November 12, 2014
In the U.S. District Court for the Eastern District of New York, in a sexual harassment case involving the Nassau County Medical Center, Judge Thomas C. Platt held that the EEOC's early issuance of a right-to-sue letter (i.e., before the 180-day period had expired) should not prevent the court from hearing Title VII claims. Judge Arthur D. Spatt found that a complaint stated a viable claim against a law firm under the Fair Debt Collection Practices Act. Finally, in dismissing an indictment for illegal re-entry after deportation, Judge Jack B. Weinstein suggested requirements to improve the immigration bar.
In McGrath v. Nassau Health Care Corp., 00 CV 6454 (EDNY, July 29, 2002), Judge Platt denied a motion to dismiss an array of civil rights and tort claims alleging sexual harassment by the chairman of the board of Nassau Health Care Corp. (NHCC), which operates the Nassau University Medical Center. Judge Platt held that the court could hear the Title VII claims even though the EEOC had issued a right-to-sue letter before expiration of the 180-day waiting period - an issue as to which the federal courts have been divided.
Plaintiffs Sally and John McGrath, a married couple, alleged that (a) one Mr. Rosenblum, NHCC's board chairman, sexually harassed Sally, while she was an NHCC employee, through a litany of lewd activities and untoward statements; and (b) NHCC negligently permitted Mr. Rosenblum to continue these activities. On this basis, plaintiffs asserted (among other causes of action) hostile work environment and quid pro quo claims under Title VII, Equal Protection and First Amendment Claims under § 1983, a New York Executive Law marital discrimination claim, and claims for assault, battery, intentional infliction of emotional distress and loss of consortium.
In 1999, Sally McGrath began working for NHCC, a New York public benefit corporation, under Mr. Rosenblum's supervision. Early on, Mr. Rosenblum allegedly began harassing her by lewd verbal and written remarks, verbal and physical intimidation, actions designed to alienate her from her husband, vulgar gesturing and assault and battery (e.g., grabbing her buttocks and breasts). According to the complaint, NHCC's director of labor relations heard some of Mr. Rosenblum's harassing comments and told Ms. McGrath to 'watch herself because Rosenblum was the 'boss.'' The complaint also averred that Sally told the head of the medical center's 'diversity department' about the harassment.
In July 2002, Sally met twice with the medical center's chief executive officer and its general counsel to discuss the problem. At one of the meetings these high-ranking officials allegedly had a copy of a note from Mr. Rosenblum requesting oral sex from Sally. An investigation ensued, leading to removal of Mr. Rosenblum as chairman of the board. Sally was also reassigned to work for another NHCC employee, and was given a parking space closer to the building in which she worked.
On July 25, 2000, Sally filed a complaint with the EEOC, which issued a right-to-sue letter 37 days later. NHCC argued here that the Title VII claims are procedurally defective because the EEOC's issuance of this letter was premature.
As Judge Platt noted, Title VII imposes a 180-day waiting period from the time EEOC charges are filed until the EEOC must either commence an action or issue a right-to-sue letter. But by administrative regulation, the EEOC may issue right-to-sue letters before the 180-day period has expired if an authorized agency representative 'has determined that the Commission will be unable to complete its administrative processing of the charge....' 19 CFR 160.28(a)(2)(2002).
The federal courts of appeals and district courts have split on the exhaustion issue raised here. Even within the Eastern District there have been conflicting decisions. Slip op. 11-12.
Agreeing with those courts that accept early right-to-sue letters, Judge Platt concluded that the 180-day period is a statutory 'outer limit' after which the EEOC must cede its jurisdiction; and that Congress did not intend to bar the EEOC in a given case from an early waiver of its jurisdiction if, in the EEOC's view, that would further the purposes of Title VII.
Judge Platt pointed to several arguments supporting this conclusion. 'First, the administrative regulation that authorizes the EEOC to issue early right-to-sue letters does not conflict' with the statutory 180-day waiting period or its purpose, ''which is to ensure that parties are not required to wait indefinitely for administrative action.'' Slip op. 13 (citation omitted). 'Second, the EEOC is overburdened with pending cases and lacks the resources to investigate all of those cases within the 180-day period....' Third, dismissing Ms. McGrath's claim would be 'inequitable' to her, would 'result in wasted resources and penalize her for the EEOC's procedures.' Slip op. 13-14.
As Judge Platt also found (slip op 15-38), the various claims against Mr. Rosenblum and NHCC could withstand a motion to dismiss. As to the First Amendment claims, for example, plaintiffs adequately alleged that Mr. Rosenblum had retaliated against Sally McGrath for complaining about his harassment, that Mr. Rosenblum had impermissibly chilled her speech by threatening her and that NHCC maintained a custom or policy allowing all of this to happen.
Fair Debt Collection Act
In Grief v. Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, 01 CV 5643 (EDNY, Aug. 19, 2002), Judge Spatt, denying a motion to dismiss a class action complaint, held that plaintiff had stated a claim under the Fair Debt Collection Practices Act (FDCPA), 15 USC § 1952. Defendant's letter to plaintiff seeking payment of a debt, the court noted, failed to include the writing requirement in the validation notice and did not precisely state the amount of money owed.
The letter to plaintiff from defendant, a law firm, had the following heading:
Re: Creditor: Hann Financial Service Corporation
Amount: $1,962.87 plus attorney's fees up to $294.43
The body of the letter stated:
We have received your account from our client for the collection of the balance set forth above.
Unless you notify us within thirty (30) days after the receipt of this notice that the validity of this debt, or any portion of it, is disputed, we will assume that the debt is valid. If you notify us within thirty (30) days after receipt of this notice that you dispute the validity of this debt, or any portion of it, we will obtain a verification of the debt and mail it to you.
Also, if so requested by you within thirty (30) days after receipt of this notice, we will provide you with the name and address of the original creditor if different from the current creditor above.
If you wish to discuss this matter you may telephone Mr. DeGaetano at (914) 686-5400.
As Judge Spatt observed, the FDCPA requires the debt collector to inform the consumer that (1) if the consumer notifies the collector in writing that the debt is disputed, the collector will obtain certification of the debt; and (2) if the consumer requests the name and address of the original creditor in writing, the collector will provide that information.
Here, the law firm's letter did not tell the consumer that her notice and request had to be written. This omission could cause the consumer to dispute the debt merely by calling the collector, thereby forfeiting the FDCPA's protections - such as the requirement that the collector cease its collection efforts on receiving written notice of a dispute. Slip op. 9-10.
Defendant argued that there was no violation because its letter allowed the consumer to do less than the FDCPA requires, and defendant would have given her all of her statutory rights even if she did not submit a writing. Rejecting this argument, Judge Spatt stated: 'Although... defendant's notice may have been well-intended, the FDCPA is a strict liability statute, and the debt collector violates the Act by failing to provide the information it requires. ' Slip op. 10.
As to the letter's reference to attorneys' fees 'up to $294.43,' there was insufficient clarity regarding the amount of that part of the debt. The phrase 'up to,' the court stated, 'could present the least sophisticated consumer with, at best, an unclear and, at worst, contradictory message regarding the amount of money she owes.' Slip op. 11.
Judge Spatt's decision left defendant at least some room for a defense at trial. A collector may escape liability, the court explained, if it can show its violation resulted from a bona fide error despite procedures to avoid the error.
Judge Spatt did dismiss those portions of the complaint asserting that defendant's letter falsely held out the contact person at the law firm to be an attorney. In the court's view the letter did not carry that implication, even to the least sophisticated consumer.
In United States v. Perez, 01 CR 1377 (EDNY, July 25, 2002), Judge Weinstein granted defendant's motion to dismiss an indictment for criminal re-entry after deportation, where inept representation at the deportation proceedings years earlier had deprived defendant of due process, negating the predicate for the current prosecution.
Defendant, a citizen of the Dominican Republic, became a permanent resident of the United States in 1986. In 1993, he was convicted of the attempted criminal sale of a controlled substance. He served his sentence of incarceration at Rikers Island and was then transferred to an INS facility at Oakdale, La., for a deportation hearing. The immigration judge there found him deportable. Defendant's attorney indicated an intention to make a 212(c) application for a discretionary waiver of deportation. But counsel neither filed the application nor sought a continuance by the court's deadline.
Defendant was ordered deported, and counsel moved to reopen the deportation proceedings (without including a motion for a stay). The immigration judge found that no good cause had been shown for the failure to file the 212(c) application on time. After defendant was deported, the Board of Immigration Appeals affirmed the decision of the immigration judge.
Eight years later, in 2001, defendant was charged with criminal re-entry. One element of this charge, Judge Weinstein observed, is that defendant was properly deported. Here, however, deportation was improper because counsel failed to make a timely 212(c) application, which Judge Weinstein found would have had a 'substantial probability' of success. Judge Weinstein also found that, by blocking an appeal, counsel's mistakes met the exhaustion requirement.
Commenting on the increasing complexity of immigration law, Judge Weinstein concluded with some prophylactic suggestions:
Concurrently, to practice immigration and naturalization law, all that an attorney is required to do is file a 'written declaration that he or she is currently qualified and is authorized to represent the party for whom he or she appears [citation omitted].' ... A more effective approach to fair process may well be to require special training and examinations leading to an immigration and naturalization bar for those who wish to exercise this specialty. Poor representation could then lead to disbarment. ... Slip op. 11.
Peter R. Schlam and Harvey M. Stone are partners at Schlam Stone & Dolan.
[This article is reprinted with permission from the September 6, 2002, issue of the New York Law Journal. Copyright © 2007 ALM Properties, Inc. All rights reserved. Further duplication without permission is prohibited.]