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Thursday, March 10, 2016

The essentials elements of processing a complaint alleging retaliation constituting unlawful discrimination


The essentials elements in processing a complaint alleging retaliation constituting unlawful discrimination
Troge v State Div. of Human Rights, 2016 NY Slip Op 01337, Appellate Division, Second Department

In the Troge decision the Appellate Division sets out the basics with respect to litigating a complaint alleging retaliation in violation of the State's Human Rights Law where the individual suffered an adverse personnel action because of the individual's engaging in a protected activity .

First, in order to establish a prima facie case of retaliation, the individual is required to show that:

(1) he or she had engaged in protected activity, 

(2) his or her employer was aware that he or she participated in such activity, 

(3) he or she suffered an adverse employment action based upon his or her activity, and 

(4) there is "a causal connection between the protected activity and the adverse [personnel] action" alleged to have suffered by the individual.

Assuming the individual is able to make this initial showing, the burden would shift to the Employer to present legitimate, independent, and nondiscriminatory reasons to support its action[s] or decision[s].

If the Employer meet that burden, the individual would then have to show that the reasons given by the Employer in its defense were "pretext" to camouflage an act of unlawful discrimination.

Darlene Troge was employed by the Town of Southampton as Director of Workplace Policy and Compliance [DWPC], a position that required her to investigate complaints of job discrimination and harassment. After a Deputy Town Supervisor demanded that Troge produce her notes of an investigation of a workplace dispute between two employees, one of whom was Troge’s supervisor, she filed an internal complaint with the Town alleging that the Deputy Town Supervisor had created an "offensive" work environment.

The Town investigated Troge’s complaint and dismissed it. A month later the DWPC position was abolished by unanimous vote of the Town Board and Troge was terminated.  Contending that she had been terminated in retaliation for her filing her “internal complaint” alleging "an offensive work environment," Troge filed a complaint pursuant to Executive Law Article 15 against the Town and Town Supervisor Anna Throne-Holst [the Town].

At a hearing before the State Division of Human Rights [SDHR] the Town submitted proof of the Town's need to reorganize and consolidate different departments within the Town government for financial reasons, leading to the termination of employees. In addition, the Town offered proof of their discontent with the petitioner's job performance. Troge testified that she filed the internal complaint after “opposing requests that she perceived to be in furtherance of discrimination directed against her supervisor” and that she was fired in retaliation of that action.

A Division of Human Rights Administrative law judge [ALJ], following the hearing, found that

[1] Troge failed to establish a prima facie claim for retaliation, and

[2] Even if Troge had established a prima facie claim of unlawful discrimination, the Town had shown that its actions were motivated by "fiscal, non-discriminatory reasons."

Troge filed objections to the ALJ’s findings and determination. The SDHR’s Commissioner issued a final order adopting the ALJ's findings and recommendations and dismissed Troge’s complaint. Troge then filed a CPLR Article 78 petition challenged the Commissioner’s determination.

The Appellate Division said that the review of an administrative determination made after a hearing by a court is limited to considering whether the administrative determination was supported by substantial evidence. Substantial evidence, said the court is “such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact."

Notwithstanding Troge’s contention to the contrary, the Appellate Division ruled that there was substantial evidence to support the Commissioner’s determination that the Troge was not subjected to retaliation, explaining that she failed to establish that she had been subjected to an adverse employment action that was taken because of her having engaged in a protected activity.

Essentially the court found that Troge had not been able to demonstrate that the abolishment of her position by the Town constituted a retaliatory firing and the reasons given by the Town in support of its action was “subterfuge.”

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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