Monday, July 02, 2012

Employee’s claim that her position was eliminated and she was terminated because of her political affiliation rejected by the Appellate Division


Employee’s claim that her position was eliminated and she was terminated because of her political affiliation rejected by the Appellate Division
Wehlage v Quinlan, 55 AD3d 1344

Mary Ann Wehlage sued the City of Olean contending that it had eliminated her position as animal control officer then terminated her employment because of her political affiliation in violation of her 42 USC §1983, the Civil Rights Act and §201(d) of New York State’s Labor Law.

In rejecting Wehlage’s appeal, the Appellate Division said that with respect to the 42 USC §1983 claims, the City met its initial burden by establishing that Wehlage did not engage in constitutionally protected conduct that was a motivating factor in their adverse employment determination.

The court said that Wehlage conceded that she does not have a party affiliation and did not campaign for or assist any political candidate.

As to her contention that her position was eliminated because of a perceived affiliation between her and the outgoing Mayor of the City, the court said that this was based only on inadmissible hearsay and she presented no admissible evidence that "[City was] consciously aware of [her] political affiliation, or relied thereon" in making its decision to eliminate its position of animal control officer.

As to Wehlage’s allegations that the City had violated Labor Law §201-d, the court said “that section of the Labor Law provides in relevant part that an employer is prohibited from discharging an employee because of the employee's ‘political activities outside of working hours, off of the employer's premises and without use of the employer's equipment or other property.’" 

Political activities is defined as "(i) running for public office, (ii) campaigning for a candidate for public office, or (iii) participating in fund-raising activities for the benefit of a candidate, political party or political advocacy group." As it is undisputed that Wehlage did not engage in any such political activities, she cannot prevail on her theory that the City violated the State’s Labor Law in this regard.

The decision is posted on the Internet at:

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