Reviewing a federal district court’s granting respondent's motion to dismiss a quid pro quo and related sexual harassment complaints

The Circuit Court of Appeals, Second Circuit, said in order to survive a motion to dismiss, a complaint’s “allegations must meet the plausibility standard set out in Ashcroft v. Iqbal, 556 U.S. 662. Citing Schiano v. Quality Payroll Sys., Inc., 445 F.3d 597, the Second Circuit then opined "to state a quid pro quo sexual harassment the plaintiff must show a tangible employment action, i.e., that an explicit alteration in the terms or conditions of employment resulted from her refusal to submit to [a] sexual advance.”

In this action the court concluded that Plaintiff's quid pro quo claim failed because she made only “conclusory allegations of implied sexual advances” in that Plaintiff's description of the Respondent's conduct creates no more than “a sheer possibility that [the Respondent] has acted unlawfully.” In the words of the court, Plaintiff's claim "is based on a single incident in which [Respondent] allegedly invited her to see a corporate apartment on their way to lunch, asked her repeatedly to join him in the apartment’s bedroom, and then inquired over lunch whether she was married or had a boyfriend." The Circuit Court also noted that Plaintiff's amended complaint "contains no allegations of any sexual comments or physical contact, never alleges that [Respondent] engaged in any other sexual conduct towards Reed or anyone else, and makes no other allegations sufficient to support an inference that [Respondent's] conduct was sexual.

Addressing Plaintiff's "Retaliation and Constructive Discharge" allegations, the Circuit Court opined that "[F]or a retaliation claim to survive ... a motion to dismiss, the plaintiff must plausibly allege that: ... defendants discriminated — or took an adverse employment action — against [her], (2) because [she] has opposed any unlawful employment practice.” As the Second Circuit held in Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, “[T]he plaintiff need only have had a good faith, reasonable belief that [she] was opposing an employment practice made unlawful by Title VII”.* Further, the Circuit Court noted “The reasonableness of the plaintiff’s belief is to be assessed in light of the totality of the circumstances.” "... mere subjective good faith belief is insufficient; the belief must be reasonable and characterized by objective good faith.”

Finding the Plaintiff "failed to allege adequately that she had a reasonable, good-faith belief that [Respondent's] conduct violated the law or that her conduct constituted opposition to unlawful conduct" and that in her formal complaint "[Plaintiff] failed to allege that [Respondent] took an adverse employment action against her for filing it.

Finally, the Circuit Court opined that Plaintiff's allegations that "new monitoring programs appeared on her computer" do not suffice for a claim of retaliation because Plaintiff does not plausibly allege that the monitoring was so severe that “it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination”. Accordingly, the Circuit Court affirmed the district court’s dismissal of Plaintiff's constructive discharge claims as well.

* See, also, Kessler v. Westchester County. Dep’t of Social Services, 461 F.3d 199.

Click HERE to access the opinion of the Circuit Court of Appeals posted on the Internet.

Correction officer terminated after being found guilty of "undue familiarity" with an incarcerated person

 

A New York City correction officer [CO] charged with "undue familiarity" after giving an incarcerated person [detainee] gifts and making false and, or, misleading statements to investigators about such alleged misconduct. New York City Office of Administrative Trials and Hearings' Supervising Administrative Law Judge Joan R. Salzman recommended that appointing authority terminate CO after finding CO guilty of such offenses.

CO was captured on surveillance video greeting the detainee in a friendly manner called “dapping”* and detainee giving CO three packages opaquely wrapped in brown paper, including one package CO then concealed inside his uniform shirt.

During the employer's investigation, CO told investigators in an MEO 16 interview that he could not recall what food he gave to this detainee, who that very day had headbutted another correction officer and was known to CO as the assaultive, highest-ranking gang member in an area referred as the North Infirmary Command, "even though one would expect the CO to recall what he gave to this notorious detainee" directly after a memorable assault by this very detainee on a colleague of CO.

Instead, CO told investigators and testified at trial that he gave two servings of extra chicken to the detainee (even though it was “Chicken Sunday,” and chicken had already been served that day), but CO could not recall whether the items in his uniform shirt consisted of a banana or packets of sugar or packets of mustard.

CO told investigators that he gave food items to this detainee in order to “keep the peace,” and that he had done so on a few occasions with this detainee previously. At hearing, however, CO deviated from his prior statements, and testified that he gave extra food because detainee was sick and hungry, and that he had never previously given this detainee any food.

The Supervising ALJ found CO’s testimony problematic, evasive, exceptionally vague, and incredible. Judge Salzman concluded that CO’s misconduct breached the good order and discipline required in a jail facility, and after weighing the mitigating and aggravating factors, recommended termination.

* "Dapping" is a term used to describe "two men tapped their opposite shoulders together in a half-hug and shaking hands".

Click HERE to access Judge Salzman's decision posted on the Internet.

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Appeal to the Commissioner of Education dismissed for lack of proper service

Petitioners appealed a Board of Education's determination that their child, a high school student, was "not entitled to a medical exemption" from the immunization requirements of Public Health Law §2164.*  The appeal also named the high school principal and a school nurse as “Individual Respondents”.  The Commissioner dismissed Petitioners' appeals "for improper service."

The Commissioner's decision notes that 8 NYCRR 275.8 [a] of the Regulations of the Commissioner of Education requires that such petitions be personally served upon each named respondent.  Further, if a school district is named as a respondent, service upon the school district is to be made personally by delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service of an appeal to the Commissioner of Education.

Although Petitioners’ affidavits of service indicated that they had served the Individual Respondents, the Individual Respondents denied this allegation, stating that they had received the petitions "from district employees who are not authorized to accept service on their behalf."  

Citing Appeal of Barrientos, 58 Ed Dept Rep, Decision of the Commissioner No. 17,450 and other Decisions of the Commissioner of Education and noting that Petitioners "did not submit a reply or otherwise respond" to the Individual Respondents’ claims of improper service, the Commissioner opined that "on this record" she could not conclude that Petitioners served a copy of the petition on any of the named Individual Respondents as required by §275.8 (a) of the Commissioner’s regulations and dismissed their appeals.

* Public Health Law §2164 address immunization against poliomyelitis, mumps, measles, diphtheria, rubella, varicella, Haemophilus influenzae type b (Hib), pertussis, tetanus, pneumococcal disease, meningococcal disease, and hepatitis B.

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