First Department Affirms Dismissal of “Conviction Discrimination” Claim By Former NYPD Officer Involved in Abner Louima Case

In Schwarz v. Consolidated Edison, Inc., 2017 NY Slip Op 00927 (App. Div. 1st Dept. Feb. 7, 2017), the First Department affirmed the lower court’s dismissal of plaintiff’s employment discrimination complaint.

In this case, plaintiff “alleges that defendant Consolidated Edison, Inc. [] denied him employment based on his 2002 perjury conviction, and prior assault-related convictions, which subsequently were vacated, in connection with the assault in 1997 of Abner Louima by New York City police officers who arrested and transported Louima to a police precinct, where he was beaten and sodomized in a bathroom.”

In reaching its conclusion, the court explained:

The complaint contains no allegations that show that plaintiff was terminated under circumstances giving rise to an inference of discrimination based on his perjury conviction, rather than due to the disruption of Con Ed’s workplace and its employee and customers relations stemming from his perceived involvement in the underlying assault. Con Ed hired plaintiff after he disclosed the conviction on his employment application. The allegations relevant to any discriminatory intent state only that shortly after he was hired, one Con Ed construction supervisor told plaintiff that people were “talking,” that everyone “downstairs” knew who he was, and that his hiring “blew up the building.” The complaint alleges, “Upon information and belief,” without elaborating, that the supervisor was referring to plaintiff’s perjury conviction (and vacated convictions), but the allegation is speculative and therefore insufficient.

The complaint also alleges that Con Ed’s director of employee and labor relations advised plaintiff that he was being terminated due to “potential disruption of business operations” and “damage to the Company’s reputation” if he continued in its employ. There is no mention of his perjury conviction or any associated dishonesty, or any allegation that anyone mentioned the Louima case. When plaintiff himself commented that he was being terminated due to his “convictions,” the director allegedly did not deny it, but under these circumstances, his silence alone does not suffice to show that plaintiff was terminated on account of his perjury conviction.

The court also held that “[t]he assault-related convictions on which plaintiff was retried, and the jury deadlocked, are not covered by [NY Correction Law A]rticle 23-A, since the article applies only to individuals who ‘previously have been convicted,’ and the vacatur of plaintiff’s prior assault convictions rendered those convictions nullities.”

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