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December 10, 2024

Probationary employee's compliant that her termination was based on her race and gender dismissed for failure to allege acts of unlawful discrimination

In this action the Appellate Division found that the Supreme Court correctly granted the City of New York's motion to dismiss the Plaintiff's complaint. Plaintiff, said the court, had failed to sufficiently allege that her termination occurred under circumstances "giving rise to an inference of unlawful discrimination". 

The Appellate Division observed that Plaintiff's complaint alleged, "in a conclusory fashion", that Plaintiff's employment was terminated based on her race and gender but it failed to allege that any decision-makers "made remarks evidencing discriminatory intent" or alledge that "other similarly situated employees outside of her protected class were treated more favorably", or "any other act or omission giving rise to an inference of discrimination".

In contrast, the Appellate Division noted that the City's documentary evidence indicated that the appointing authority terminated Plaintiff's employment "as of right within [Plaintiff's] probationary period"* and Plaintiff "fails to allege that a facially neutral employment practice had a disparate impact on her protected class".

Citing Sedgwick v New York City Department of Educ., 215 AD3d 607, the Appellate Division commented that "To the extent [Plaintiff] argues that the [Appointing Authority's] decision to terminate her employment was arbitrary and capricious, such a claim should have been brought in a CPLR article 78 proceeding".

* V.5.7 of the Personnel Rules and Regulations of the City of New York provides, in pertinent part, "... the agency head may terminate the employment of any probationer whose conduct and performance is not satisfactory after the completion of a minimum period of probationary service and before the completion of the maximum period of probationary service by notice to the said probationer and to the commissioner of citywide administrative services."

Click HERE to access the Appellate Division's decision posted on the Internet.

 

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NYPPL Blogger Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
New York Public Personnel Law. Email: publications@nycap.rr.com