Kolomick v. New York Air Nat. Guard

• Decision Date: 13 May 1996
• Citation: 219 A.D.2d 367,642 N.Y.S.2d 915
• Parties: , 70 Fair Empl.Prac.Cas. (BNA) 1686 Jerry KOLOMICK, Appellant, v. NEW YORK AIR NATIONAL GUARD, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 915

642 N.Y.S.2d 915

219 A.D.2d 367, 70 Fair Empl.Prac.Cas. (BNA) 1686

Jerry KOLOMICK, Appellant, v. NEW YORK AIR NATIONAL GUARD, et al., Respondents.

Supreme Court, Appellate Division,

Second Department.

May 13, 1996.

Esseks, Hefter & Angel, Riverhead (Stephen R. Angel, of counsel), for appellant.

Dennis C. Vacco, Attorney-General, New York City (Elizabeth Bradford and Robert K. Drinan, of counsel), for respondents.

Before ROSENBLATT, J.P., and O'BRIEN, PIZZUTO and GOLDSTEIN, JJ.

GOLDSTEIN, Justice.

At issue here is whether a member of the New York Air National Guard may bring an action under the Human Rights Law (Executive Law § 290, et seq.) to recover damages for an unlawful discriminatory practice allegedly perpetrated by the New York Air National Guard. We hold that such claims are governed by the Military Law and Federal regulations, and not by the Human Rights Law.

The plaintiff is a Sergeant in the New York Air National Guard. In 1990, he applied for the position "medical pararescue technician". His application was denied, allegedly because of his age.

The plaintiff brought a complaint pursuant to National Guard Regulation (AF) 30-3, which sets forth a uniform "Discrimination Complaint System", promulgated by the United States Departments of the Army and Air Force for both the Army and Air National Guard. That regulation provides that "[a] final decision is not subject to further review or appeal". The plaintiff's complaint pursuant to that regulation was pending when the instant action was commenced. ¹

In the instant action, the plaintiff seeks to recover compensatory and punitive damages for violation of New York Executive Law § 296[1][a]. The Supreme Court initially dismissed the plaintiff's complaint, finding that the plaintiff failed to exhaust his administrative remedies because the complaint pursuant to the National Guard Regulation (AF) 30-3 was still pending. Upon reargument, the court acknowledged that the complaint did not constitute a complaint with a "local commission on human rights, or with the superintendent", which could bar commencement of an action for damages based upon the same discriminatory practice (Executive Law § 297[9]. However, the court adhered to the original determination dismissing the complaint, holding that the Supreme Court lacked subject matter jurisdiction to review what was essentially a military personnel decision.

Under the Human Rights Law, it is an unlawful discriminatory practice for an employer to refuse to hire or to discharge from employment any individual, or to discriminate against such individual in compensation, terms, conditions, or privileges of employment, because of age (see, Executive Law § 296[1][a]). The term "employer" is defined as an employer who does not have fewer than four employees (see, Executive Law § 292[5] ), and the term employee is defined as an employee who is not employed by parents, a spouse or child, or in domestic service of any person (see, Executive Law § 292[6] ). The Human Rights Law is generally applicable to "every individual within this state" (Executive Law § 290[3], and must be liberally construed to accomplish its purposes (see, Executive Law § 300).

The defendants, in seeking dismissal of the plaintiff's complaint, cited cases relating to the Federal Age Discrimination In Employment Act (see, 29 U.S.C. § 621, et seq.), which defines "employer", inter alia, as "a person engaged in an industry affecting commerce who has twenty or more employees", "a State or political subdivision of a State", and any interstate agency, but not the United States (29 U.S.C. § 630[b]. 29 U.S.C. § 633a prohibits age discrimination against employees at least 40 years of age in "military departments" and "executive agencies" of the United States. Federal case law distinguishes between employees of "military departments", defined as the Department of the Army, the Department of the Navy, and the Department of the Air Force (5 U.S.C. § 102), including the "executive part of the department and all field headquarters, forces, reserve components, installations, activities, and functions" (10 U.S.C. § 101[a][6], from members of the "armed forces" (10 U.S.C. § 101[a][4]; see, e.g., Mier v. Owens, 57 F.3d 747, cert. denied sub nom. Mier v. Van Dyke, --- U.S. ----, 116 S.Ct. 1317, 134 L.Ed.2d 470 [Mar. 25, 1996]; Frey v. State of Calif., 982 F.2d 399, cert. denied 509 U.S. 906, 113 S.Ct. 3000, 125 L.Ed.2d 693). However, the Federal Age Discrimination In Employment Act involves a different statutory framework, which is clearly not applicable here, since the plaintiff was only 35 years old when the alleged discriminatory practice occurred. Thus, the case law analyzing its provisions is inapposite.

The New York Air National Guard is part of the organized militia of this State (see, Military Law § 2), governed by Military Law § 4, which provides:

"Equality of treatment and opportunity

"It is hereby declared to be the policy of the state that there shall be an equality of treatment and opportunity for all persons in the organized militia without regard to race, creed, color, national origin or sex. Such policy shall be put into effect by regulations to be issued pursuant to section three of this chapter, it being necessary to give due regard to the powers of the United States which are or may be exercised over the militia of the state."

Military Law § 3(1) provides, in pertinent part:

"The governor is hereby authorized to issue regulations for the government of the militia. Regulations issued by the governor shall have the same force and effect as the provisions of this chapter but they shall conform to the laws and regulations of the United States relating to the organization, discipline and training of the militia, to the provisions of this chapter and, as nearly as practicable to the laws and regulations governing the army, navy and air force of the United States."

In support of their claim that the New York State Supreme Court lacks subject matter jurisdiction over the plaintiff's claim, the defendants cite Federal case law. Those cases note that, under the United States Constitution, Congress and not the Federal courts was granted "plenary control over rights, duties, and responsibilities in the framework of the Military Establishment" (Chappell v. Wallace, 462 U.S. 296, 301, 103 S.Ct. 2362, 2366, 76 L.Ed.2d 586; see, Watson v. Arkansas Nat. Guard, 886 F.2d 1004; U.S. Const., art. 1, § 8, cl. 12-14). However, Federal case law on the question of subject matter jurisdiction is inapposite, because the Federal courts are courts of limited jurisdiction (see, Northwest Airlines v. Transport Workers Union of Am., 451 U.S. 77, 95, 101 S.Ct. 1571, 1582-1583, 67 L.Ed.2d 750). The New York Supreme Court, on the other hand, is a court of general jurisdiction, "competent to entertain all causes of actions unless its jurisdiction has been specifically proscribed" (see, Thrasher v. United States Liab. Ins. Co., 19 N.Y.2d 159, 164, 278 N.Y.S.2d 793, 225 N.E.2d 503).

In Matter of Nistal v. Hausauer, 308 N.Y. 146, 152-153, 124 N.E.2d 94, cert. denied 349 U.S. 962, 75 S.Ct. 894, 99 L.Ed. 1284, the Court of Appeals held that the civilian courts did not have subject matter jurisdiction to review a purely discretionary act of the Governor, acting as Commander in Chief of the National Guard. However, the New York State Constitution was subsequently amended to add a new provision, New York Constitution, article VI, § 7, which grants the Supreme Court jurisdiction over classes of actions or proceedings created by the Legislature and not recognized at common law (see, N.Y. Const., art. VI, § 7[b]; Kagen v. Kagen, 21 N.Y.2d 532, 289 N.Y.S.2d 195, 236 N.E.2d 475; see also, Flacke v Onondaga Landfill Sys., 69 N.Y.2d 355, 363, 514 N.Y.S.2d 689, 507 N.E.2d 282). A cause of action under the Human Rights Law was created by the Legislature. Further, a cause of action to recover damages for violation of the Human Rights Law may be maintained against the State or an agent thereof in the Supreme Court as well as the Court of Claims (see, Koerner v. State of New York, 62 N.Y.2d 442, 448-449, 478 N.Y.S.2d 584, 467 N.E.2d 232).

Thus, the Supreme Court has subject matter jurisdiction over complaints alleging violations of the Human Rights Law, but can only grant the plaintiff relief if the plaintiff states and establishes a cause of action (see, Thrasher v. United States Liab. Ins. Co., 19 N.Y.2d 159, 278 N.Y.S.2d 793, 225 N.E.2d 503, supra; Kay-Fries, Inc. v. Martino, 73 A.D.2d 342, 426 N.Y.S.2d 304). Any defects in the plaintiff's allegations are relevant to whether the plaintiff has stated a cause of action, and not to whether the Supreme Court has subject matter jurisdiction. ²

Under the Supremacy Clause of the United States Constitution, a State law can be deemed invalid under the doctrine of Federal preemption if it "conflicts with federal law or would frustrate the federal scheme" (Malone v. White Motor Corp., 435 U.S. 497, 504, 98 S.Ct. 1185, 1190, 55 L.Ed.2d 443; see, Matter of Mott v. New York State Div. of Hous. & Community Renewal, 211 A.D.2d 147, 151, 628 N.Y.S.2d 712). Although the United States Constitution grants the States the power to appoint officers and train the State Militia (see, U.S. Const., art. 1, § 8, c. 16), that power must be exercised in a manner which is consistent with Federal regulation (see, Perpich v. Department of Defense, 496 U.S. 334, 110 S.Ct. 2418, 110 L.Ed.2d 312). Members of the State Militia may be called to active duty in the United States Military should the need arise (see, Perpich v. Department of Defense, supra, at 350, 110 S.Ct. at 2427-2428). Based upon those principles, it has been held that the regulation of personnel criteria for the National Guard has been preempted by Federal regulation, rendering State antidiscrimination laws of general application inapplicable to the National Guard (Hazelton v. State...