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Thursday, May 24, 2012

A complainant alleging unlawful discrimination must set out a prima facie case of discrimination, shifting the burden of going forward to the employer to demonstrate a nondiscriminatory reason for its action


A complainant alleging unlawful discrimination must set out a prima facie case of discrimination, shifting the burden of going forward to the employer to demonstrate a nondiscriminatory reason for its action

This Article 78 proceeding challenged a determination by the Commissioner of the New York State Division of Human Rights [DHR] in which the Commissioner adopted the recommendations and findings of an Administrative Law Judge that the employer had violated Executive Law §296(1)(a) by discriminating against the complainant on the basis of her military status. The complainant was awarded compensatory damages in the amount of $15,000 and $10,880 in back pay.

The Appellate Division granted the employer’s appeal and annulled the Commissioner’s decision and dismissed the administrative complaint.

The court explained that judicial review of a determination of the DHR made after a hearing is limited to whether the determination is supported by substantial evidence. Here, said the court, the DHR's determination was not supported by substantial evidence.

To establish liability under Executive Law §296(1)(a) arising from the termination of employment, a complainant must establish, before the DHR, a prima facie case of discrimination by a preponderance of the evidence by showing that the complainant is

1. A member of a class protected by the statute;

2. Was actively or constructively discharged;

3. Was qualified to hold the position from which he or she was terminated; and

4. Was terminated under circumstances which give rise to an inference of discrimination.

The burden of establishing a prima facie showing has been described as "de minimus" and once such a showing has been made, the burden shifts to the employer to rebut the individual's prima faciecase by providing a legitimate, nondiscriminatory reason for the individual's termination.

In response to such a rebuttal, the complainant must show by a preponderance of the evidence that the employer's reasons for the challenged termination were pretextual and the complainant having the burden of persuasion on the ultimate issue of discrimination.

The Appellate Division founds that the complainant had met her burden of demonstrating a prima facie case of discrimination based on her military status by demonstrating that the employer terminated her for being late on days which included days she served on military duty and that the employer had remarked that he was tired of dealing with issues relating to her military status, which gave rise to an inference of discrimination.

However, said the court, in response to the complainant's prima facie showing, the employer demonstrated that he terminated her for a legitimate, nondiscriminatory reason which was not based on her military status.

The Appellate Division said that the complainant's time cards support the employer’s contention that he terminated the complainant's employment because she continued to be late after being placed on probation for lateness, including the day her employment was terminated, for reasons having nothing to do with her military status.

The court also ruled that the employer’s argument that he did not discharge the complainant because of her military status was further supported by the fact that “he hired the complainant after a single interview, with full knowledge of her regularly scheduled reserve obligations, which he accommodated by not scheduling her to work on the first weekend of any month.”

Concluding that the employer had met his burden before the DHR of demonstrating that he terminated the complainant's employment for a legitimate, nondiscriminatory reason and that the complainant failed to show that this reason was pretextual, the Appellate Division found that “DHR's determination was not supported by substantial evidence in the record and must, thus, be annulled.”

The decision is posted on the Internet at:

Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

The Discipline Book at http://thedisciplinebook.blogspot.com/

A Reasonable Penalty Under The Circumstances at http://nypplarchives.blogspot.com

The Disability Benefits E-book: at http://section207.blogspot.com/

Layoff, Preferred Lists at http://nylayoff.blogspot.com/

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