Wrongfully Terminated?! – Do You Have A Claim?

The case for “Wrongful Termination” is a difficult one to make in 2019. There are uncountable reasons why an employer may fire an employee in this day and age – suspicion of wrongdoing (even if the employer is wrong!), poor chemistry, lack of punctuality, even something as simple as “bad vibes”. Employers have the upper-hand when it comes to making the determination to fire an employee, especially considering that New York is an “at will” state, meaning an employer can end an employment relationship at any time for any reason, unless prohibited by law. So what makes a claim valid or invalid? Read on to learn more about this topic.

What Makes A Claim Viable?

There are a number of factors to look for when evaluating your claim. The most common wrongful termination claims include elements similar to the following:

Discrimination on the basis of creed, race, age, religion, sexual orientation, marital status, or gender

Retaliation for reporting discrimination or harassment

Retaliation for whistle blowing, where the employee reports illegal activity

While the wrongful termination claim has clear elements of discrimination and retaliation, the following cases present real-life scenarios where plaintiffs thought they had a valid claim, only to have it dismissed by the courts:

The “At-Will” Employee

In Brazill v. Elmont Union Free School District, the plaintiff sought compensation for the alleged wrongful termination of his employment. The plaintiff claimed that he was exposed to asbestos during the course of his employment at the school district. He claimed that when he reported the abusive and dangerous practices he was wrongfully terminated as a result.

In response to these allegations, the defendant in the Brazill case filed a motion to dismiss the plaintiff’s claim of wrongful termination. The defendant argued that the plaintiff, as an at-will employee, could not sue for wrongful termination because the defendant could freely terminate him at any time, for any reason. The Court agreed with the defendant and held that the Plaintiff was an employee “at-will”, subject to discharge at any time. There is no requirement under New York law that an at-will employee be discharged in good faith. New York courts have consistently declined to recognize a separate and distinct cause of action in tort for wrongful discharge of an “at-will” employee. The plaintiff’s claim was dismissed. Brazill v. Elmont Union Free Sch. Dist., 2010 NY Slip Op 32383(U), ¶ 10 (Sup. Ct. 2010)

Lack Of Capacity To Sue

In Ortega v. Mallilo & Grossman, the plaintiff filed suit against her former lawyer on the basis that her lawyer committed legal malpractice when representing her in a case against her former employer because they failed to file opposition papers to the summary judgment motion therein. This resulted in the dismissal of her wrongful termination suit.

The Court in the Ortega case examined the viability of the wrongful termination case. Originally, the plaintiff was fired, and then filed for bankruptcy. When the plaintiff filed for bankruptcy, she was required to allege the wrongful termination claim, but failed to. In the Court’s evaluation, the plaintiff’s failure to include the cause of action for wrongful termination in her original bankruptcy lawsuit constituted a waiver. The plaintiff filed a bankruptcy lawsuit and known or should have known about the potential of the wrongful termination lawsuit. As such, the wrongful termination case was dismissed because the plaintiff was deemed to have no capacity to sue. Ortega v. Mallilo & Grossman, LLP, 2011 NY Slip Op 30069(U), ¶ 2 (Sup. Ct. 2011)

Statute Of Limitations

In Hayes v. Bello, the plaintiff attempted to file suit against her former employer for wrongful termination. The case was ultimately dismissed when the court looked to the statute of limitations concerning the plaintiff’s claims, one of which was wrongful termination (amongst other claims). The courts of New York generally take a narrow view of the statute of limitations, and apply the law rigidly. In Hayes, the plaintiff learned the hard way that her failure to timely assert a claim resulted in the waiver of that claim. The public policy reasoning for the short statute of limitations and expeditious determination is to avoid the possible accumulation of substantial sums for back pay. The claim was dismissed and the plaintiff was forced to file a malpractice claim against her attorney for the purported error. Hayes v. Bello, 2009 NY Slip Op 29065, ¶ 1, 23 Misc. 3d 534, 535, 881 N.Y.S.2d 609, 610 (Sup. Ct. 2009)

Contact Shalom Law, Pllc. To Discuss Your Rights!

In today’s modern age, discrimination and retaliation should be things of the past, but with movements like the civil rights act and the #metoo movement, more and more claims are coming to light. If you or someone you know has suffered from workplace harassment, intimidation, or termination because of gender, race, color, or creed, contact the qualified attorneys at Shalom Law, PLLC to discuss your claim. You may be entitled to financial compensation for the losses that you have suffered. Attorneys are standing by at SHALOM LAW provide a free initial consultation by telephone at (718) 971-9474 or by email at This email address is being protected from spambots. You need JavaScript enabled to view it..

Everyone has a right to live a life that is free from discrimination.

By Jonathan Shalom, Esq.

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Jonathan Shalom, Esq., a duly admitted attorney representing and counseling clients with all Employment and Healthcare law matters in New York State. Mr. Shalom may be contacted at 718-971-9474 for a free consultation.