In this action the Appellate Division found that the Supreme
Court correctly granted the City of
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.