Re-posted by Nicholas Stix
Imagine Justice Edmead’s* ruling, if Charles Schwarz were black. (I wrote the foregoing sentence, before discovering that Justice Edmead is black.) No way does she rule and rationalize against him, as she did. After all, the explicit meaning of the law in question is to prevent such firings. However, its not-so-secret intent is to prevent such firings, in the case of a black or Hispanic (or, possibly other protected group member) worker.
My hunch is that a black supremacist or white racial socialist in personnel, who had access to Schwarz’ file, read it, and spread the word among the black workers, who then raised holy hell.
My experience has been that in most workplaces in New York City, it is almost impossible for a normal white man to get, or once hired to keep a job at the entry level, even if one has no criminal or even arrest record.
According to thumbnail biographies, Justice Edmead’s first job was in 1973 as a lecturer at CUNY’s black supremacist Medgar Evers College. Her first private-sphere job as a lawyer, in 1988, was at the very liberal, very well-connected New York City law firm of Proskauer Rose.
Judge Upholds Utility's Firing of Ex-Cop Linked to Louima
By Andrew Keshner
August 6, 2015
New York Law Journal
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A former police officer linked to the attack on Abner Louima failed to show that Con Edison illegally fired him for his perjury conviction rather than his notoriety, a judge ruled this week.
Charles Schwarz did not convince Manhattan Supreme Court Justice Carol Robinson Edmead that the utility breached state law when it hired him—knowing of the conviction—but fired him within a month, allegedly citing potential damage to the company's reputation if he remained an employee.
[Unlike in other states, where “Supreme Court” is the highest level of the judiciary, in New York City, the “Supreme Court” is a low-level body. Above the Supreme Court are the Supreme Court, Appellate Division, and the highest court in the state, the New York State Court of Appeals.]
The provision of state law forbidding employment discrimination based on a conviction "was not intended to give rights to those discriminated against based on their reputations," Edmead wrote Monday in Schwarz v. Consolidated Edison, 151686/2015.
She said there was no legislative language discussing "any intent to protect against employment decisions based on one's reputation or notoriety arising from events that gave rise to the conviction; quite simply, the statute extends to unfair discrimination based on one's convictions.'"
Schwarz will appeal, said his attorney, Alan Serrins, a partner at Serrins Fisher. Serrins said he is also pressing an unlawful termination case before Edmead for a former ConEd employee who had approved Schwarz's hiring.
Both sides in the employment discrimination litigation acknowlege the notoriety of the 1997 attack on Louima, during which he was sodomized with a broomstick by police. Schwarz maintains he was not in the bathroom when Louima was attacked.
After a 1999 trial in the Eastern District, fellow officer Justin Volpe pleaded guilty mid-trial to sexual assault. Three other officers were acquitted of other charges unrelated to the assault.
Schwarz was convicted of sexual assault and conspiracy to commit sexual assault. In a separate but related trial, Schwarz and two other officers were found guilty of conspiring to obstruct justice.
In 2002, the U.S. Court of Appeals for the Second Circuit vacated all of Schwarz's convictions and ordered a new trial. Prosecutors added two perjury charges against Schwarz because of testimony he gave at his obstruction of justice trial.
On retrial later in 2002, jurors convicted Schwarz of perjury but deadlocked 10 to 2 on the assault charge. [Deadlocked 10-2 for conviction, or acquittal? That’s a major oversight.]
Two days before the start of trial on the outstanding sexual assault charge, prosecutors and the defense reached a deal allowing Schwarz to take a five-year sentence on the perjury conviction and the remaining charges were dropped.
Under the agreement, Schwarz had a right to seek a one-year sentence reduction, but the leniency request was denied in 2006.
He was released in 2007 and has been working in construction.
In July 2014, he applied for a mechanic position with ConEd, disclosing the perjury conviction. He passed testing and interviews and was hired Nov. 17, 2014, assigned to investigate inside and outside gas leaks.
A week later, a construction supervisor told Schwarz "we need to talk" because his hiring "blew up the building and people are talking." Schwarz said in his complaint that the supervisor was referring to the Louima case.
About two weeks after that interaction, Vincent Frankel, director of employee and labor relations for ConEd, called Schwarz and fired him because of "potential disruption of business operations" and "damage to the company's reputation" if Schwarz remained with the company.
According to his complaint, when Schwarz told Frankel he was being fired because of his conviction, Frankel was silent.
Schwarz filed his unlawful termination suit in February, claiming violations of the New York State Human Rights Law and the New York City Human Rights Law, which incorporate New York Correction Law Article 23-A.
Apart from two exceptions that Schwarz said did not apply, the Correction Law statute bars the denial of employment because of a previous conviction for one or more criminal offenses.
Moving for dismissal, ConEd emphasized that it knew about Schwarz's conviction when it hired him and said Schwarz's lawsuit "could be construed to allege that the bias at issue was grounded not in plaintiff's 2002 perjury conviction per se, but in plaintiff's notoriety from his involvement in and association with the Abner Louima incident."
Such a legal theory did not fit the language and meaning of the Correction Law, ConEd argued.
In court papers, the utility said the statute "simply does not protect [Schwarz] from who he was (or is), or insulate him from any and all legal consequences of his involvement in and association with the Abner Louima incident. ... Indisputably, the concerns and perceived concerns of Con Edison co-workers and customers, and the prospect of bad publicity, stemmed from reasons other than Schwarz's 2002 perjury conviction."
Schwarz countered that the potential business disruptions and possible reputational harm cited by ConEd were not valid justifications.
He said his notoriety was "inextricably intertwined with his underlying perjury conviction," making his termination illegal.
Basing a termination decision on an employee's "notoriety" or reputation would frustrate the Correction Law statute's purpose, he said.
But, in her decision, Edmead said Schwarz was trying to "expand the reach" of the statute.
Reviewing the 1976 law and a 2007 amendment, Edmead said the law aimed "to protect individuals from being denied employment due to an employer's discovery or awareness of an individual's pre-employment criminal conviction."
She noted the law tried to address the stigma of a conviction, but said based on the alleged facts "the stigma attached to plaintiff did not arise from any 'conviction.'"
The judge said a reading of Schwarz's suit showed the termination "was based on plaintiff's reputational effect on the workplace and on potential customers due to his association with the brutal treatment of Louima while in police custody, regardless of any 'conviction.'"
There was a difference that could not be ignored between convictions and notoriety that came with the circumstances of a conviction, Edmead said. Schwarz's interpretation of the statute, "would broadly prohibit discrimination based on convictions that were vacated, which would result in the requirement that applicants include convictions which were vacated or reversed on appeal on their employment applications," she said.
Such a view was "not only unsupported by the law, but would increase the potential of unfair discrimination in hiring and retention practices that the statute was intended to curtail," she said.
Serrins, a former general counsel in the city's Commission on Human Rights from 1979 to 1982, said, "We felt that the judge misinterpreted how the liberal standards of the city's Human Rights Law apply in cases where someone has a prior record of conviction."
Corey Stein, an associate, also represented Schwarz.
Con Edison spokesman Michael Clendenin said the company was pleased that the judge found Schwarz's suit "had no merit."
Paul Limmiatis, associate counsel at Consolidated Edison Company of New York, appeared for the defense.
Andrew Keshner can be reached via email or on Twitter @AndrewKeshner.
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