Considering Title VII complaints based on the Continuing Violation Doctrine and allegations of Disparate Treatment

Plaintiff-Appellant [Plaintiff] sued his current employer, the New York State Department of Taxation and Finance [NYSTF] pursuant to Title VII of the Civil Rights Act of 1964 alleging that NYSTF discriminated against him on the basis of race and retaliated against him when it failed to promote him on various occasions from 1997 to 2017.

The District Court properly concluded that Plaintiff’s Title VII claims based on acts alleged to have occurred on or before July 15, 2016 were time-barred as Title VII requires individuals aggrieved by acts of discrimination in states like New York that have state or local employment discrimination enforcement mechanisms to file a charge with the Equal Employment Opportunity Commission [EEOC] within 300 days “after the alleged unlawful employment practice occurred.”*

The majority of the alleged discriminatory acts that Plaintiff alleges in his complaint and supporting documents occurred years before this date. Notwithstanding Plaintiff's argument to the contrary, the district court correctly found that the continuing violation doctrine did not revive the claims based on these acts.

The Circuit Court explained that under the continuing violation doctrine, “if a Title VII plaintiff files an EEOC charge that is timely as to any incident of discrimination in furtherance of an ongoing policy of discrimination, all claims of acts of discrimination under that policy will be timely even if they would be untimely standing alone.” However, said the court, the continuing violation doctrine does not apply to discrete unlawful acts, even if the discrete acts were undertaken “pursuant to a general policy that results in other discrete acts occurring within the limitations period.”

Holding that “[A]n employer’s failure to promote is by its very nature a discrete act,” the Circuit Court ruled that the District Court correctly concluded that Plaintiff’s complaint, which focused on multiple failures to promote, alleged only a series of discrete acts of retaliation and discrimination, occurring over the course of more than twenty years and often separated by years. Thus the continuing violation doctrine did not revive Plaintiff's time-barred claims.

Considering Plaintiff's "disparate treatment claims based on the NYSTF’s failure to promote him between June 2, 2016 and May 10, 2017," the Circuit Court indicated that at the pleadings stage, Title VII “requires a plaintiff asserting a discrimination claim to allege two elements: (1) the employer discriminated against him (2) because of his race, color, religion, sex, or national origin.”

Although a plaintiff may adequately plead this second element “by alleging facts that directly show discrimination or facts that indirectly show discrimination by giving rise to a plausible inference of discrimination,” the Circuit Court found that the District Court correctly ruled that Plaintiff failed to make this showing because he made only conclusory allegations that he was denied promotions due to racial animus.

Finally, the Circuit Court held that the District Court did not err in dismissing Plaintiff’s retaliation claim for failure to state a claim, explaining that to establish a prima facie case of retaliation, an employee must show:

(1) participation in a protected activity;

(2) that the defendant knew of the protected activity;

(3) an adverse employment action; and

(4) a causal connection between the protected activity and the adverse employment action.”

The District Court, said the Circuit Court, correctly held that allegations that Plaintiff was passed over for promotions in 2016 and 2017 were too attenuated from the protected activity to plausibly allege a causal connection between the two.

* 42 USC §2000e-5(e)(1) claims falling outside this statute of limitations are time-barred unless they are subject to waiver, estoppel, or equitable tolling, or fall within the continuing violation exception to the 300-day rule.

The decision if posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/a3712f29-09cf-44d6-a607-af2f13c230a6/1/doc/18-2302_so.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/a3712f29-09cf-44d6-a607-af2f13c230a6/1/hilite/

Authority to modify or vacate an arbitration award may be limited by the terms of a collective bargaining agreement

A collective bargaining agreement between the parties provided that if an employee was found guilty of charges involving an assault, the appointing authority had the power to set and impose a penalty.

An employee was charged with assaulting another worker. Found guilty of the charge, the penalty imposed by the appointing authority was dismissal. The union, on behalf of the employee, appealed the appointing authority's determination to the Tripartite Arbitration Board [Board] in accordance with the controlling contract disciplinary grievance procedure.

When the Board denied the grievance but modified the penalty imposed to a suspension rather than termination, the appointing authority filed an Article 75 petition pursuant to §7511 petition seeking to vacate the Board's action. The appointing authority contended that the Board had exceeded its authority when it modified the penalty the appointing authority had imposed.

Supreme Court agreed and vacated that portion of the award that modified the penalty imposed by the appointing authority. The Appellate Division subsequently rejected the union's appeal challenging the lower court's ruling. The Appellate Division said that a court could vacate an arbitrator's award for a limited numbers of reasons, including:

a. the violation of a strong public policy;

b. finding that the award was irrational; or

c. determining that the award clearly exceeded a specific limitation on the arbitrator's powers.

Here the Appellate Division found the limitation described in (c) above controlled as the collective bargaining agreement specifically provided that where the Board sustained the disciplinary charges, the penalty imposed by the Authority must be sustained as well.

Accordingly, the Court ruled that the Board, having sustained the assault charge, had no authority to modify the penalty fixed by the appointing authority -- termination of the employee.

The decision is posted on the Internet at:

https://www.leagle.com/decision/1997660239ad2d4211268

Applying the Principle of “Obey Now, Grieve Later"

Under the “obey now, grieve later” principle, employees are required to follow their supervisor's orders when given, and, if they have an objection, contest the order subsequently through formal grievance procedures.

A New York City public employee was served with disciplinary charges alleging that he had disobeyed a lawful order to report for drug testing and failed to timely provide medical documentation justifying his inability to travel to the clinic for testing.

Here, however, the worker claimed one of the recognized exceptions to the principle, a situation where obeying the order would present an imminent and serious threat to the worker’s health or safety.*

OATH Administrative Law Judge Garcia found that the worker made out an "imminent and serious threat" to the worker’s health or safety defense. The worker presented documentation from a hospital emergency room showing that he had fainted on a subway platform on his way to the clinic and was told by a doctor not to travel for several days.

Judge Garcia recommended that the charges against the employee be dismissed.

Other decisions in which ignoring the principle "work now, grieve later" was a consideration include  Ferreri v. New York State Thruway Authority, 62 N.Y.2d 855 [refusal to obey an order claimed justified as consistent with the advice of union officials], Scazafavo v Erie County Water Authority, 30 AD3d 1034, [refusal to comply with an order to submit to drug testing because the employee did not believe that he was subject to random drug testing] and Tanvikr v NYC Health and Hospital Corporation, 112 AD 3d 436, [employee refused to obey orders to undertake training for a new position after being reassigned].

* Other exceptions include situations in which it is indisputably clear that the order is beyond the power of management.

The OATH decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/19_cases/19-1454.pdf

Perfluoroalkyl compounds (PFAs) have become notorious global contaminants

PFAs were detected in water sources serving more than 7 million Californians, according to a new report* by the Environmental Working Group. EWG describes itself as "dedicated to protecting human health and the environment.” It reports finding PFA contamination in water sources for 74 community drinking water systems -- serving 7.5 million people in California.

Unlike other global contaminants such as lead (Pb) and other metals, PFAs have upended the environmental regulatory world.  Regulatory agencies usually have found that control to parts per billion (ppb) or parts per million (ppm) will protect public health reliably and adequately.  The drinking water standard for Pb, for example, is 15 ppb.  PFAs, however, exhibit potent toxicological effects in the usually-unregulated parts-per-trillion (ppt) range, posing new challenges for environmental monitoring and regulation.

These challenges posed by the disturbing toxicology and environmental dynamics of PFAs have been examined by Dr. Robert A. Michaels in two articles recently published in the Environmental Claims Journal. Michaels (2017; see below) addresses massive PFA contamination of drinking water and other  environmental media in Hoosick Falls, Rensselaer County, New York. This episode of corporate environmental impact has garnered national attention because it adversely affected the health of people and the market value of their homes. Michaels (2018; see below) critiques the New York State Health Department's cancer cluster study in Hoosick Falls. He finds major shortcomings, some particular to the study and others applying to cancer cluster studies generally.

Most notably, standard operating procedure in science requires application of the stringent p ≤0.05 confidence criterion of statistical significance.  The Health Department study, like other cancer cluster studies, used this standard inappropriately to confirm cancer clusters in Hoosick Falls.  Unsurprisingly, it found none related to PFAs.  Use of the p ≤0.05 confidence level is aimed at conservatively protecting the body of scientific knowledge.  As a trade-off, however, it may confuse real cancer clusters with statistical flukes, justifying ignoring them.  Consequently, the standard procedure may fail to protect public health conservatively.

Michaels (2018) and Michaels (2017) both are available for download at no charge via the following URL links:

Michaels (2018):

https://www.researchgate.net/publication/322746891_Protecting_Science_and_Public_Health_in_Communities_-_PFOA_and_Possible_Cancer_Clusters_in_the_Village_of_Hoosick_Falls_Rensselaer_County_New_York

Michaels (2017): 

https://www.researchgate.net/publication/313809847_Lessons_Learned_from_Legacy_Contaminants_of_Emerging_Concern_Perfluoroalkyl_Compounds_PFCs_in_the_Village_of_Hoosick_Falls_Rensselaer_County_New_York

Please direct questions or comments concerning this post, and/or Michaels (2018), and/or Michaels (2017) to Dr. Michaels at ram@ramtrac.com.

* See https://www.cnn.com/2019/09/27/us/pfas-california-contamination-trnd/index.html