Raising a “triable issue of fact” precludes the granting of summary judgment in an action alleging unlawful retaliation
Delrio v City of New York, 2012 NY Slip Op 00747, Appellate Division, Second Department
German Delrio sued the City of New York seeking to recover damages for alleged unlawful retaliation in violation of §8-107 of the Administrative Code of the City of New York
Although Supreme Court granted the City’s motion for summary judgment to dismiss Delrio’s complaint; the Appellate Division reversed the decision “on the law,” setting out the events leading to its ruling as follows:
Delrio filed a complaint with the New York State Division of Human Rights [SDHR] alleging that the New York City Fire Department [NYFD] engaged in an unlawful discriminatory practice relating to employment, in violation of the New York State Human Rights Law, because of his sex.
SDHR determined that there was no probable cause to believe that NYFD had engaged in the unlawful discriminatory practice complained of, and dismissed Delrio’s complaint.
Delrio than asked the United States Equal Employment Opportunity Commission, [EEOC] to review his allegations. EEOC ultimately decided to adopt the findings of the SDHR.
Delrio than commenced an action against the City of New York and four FDNY Officers to recover damages for alleged unlawful retaliation in violation of Administrative Code of the City of New York §8-107.
The Appellate Division explained that in order to make out an unlawful retaliation claim, a plaintiff must show that "(1) [he or she] has engaged in protected activity, (2) [his or her] employer was aware that [he or she] participated in such activity, (3) [he or she] suffered an adverse employment action based upon [his or her] activity, and (4) there is a causal connection between the protected activity and the adverse action."
If the plaintiff “has met this initial burden, the burden then shifts to defendants to present legitimate, independent and nondiscriminatory reasons to support their actions.”
If defendants meet this burden, plaintiff then is required to show that the reasons put forth by defendants “were merely a pretext."
In order to establish its entitlement to summary judgment in a retaliation case, a defendant must demonstrate that the plaintiff cannot make out a prima facie claim of retaliation or, having offered legitimate, nonretaliatory reasons for the challenged actions, that there exists no triable issue of fact as to whether the defendant's explanations were pretextual.
In this instance, said the court, while the City defendants established their entitlement to judgment as a matter of law by presenting nonretaliatory business reasons for the challenged actions, Delrio raised triable issues of fact as to whether the reasons given by the City defendants were pretextual.
The Appellate Division pointed out that Delrio had submitted an affirmation from his immediate supervisor wherein she stated that a reassignment of Delrio “violated FDNY internal procedure as well as known past practice.” Further, said the court, the record shows a “strong temporal correlation between [Delrio’s] protected activity, i.e., his involvement in the SDHR administrative complaint process, and the [City's] allegedly retaliatory actions.”
Concluding that Delrio had offered sufficient evidence to raise a triable issue of fact as to whether the reasons put forth by the City were merely pretextual, the City defendants were not entitled to a summary judgment dismissing Delrio’s complaint.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2012/2012_00747.htm