An employer may take an adverse employment action against an employee barred by law so long the employer has demonstrated an independent basis for the action

A probationary teacher [Plaintiff] observed a teacher providing unauthorized assistance to a student. Plaintiff contended that she immediately reported the incident, and it is undisputed that she "first put her allegations in writing in a letter dated April 19, 2013."

Plaintiff subsequently received four unsatisfactory lesson observation reports, two letters of misconduct and then received an unsatisfactory rating (U-rating) for the school year. The New York City Department of Education [DOE] did not give Plaintiff a certificate of satisfactory completion of probation and terminated her employment. Her administrative appeal was denied by a divided panel.

Plaintiff initiate a hybrid CPLR Article 78/plenary action challenging DOE's decision in Supreme Court. Ultimately the Appellate Division dismissed Plaintiff's action in its entirety "on the law."

The Appellate Division explained that DOE's decision to discontinue Plaintiff's probation and terminate her employment was based on the annual U-rating, which in turn was based on four unsatisfactory observation reports and two misconduct letters. These, said the court, provide ample evidence to support the conclusion that Plaintiff's performance was unsatisfactory, and thereby establish, for purposes of reviewing Plaintiff's Article 78 action, that Plaintiff's termination was done in good faith.

Turning to Plaintiff's seeking a court order annulling the U-rating and unsatisfactory observation reports as pretexts for a retaliatory discharge, the Appellate Division opined that this effort was unavailing as the U-rating was supported by the observation reports and misconduct letters, each of which recited first-hand observations made by the Assistant Principal and Principal and the unsatisfactory reports were "rationally based in the record."

Addressing Plaintiff's second cause of action under Civil Service Law, §75-b the Appellate Division found that Plaintiff had made a prima facie case by showing that:

1. She received numerous adverse employment actions in the form of unsatisfactory reports and ultimately loss of license and termination;

2. She disclosed what appeared to be an illegal action by a fellow teacher; and

3. The temporal connection between Plaintiff's reporting "the January 23, 2013 incident  and the negative employment actions she suffered beginning in early March, suffices to establish her prima facie case on causation."

That said, the Appellate Division pointed out that an appointing authority may nonetheless initiate an adverse employment action against an employee so long the employer has an "independent basis for the action."

In the words of the Appellate Division, "Here, as discussed, [DOE] had ample independent bases for their actions against [Plaintiff], in the form of the well-documented unsatisfactory reports and a corresponding U-rating for the year. Nor is there any evidence that [DOE's] actions were pretexts for retaliation, or that [DOE] would not have taken the same actions against [Plaintiff] had she not reported the alleged teacher misconduct" and dismissed Plaintiff's second cause of action alleging the DOE had violated Civil Service Law §75-b.

Click HEREto access the text of the Appellate Division's decision. 

 

 

Court holds plaintiff's failure to adequately allege race or national origin a motivating factor in the employer's employment decision a fatal omission

A federal district court dismissed Plaintiff's claims alleging unlawful discrimination, a hostile work environment, and retaliation as underlying her removal from her position at a component unit of the City University of New York [CUNY]. The court held that Plaintiff's allegations did not raise a plausible inference of discrimination or rise to the level of pervasive and severe conduct that altered the conditions of her employment. The district court then granted CUNY summary judgment on Plaintiff's retaliation claim, holding CUNY had articulated a legitimate reason for Plaintiff's removal, and that Plaintiff had failed to show that CUNY’s proffered reason was a pretext for retaliation. Plaintiff appealed. 

The Circuit Court of Appeals, Second Circuit, reviewed the lower court's rulings de novo, indicating that it “accept[ed] all factual claims in the complaint as true and draw[ing] all reasonable inferences in the plaintiff’s favor.” Noting that in reviewing a grant of summary judgment, the court it must “construe the evidence in the light most favorable to the non-moving party” and find that “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”

Affirming the district court’s dismissal of Plaintiff’s discrimination and hostile work environment claims, the Circuit Court explained that Plaintiff's discrimination claim fails because Plaintiff did not adequately allege that her race or national origin was a motivating factor in CUNY’s decision to remove her from her positions with the facility.

In the words of the court, Plaintiff's "complaint does not identify the 'bits and pieces of information necessary 'to support an inference of discrimination, i.e., a mosaic of intentional discrimination' in relation to the adverse employment action at issue."

Similarly, said the court, Plaintiff's "hostile work environment claim fails because the alleged incidents are too mild and 'episodic' to support her claim," noting that many of the alleged incidents lack any racial overtone and, in general, the alleged incidents “were too few, too separate in time, and too mild . . . to create an abusive working environment.”

Affirming the district court’s decision granting CUNY summary judgment on Plaintiff’s retaliation claim, the court explained that under McDonnell Douglas Corp. v. Green, 411 U.S. 792 , "a plaintiff must first establish a prima faciecase of retaliation; then the defendant must offer a non-retaliatory reason for the employment action; and then the plaintiff must show that the retaliatory reason is a “but-for cause of [the] adverse employment action,” which may be done by "for example [by] demonstrating that the non-retaliatory reason is pretextual."

The Circuit Court concluded by stating that Plaintiff "has not met her burden of producing 'sufficient evidence to demonstrate that' [she] would not have been removed [from her positions] from the graduate advisor and fellowship coordinator positions 'in the absence of the retaliatory motive.”

Click HERE to access the Circuit Court's decision.

 

Permanent New York State Commissioner of Education designated

On February 8, 2021, the New York State Board of Regents announced that it had unanimously elected Dr. Betty A. Rosa to serve as New York State's Commissioner of Education.

Dr. Rosa, a nationally recognized education leader, received an Ed. M. and Ed. D. in Administration, Planning and Social Policy from Harvard University. She also holds two other Master of Science in Education degrees, one in Administration and Supervision and the other in Bilingual Education from the City College of New York and Lehman College respectively and a B.A. in psychology from the City College of New York. She has more than 30 years of instructional and administrative experience with an expertise in inclusive education, cooperative teaching models, student achievement and policy implementation.

Regent Judith Chen, a member of the search committee, said, "We set our goal to find an individual with exceptional qualities of leadership, statesmanship and unquestionable integrity … During our extended search process, my colleagues and I determined that Dr. Rosa stood above all others."

 

 

A two-year gap between the employee's alleged protected activity and the alleged adverse action by the employer held "too remote to warrant an inference of causal connection."

The Appellate Division affirmed Supreme Court's determination that Petitioner [Plaintiff]  failed to demonstrate that the New York City Department of Education's [DOE] determination to discontinue her probationary position as assistant principal "'was for a constitutionally impermissible purpose, violative of a statute, or done in bad faith."

Plaintiff' had alleged that the discontinuance was in retaliation for her purported refusal to negatively evaluate two teachers. Supreme Court found that Plaintiff's  "unsupported allegation failed to evidence bad faith". 

The Appellate Division's decision indicates that there was a two-year gap between the alleged protected activity and thus any adverse action by DOE was "too remote to warrant an inference of causal connection."

In addition, the Appellate Division said that the record "includes evidence of disciplinary letters showing dissatisfaction with [Plaintiff's] work performance that predate the alleged protected activity, demonstrating DOE's good faith and its refuting the allegation of retaliation.

The Appellate Division also opined that Plaintiff's claim that her annual work performance ratings are unfair and inaccurate, even if true, did not establish bad faith on the part of DOE in view of the fact that Plaintiff failed to show that the issuance of the unsatisfactory rating which preceded her discontinuance was arbitrary and capricious.

Click HEREto access the Appellate Division's decision.

 

New York Employment Law: The Essential Guide

New York Employment Law: The Essential Guide Editors Louis P. DiLorenzo and Jeffrey Kehl have called upon the collective experience of dozens of contributors to compile this new reference book on New York employment law. Covering a wide range of state substantive and regulatory employment issues, New York Employment Law: The Essential Guide is formatted in an easily accessible, Question-and-Answer format and offers clear and succinct responses to more than 450 employment law questions.

Topics addressed include hiring and interviewing employees, employee and employer rights and obligations, the worker’s compensation framework and regulatory schemes for maintaining a safe workplace, disability issues, unemployment insurance, unfair competition, discrimination in the workplace, and disciplinary policies and procedures.

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