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July 01, 2015

Establishing a prima facie case of unlawful discrimination and, or, retaliation requires the complaints to set out the "protected activity" alleged to have been violated


Establishing a prima facie case of unlawful discrimination and, or, retaliation requires the complaints to set out the "protected activity" alleged to have been violated
2015 NY Slip Op 04937, Appellate Division, First Department

Supreme Court granted agency’s' motion for summary judgment dismissing the probationary employee’s [Probationer] complaint alleging gender discrimination in violation of the New York City Human Rights Law (Administrative Code of City of NY § 8-107[1][a]). The court ruled that Probationer failed to establish a prima facie case that she suffered an adverse employment action and that that action was taken under circumstances giving rise to an inference of discrimination. 

The Appellate Division affirmed the Supreme Court’s ruling.

The Appellate Division said that with the exception of her termination from her probationary employment, her complaints amounts to no more than "petty slights and trivial inconveniences" from which not harm resulted rather than her having suffered adverse employment action. The court explained that “While termination is indisputably an adverse action,” Probationer’s conclusory claim that her termination was motivated by a gender-related bias is insufficient to establish acts of unlawful discrimination as “stray derogatory remarks” without more, does not constitute evidence of unlawful discrimination.

Probationer also failed to raise an issue of fact whether the employer’s evidence of a legitimate, independent, and nondiscriminatory reason for her termination was pretextual and the real reason was gender discrimination. In the words of the Appellate Division, Probationer “does not dispute that she kept a departmental vehicle for nine consecutive days, during which time she used it only once for the authorized purpose of driving to a facility being audited, and that she inaccurately reported, in a daily log, the vehicle's use and overnight location.”

As to Probationer’s allegations of “retaliation,” the court said that Probationer failed to establish a prima facie case of retaliation.

The decision is posted on the Internet at:

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