Your Civil Rights Are Precious, and if Someone Violates Them,
without an experienced lawyer, the scales of justice won’t correct themselves on their own.
You need a lawyer who gives a damn, who chooses cases that can go all the way.
Gregory Antollino, Esq.
Tilting the scales of justice back towards citizens since 1993. Call 212-334-7397
Not every hassle at work is something you can sue for: not even most unfair terminations. The law only protects lousy employment actions that are motivated, at least in part, by a violation of your specific legal rights. These vary by location, but in New York City, for example, an employer can’t fire you for your gender, race, age – though it is legal to let someone go because he makes too much. Additionally, your sexual orientation, gender identity, disability, ethnicity, national origin, reasonable use of sick leave, religion, military service and even your arrest record are off limits. You may also complain about being discriminated against, or support another person’s claim of discrimination without being fired. You may not be discriminated against for associating with individuals in these protected classes as well because that’s another way of discriminating against you.
Very few employers will admit to discrimination or retaliation. When a company wants to get rid of someone, often it starts papering the file, but you can still prove discrimination with careful investigation. No case is a slam dunk in this area of law, but I love to make reasonable inferences, and I’m looking for the best cases where there is at least some evidence of an employer treating someone differently because of a protected characteristic. If you believe that be a motive, you are not “disgruntled,” you are aggrieved: dig in and you can often find employers playing cover up – making paper records before or after their wrongdoing, and coming up with ridiculous excuses. For me, it is pennies from heaven when I can expose that. But mind you, people get fired legally every minute of the day.
Sexual harassment is sex discrimination. Please understand, though, not every nasty boss can be sued for “harassment” in the general sense, even if she is consistently unpleasant. The harassment must arise because of your sex, race, ethnicity, etcetera, for it to be the basis for a lawsuit. If you can’t link the harassment to illegal motive, then you are just out of luck.
Disability Discrimination is illegal and requires an employer to make accommodations to people with impairments who can perform their jobs with changes to a job function. A simple example would be giving an individual in a wheelchair a ramp to get to the office or giving a deaf person an amplification device for use of a telephone. Again, no one can be retaliated against for asking for such accommodations. Employers, however, are often resistant to making the simplest changes; one I remember wouldn’t even move the desk of an elderly woman who used a walker so that she could more easily get to the bathroom. They just wanted to get rid of her, but their actions were illegal. A failure to discuss and then provide reasonable accommodations when they are not burdensome, and could have solved the problem, is a basis for a disability-discrimination lawsuit.
The Family and Medical Leave Act (FMLA) also requires most employers to give most employees up to twelve unpaid weeks of leave per year – intermittently or all at once – to care for the employee’s own, or a family member’s serious health condition. The FMLA applies only to employers who have at least fifty employees, and only to employees who have worked with the company for at least one year, and who have worked a minimum number of hours for the previous year’s employment. New York City has its own leave law, which is more generous.
The economy has improved, but so-called “reductions in force” have always been common. Businesses are allowed to do that to save money if made in a non-discriminatory way. Why are older people more often the ones who get sacked? If you were “downsized” – and especially if you were a “downsizing of one,” and someone less qualified did not get sacked, or was hired afterward, you might have a claim for discrimination by age or another protected characteristic. At a minimum, if, as part of staff reductions, companies commonly offer severance packages and ask you to sign away your right to sue. You may be successful in getting the employer to enhance the allowance – either on your own or with attorney assistance. I have done this lots of times.
Whistleblowing: Finally, you may not be fired for being a whistleblower about fraud – as long as the complaint was made in good faith, even if there was no fraud – against a publically-traded corporation or its contractor. These laws arose out of the “Enron Scandal,” if you remember that.
Employee Wage Claims
You might know that you are entitled to time and a half for overtime after forty hours of work in one week. Employers, especially restaurants, try to get around this in many ways, and federal laws protect employees where a company brings in at least $500,000 annually in revenue – not profit. But New York employers don’t have to bring in any money. Both laws are very protective for the employee, and go back 2, 3 or, in the case of the state law, six years. If you are working extra hours and not being paid for it, after years of wage theft, the money adds up, it gets doubled as a penalty. If the employer doesn’t pay in 90 days, its responsibility increases by 15%. The law also provides for attorneys’ fees.
Protecting Victims of Police Misconduct
The law gives you the right to sue for misconduct of rogue police officers. Did you know that your right to remain silent means that if a cop asks you a question and you ignore her and walk away, you are exercising your constitutional rights? Did you know that if the cop arrests you because of that, he or she is liable? Most people don’t and are afraid remain silent, and many cops are bullies who don’t like being ignored. If for example, you were arrested and there was no probable cause – a legitimate reason based on evidence more than a hunch – to take you into custody, you can bring suit against the police officer and usually the governmental entity that was his or her employer. Cases in this area of the law include false arrest, police brutality (excessive force during an arrest) and malicious prosecution.
In New York City, the police have adopted an “us versus them” attitude toward the public, and MANY feel they can get away with anything; it breaks my heart. There is no more “Officer Stan” who comes to the class to explain public safety; rather, now parents have to teach their children how to remain safe and conduct themselves when stopped by an officer, especially people of color, regardless of the officer’s race. I’m lily white, and have never once been stopped in over twenty years the City – but it’s not that I couldn’t have been had I looked different. That bothers me – especially when I hear about and see it happen to people of color all the time. Police brutality is a given, previously eclipsed only by excessive stops. There will always be bogus arrests, most often for “disorderly conduct” – a vague phrase that has a specific meaning. Nevertheless, the police ignore it and use “discon” like cotton candy. The NYPD arrests so many people for “discon” that they have pre-printed forms, so they don’t have to do any writing – they merely check boxes on a sheet: flailing arms, alarming the public, obscene language, what have you. The Civilian Complaint Review Board (CCRB) almost never sides with complainants, because the standard of evidence is so high to prove a cop did something wrong. In the rare cases in which the CCRB finds misconduct, the Police Commissioner can overrule it. I say it’s an agency with good intentions that has done little or nothing to decrease police abuse. Perhaps it has made things worse by suggesting it oversees the police when, in my opinion, it does not.
The best way to protect your rights if the police have illegally detained you or abused you physically is to get a lawyer. The CCRB can help in collecting evidence, but if you think it will cause the officer to lose his or her job, you are almost certainly mistaken. Even after private citizens successfully sue police officers, they are almost always kept on the force; officers sued multiple times don’t even get disciplined. The common refrain is that it is only a few police officers who are guilty of misconduct – the vast majority serve us well. If that were so, there would not be so much police misconduct because the “good” police officers would report the bad ones. That rarely happens.
I’ll tell you something – I’ve done mostly employment work, but I crave these cases, have gotten two six-figure settlements and like to take a case that stands for an important principle. Some of my police cases, without any input on my part, have gotten publicity because they shined a light on the scummy underbelly of everyday NYPD practice. In representing Heth and Jed Community Rockers, for example, I was able to show how a bigoted cop harassed and threatened physical harm on two men legally performing their music in public. We were able to trace this officer’s racism and homophobia all over the internet. Of course, the CCRB did nothing. Gothamist, a website about life in the City, tells the whole story.
In representing a young man from Staten Island, first, as a (somewhat) experienced criminal defense attorney, I got the client’s charge for resisting arrest dismissed after a full trial. I had all of the documents to show the inconsistencies between the arresting officers’ stories, and the wholesale perjury of another then demonstrated how one of their “brethren,” who was watching the brutality on camera, conveniently lost the videotape that would have shown the abuse and proven my client not guilty. Luckily, these cops, previously sued multiple times for their misconduct, couldn’t get their stories straight. We then sued in federal court. Staten Island Advance tells more.
I filed a case, Thames v. City of New York, in which Jezebel, a division of the sadly defunct Gawker, explained how my transgender client was abused after a petty arrest and chained to a fence for over 24 hours. This treatment is what the police call “Courtesy, Professionalism and Respect,” or “CPR,” an NYPD motto adopted back in “Giuliani-Time” after Abner Louima was sodomized by some cops in a toilet stall. But “CPR” was never carried out in any meaningful way; many say the police got worse under Bloomberg. Some Brooklyn College journalism students did a “60 Minutes” style video on the project, in which I, Ms. Thames and some experts in the field offer opinions.
None of these cases made the clients rich, nor me, but I cannot deny that I enjoyed each immensely. I’ve always been a rebel for justice; in my heart, there is a strong desire to Fight the Power when those who wield power abuse it.
I got my mediation certification from the Harvard Law School Program on Negotiation in October 2016. I have to find a way to market myself as one who can settle cases, but at least for now I know how best to represent a client before a mediator.
Lawsuits against Lawyers
In a rare case, I sue lawyers. Earlier in my career, I sought these cases; having realized how difficult they are, now I am here only when someone has undeniable evidence that his lawyer messed up and cost the client money. The vast majority of lawyers are competent and ethical, but a small minority is not, and do not take to heart the trust that is the basis for the attorney-client relationship. Also, mistakes happen. Some otherwise good, even excellent and ethical lawyers mess up, as does everyone. Sometimes these errors harm the client, and the lawyer must be held responsible. I don’t take these cases lightly, and only when I believe the misfeasance is undeniable.
You’ve heard of medical malpractice, but there is also legal malpractice and it involves, usually, a situation where a client entrusts an attorney to take her case, and because the lawyer does something wrong, the client loses the case. A simple example is a person who has a lawsuit against a someone else or a company, goes to a lawyer, and then the lawyer doesn’t file the lawsuit on time. When that happens, the lawyer is responsible for the client’s damages that he would get in the original suit. A lawyer might also give terrible advice causing damage; I had one case where the client incurred a tax burden that would not otherwise be imposed I got a $219,000 settlement. Another I litigated involved a home buyer’s attorney’s failure to disclose a financial relationship with the seller that resulted in the attorney’s soft-pedaling her client’s legitimate objectives and failing to disclose things that only he could have known. Before I consider taking a lawsuit against a lawyer, the client must suffer actual, ascertainable monetary damages. Also, the attorney must be insured. I am fully insured, because if I make a mistake, I want the client protected. The sad thing is, however, that New York, like most states, does not require an attorney to have insurance, nor even to disclose that she does not. It’s a sad comment on our society when laws require merchants like Best Buy to post their returns policy, but attorneys do not have to warn their clients that they don’t pay a couple thousand dollars a year for an insurance safety net.
The very first legal malpractice case I litigated, Baker v. Dorfman, involved an attorney with no insurance. It went on forever, taught me much about the law, resulted in two published opinions at the Second Circuit very early in my career. The case was so novel and chock full of “stuff” (the defendant made many, many arguments to relieve himself of the judgment), that it made new law in the State of New York. It was taught in tort classes to Columbia Law students, and in Professor Steven Giller’s Professional Responsibility Class at NYU. This exceptional case involved a client, Ricky Baker, who was incorrectly diagnosed as HIV positive. It was a lab error: one person swapped his blood sample for Ricky Baker’s; Ricky learned an incorrect result a year later when HIV was a slow, likely death sentence. Attorney David Dorfman took the case and sold himself to the client by misrepresenting his credentials. A court dismissed the claim brought by Dorfman because Dorfman was inexperienced; then Baker rightfully sued Dorfman. After a trial and an appeal, the Second Circuit held that a negligent diagnosis that one is HIV positive when, in fact, one is not, states a claim upon which one can sue the laboratory in the State of New York. The case also held the attorney liable for fraud because he grossly misrepresented his credentials to induce the client to give over the case. We finally collected about 40% of the judgment after ten years, but I learned so much in that case that I would never give up the experience.
I have also represented clients who have sued their attorneys for gross overcharges. An attorney deserves his fee, but secret charges and double dipping are, if not common, more prevalent than they should be. One case I argued, Siagha v. Katz, clarified the law: the judge held that a retainer agreement that states a lawyer will obtain a percentage of the clients’ winnings cannot be read to contain any hidden fees for an appeal, or for collection on the judgment. In that case, the lawyer double-billed and was ordered to refund a total of over $330,000.
Steps to a Lawsuit – Information for Clients, Potential Clients, and Nonlawyers:
For clients and others interested, if one is considering filing a lawsuit, these are the steps: First, you file with the EEOC for most discrimination cases; that’s not needed for police misconduct cases. Second, at this early stage, you try to settle the case. Third, if the case can’t settle and the EEOC does nothing anything else for you, your lawyer writes a complaint and files it in the most appropriate court (sometimes you don’t have a choice, and there are different considerations in choosing where to file if you do have a choice). Fourth, the parties meet and try to plan for discovery with the supervision of the judge. In discovery, the parties exchange documents and take depositions (sworn statements under oath, usually taken in a lawyer’s office). Fifth, after discovery, the defendant – but sometimes also the plaintiff – makes an argument to the judge that the case should be decided without a jury. If the judge agrees, there can be an appeal; if she does not, it goes to trial. This is the stage the many people refer to as “Going to Court.” More precisely, this is “Going to Trial” – the main event. Despite that it is the main event, very few cases go to trial. They either settle earlier than this point or get dismissed. My thrill is to get to trial and think creatively in telling my clients’ story and winning before the jury. There is no better feeling when a jury delivers a verdict in your client’s favor. If you win at this stage, you (usually) win more than you would have at an earlier stage; but if you lose, you get nothing. So there’s a big gamble, even if the law is not a gamble, but a set of principles. If you win, the defendant has a chance to ask for a new trial (as does the plaintiff if he loses).
Most of these post-trial requests do not succeed. If the verdict is upheld by the judge (this is not an appeal), then you get a paper that says you win money. Sometimes it easy to collect the money; other times it is hard. There might be an appeal, which takes at least a year. The appeals court looks to whether there were no legal mistakes, unfairness or impropriety at the trial level. If there was, you might get a new trial. Most appeals fail, and the judgment stands. because many errors are considered “harmless” and the appeals court determines the mistake would not have changed the result. The loser on appeal cantry to appeal again, but there is not a second appeals court in the country that you can get without that Court’s permission. “The Court of Last Resort,” like the U.S. Supreme Court, has the choice to take which cases it wants; if it doesn’t want yours, and the case hasn’t been resolved earlier, that’s the end of your lawsuit. Your goal throughout all of this, as the plaintiff – the side I almost uniformly represent – is to get the best result depending on the circumstances. That’s vague, but there are so many cases and situations that one cannot be more specific. The amount your lawyer demands in the complaint means nothing. You’ve got to convince the party you’re suing that you have a winning case, and settle, or win, defending the win all the way up the chain of appeal, and prove the case is worth as much as the jury awarded.
That’s the process in a nutshell. In my experience, if you think the party you want to sue will cave to “publicity,” you are mistaken. Publicity can have some effect on the process, but the publicity I’ve gotten has usually come to, rather than from me, and I can’t say that publicity on any case had an effect on the outcome. No bad case becomes a good one because of publicity. The important things are your opponent’s blameworthiness, your damages, good lawyering and good luck.
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