January 29, 2018

Signing a general release of all claims accruing up to the settlement date

Signing a general release of all claims accruing up to the settlement date
Harrington v City of
New York, 2018 NY Slip Op 00381, Appellate Division, First Department

In this employment discrimination and retaliation action, Michael Harrington alleges that the City of New York, et al, [Defendants] discriminated against him on the basis of his sexual orientation by refusing to employ him as a police officer and that Defendants also retaliated against him for a previous lawsuit plaintiff filed against the Defendants in 2007.

The 2007 action alleged discrimination, retaliation and harassment. The parties settled the 2007 lawsuit on December 12, 2013, with Harrington signing a general release of all claims accruing up to the settlement date, in exchange for a $185,000 payment from the Defendants.

After settlement, the New York Police Department [NYPD] instructed Harrington to proceed with his then-pending 2010 application, and he underwent another psychological evaluation. His application  remained on hold for nearly one year before the NYPD found Harrington not psychologically suited to serve as a police officer. The disqualification was based on the police psychologist's finding that plaintiff "relied chiefly on litigation to resolve issues," and cited plaintiff's 2007 action as evidence of his "poor stress tolerance."

Harrington,after exhausting his administrative remedies, initiated the instant litigation asserting causes of action for discrimination and retaliation under the State and City Human Rights Laws [HRLs]. He sought damages and an order directing the Defendants to appoint him to the NYPD. Supreme Court dismissed the causes of action. The Appellate Division reinstated Harringtoncauses of action, explaining that his complaint, "as amplified by [Harrington's] affidavit and psychological report, states claims for both discrimination and retaliation."

Harrington had stated a claim of invidious discrimination under the State and City HRLs by alleging (1) that he or she is a member of a protected class, (2) that he or she was qualified for the position, (3) that he or she was subjected to an adverse employment action (under State HRL) or he or she was treated differently or worse than other employees (under City HRL), and (4) that the adverse or different treatment occurred under circumstances giving rise to an inference of discrimination.

The Appellate Division, "affording plaintiff the benefit of every favorable inference, establishes prima faciethat defendants discriminated against plaintiff on account of his sexual orientation in finding him psychologically unfit to serve," said that "To make out a prima facie claim of retaliation under the State HRL, a plaintiff must show that (1) he/she has engaged in a protected activity, (2) his/her employer was aware of such activity, (3) he/she suffered an adverse employment action based upon the activity, and (4) a causal connection exists between the protected activity and the adverse action."*

Plaintiff alleges that in retaliation for his having commenced the 2007 action against the Defendants, they placed a psychological hold on his present application for employment in 2014, and ultimately found him psychologically unfit for the position.**

As an initial matter, Harrington's retaliation claims are not barred either by his settlement of the 2007 action, or by the general release of all claims that he could have asserted against the Defendants until that time. The alleged facts underlying the retaliation claims occurred in February 2014, and were not, said the court, precluded by the general release executed before that date, which waived only causes of action "up to . . . and including the date of the execution of this General Release."

The Defendants had contend that the 2007 action is not sufficiently temporally proximate to the alleged adverse action to support the causal connection necessary for plaintiff's retaliation claim. The Appellate Division disagreed, finding that although "temporal proximity between a protected activity and an adverse employment action may, under some circumstances, be sufficient in itself to permit the inference of a causal connection necessary for a retaliation claim, the fact that actions are not temporally proximate is not necessarily fatal to a retaliation claim. The absence of temporal proximity will not defeat the claim, where, as here, there are other facts supporting causation."

In finding Harrington psychologically unfit, the Defendants' police psychologist relied on Harrington's 2007 action against the Defendants. Specifically, the police psychologist's report stated that Harrington had "poor stress tolerance" and relied "chiefly on litigation to resolve issues." The Appellate Division held that the 2007 litigation served as the psychological disqualifier and was sufficient to plead the causal connection between the protected activity and the adverse action in this case.

* Under the City HRL, the test is similar, though rather than an adverse action, the plaintiff must show only that the defendant "took an action that disadvantaged" him or her.

** In finding plaintiff psychologically unfit, defendants' police psychologist relied on plaintiff's 2007 action against defendants. Specifically, the police psychologist's report stated that plaintiff had "poor stress tolerance" and relied "chiefly on litigation to resolve issues." The Appellate Division ruled that the 2007 litigation serving as the psychological disqualifier is sufficient to plead the causal connection between the protected activity and the adverse action in this case.

The decision is posted on the Internet at:


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