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A corrections officer who was fired for being away from home while on sick leave has become the first successful litigant under a city law against discrimination against victims of domestic violence. Acting Supreme Court Justice Louis York ordered the city Department of Corrections to reinstate Gina Reynolds with more than two years’ back pay. The case is Reynolds v. Fraser, 122653/02. “This is the kind of protection that employees need,” said Reynolds’ counsel, Mercedes Maldonado, a senior associate at Koehler & Isaacs. Maldonado said domestic violence victims typically do not require special workplace accommodations but they do need time off. “This is another area where not being available for work or violating a rule on sick leave is involved,” Maldonado said, comparing domestic violence to disability issues. “If it becomes clearer and the law goes forward that employers are required to tolerate absences, employees will be so much better off.” Reynolds was evicted from her apartment in March 2002. The department allowed her to use sick leave to find a new home, then for stress and finally to recuperate from surgery. Department policy requires employees on sick leave to remain in their “residence or place of confinement,” and supervisors demanded an address. Reynolds, who rotated nightly between her car, shelters, hotels and friends’ homes, told the department that she did not have an address. The department responded that she could not work without one. “Faced with that threat even after she had explained her homelessness,” York wrote, “she gave her husband’s address.” Twice in the next two months Reynolds tried to go there. Both nights ended with her husband’s assaulting her and Reynolds’ seeking police intervention. On May 14, 2002, Reynolds moved into Safe Horizon, a domestic violence shelter. Because it restricts the release of its address, she gave the department the address of the organization’s headquarters. A department agent went to the headquarters on June 3 to verify that Reynolds was at her “residence or place of confinement” but declined to sign a confidentiality agreement. Safe Horizon therefore refused to disclose Reynolds’ location. The Department fired her on June 21. When Reynolds applied for unemployment benefits, she learned she had been fired for being away from her residence when the department visited on June 3. She then filed an Article 78 action against the city. Reynolds claimed that her termination was illegally based solely “on the fact that as a victim of domestic violence, she was unreachable while on sick leave due to [the Department's] failure to sign the confidentiality agreement,” according to the court’s decision. The city countered that she was dismissable without cause since she was a probationary employee and that ample cause existed aside from the sick leave violations, the judge wrote. York provided a four-page summary of domestic violence laws and public policy considerations. “Domestic violence, often fueled by alcohol and drugs, is a blight on the American family — and society at large,” York wrote. “It is well established that the only sure solution is for the victim to escape the abuser.” In 2001, the New York City Council amended its Human Rights Law (Local Law 1 of 2001, Sec. 1) to protect victims of domestic violence, making it unlawful, “to discharge from employment … because of the actual or perceived status of [an] individual as a victim of domestic violence.” KEY ISSUE The dispositive issue in Reynolds, York wrote, citing Admin. Code Sec. 8-107.1[2], is “whether the Department’s sick leave abuse policy — or its implementation with respect to petitioner and those similarly situated — is impermissibly discriminatory.” On the question of her probationary period, York said in effect that she could have been fired for no cause but not for an illegal cause. “Respondents have produced evidence that petitioner’s job performance, especially in the first year, was not exemplary,” he wrote. “She had excessive tardiness and absenteeism (perhaps a byproduct of the domestic violence) and had an altercation with a co-worker. Clearly, had they chosen to fire her at that point, they would have been totally within their rights. However, they did not do so.” Citing Kroboth v. Sexton, 160 A.D. 2d 126, he wrote, “The broad discretion enjoyed by those who are empowered to discharge probationary employees is not unbridled, but is, as a matter of law and public policy, contingent upon good faith.” The judge concluded that while the respondents may not have acted in bad faith, “they did act in contravention of Local Law 1 in that they failed to make reasonable accommodations for petitioner’s status as a homeless victim of domestic violence. “The end result here, petitioner’s loss of a job at the point when she was finally getting her living situation under control, is exactly the kind of fallout that Local Law 1 was enacted to prevent.” According to a statement released Friday, the city corporation counsel’s staff is “evaluating our options regarding a possible appeal [of] this decision.”

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