UPS had responded to plaintiff’s earlier complaints and put a stop to the discriminatory conduct.

In support of his retaliatory discharge claim, plaintiff asserted that he had participated in protected activity by complaining in March and April 1997 of harassment because of his religion and complaining in August 1998 of verbal abuse by his supervisors. The court agreed that the 1997 religious harassment complaints were protected activity and that plaintiff had suffered an adverse employment action by being terminated. Yet, as Judge Trager noted, UPS could not have been aware of the August 1998 letter as a protected activity because the text of the letter did not implicate religion. Instead, it referred to humiliation, harassment, threats and manipulation of a general character, rather than anti-Semitic remarks. Moreover, the 1997 religious harassment complaints were too chronologically remote from plaintiff’s October 1998 discharge to establish a causal nexus between the protected activity and the adverse employment action.

As to the disparate treatment claim, Judge Trager found that plaintiff was a member of a protected group and was terminated. But plaintiff had not established a prima facie case of discrimination because he had become unqualified for his job by breaking UPS rules and dishonesty. The court saw no basis for an inference of discrimination: no other employees who allegedly had been treated differently had violated the company policy against dishonesty, and plaintiff did not establish that UPS had a practice of allowing employees to fix personal vehicles on company time. Slip op. 29, 41.

Peter R. Schlam and Harvey M. Stone are partners at Schlam Stone & Dolan. Bennette D. Kramer, a partner of the firm, assisted in the preparation of the article.

[Reproduced with permission from New York Law Journal Volume 226, Friday, September 21, 2001.  Copyright 2001 ALM Properties, Inc.  All rights reserved.]