Plaintiff' filed claims alleging retaliation by the Employer in violation of the New York State and New York City Human Rights Laws.
Supreme Court granted the Employer's motion to dismiss the Plaintiff's unlawful discrimination complaint and denied Plaintiff's motion seeking leave to amend the complaint to supplement Plaintiff's Human Rights Laws retaliation allegations.
Plaintiff appealed and the Appellate Division unanimously reinstated Plaintiff's retaliation claims and granted Plaintiff's motion seeking leave to amend Plaintiff's complaint to supplement Plaintiff's Human Rights Laws retaliation allegations.
The Appellate Division, however, held that:
1. Supreme Court properly dismissed [Plaintiff's] Civil Service Law §75-b whistleblower claim because the Plaintiff's "adverse personnel actions" claims of retaliatory action by the Employer were subject to "final and binding" arbitration under the terms of his collective bargaining agreement;
2. Plaintiff's assertion of other retaliation claims under the Labor Law's election-of-remedies provision relied on statutory text that was deleted from the Labor Law by Chapter 684, §1 of the Laws of 2019; and
3. Supreme Court properly dismissed other discrimination claims advanced by Plaintiff because the complaints failed to allege facts giving rise to an inference of unequal treatment.
As to Plaintiff's retaliation claim, the Appellate Division noted that Plaintiff alleged that several days after he objected to a comment about his national origin made by a Deputy Inspector [DI], the DI sought "to replace an existing positive performance evaluation of [Plaintiff] with a negative one", and that after [Plaintiff] filed a formal complaint later that month with the bureau's executive officer about the DI's conduct, Plaintiff was ordered to report to psychological services for a mandatory evaluation, which resulted in the confiscation of his gun and shield.
The Appellate Division observed that such allegations are sufficient to assert "general knowledge by [Plaintiff's Employer] of his protected activity" as well as specific knowledge by, at a minimum, the DI and the passage of only days between Plaintiff's opposition to the DI's comment and the DI's alleged negative evaluation campaign "easily falls within the acceptable temporal range to establish a causal connection". Moreover, said the Appellate Division, the DI's "explicit reference to the bureau's executive officer 'jam[ming] [Plaintiff] up,' if proven, would constitute direct evidence of a retaliatory motive".
In the words of the Appellate Division:
a. "The alleged retaliatory actions outlined [in its decision] were "reasonably likely to deter a person from engaging in protected activity" under the City Human Rights Law (Administrative Code of City of NY), §8-107(7). At a minimum, the denial of overtime and charges and specifications were adverse actions under the State Human Rights Law", citing Pastor v August Aichhorn Ctr. for Adolescent Residential Care, Inc., 238 AD3d 645, leave to appeal denied 45 NY3d 903" and
b. "To the extent the proposed amended pleading adds allegations that [Plaintiff's] placement on probation deprived him of opportunities and that he was denied a post at the Office of Management Analysis and Planning as part of the pattern of retaliation against him under the Human Rights Laws, the proposed pleading should be considered the operative complaint in the case".
Click HERE to access the Appellate Division's decision posted on the Internet.