Peterson v City of New York

Annotate this Case
[*1] Peterson v City of New York 2012 NY Slip Op 51472(U) Decided on August 7, 2012 Supreme Court, Queens County Kerrigan, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 7, 2012
Supreme Court, Queens County

Sandra Peterson, Plaintiff,

against

City of New York and Louis March, Defendants.



10282/12

Kevin J. Kerrigan, J.



Motion by defendants to dismiss the complaint for failure to state a cause of action, pursuant to CPLR 3211(a)(7), is granted.

Plaintiff was employed by the New York City Department of Parks at the Lost Battalion Hall in Queens County from June 27, 2010 until February 9, 2011 as a Job Training Participant in the Parks Opportunity Program, a transitional employment program for recipients of public assistance who perform temporary work and receive job training and assistance in finding permanent employment. Plaintiff's duties included cleaning the bathrooms and taking out the garbage. Marchi is employed by the Department of Parks as a Workforce Development Consultant in the program.

Plaintiff alleges that she was the shortest of the five employees at the Lost Battalion Hall. She also alleges that Marchi told her her that she could not do the job, that she was too short and that there was something medically wrong with her, and that he required her to visit a physician, verbally abused and harassed her and finally, on February 9, 2011, fired her after she allegedly refused a job [*2]offer.

Plaintiff thereafter commenced the present action alleging two causes of action: discrimination on the basis of a predisposing genetic characteristic in violation of the New York State Human Rights Law (Executive Law §290 et seq.), and discrimination on the basis of a predisposing genetic characteristic in violation of the New York City Human Rights Law (New York City Administrative Code §8-101 et seq.). Plaintiff alleges that the predisposing genetic characteristic constituting illegal discrimination under these statutes is her height.

As to plaintiff's first cause of action alleging violation of the State Human Rights Law for discriminating against plaintiff on the basis of height as a predisposing genetic characteristic, the relevant section of §296 of the Human Rights Law (Executive Law) provides,

1. It shall be an unlawful discriminatory practice: (a) For an employer or licensing agency, because of an individual's age, race, creed, color, national origin, sexual orientation, military status, sex, disability, predisposing genetic characteristics, marital status, or domestic violence victim status, to refuse to hire or employ or to bar or to discharge from employment such individual or to discriminate against such individual in compensation or in tenure, conditions or privileges of employment (emphasis added).

The plain language of a statute is the best evidence of the intent of the Legislature, which is the primary consideration of the courts in interpreting the statute (see New Yorkers for Constitutional Freedoms v New York State Senate, __AD 3d__; 2012 NY Slip Op 05455 [4th Dept, July 6, 2012]). "The language of a statute is generally construed according to its natural and most obvious sense...in accordance with its ordinary and accepted meaning, unless the Legislature by definition or from the rest of the context of the statute provides a special meaning" (id at *5 [quoting Samiento v World Yacht Inc., 10 NY3d 70[2008]).

The height of plaintiff is undisputably outside the scope of the plain meaning of the phrase "predisposing genetic characteristics" as a prohibited basis for discrimination in the workplace. Clearly, a fully mature adult such a plaintiff who has attained her maximum growth cannot be "predisposed", genetically or otherwise, to becoming that height. There is no issue in this case of predisposition to anything, whether medical or generally anthropomorphic.

Indeed, the definitions section of the Human Rights Law specifically defines "predisposing genetic characteristic" as a genetic, or inherited, proclivity to developing, or risk of developing, a disease or disability. It has nothing to do with a person's physical height. Section 292 (21-a) states, " Predisposing genetic characteristic'" shall mean any inherited gene or chromosome, or alteration thereof, and determined by a genetic test or inferred from information derived from an individual or family member that is scientifically or medically believed to predispose an individual or the offspring of that individual to a disease or disability, or to be associated with a statistically significant increased risk of development of a physical or mental disease or disability." [*3]

Therefore, not only is mere height precluded as a "predisposing genetic characteristic" under a plain reading of the phrase, but the Legislature has defined the phrase as meaning only a genetic predisposition to developing a disease or disability. Indeed, the Legislature, in promulgating both the original 1996 version of §296(1)(a) and the amended version in 2005, which is the current iteration, has explicitly expressed that its intent in promulgating §296(1)(a) with respect to discrimination on the basis of "predisposing genetic characteristics" was aimed at preventing employers and insurance companies from requiring otherwise healthy individuals, as a condition for employment or insurance coverage, to undergo genetic testing to determine whether they are predisposed to developing a disease or disability in the future and denying employment or coverage because of such predisposition (see NY Bill Jacket, 1996 A.B. 7839, Ch. 204; NY Bill Jacket, 2005 A.B. 3107, Ch. 75). The New York State Assembly, in its memorandum in support of the amended bill in 2005, stated the purpose, or general idea, thereof as follows:

To simplify the defining language of chapter 204 of the laws of 1996 and to clarify that the protection against genetic discrimination in employment applies only to predisposing genetic characteristics i.e.,those genetic variations, based on genetic tests or inferred from personal information, which are known to be associated with significantly increased risk of a future physical or mental disease or disability. The bill extends the anti-discrimination provisions of chapter 204 to cover not only predispositions known from genetic tests but also speculations about predispositions based on personal or family information.

Therefore, it is absolutely clear that §296(1)(a) of the Civil Rights Law prohibiting discrimination on the basis of "predisposing genetic characteristics" does not encompass discrimination based upon mere height.

In his affirmation in opposition, plaintiff's counsel contends that plaintiff's height is a predisposing genetic characteristic, based upon "[a] seemingly official publication provided by the U.S. National Library of Medicine, NIH National Institutes of Health http://www.nlm.hih.gov/medline plus/dwarfism.html". Annexed to the opposition papers is a printout of the website article, entitled "Dwarfism. Also called: Little person." It states, in its entirety,

A dwarf is a person of short stature €" under 4'10" as an adult. More than 200 different conditions can cause dwarfism. A single type, called achondroplasia, causes about 70 percent of all dwarfism. Achondroplasia is a genetic condition that affects about 1 in 15,000 to 1 in 40,000 people. It makes your arms and legs short in comparison to your head and trunk. Other genetic conditions, kidney disease and problems with metabolism or hormones can cause short stature.

Dwarfism itself is not a disease. However, there is a greater risk of some health problems. With proper medical care, most people with dwarfism have active lives and live as long as other people.

Counsel argues that said "publication raises a prima facie issue as to whether plaintiff's height [*4]is genetic." Counsel's argument is without merit.

In the first instance, the authoritativeness of the aforementioned printout has not been established, on this record. Even were it authoritative, it is entirely irrelevant. Plaintiff does not show, and she does not allege, that she is a dwarf or little person. Indeed, no mention is made of her height, except for plaintiff's allegation that she was told that she was too short and fired for that reason. Even were plaintiff a dwarf or "little person", the issue is not whether plaintiff's height is genetic. As heretofore noted, a predisposing genetic characteristic under the statute is one, deduced from genetic tests or personal or family information, whereby it is determined or surmised that one faces an increased hereditary risk of developing a disease or disability in the future. The statute prohibits the use of genetic test results or family history to determine whether someone has a hereditary predisposition to developing diseases or disabilities in the future and to deny employment or health care coverage upon that basis. Plaintiff does not allege that she was fired as a result of genetic testing which determined that she might develop a disease or disability in the future. Neither does she allege that she was told that because of her shortness she might develop a medical condition in the future and for that reason her employer did not want to be exposed to the risk of paying for her health care. All plaintiff alleges is that she was discriminated against because she was short.

Therefore, since plaintiff only alleges that she was discriminated against because of her height, she has failed to state a cause of action under §296 of the Human Rights Law.

Plaintiff has also failed to state a cause of action under the New York City Human Rights Law (New York City Administrative Code §8-101 et seq.). Section 8-107(1)(a) of the Administrative Code provides:

1.Employment. It shall be an unlawful discriminatory practice:

(a) For an employer or an employee or agent thereof, because of the actual or perceived age, race, creed, color, national origin, gender, disability, marital status, partnership status, sexual orientation or alienage or citizenship status of any person, to refuse to hire or employ or to bar or to discharge from employment such person or to discriminate against such person in compensation or in terms, conditions or privileges of employment.

This provision does not include a predisposing genetic characteristic as a prohibited basis for discrimination. Even if it did, plaintiff would still fail to state a cause of action, for the same reasons as heretofore stated with regard to the State Human Rights Law.

Accordingly, the motion is granted and the complaint is dismissed.

Dated: August 7, 2012

KEVIN J. KERRIGAN, J.S.C.