February 06, 2019

Employer's "legitimate, independent, and nondiscriminatory reasons" for its personnel actions trumps employee's complaint of discrimination and retaliation



Employer's "legitimate, independent, and nondiscriminatory reasons" for its personnel actions trumps employee's complaint of discrimination and retaliation
Cubelo v City of New York, 2019 NY Slip Op 00689, Appellate Division, First Department

The Plaintiff in this action, who was born in Spain, contended that he was passed over for several promotions by the New York City Department of Transportation [DOT] as a result of DOT's giving persons of South Asian descent preference in promotions. He also claimed that DOT retaliated against him after he had filed complaints alleging unlawful discrimination and a union grievance by "transferring* him to a lesser position" in violation of the State** and City Human Rights Laws.***

The Appellate Division said that DOT had established, prima facie, "legitimate, independent, and nondiscriminatory reasons" for the personnel actions underlying Plaintiff's complaints. The court explained that the record supports DOT's explanation that the candidates selected for promotion over Plaintiff were chosen because the individuals appointed "were better qualified for the job, having advanced degrees and directly relevant experience that [Plaintiff] did not possess."

Although Plaintiff contended that these candidates were actually promoted as a result of preferential treatment toward employees of South Asian descent, the Appellate Division noted that Plaintiff failed to submit evidence that in making these decisions his supervisors took into account the fact that he was not of South Asian descent. Further, said the court, Plaintiff's contention that the real reason for the decisions constituted unlawful discrimination was undermined by the fact that a woman of Polish descent was ultimately hired to occupy one of the four positions for which he applied and that Plaintiff failed to raise an issue of fact whether DOT's proffered reasons concerning the promotions were false and a pretext for, or motivated at least in part by, discrimination.

Addressing Plaintiff's allegations of retaliation after he had filed discrimination complaints and grievances, the court said that DOT had also established prima facie that Plaintiff's departmental transfer was not made in retaliation for his complaints of discrimination because it did not constitute an "adverse employment action" or an "action that disadvantaged him."

As to Plaintiff's filing a grievance with his union, his grievance alleged that he was performing out-of-title work in his former position. The Appellate Division pointed out that Plaintiff's reassignment was initiated as a remedy for the grievance and Plaintiff continued to earn the same salary and benefits while serving in the same title in his new position.

The Appellate Division unanimously affirmed Supreme Court's granting DOT's motion for summary judgment dismissing Petitioner's complaint.  

* The movement of an individual from one position to a second position subject to the jurisdiction of the same appointing authority is typically described as a "reassignment." In contrast, the movement of an employee from one position to a second position under the jurisdiction of a different appointing authority is typically characterized as a "transfer."  Although the term "transfer" is used in this decision to describe the personnel action Plaintiff experienced, the term "reassignment" is, in opinion of NYPPL's editor, the appropriate term to describe the relevant "personnel action" in this instance. Contrast, for example, 4 NYCRR 1.2(b)(1) with 4 NYCRR 1.2(b)(2).

** See Executive Law §296.

*** See Administrative Code of City of NY §8-107.

The decision is posted on the Internet at:

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