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May 11, 2012

Individual must prove four elements to prevail in a claim that he or she was subjected to retaliation for having filed a complaint alleging unlawful discrimination


Individual must prove four elements to prevail in a claim that he or she was subjected to retaliation for having filed a complaint alleging unlawful discrimination

A correction officer employed by the New York State Department of Corrections and Community Supervision filed an action in the Court of Claims alleging that he had been subjected to retaliation and a hostile work environment in violation of Executive Law §296.

The officer had claimed that he was disciplined after engaging in an on-duty physical confrontation with another correction officer, contending that the other correction officer involved in the confrontation was not disciplined at all and that a different correction officer involved in a similar but unrelated incident received a lesser punishment. He contended that the disciplinary action taken against him was in retaliation of his having previously filed complaints against his supervisors alleging racism.

The Appellate Division affirmed the Court of Claims’ ruling that the correction officer had failed to establish either claim.

Citing Forrest v Jewish Guild for the Blind, 3 NY3d 295, the court explained that to establish a claim for retaliation, a claimant was required to prove the following four elements:

[1] he or she had engaged in protected activity;
[2] his or her employer was aware that he or she had engaged in such activity;
[3] he or she suffered an adverse employment action based upon his or her activity;
[4] there is a causal connection between the protected activity and the adverse action.

The Appellate Division noted although the first three elements of a retaliation claim were not disputed here, the Court of Claims concluded that there was no evidence of a causal connection between the protected activity and the discipline imposed on claimant.

The Court of Claims had [1] credited the version of events reported by the witnesses to the confrontation and determined that claimant was the aggressor and [2] the confrontation in which the officer had been involved “was more serious than the unrelated incident.”

As to the officer’s “retaliatory hostile work environment claim,” the Appellate Division said that the actions giving rise to such a claim “must be sufficiently severe or pervasive to constitute actionable harassment and stem from a retaliatory animus.”

The Appellate Division held that in determining if such a hostile work environment existed “All of the circumstances must be considered, including ‘the frequency of the [retaliatory] conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.'"  Further, said the court, "[T]he conduct must both have altered the conditions of the victim's employment by being subjectively perceived as abusive by the [claimant], and have created an objectively hostile or abusive environment — one that a reasonable person would find to be so."

Noting that the record supported the conclusion of the Court of Claims that the supervisor's conduct did not pervade claimant's work environment or rise to an actionable level, the court dismissed the correction officer’s appeal.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2012/2012_03487.htm

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New York Public Personnel Law Blog Editor Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
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