Tuesday, December 09, 2014

Allegations of unlawful discrimination based of the employer‘s failure to promote an individual to higher level positions

Allegations of unlawful discrimination based of the employer‘s failure to promote an individual to higher level positions
Okocha v City of New York, 2014 NY Slip Op 08261, Appellate Division, First Department

The Appellate Division ruled that Supreme Court was correct in dismissing the petition filed by Emmanuel O. Okocha, Esq. alleging unlawful discrimination” which was based on the City of New York’s failure to promote him from an Attorney Level II position to one of two Attorney Level III positions  posted in November 2006.

The court said the Okocha’s claim failed because the two Attorney Level III positions posted were never filled because “there was no longer a need” for them. Further, said the Appellate Division, the City did not  discriminate against him when it did not promote him from Attorney Level II to Attorney Level IV in January 2008, explaining that the two attorneys promoted to the Level IV  positions had previously been Level III attorneys and therefore were more qualified than Okocha for promotion to Level IV.

Okocha also contended that the City’s Human Resources Administration's (HRA) investigations into his maintenance of a private practice of law, which resulted in disciplinary action being taken against him, constituted adverse or differential treatment. The Appellate Division said that an arbitrator had sustained the misconduct charges filed against Okocha and sustained the penalty imposed, termination and thus the allegations of misconduct were fully substantiated and Okocha’s attempt to collaterally attack the arbitrator's findings of misconduct in this appeal “cannot now be countenanced.”

The court explained that the doctrine of collateral estoppel precludes considering Okocha's claim that the HRA misconduct investigations were initiated in retaliation for his commencement of this action as Okocha had raised this contention at the arbitration proceeding and the arbitrator expressly rejected it.

As to Okocha’s claim that the HRA failed to promote him in retaliation for his prior complaints of mistreatment is not barred by collateral estoppel, the Appellate Division held that it failed on the merits. HRA's actions in failing to promote Okocha, said the court, were not materially adverse or disadvantageous to him since, as noted earlier, the two positions listed in the November 2006 job postings were never filled and the January 2008 job postings “were filled by objectively better-qualified candidates.”

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2014/2014_08261.htm
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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/

Challenging Adverse Personnel Decisions 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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