Matter of Hunter v United Nations
Annotate this CaseDecided on November 15, 2004
Supreme Court, New York County
In the Matter of the Appeal of JACQUELINE HUNTER,
against
UNITED NATIONS; UNITED NATIONS CHILDREN'S FUND (UNICEF); DR. YVES BERGEVIN, CHIEF OF HEALTH SECTION; and EDWIN J. JUDD, DIRECTOR OF THE PROGRAMME DIVISION, AS AIDERS AND ABETTORS, Respondents.
106796/04
Ronald A. Zweibel, J.
Petitioner Jacqueline Hunter, pursuant to Executive Law § 298, asks this Court to review an Order of the New York State Division of Human Rights that dismissed petitioner's discrimination complaint after preliminary investigation for lack of jurisdiction.[FN1]
In a Supplemental Notice of Motion to Amend the Petition, petitioner also seeks leave to amend the Petition in order to add the New York State Division of Human Rights ("SDHR") as a party to the action. Turning to this application first, petitioner claims that SDHR inadvertently was not included as a party to this proceeding even though SDHR was served with a copy of the Petition by certified mail on April 30, 2004. In fact, SDHR has submitted a verified answer and an affirmation in opposition to the original petition. None of the respondents have opposed the application to amend the petition. Accordingly, there being no opposition, the motion for leave to amend is granted and SDHR is added as a party to this proceeding.
Petitioner was employed by UNICEF, in a "temporary fixed term" position in the Health Section of UNICEF from May 8, 2000 until the effective date of her termination on April 6, 2003. Between May 2000 and April 2003, petitioner's temporary fixed term position with UNICEF had been renewed annually.
On February 28, 2003, petitioner was notified by Marion Jones, via electronic mail, that petitioner's contract would not be renewed for another year. According to petitioner, she had maintained an unblemished record with the respondents.
Petitioner notes that she was the only black employee of Jamaican national origin holding [*2]such a position within the Health Section of UNICEF. Additionally, she was the most senior temporary fixed term employee in the Health section. After respondents failed to renew her position, Marjorie Myint, Jasmina Ascimovic (promoted to a GS 5), MeMe Khine and Valeri Eng Lee, all of whom were of a different race and national origin than petitioner, were all hired by respondents as fixed term employees in the Health Section.
Petitioner argues that as the most senior fixed term employee working in the Health Section of UNICEF, petitioner should have been placed in the position held by Jasmina Ascimovic (promoted to a GS 5). Instead, respondents failed to appropriately consider petitioner's seniority for placement into the GS 5 position or for an open Program Assistant Position GS4 Budget Established Post (BEP).
Allegedly in violation of respondents' company regulations Book K: Budget Manual, i.e. Rule 3.30, petitioner was never properly informed that a GS job had been advertised. The GS job was subsequently filled by Awetash Mekonnen. In May of 2000, Secretary Mekonnen left to take an appointment in East Timor and petitioner was informed that she would be taking up Ms. Mekonnen's duties as Secretary to the Senior Health Advisor for Prevention of Mother to Child Transmission of HIV Aids (PMTCT).
Petitioner argues that because she was performing these additional tasks, she was in effect operating under a double incumbency.
Allegedly, while employed by respondents, petitioner was spoken to in a condescending and abrasive manner which she claims created a hostile work environment. Petitioner further claims that she has been treated disparately from similarly situated employees who are not Black or of Jamaican national origin. When petitioner complained about this behavior to Dr. Yves Bergevin, Chief of the Health Section, she was retaliated against for opposing protected activity, including but not limited to, the failure of respondents to renew petitioner's employment agreement.
On January 27, 2004, petitioner filed a Verified Complaint with the State of New York, Executive Department, State Division of Human Rights ("SDHR"), alleging the above-stated claims. On March 3, 2004, SDHR made its "Determination and Order After Investigation," dismissing the Verified Complaint because it determined that it lacked jurisdiction. Specifically, in its determination, SDHR stated that:
Pursuant to section 297.2 of the Law, the State
Division of Human Rights hereby determines that
it does not have jurisdiction for the following
reason: the immunity of the United Nations has
been established by the United Nations Charter,
the Headquarters Agreement, and the General
Convention, to which the government of the
United States was in agreement. Inasmuch as the
Division's authority is superseded, thereby
preventing the Division from acting herein, a
determination of Lack of Jurisdiction is rendered.
The instant Article 78 proceeding ensued.
In cases where SDHR issues an order prior to holding a hearing, dismissing a complaint [*3]for lack of jurisdiction, the standard to be applied is whether the determination was arbitrary and capricious (see Scopelliti v. Town of New Castle, 210 AD2d 339 [2nd Dept. 1994]). In this case, SDHR determined that it lacks jurisdiction over petitioner's complaint because the United Nations is immune from prosecution by the SDHR under the United Nations Charter, the Headquarters Agreement and the General Convention. SDHR's Order dismissing the complaint is not arbitrary or capricious.
Article 105 , section 2, of the United Nations Charter states, "Representatives of the Members of the United Nations and officials of the Organization shall similarly enjoy such privileges and immunities as are necessary for the independent exercise of their functions in connection with the Organization" (59 Stat. 1033 [1945]).
The Agreement Between the United Nations, June 26, Nov. 21, 1947, 61 Stat. 3416 ("the UN Headquarters Agreement"), Public Law 80-357, Article III, Section 7 (b) states "except as otherwise provided in this agreement or in the General Convention, the federal, state and local law of the United States shall apply within the headquarters district."
The Convention on the Privileges and Immunities of the United Nations ("Convention"), 21 U.S.T 1418, T.I.A.S. No. 6900, which was adopted by the General Assembly on February 13, 1946 and acceded to by the United States on April 29, 1970, confers on the United Nations a broad immunity from suit. Section 2 of the Convention provides: "The United Nations ...shall enjoy immunity from every form of legal process except insofar as in any particular case it has expressly waived its immunity" (21 U.S. T. 1418, 1422).
The General Convention, Article II, Section 3, states, "The premises of the United Nations shall be inviolable. The property and assets of the United Nations, wherever located and by whoever held, shall be immune from search, requisition, confiscation, expropriation and any other form of interference, whether by executive, administrative, judicial or legislative action" (21 U.S.T. 1418).
The General Convention, Article V, Section 18, states, "Officials of the United Nations shall be immune from legal process in respect of word spoken or written and all acts performed by them in their official capacity" (21 U.S.T. 1418).
A similar immunity exists pursuant to the International Organizations Immunities Act ("Act"), 22 U.S.C. §§ 288-228f-2. Section 2(b) of the Act says that "[i]nternational organizations...shall enjoy the same immunity from suit and every form of judicial process as is enjoyed by foreign governments, except to the extent that such organizations may expressly waive their immunity for the purpose of proceedings or by the terms of any contract" (22 U.S.C. § 288a(b). The United Nations is an "international organization" within the meaning of the Act's definition thereof, 22 U.S.C. § 288, by virtue of Executive Order No. 9698, Feb. 19, 1946, 11 Fed. Reg. 1809.
There seems to be little question that UNICEF, as a United Nations agency, is treated as an international organization under § 288(a) (see Boimah v. United Nations General Assembly, 664 F. Supp. 69, 70-71 [E.D.NY 1987]; International Refugee Organization v. Republic S.S. Corp., 189 F.2d 858 [4th Cir. 1951]; Shamsee v. Shamsee, 74 AD2d 357 [2d Dept. 1980][United Nations Joint Staff Pension Fund entitled to § 288a immunities], aff'd 53 NY2d 739, cert. denied 454 U.S. 893 [1981]).
It is unclear whether the Act, by granting to international organizations immunity co-[*4]extensive with that of foreign governments, confers the absolute immunity foreign governments enjoyed at the time of the Act's passage, or the somewhat restrictive immunity provided for the Foreign Sovereign Immunities Act of 1976, 28 U.S.C. § 1602 et seq., withholding immunity from claims based on among other things, a foreign government's "commercial activity" (see e.g. Broadbent v. Organization of American States, 628 F.2d 27, 30-35 [D.C. Cir. 1980]; Boimah v. United Nations General Assembly, 664 F.Supp., at 71). However, this Court need not decide the issue. Under the Convention the United Nations' immunity is absolute, subject only to the organization's express waiver thereof in particular cases. Moreover, even if the Foreign Sovereign Immunities Act applies so as to limit the Act's grant of immunity, an international organization's employment relationship with its internal staff is not "commercial activity" (see Tuck v. Pan American Health Organizations, 668 F.2d 547, 550 [D.C. Cir. 1981]; Broadbent v. Organization of American States, 628 F.2d, at 34-35; Boimah v. United Nations General Assembly, 664 F.Supp., at 72).
The question under both the Convention and the Act is whether the United Nations has ever "expressly waived" its immunity to employee actions. This Court can find no evidence of an express waiver. The Court is aware of what is known as the Headquarters Agreement of the United Nations, 61 Stat. 756 (1947), reprinted following 22 U.S.C. § 287, section 19 of which reads: "It is agreed that no form of racial or religious discrimination shall be permitted within the headquarters district" (61 Stat. 756, 764 [1947]). But this language hardly constitutes an "express" waiver of immunity from racial, nationality or sex based employment suits (Boimah v. United Nations General Assembly, 664 F.Supp., at 72).
Moreover, article 105(1) of the Charter reads: "The Organization shall enjoy in the territory of each of its Members such privileges and immunities as are necessary for the fulfillment of its purposes" (59 Stat. 1033, 1053 [1945]). It appears clear from the case law that an international organization's self regulation of its employment practices is an activity essential to the "fulfillment of its purposes," and thus an area to which immunity must extend (see e.g. Boimah v. United Nations General Assembly, 664 F.Supp., at 72).
In Broadbent v. Organization of American States, supra, the Court of Appeals for the D.C. Circuit held that the defendant was immune under the Act from a suit brought by its employees alleging breach of their employment contracts. The Court reasoned:
The United States has accepted without qualification
the principles that international organizations must
be free to perform their functions and that no member
state may take action to hinder the organization.
The unique nature of the international civil service
is relevant.... An attempt by the courts of one
nation to adjudicate the personnel claims of
international civil service would entangle those
courts in the internal administration of those
organizations. Denial of immunity opens the door to
divided decisions of the courts of different member
states passing judgment on the rules, regulations,
and decisions of the international bodies. [*5]
Undercutting uniformity in the application of staff
rules or regulations would undermine the ability of
the organization to function effectively.
(Broadbent v. Organization of American States, 628 F.2d, at 34-35).
Similarly, in Mendaro v. World Bank, 717 F.2d 610 (D.C. Cir. 1983), the same court held that the defendant was immune under the Act from an employees's Title VII suit alleging sex discrimination:
[T]he purpose of immunity from employee actions is
rooted in the need to protect international
organizations from unilateral control by a member
nation over the activities of the international
organization within its territory. The sheer
difficulty of administering multiple employment
practices in each area in which an organization
operates suggests that the purposes of an
organization could be greatly hampered if it
could be subjected to suit by its employees worldwide.
(Mendaro v. World Bank, 717 F.2d, at 615-616).
This policy underlying the immunity of an international organization also suggests that the Court should be slow to find an "express" waiver. As the Mendaro court noted, "courts should be reluctant to find that an international organization has inadvertently waived immunity when the organization might be subjected to a class of suits which would interfere with its functions" (Mendaro v. World Bank, 717 F.2d, at 617; see also Boimah v. United Nations General Assembly, 664 F.Supp., at 72; Tuck v. Pan American Health Organization, 666 F.2d 547).
Absent an express waiver of immunity the complaint against the United Nations and UNICEF cannot stand.
Similarly, the result is the same for the individually named officials responsible for employment decisions at the United Nations. Section 7(b) of the Act provides in pertinent part that "officers and employees of the [international] organizations shall be immune from suit and legal process relating to acts performed by them in their official capacity and falling within their functions as such...officers, or employees" (22 U.S.C. § 288d[b]). Section 18(a) of the Convention is even broader: "Officials of the United Nations shall:(a) be immune from legal process in respect of...all acts performed by them in their official capacity" (21 U.S.T. 1418, 1432).
Case law under 22 U.S.C. § 288d(b) is clear that employment-related decisions by officers charged with such responsibilities fall within the scope of that section's immunity (see e.g. Tuck v. Pan American Health Organizations, 668 F.2d, at 550 & n.7; Boimah v. United Nations General Assembly, 664 F.Supp., at 72). This is so even where the motives underlying the action are suspect (see Donald v. Orfila, 788 F.2d 36, 37 [D.C. 1986][per curiam]). There is no reason to reach a stricter definition of "official capacity" under section 18(a) of the Convention.
The Court notes that SDHR has previously determined that SDHR does not have [*6]jurisdiction to process complaints against the United Nations (see General Counsel's Memorandum dated April 8, 1976).
This Court cannot say that SDHR's determination that it lacks jurisdiction to process claims against the respondents with respect to allegations of discrimination related to employment because respondents are immune is anything but rational and non-arbitrary.
Additionally, this Court notes that the cases cited by petitioner are distinguishable from the instant matter because they involve employment by a foreign state. The Foreign Sovereign Immunities Act ("FSIA"), 26 U.S.C. § 1602, et seq., does not apply to the United Nations because the United Nations is not a "foreign state" as defined in § 1603 of the FSIA (28 U.S.C. §1603[a]).
Accordingly, for these reasons, the cross-motion to dismiss is granted and petitioner's application is denied and the instant CPLR Article 78 proceeding is dismissed in its entirety and it is further
ORDERED that the New York State Division of Human Rights ("SDHR") shall be added as a party-respondent, having been previously served with a copy of the Petition and having submitted an answer to that petition and not opposing the motion to amend the petition to add SDHR as a party, and it is further
ORDERED that the caption of this proceeding is amended to reflect inclusion of said additional-party respondent and the Clerk of the Court and the Clerk of the Trial Support Office, upon service on each of them of a copy of this order with notice of entry, shall mark their records to reflect the amendment.
This constitutes the decision and judgment of this Court.
Dated: November 15, 2004
ENTER:
RONALD A. ZWEIBEL, J.S.C.
Footnotes
Footnote 1:For purposes of this decision, Seq.1 and Seq.2 are joined and decided together herein.
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