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Nominations sought for the Empire Star Public Service Award

This award recognizes exemplary employees of New York State serving in the Executive Branch.

Nominations must be submitted no later than December 15, 2017 and may be completed online.

For more information about the Empire Star Public Service Award, visit www.ny.gov/EmpireStarPublicService.

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Friday, April 01, 2016

Basics in processing claims of unlawful discrimination and, or, unlawful retaliation


Basics in processing claims of unlawful discrimination and, or, unlawful retaliation
Russo v New York State Div. of Human Rights, 2016 NY Slip Op 01951, Appellate Division, Fourth Department

In its decision in the Russo case the Appellate Division set out the basics in processing claims of unlawful discrimination and, or, unlawful retaliation as follows:

Unlawful discrimination

"To establish a prima facie case of employment discrimination, petitioner [is] required to demonstrate that [he or] she [is] a member of a protected class, that she [or he] was qualified for [his or] her position, that she [or he] was terminated from employment or suffered another adverse employment action, and that the termination or other adverse action occurred under circumstances giving rise to an inference of discriminatory motive.

If the court deems that a prima facie case has been made, "The burden then shifts to the employer to rebut the presumption of discrimination by clearly setting forth, through the introduction of admissible evidence, legitimate, independent, and nondiscriminatory reasons to support its employment decision.

If the employer is able to satisfy this requirement, "In order to nevertheless succeed on her [or his] claim, [petitioner] must prove that the legitimate reasons proffered by the [employer] were merely a pretext for discrimination by demonstrating both that the stated reasons were false and that discrimination was the real reason."

Unlawful retaliation

"In order to make out a claim for unlawful retaliation under state or federal law, a [petitioner] must show that (1) [he or] she [had] engaged in protected activity, (2) her [or his] employer was aware that [he or] she participated in such activity, (3) she [or he]  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 action'  

Again, once that showing is made, "the burden then shifts to [the employer] to present legitimate, independent and nondiscriminatory reasons to support [its] actions.

“Then, if [the employer] meet[s] this burden, [petitioner] has the obligation to show that the reasons put forth by [the employer] were merely a pretext."

Arthea Russo filed a complaint with the New York State Division of Human Rights [SDHR] alleging that she had suffered adverse employment action while employed by the City of Jamestown Police Department [Department] because of her gender. Adopting the findings of the Administrative Law Judge [ALJ] who conducted the public hearing, SDHR dismissed her complaint alleging unlawful discrimination and retaliation. Russo then initiated an Article 78 action seeking a court order annulling SDHR’s dismissal of her complaint.

The Appellate Division said its review of SDHR’s determination is limited to the issue whether it is supported by substantial evidence, explaining that "[c]ourts may not weigh the evidence or reject [SDHR's] determination where the evidence is conflicting and room for choice exists. Thus, when a rational basis for the conclusion adopted by [SDHR] is found, the judicial function is exhausted."

The court found that in this instance there was substantial evidence to support SDHR’s determination that Russo was not discriminated against by the Department because of her gender.

Although agreeing with SDHR's determination that most of the employment actions at issue were not adverse because they did not constitute "materially adverse change[s] in the terms and conditions of [Russo’s] employment," the Appellate Division concluded that the three-day suspension imposed on Russo did, in fact, constitute an adverse employment action.

Notwithstanding this conclusion, the court explained that “[e]ven assuming, arguendo, that the imposition of the adverse employment action occurred under circumstances giving rise to an inference of discrimination, [it] nevertheless [concluded] that [Russo’s] employer … presented a legitimate, independent and nondiscriminatory reason to support its employment decision.”

Further, the court noted that there was substantial evidence in the record to establish that Russo, in her role as a court security supervisor, subjected one or more persons “to heightened security measures on a regular basis either for personal reasons or for no legitimate reason” and that she caused her male subordinate to do the same. In addition, the court said that there was substantial evidence to establish that Russo engaged in an excessive use of her personal cell phone and in excessive socializing while on duty.

The Appellate Division also found that Russo could not establish disparate treatment nor could she establish that she was subjected to unlawful retaliation.

Finally the court opined that “Even assuming, arguendo, that [Russo] met her initial burden [of demonstrating unlawful acts of discrimination], we nevertheless conclude that the [Department] presented a legitimate, independent and nondiscriminatory reason for issuing a counseling memorandum on sexual harassment based on evidence that [Russo]  had been sharing sexually explicit material that she had on her cell phone” and Russo “failed to establish that the reason for the memorandum was pretextual.

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/

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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