In Joseph v. Leavitt, 465 F.3d 87, the United States Circuit Court of Appeal held that "A plaintiff sustains an adverse employment action if he or she endures a materially adverse change in the terms and conditions of employment."
In the instant case, the Circuit Court indicated that only certain prongs of Plaintiff's prima facie case were in dispute, i.e., the extent to which Plaintiff suffered the alleged adverse employment action or actions and whether those actions occurred under circumstances that give rise to an inference of discrimination. Here, said the court, Plaintiff's employment was terminated, "which itself is, of course, an adverse employment action."
Noting that there were factual issues regarding whether the New York Police Department's [NYPD] investigating personnel's pre-termination conduct constituted an adverse employment action, the Circuit Court opined that "[v]iewing the evidence in a light most favorable to Plaintiff, a reasonable juror could infer that the investigators' consulted with certain NYPD units "not because of information linking [the Plaintiff to] terrorism but because of [Plaintiff's] national origin, ancestry, or religion. Further, the court indicated that under the circumstances, "[a] reasonable juror could also infer that, after the ... investigator did so, it resulted in a more searching investigation and harsher discipline than had [the NYPD] applied its standard investigative and disciplinary procedures.
The Circuit Court also concluded that Plaintiff presented sufficient evidence to raise a triable issue of fact as to whether the investigation and termination occurred giving rise to an inference of discrimination, i.e., statements made by NYPD personnel in which "they noted [Plaintiff's] national origin (Egyptian) and his ancestry (Middle Eastern) while investigating his alleged misconduct." Further, the decision states that Plaintiff had set forth evidence that NYPD launched an investigation into Plaintiff and his family involving the NYPD personnel, which, arguably, "was a departure" from the NYPD's normal investigative procedures.
Accordingly, the Circuit Court concluded that Plaintiff provided "admissible evidence sufficient to permit a rational finder of fact to infer a discriminatory motive" and Plaintiff's factual claims under the New York City Human Right Law must be analyzed "more liberally" than his federal discrimination claims.
Considering the fact that Plaintiff advanced sufficient facts to carry the heavier burden of establishing his federal claims, the Circuit Court said it had "no trouble concluding that he set forth sufficient facts to carry the lesser burden on his city claims," and remand the matter to the federal district court "for further proceedings consistent with this order."
Click HEREto access the Second Circuit's decision.