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Hoffman v. Parade Publications

July 1, 2010

HOWARD HOFFMAN, RESPONDENT,
v.
PARADE PUBLICATIONS, ET AL. APPELLANTS.



The opinion of the court was delivered by: Pigott, J.

Defendant Parade Publications is the publisher of a nationally syndicated general interest magazine that is distributed in hundreds of American newspapers. Between 2002 and January 1, 2008, plaintiff Howard Hoffman--a resident of Georgia who worked with his assistant at Parade's office in Atlanta-- served as a managing director for Parade's Newspaper Relations Group (NRG). His duties included developing and overseeing accounts relative to the inclusion of Parade in newspapers in 10 states primarily located in the south and southwest. Hoffman did not service any accounts in New York.

In October 2007, Randy Siegel, President and Publisher of Parade, called Hoffman in Atlanta from Parade's New York City headquarters and advised Hoffman that the Atlanta office would be closed by year's end and that his employment was being terminated. Hoffman thereafter commenced this age discrimination action against defendants Parade Publications, Condé Nast Publications and Advance Publications, Inc., asserting that his termination violated the New York City Human Rights Law (see Administrative Code of City of N.Y. § 8-101 et seq.) and the New York State Human Rights Law (see Executive Law § 290 et seq.).

Defendants moved to dismiss the complaint for, among other things, lack of subject matter jurisdiction. Hoffman opposed the motion, asserting that he attended quarterly meetings in New York City, that the NRG was managed from--and all corporate contracts were negotiated through--the New York City office, and that defendants' decision to terminate him was made and executed in New York City.

Supreme Court dismissed the complaint for want of subject matter jurisdiction, holding that neither the City nor State Human Rights Laws applied to a plaintiff who does not reside in New York because the "impact" of defendants' alleged discriminatory conduct was not felt within those boundaries. The Appellate Division reversed and reinstated the complaint, holding that an "out-of-jurisdiction" employee's allegation that a discriminatory decision to terminate was made in New York City, if established, is sufficient to demonstrate that New York has subject matter jurisdiction over the claims (65 AD3d 48, 56-57 [1st Dept 2009]). The Appellate Division certified to this Court the question whether its order reversing the judgment of Supreme Court was properly made. We answer the certified question in the negative and reverse.

Both the City and the State Human Rights Laws deem it an "unlawful discriminatory practice" for an employer to discharge an employee because of age (see Administrative Code of City of N.Y. § 8-107 [1] [a]; Executive Law § 296 [1] [a]). The question raised on this appeal is whether non-residents of the City and State must plead and prove that the alleged discriminatory conduct had an impact within those respective boundaries. We hold that the policies underpinning those laws require that they must.

Addressing Hoffman's City Human Rights Law claim first, it is clear from the statute's language that its protections are afforded only to those who inhabit or are "persons in" the City of New York. The law declares, among other things, that "prejudice, intolerance, bigotry and discrimination... threaten the rights and proper privileges of [the City's] inhabitants," and that "[i]n the city of New York... there is no greater danger to the health, morals, safety and welfare of the city and its inhabitants than the existence of groups prejudiced against one another... because of their actual or perceived differences, including those based on... age..." (Administrative Code of City of N.Y. § 8-101 [emphasis supplied]). To combat these prejudices, the law created the city commission on human rights to, among other things, "foster mutual understanding and respect among all persons in the city of New York" (id. at § 8-104[1] [emphasis supplied]). In addition to investigating complaints of discrimination (see id. at § 8-105 [4][a]), the commission is also charged with working with other municipal agencies in "developing courses of instruction... on techniques for achieving harmonious intergroup relations within the city of New York" (id. at § 8-105[1]).

There is disagreement among state and federal courts concerning the territorial reach of the City Human Rights Law in circumstances where the alleged discriminatory conduct is against a non-resident who does not work in New York City. Some courts have concluded that a non-resident plaintiff may invoke the protections of the NYCHRL by merely alleging and proving that the discriminatory decision to terminate was made in the City (see Hoffman v Parade Publications, 65 AD3d at 50; Rohn Padmore, Inc. v LC Play Inc., 679 F Supp 2d 454, 465 [SD NY 2010] [non-resident plaintiff working in California need only show that the alleged discriminatory decision to terminate occurred in the City]).

Other courts have taken the view that the non-resident plaintiff must demonstrate that the alleged discriminatory conduct had an "impact" within the City (see Shah v Wilco Sys., Inc., 27 AD3d 169, 176 [1st Dept 2005] [even if termination decision was made in the City, its impact on the plaintiff was felt outside the City]; Pearce v Manhattan Ensemble Theater, Inc., 528 F Supp 2d 175, 184-185 [SD NY 2007] [same]; Wahlstrom v Metro-North Comm. R.R. Co., 89 F Supp 2d 506, 527-528 [SD NY 2000]; Duffy v Drake Beam Morin, 1998 WL 252063, *11 [SD NY 1998]). Courts adopting the impact requirement have done so out of concern that merely focusing the inquiry on where the termination decision is made--as opposed to where the impact of that decision is felt--results in the expansion of the NYCHRL to cover any plaintiff who is terminated pursuant to a decision made by an employer from its New York City headquarters regardless of where the plaintiff works (see Wahlstrom, 89 F Supp 2d at 527-528 citing Duffy, 1998 WL 252063, *12).

We hold that the impact requirement is appropriate where a non-resident plaintiff invokes the protection of the City Human Rights Law. Contrary to Hoffman's contention, the application of the impact requirement does not exclude all non-residents from its protection; rather, it expands those protections to non-residents who work in the City, while concomitantly narrowing the class of non-resident plaintiffs who may invoke its protection.

The Appellate Division's rule that a plaintiff need only plead and prove that the employer's decision to terminate was made in the City is impractical, would lead to inconsistent and arbitrary results, and expands NYCHRL protections to non-residents who have, at most, tangential contacts with the City. Indeed, the permutations of such a rule are endless, and, although the locus of the decision to terminate may be a factor to consider, the success or failure of an NYCHRL claim should not be solely dependent on something as arbitrary as where the termination decision was made. In contrast, the impact requirement is relatively simple for courts to apply and litigants to follow, leads to predictable results, and confines the protections of the NYCHRL to those who are meant to be protected--those who work in the City (see Administrative Code of City of N.Y. § 2-201 [defining the territory of the City as constituting the five boroughs, and declaring that the "jurisdictions and powers of the city are for all purposes of local administration and government... co-extensive with the territory... described"]).

For similar reasons, Hoffman's State Human Rights Law claim should also be dismissed. The Legislature enacted that law through its invocation of "the state police power of [New York] for the protection of the public welfare, health and peace of the people of this state" (Executive Law § 290 [2] [emphasis supplied]). The law declares that the State of New York "has the responsibility to act to assure that every individual within [New York State] is afforded an equal opportunity to enjoy a full and productive life," and that failure to afford equal opportunity "threatens the peace, order, health, safety and general welfare of the state and its inhabitants" (Executive Law § 290 [3] [emphasis supplied]).

The obvious intent of the State Human Rights Law is to protect "inhabitants" and persons "within" the State, meaning that those who work in New York fall within the class of persons who may bring discrimination claims in New York. Application of the "impact" requirement to State Human Rights Law claims achieves the same ends as is the case with its City counterpart, because it permits those who work in the State to invoke its protections. Therefore, we conclude that a non-resident must plead and prove that the alleged discriminatory conduct had an impact in New York (see e.g. Pearce, 528 F Supp 2d at 185; Lucas v Pathfinder's Personnel, Inc., 2002 WL 986641, *2 [SD NY 2002]; Duffy, 1998 WL 252063, *12).

The State Human Rights Law's "extraterritorial" provision underscores defendants' argument that the law does not protect a non-resident like Hoffman. Enacted in 1975, this amendment called for the application of the State Human Rights Law "to certain acts committed outside" New York (Executive Law § 298-a). The thrust of section 298-a is to "outlaw[ ] certain discriminatory practices committed outside New York State against New York residents and businesses" (Sponsor's Mem, Bill Jacket L 1975, at 9, ch 622 §2). Specifically, it protects New York residents, domestic corporations, and corporations doing business in New York from discriminatory acts committed outside the state (see Executive Law § 298-a [1]), and subjects New York residents and domestic corporations who commit an "unlawful discriminatory practice" against New York residents outside the state to almost all of the provisions of the law (Executive Law § 298-a [2] [excepting the application of the penal provisions]; see Mem of the Exec Director of the Law Revision Comm, Bill Jacket, L 1975, at 22-23, ch 662, §2; see also Budget Rep on Bills, Bill Jacket L 1975, at 16, ch 662, §2). Under this statutory scheme, while New York residents may bring a claim against New York residents and corporations who commit "unlawful discriminatory practices" outside the state, the Legislature plainly has not extended such protections to non-residents like Hoffman, who are unable to demonstrate that the impact of the discriminatory act was felt inside the State.

According to the complaint, Hoffman was neither a resident of, nor employed in, the City or State of New York. Nor does Hoffman state a claim that the alleged discriminatory conduct had any impact in either of those locations. At most, Hoffman pleaded that his employment had a tangential connection to the City and State. Therefore, Supreme Court ...


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