Failure to establish a causal connection between any protected activity and any adverse employment action fatal to employee's allegations of unlawful discrimination

In this action to recover damages for alleged employment discrimination on the basis of age in violation of the New York State Human Rights Law and 42 USC §1983, Supreme Court granted the Defendants' motion for summary judgment and dismissed the employee's complaint. Plaintiff appealed.

The Appellate Division sustained the Supreme Court's decision, noting that the Defendants met their initial burden of demonstrating that the Plaintiff could not make out a prima facie case of unlawful retaliation by showing that the challenged actions were not causally connected to any protected activity engaged in by the Plaintiff and Plaintiff failed to submit sufficient evidence from which a causal connection could be found between any protected activity in which he engaged and any adverse employment action.

The Appellate Division's decision is set out below:

Shapiro v State of New York

2023 NY Slip Op 03030

Decided on June 7, 2023

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on June 7, 2023 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
BETSY BARROS, J.P.
VALERIE BRATHWAITE NELSON
WILLIAM G. FORD
BARRY E. WARHIT, JJ.

2020-01368
(Index No. 602678/14)

Leonard R. Shapiro, appellant,

v

State of New York, et al., respondents.

Leeds Brown Law, P.C., Carle Place, NY (Rick Ostrove and Brandon Okano of counsel), for appellant.

Letitia James, Attorney General, New York, NY (Judith N. Vale and Blair J. Greenwald of counsel), for respondents.

DECISION & ORDER

In an action, inter alia, to recover damages for employment discrimination on the basis of age in violation of the New York State Human Rights Law and 42 USC § 1983, the plaintiff appeals from an order of the Supreme Court, Nassau County (James P. McCormack, J.), entered November 21, 2019. The order granted the defendants' motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

The plaintiff, who was born in August 1946, has been employed as an Administrative Law Judge for the New York State Unemployment Insurance Appeal Board (hereinafter the UIAB) under various titles since 1975, and has been in the UIAB's Garden City office since 2003. During the relevant time period, the defendant Jayson S. Myers was the Chief Judge of the UIAB and the defendants Teresa A. DeMeo and Matthew J. Tierney were Principal Administrative Law Judges of the UIAB. The plaintiff commenced this action in June 2014, asserting causes of action, inter alia, alleging age discrimination and retaliation in violation of the New York State Human Rights Law (see Executive Law § 296 [hereinafter the NYSHRL]), violation of his constitutional rights pursuant to 42 USC § 1983 to equal protection as a result of age discrimination, and that the individual defendants aided and abetted each other in the alleged discrimination and retaliation. The plaintiff alleged that the defendants engaged in adverse employment actions consisting of issuing him three counseling memoranda and an action plan; assigning him a disproportionately heavy workload; temporarily removing his supervisory duties; and declining to consider him as a candidate for a new senior Administrative Law Judge position in the UIAB office where he was employed. After discovery, the defendants moved for summary judgment dismissing the complaint. In an order entered November 21, 2019, the Supreme Court granted the motion. This appeal ensued.

The NYSHRL prohibits employment discrimination on the basis of age and retaliation against an employee for opposing discriminatory practices, as well as the aiding and abetting of any such discriminatory act (see Executive Law § 296[1], [6], [7]).

A plaintiff alleging discrimination in violation of the NYSHRL must establish that (1) he or she is a member of a protected class, (2) he or she was qualified to hold the position, (3) he or she suffered an adverse employment action, and (4) the adverse action occurred under circumstances giving rise to an inference of discrimination (see Stephenson v Hotel Empls. & Rest. Empls. Union Local 100 of AFL-CIO, 6 NY3d 265, 270; Forrest v Jewish Guild for the Blind, 3 NY3d 295, 305). To prevail on a motion for summary judgment in an action alleging discrimination in violation of the NYSHRL, a defendant "must demonstrate either plaintiff's failure to establish every element of intentional discrimination, or, having offered legitimate, nondiscriminatory reasons for their challenged actions, the absence of a material issue of fact as to whether their explanations were pretextual" (Forrest v Jewish Guild for the Blind, 3 NY3d at 305; see Golston-Green v City of New York, 184 AD3d 24, 36). At the time this action was commenced, under the NYSHRL, to be actionable, the adverse employment action had to be "a materially adverse change in the terms and conditions of employment" (Forrest v Jewish Guild for the Blind, 3 NY3d at 306; cf. Executive Law § 300; Golston-Green v City of New York, 184 AD3d at 34-40).

Here, the defendants demonstrated, prima facie, that the plaintiff did not suffer an adverse employment action within the meaning of the NYSHRL (see Forrest v Jewish Guild for the Blind, 3 NY3d at 307; Golston-Green v City of New York, 184 AD3d at 37; Furfero v St. John's Univ., 94 AD3d 695, 698). In opposition, the plaintiff failed to raise a triable issue of fact (see Johnson v NYU Hosps. Ctr., 39 AD3d 817, 818).

At the time the plaintiff commenced this action, in order to establish a cause of action alleging unlawful retaliation, the "plaintiff [had to] show that (1) [he or] she has engaged in protected activity, (2) [his or] her employer was aware that [he or] she participated in such activity, (3) [he or] she suffered an adverse employment action based upon [his or] her activity, and (4) there is a causal connection between the protected activity and the adverse action" (Forrest v Jewish Guild for the Blind, 3 NY3d at 313; cf. Executive Law § 300; Golston-Green v City of New York, 184 AD3d at 38). In the context of a case of unlawful retaliation, an adverse employment action is one which might have dissuaded a reasonable worker from making or supporting a charge of discrimination (see Burlington N. & S.F.R. Co. v White, 548 US 53, 68). "To establish its entitlement to summary judgment in a retaliation case, a defendant must demonstrate that the plaintiff cannot make out a prima facie claim of retaliation or, having offered legitimate, nonretaliatory reasons for the challenged actions, that there exists no triable issue of fact as to whether the defendant's explanations were pretextual" (Delrio v City of New York, 91 AD3d 900, 901; see Forrest v Jewish Guild for the Blind, 3 NY3d at 312-314; Langton v Warwick Val. Cent. Sch. Dist., 144 AD3d 867, 868).

Here, the defendants met their initial burden of demonstrating that the plaintiff could not make out a prima facie case of unlawful retaliation by showing that the challenged actions were not causally connected to any protected activity engaged in by the plaintiff (see Langton v Warwick Val. Cent. Sch. Dist., 144 AD3d at 868; Delrio v City of New York, 91 AD3d at 902). In opposition, the plaintiff failed to submit sufficient evidence from which a causal connection could be found between any protected activity in which he engaged and any adverse employment action (see Langton v Warwick Val. Cent. Sch. Dist., 144 AD3d at 868). Accordingly, the Supreme Court properly granted that branch of the defendants' motion which was for summary judgment dismissing the unlawful retaliation cause of action.

Since the plaintiff has failed to raise a triable issue of material fact that he was either retaliated against or discriminated against because of his age, his claims that the defendants aided and abetted each other in any discrimination or retaliation cannot survive (see Forrest v Jewish Guild for the Blind, 3 NY3d at 314; Johnson v NYU Hosps. Ctr., 39 AD3d at 818).

The plaintiff's remaining contention is without merit.

BARROS, J.P., BRATHWAITE NELSON, FORD and WARHIT, JJ., concur.

ENTER:

Maria T. Fasulo

Clerk of the Court

 

Former Rescue Squad business manager charged with stealing over $17,000 from the Squad

On June 14, 2023, State Comptroller Thomas P. DiNapoli, Columbia County District Attorney Paul Czajka, and the New York State Police announced the indictment of former Chatham Rescue Squad Business Manager Sara Thorne, of Forest City, North Carolina, for allegedly stealing more than $17,000 from the rescue squad. The Rescue Squad business manager allegedly used the funds to pay for groceries, meals, and travel for her husband.*

“Thorne allegedly abused her position to divert thousands of dollars meant to protect her community,” DiNapoli said. “Thanks to my ongoing partnership with District Attorney Czajka and the New York State Police, she is now brought to justice.”

“We appreciate the diligence and hard work of the State Comptroller’s Office in this complex financial investigation,” Columbia County District Attorney Paul Czajka said. “Comptroller DiNapoli and his skilled and diligent team of investigators and auditors have uncovered several criminal schemes in Columbia County over the last several years. This is only the latest.”

“I commend the Comptroller and DA’s offices, and our State Police investigators for their stellar work in exposing this fraud,” Acting New York State Police Superintendent Steven A. Nigrelli said. “The arrest of this individual sends a strong message that we will not tolerate such corruption. When a public servant seeks to use their position to profit at the expense of the taxpayers and the local community, they will be held accountable for their crimes and prosecuted appropriately.”

Thorne provided administrative support for the Chatham Rescue Squad for twenty years until her employment was terminated in 2022. Her final position was as Business Manager, where she was the sole officer responsible for payroll, among other duties. While originally based in Columbia County, Thorne was allowed to work remotely from North Carolina since 2015 with an annual salary topping $100,000.

From 2017 to 2019, Thorne was paid annual bonuses of $5,000 to $6,500 by the squad’s Board of Directors. In addition to these bonuses, investigators found Thorne additionally paid herself $9,528 to cover the associated tax liabilities for those payments. Investigators found Thorne cashed out a combined 160 hours of leave in 2019 without board approval or knowledge, paying herself an additional $6,481.

Thorne had a personal credit card she used for rescue squad purchases. Rather than use the card for official business or specific charges, Thorne used this card for personal purchases at a grocery store and a restaurant. Thorne also purchased travel for her husband and upgrades to first class travel for herself. Thorne paid this credit card bill with rescue squad funds. She never presented these expenses to the board for approval or provided bank statements for review.

When DiNapoli’s investigators questioned Thorne about invoices and receipts for her credit card expenses, Thorne provided altered documents to hide the fact that the rescue squad had paid for her husband’s travel. In total, Thorne used $1,068 in squad funds to pay for these expenses.

Thorne, was charged with two counts of Grand Larceny (3rd degree, D Felony), two counts of Falsifying Business Records (1st degree, E Felony) and three counts of Petit Larceny (A Misdemeanor). She was arraigned today before Columbia County Court Judge Jonathan D. Nichols and is due back in court on July 24, 2023.

*N.B.:  The charges filed against Thorne are merely accusations and the defendant is presumed innocent unless and until proven guilty in a court of law.

###

Since taking office in 2007, DiNapoli has committed to fighting public corruption and encourages the public to help fight fraud and abuse. New Yorkers can report allegations of fraud involving taxpayer money by calling the toll-free Fraud Hotline at 1-888-672-4555, by filing a complaint online at https://www.osc.state.ny.us/investigations; or by mailing a complaint to: Office of the State Comptroller, Division of Investigations, 8th Floor, 110 State St., Albany, NY 12236.

Paid Parental Leave policies for employees of the State as the employer in collective bargaining units represented by CSEA

The Department of Civil Service has published the following Attendance and Leave Bulletin:

• Policy Bulletin 2023-02, Paid Parental Leave for CSEA Administrative Services Unit (ASU), Institutional Services Unit (ISU), Operational Services Unit (OSU) and Division of Military and Naval Affairs (DMNA) Employees

Text of Policy Bulletin 2023-02 is posted on the Internet at:
https://www.cs.ny.gov/attendance_leave/PolBull23-02.cfm

If you wish to print Policy Bulletin 2023-02, the Department offers a version in PDF format at:
https://www.cs.ny.gov/attendance_leave/PB2023-02BulletinandChart.pdf

To view previous Attendance and Leave bulletins issued by the Department of Civil Service, visit: https://www.cs.ny.gov/attendance_leave/index.cfm

Challenging a school board election and budget vote and seeking the removal of a member of the school board

The Petitioner in this appeal to the Commissioner of Education challenged [1] the vote on the school district's proposed annual budget and [2] the election of candidates to the school board.*  

After addressing a "procedural matter", Commissioner of Education Betty A. Rosa turned to the merits of Petitioner's appeal, noting that a petitioner "has the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which he or she seeks relief, citing 8 NYCRR 275.10.

Although the Petitioner asserted that the district made multiple errors in connection with the election, the Commissioner found that she has failed to meet her burden of proving that any of these alleged errors affected the outcome of the election, were so pervasive that they vitiated the electoral process, or that they demonstrated a clear and convincing picture of informality to the point of laxity in adherence to the Education Law.

As an example, the Commissioner noted that Petitioner characterizes the school district’s use of a ballot on election day that was different in format than the sample ballot it published on its website as the “capstone to numerous examples of a dereliction of duties.”** 

The Commissioner, however, noted that the single example advanced by Petitioner - that "one resident informed her she had made an error in casting her vote intended for [Petitioner] due to confusion about the ballot’s format" - she failed to produce any evidence such as "affidavits or signed statements from district voters, to support her claim."

Opining that "It is well settled that mere speculation as to the existence of irregularities or the effect of irregularities provides an insufficient basis on which to annul election results," the Commissioner concluded that Petitioner "failed to meet her burden of proving that [the school district] committed election irregularities that affected the results of the election or was otherwise negligent in its oversight and execution of the school board election and budget vote.

Similarly, said Commissioner Rosa, Petitioner had not alleged sufficient facts to support removal of the trustee named in her appeal. Citing a number of earlier decisions of Commissioners of Education, Dr. Rosa observed that a school officer or member of a board of education may be removed from office "when it is proven to the satisfaction of the Commissioner that the officer or board member has engaged in a willful violation or neglect of duty under the Education Law" citing Education Law §306[1].

To be considered willful, the action of a board member or school officer must have been intentional and committed with a wrongful purpose. Even accepting Petitioner’s allegations concerning the trustee as true, Petitioner "does not allege that [the trustee named] acted with a wrongful purpose.

The Commissioner held that "The appeal must be dismissed and the application for removal must be denied."

* Petitioner was one of five candidates seeking election to the school board and was not elected. She also sought the removal of one of candidates elected to the board.  

** While the sample ballot listed candidates vertically, divided into two columns, the actual ballot listed candidates horizontally with an empty box under the name of the first three candidates and a bubble under the names of petitioner and the final candidate.

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

Court considered employee's long unblemished service record in mitigating imposing the disciplinary penalty of dismissal "under the circumstances"

A tenured teacher [Educator], was charged with conduct unbecoming a teacher, misconduct, and insubordination for allegedly inappropriately restraining a female student who was trying to get past him. The matter proceeded to arbitration, resulting in a determination, after a hearing, finding Educator guilty of inappropriate conduct and the imposition of the penalty of termination of his employment with the school district. Educator then commenced a proceeding pursuant to CPLR Article 75 seeking to vacate the determination. Supreme Court denied Educator's petition and dismissed the proceeding. Educator appealed.

The Appellate Division held that there was a rational basis and evidentiary support for the finding that Educator committed the conduct with which he was charged by inappropriately restraining a female student who was trying to get past him. 

A video of the incident, which was admitted into evidence at the hearing, however, could be interpreted in more than one way. Citing Saunders v Rockland Bd. of Coop. Educ. Servs., 62 AD3d at 1013, the Appellate Division explained it must "accept the arbitrator's credibility determinations, even where there is conflicting evidence and room for choice exists".

Noting the decisions in Matter of Principe v New York City Dept. of Educ., 94 AD3d 431, affirmed 20 NY3d 963, the Appellate Division, in consideration of Educator's otherwise unblemished record of approximately 19 years as a teacher with the school district, opined "the penalty of termination of employment was so disproportionate to the offense as to be shocking to one's sense of fairness".

The Appellate Division then vacated the disciplinary penalty terminating Educator's employment and remitted the matter to the school district "for the imposition of a lesser penalty".

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

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A Reasonable Disciplinary Penalty Under the Circumstances.  The text of this NYPPL e-book focuses on court and administrative decisions addressing disciplinary penalties imposed on officers and employees in the public service in instances where the individual has been found guilty of misconduct and, or, incompetence. For additional information and access to a free excerpt from this e-book click HERE.