State of New York OPINION
Court of Appeals This opinion is uncorrected and subject to revision
before publication in the New York Reports.
No. 55
Richard J. Sassi II,
Appellant,
v.
Mobile Life Support Services,
Inc.,
Respondent.
Jonathan R. Goldman, for appellant.
Matthew Cohen, for respondent.
DiFIORE, Chief Judge:
Correction Law article 23-A and Executive Law § 296 (15) protect certain
individuals convicted of criminal offenses from unlawful discrimination in employment
and licensing. In this appeal, the issue is whether plaintiff adequately alleged that
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defendant, plaintiff’s former employer, violated the antidiscrimination statutes based on
the denial of plaintiff’s application for employment following the completion of his
criminal sentence. Applying our liberal pleading standard for a pre-answer motion to
dismiss pursuant to CPLR 3211 (a) (7), and giving plaintiff the benefit of every favorable
inference, we conclude that the courts below erred in concluding the complaint failed to
state a cause of action. We therefore reverse the Appellate Division order and deny the
motion to dismiss.
Assuming the allegations in plaintiff’s verified complaint to be true as we must in
this procedural context, between 2014 and 2016 plaintiff Richard J. Sassi II, a former police
officer, was employed by defendant Mobile Life Support Services, Inc., an ambulance
service. When plaintiff applied to work for Mobile Life in 2014, he disclosed that he “was
facing a misdemeanor charge relating to allegedly calling in a false emergency to 911” as
a police officer in 2012. Defendant hired plaintiff and soon promoted him to a full-time
dispatcher position. In early 2016, plaintiff informed his supervisors that his “retrial” 1 on
the misdemeanor charge was imminent, and he was subsequently convicted. Throughout,
plaintiff kept defendant apprised of the status of his trial, his conviction, and the results of
a presentence investigation report that recommended against incarceration.
In the complaint, plaintiff averred that, during the period between his conviction and
sentencing, he was told by both Mobile Life’s chief operating officer (COO) and its human
1
The record does not indicate when the first trial occurred, how it was resolved, or why a
retrial was necessary.
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resources director that he was a “good employee” and, in the “unlikely event he was
sentenced to jail time,” they would allow him to use accrued benefit time and “re-instate
him upon his release.” On May 18, 2016, plaintiff was “sentenced to 60 days’
incarceration” and immediately remanded to custody. When his wife promptly informed
defendant about the sentence, she was told that plaintiff could use accrued benefit time
until he “came back” to work. Soon thereafter, however, while plaintiff was incarcerated,
defendant terminated him for “job abandonment.” Following his release from jail, plaintiff
contacted a Mobile Life employee “who advised that he wanted plaintiff to return to work,”
but indicated “the supervisors were divided” on the issue. “[U]nable to regain his job”
through that contact, plaintiff subsequently met with the COO and the human resources
director who advised him that because Mobile Life “had previously terminated others who
had been incarcerated, they had to be consistent and terminate plaintiff.” Plaintiff then
commenced this action contending that defendant violated Correction Law article 23-A
and Executive Law § 296 (15) by refusing to “re-employ” him, seeking damages and
reinstatement to his former position.
Mobile Life moved to dismiss the complaint for failure to state a claim under CPLR
3211 (a) (7), generally asserting, among other things, that Executive Law § 296 (15) and
Correction Law article 23-A—which prohibit discrimination based on a previous
conviction—were inapplicable because plaintiff was convicted during his employment.
Supreme Court granted the motion and dismissed the complaint and, on plaintiff’s appeal,
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the Appellate Division affirmed (176 AD3d 886 [2d Dept 2019]). This Court granted leave
to appeal (34 NY3d 913 [2020]).
When reviewing a pre-answer motion “to dismiss the complaint for failure to state
a cause of action, we must give the pleadings a liberal construction, accept the allegations
as true and accord the plaintiff[] every possible favorable inference” (Chanko v American
Broadcasting Cos. Inc., 27 NY3d 46, 52 [2016], citing Goshen v Mutual Life Ins. Co. of
N.Y., 98 NY2d 314, 326 [2002]). Giving plaintiff “the benefit of all favorable inferences
which may be drawn from [the] pleading,” this Court determines only whether the alleged
facts “‘fit within any cognizable legal theory’” (Campaign for Fiscal Equity v State of New
York, 86 NY2d 307, 318 [1995], quoting Leon v Martinez, 84 NY2d 83, 87-88 [1994]).
The question is whether the complaint adequately alleged facts giving rise to a cause of
action, “not whether [it] properly labeled or artfully stated one” (Chanko, 27 NY3d at 52,
citing Leon, 84 NY2d at 88).
Where applicable, the Correction Law and the Human Rights Law protect
individuals convicted of criminal offenses from discrimination in the context of
applications for employment or licensing, subject to certain exceptions. In 1976, the
legislature enacted Correction Law article 23-A and Executive Law § 296 (15) in
furtherance of “the ‘general purposes’ of the Penal Law,” including “‘the rehabilitation of
those convicted’ and ‘the promotion of their successful and productive reentry and
reintegration into society’” (Matter of Acosta v New York City Dept. of Educ., 16 NY3d
309, 314 [2011], quoting Penal Law § 1.05 [6]; see Matter of Bonacorsa v Van Lindt, 71
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NY2d 605 [1988]). Correction Law § 751 broadly states that article 23-A applies to “any
application by any person for a license or employment at any public or private employer,
who has previously been convicted of one or more criminal offenses in this state or in any
other jurisdiction.” Correction Law § 752 contains similar language, stating that “[n]o
application for any license or employment, and no employment or license held by an
individual, to which the provisions of this article are applicable, shall be denied or acted
upon adversely by reason of the individual’s having been previously convicted of one or
more criminal offenses.” Executive Law § 296 (15), the Human Rights Law, incorporates
article 23-A, making it “an unlawful discriminatory practice for any person . . . to deny any
license or employment to any individual by reason of [that individual] having been
convicted of one or more criminal offenses . . . when such denial is in violation of
[Correction Law article 23-A].”
The statutes do not categorically preclude consideration of a prospective employee’s
criminal history and expressly permit the denial of employment or licensing if there is (1)
a “direct relationship” between the previous criminal offense and the specific employment
or license, or (2) if granting the request for employment or a license “would involve an
unreasonable risk” to the property, safety, or welfare “of specific individuals or the general
public” (Correction Law § 752). Thus, under the statutory scheme, reliance on a previous
criminal offense when denying an application for employment or a license is not
necessarily unlawful (see e.g. Bonacorsa, 71 NY2d at 614-615). Whether an exception
applies depends on factors identified in Correction Law § 753 such as, among other things,
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the relationship between the specific employment duties and the criminal offense as well
as the amount of time that has elapsed since the offense occurred (Correction Law § 753
[1] [b], [c], [d]).2 Under these provisions, when filling positions, public and private
employers must treat job applicants with prior convictions equitably “while also protecting
society’s interest in assuring performance [of job duties] by reliable and trustworthy
persons” (Bonacorsa, 71 NY2d at 611).
On this appeal, based on the arguments preserved by the parties, the only question
before us is whether plaintiff adequately alleged a violation of the antidiscrimination
statutes. While the legislative history suggests that the legislature may not have considered
this specific scenario—a request for reemployment with a pre-incarceration employer—
we conclude that the factual allegations are sufficient to survive defendant’s pre-answer
motion to dismiss. Nothing in the statutory language, scheme, or legislative history
indicates that the legislature intended for article 23-A or Executive Law § 296 (15) to
exempt a previous employer from the reach of those statutes. Instead, the statutes broadly
refer to “any application by any person for . . . employment at any public or private
employer, who has previously been convicted of one or more criminal offenses”
2
Because this appeal arises in the context of a pre-answer motion to dismiss, the record
does not reveal the role, if any, such considerations played here in the decision to deny
employment. In a case involving a former employee, the individual’s record with that
employer and the circumstances surrounding the prior separation from employment would
also be relevant. Our conclusion that defendant’s motion to dismiss should have been
denied concerns no more than that procedural question and should not be interpreted as
expressing a view on the merits of plaintiff’s claim.
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(Correction Law § 751). Thus, this case does not fall outside the scope of the
antidiscrimination statutes merely because plaintiff previously worked for Mobile Life.
Moreover, we disagree with defendant’s contention that, even read liberally, the
complaint fails to adequately allege a post-conviction “application” by plaintiff. The term
“application” is not defined in the pertinent statutes but, read in the context of employment
and given its ordinary meaning, the word is reasonably interpreted to refer to a request for
employment. Employment applications may take various forms in different contexts
depending on, among other things, the nature of the relevant industry, the manner in which
new employees are solicited or open positions advertised, application protocols
implemented by the employer, and the relationship, if any, between a prospective employer
and employee. The application requirement is met if, viewed in context and from an
objective standpoint, the employer would have reasonably understood the communications
from the prospective employee to be a request for employment.
In this case, plaintiff alleged that he was terminated for job abandonment soon after
he was incarcerated. Applying our liberal standard, the complaint further may be read to
allege that, after he completed his sentence, he applied for reemployment in the dispatcher
position that he previously held, and Mobile Life denied the application solely because of
the prior conviction. Plaintiff alleged that he was advised that, although some supervisors
wanted him to return, defendant’s policy was to terminate employees who had been
incarcerated. Plaintiff’s allegation that he was told that his request was being denied due
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solely to his conviction supports the inference that he was not denied employment for some
other reason (for example, because the position had been filled during his incarceration).
Defendant offered an alternate interpretation of the allegations in the complaint,
contending they allege a “discriminatory termination” and do not reflect a post-conviction
application for employment. To that end, defendant asserts that plaintiff’s post-
incarceration meeting with the COO and the human resources director was a “termination
meeting” intended to explain why he was fired—not a discussion between an applicant and
prospective employer. Viewed in this light, defendant argues that the statutes were never
triggered because there was no “application” by a person who was “previously convicted”
of a criminal offense; there was, in essence, only one employment determination—a
termination—that was concededly lawful and did not implicate the antidiscrimination
statutes as it arose from a conviction during employment.
To be sure, throughout this litigation plaintiff acknowledged that, upon his
incarceration, he could be lawfully terminated by Mobile Life. In a scenario like this, a
plaintiff’s complaint must allege facts supporting the inference that an application for
employment was made and denied—and not merely that there was protest of a termination
decision—because these statutes do not preclude an employer from lawfully terminating
an employee such as plaintiff who by virtue of his conviction and sentence could not report
to work. At this pre-answer stage of the litigation, we conclude only that plaintiff’s
allegations in that regard were adequate. Whether Mobile Life may ultimately establish
that a reasonable employer would not have understood plaintiff’s request as an application
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triggering the statutory protections is not the question before us; to answer that question at
this pre-answer stage of litigation, we would have to view the complaint in the light most
favorable to defendant—an approach antithetical to the governing standard of review on
this motion to dismiss.
Accordingly, the order of the Appellate Division should be reversed, with costs, and
defendant’s motion to dismiss the complaint pursuant to CPLR 3211 (a) (7) denied.
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GARCIA, J. (concurring):
I join the majority opinion but write separately to make clear my understanding of
the guidelines for assessing claims based on the relevant antidiscrimination statutes. First,
Executive Law § 296 (15) and Correction Law article 23-A—which prohibit discrimination
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based on a “previous” conviction—do not apply to plaintiff’s termination based on
conviction during employment (see Hodge v New York City Tr. Auth., 180 AD3d 490 [1st
Dept 2020]). Second, it is necessary for the plaintiff to allege that he was applying for an
open position. It is not sufficient that plaintiff sought reinstatement or merely requested
that he be rehired into his prior position. An existing position must be available at the time
of the “application.” Lastly, prior employment history—here, termination for “job
abandonment”—may indeed be relevant in any later hiring decision (see majority op at 6
n 2). With that understanding, I agree that, applying our most forgiving of standards, the
motion to dismiss the complaint at this stage of the litigation was properly denied.
Order reversed, with costs, and defendant’s motion to dismiss the complaint pursuant to
CPLR 3211 (a) (7) denied. Opinion by Chief Judge DiFiore. Judges Rivera, Fahey, Garcia,
Wilson, Singas and Cannataro concur, Judge Garcia in a concurring opinion.
Decided October 12, 2021
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