Adverse changes in the employees’ working environment following their involvement in a protected activity deemed a “constructive discharged”

Adverse changes in the employees’ working environment following their involvement in a protected activity deemed a “constructive discharged”
Albunio v City of New York, 2009 NY Slip Op 07928, Decided on November 5, 2009, Appellate Division, First Department

Following a jury trial, New York State Supreme Court, Judge Martin Shulman awarded Robert Sorrenti $491,706 plus attorney's fees in the amount of $366,323.75.*

In addition, Judge Shulman awarded Lori Albunio $579,728.83 and Thomas Connors $588,113.45.

The City of New York Appealed, only to have the Appellate Division affirmed each of the awards ordered by Judge Shulman.

Albunio and Connors sued the City of New York alleging that reductions in their respective supervisory responsibilities, interference with and loss of their job advancement opportunities, and other acts "reasonably likely to deter a person from engaging in protected activity" followed their having “advocated for Sorrenti.”

Albunio claimed that she was told to find another command and was forced to take a position she viewed as a demotion to a less desirable assignment. Connors contended that his tours of duty were changed in ways that made "no sense" and prevented him from properly supervising staff. Connors also alleged that when he sought “to transfer to another unit, having seen ‘the writing on the wall,’ he was not given the position he had been promised on transfer orders” but instead was assigned to a position he viewed as a demotion.

The Appellate Division said that both Albunio and Connors produced evidence of a causal connection between their protected activity and the adverse employment action they contended had been taken against them as a result. The court noted that “Both had exemplary work records before their having advocated for Sorrenti, but after advocating for him, their authority was eroded, Albunio was stripped of her command, and both were forced to transfer to positions that were they viewed constituted demotions.

The court characterized such treatment as “constructive discharged,” noting that the evidence produced demonstrated that Albunio’s and Connors’ working environments “had been made objectively so intolerable that a reasonable person in their respective positions would have felt compelled to leave.”

* The Appellate Division held that the jury's determination to award Sorrenti $471,706 in compensatory damages was supported by the evidence.

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2009/2009_07928.htm