Giving an employee a “warning” is not an adverse personnel action within the meaning of New York’s Human Rights Law
Carter v NYC Dept. of Corrections, CA2, 7 Fed. Appx. 99
In 1991 Charles Carter filed a complaint with the New York State Division of Human Rights (SDHR) that alleged racial discrimination in employment. He later filed an amended complaint to include retaliation.
Thereafter a number of events occurred, culminating in an appeal challenging the dismissal of the then pending discrimination action by a federal district court judge.
The surviving issue, and the subject of this appeal, involved Carter's allegation that disciplinary charges filed against him by the New York City Department of Corrections at various times during 1996 constituted unlawful retaliation for his filing discrimination complaints against the agency. As it turned out, the critical factor in resolving Carter's appeal was the fact that no final action was taken to resolve these disciplinary charges.
Considering the merits of Carter's claims of retaliation, the Circuit Court of Appeals said that Carter failed to establish a prima facie case of retaliation under Title VII based on the 1996 disciplinary charges.
According to the ruling: To establish a prima facie case for retaliation, a plaintiff must show that (1) the employee was engaged in a protected activity; (2) the employer was aware of that activity; (3) the employee suffered an adverse employment action; and (4) there was a causal connection between the protected activity and the adverse employment action.
Clearly, a causal connection can be established directly through evidence of retaliatory animus or “indirectly by showing that the protected activity was followed closely by discriminatory treatment, or through other evidence such as disparate treatment of fellow employees who engaged in similar conduct.
However, said the court, Carter did not present evidence that DOC acted with “retaliatory animus” against him when it filed disciplinary charges or that it treated him in a different manner than any other employee who engaged in similar conduct. The court said that Carter's conclusory allegations that DOC brought the charges in an “overzealous” manner are insufficient to raise a triable claim.
Of significant importance in resolving this appeal, however, was the fact that none of the 1996 disciplinary charges brought against Carter were actually adjudicated or resulted in any punishment being imposed against him. Thus, said the Circuit Court, Carter is unable to show that he suffered an adverse employment action, a key element to showing a prima facie case of retaliation.
The decision notes that in Yerdon v Henry, 91 F.3d 370, the court ruled that the filing of charges against employee that were not adjudicated did not constitute retaliation.
In addition, the court pointed out that in Matter v Eastman Kodak Co., 104 F.3d 702, the Fifth Circuit Court of Appeals said that threats of termination, reprimands, hostility from fellow employees, and being placed on warning were not “ultimate employment decisions” and thus not “adverse employment actions.”
With regard to Carter's pre-1996 claims of unlawful discrimination, SDHR investigated Carter's claims and, by an opinion dated October 4, 1994, found no probable cause that DOC had discriminated against him.
The EEOC similarly concluded that Carter had not produced evidence of a Title VII violation.