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July 03, 2019

Litigating allegations of same-sex sexual harassment


In this action to recover damages for alleged employment discrimination on the basis of sex and unlawful retaliation in violation of Administrative Code of the City of New York §8-107, Plaintiff, a civilian employee of the New York City Police Department [NYPD], alleged that a same-sex fellow civilian employee [Co-worker] of NYPD sexually harassed her by making comments about her appearance and by touching her inappropriately.

Plaintiff further alleged, among other things, that her supervisors aided and abetted the alleged harassment and, or, retaliated against her for her complaints regarding Co-worker's conduct.

The New York City Human Rights Law prohibits discrimination in employment based upon gender, and prohibits aiding and abetting discrimination or retaliation for an employee's protected activity in response to discrimination. These protections include "prohibitions on harassment between members of the same sex," as alleged here by Plaintiff.

The Appellate Division explained that demonstrations of same-sex harassment include showing that:

(1) "the harasser was homosexual and motivated by sexual desire;"

(2) "the harassment was framed in such sex-specific and derogatory terms ... as to make it clear that the harasser [was] motivated by general hostility to the presence of a particular gender in the workplace;" or

(3) "direct comparative evidence about how the alleged harasser treated members of both sexes in a mixed-sex workplace."

Addressing a motion for summary judgment on behalf of NYPD and certain of its named staff members [City Defendants], the Appellate Division said that an action brought under the NYCHRL must be analyzed under both the framework of McDonnell Douglas Corp. v Green, 411 US 792, and under the newer mixed motive framework, which imposes a lesser burden on a plaintiff opposing such a motion," citing Persaud v Walgreens Co., 161 AD3d 1019.

The court also noted that a defendant's motion for summary judgment dismissing a claim under the NYCHRL "should be granted only if no jury could find [the] defendant liable under any of the evidentiary routes—McDonnell Douglas, mixed motive, direct evidence, or some combination thereof."

Here City Defendants demonstrated, prima facie, that "there was no evidentiary route" that could allow a jury to find that Co-worker was motivated by sexual desire or by general hostility to the presence of women in the workplace, or that City Defendants treated male and female coworkers differently. Further, observed the Appellate Division, evidence established that, in response to the Plaintiff's complaint, City Defendants took prompt remedial action and Plaintiff failed to raise a triable issue of fact.

Accordingly, said the court, it agree with the Supreme Court's granting certain branches of City Defendants' motions for summary judgment dismissing those causes of actions alleging harassment by City Defendants and that City Defendants abetted  harassment in violation of the NYCHRL insofar as asserted against each of the named City Defendants.

Addressing Plaintiff's claims of retaliation under the NYCHR, the Appellate Division indicated that "[T]o make out an unlawful retaliation claim under the NYCHRL, a plaintiff must show that (1) he or she engaged in a protected activity as that term is defined under the NYCHRL, (2) his or her employer was aware that he or she participated in such activity, (3) his or her employer engaged in conduct which was reasonably likely to deter a person from engaging in that protected activity, and (4) there is a causal connection between the protected activity and the alleged retaliatory conduct."

In this instance the Appellate Division said that "even assuming that the Plaintiff had engaged in a protected activity under the NYCHRL, City Defendants demonstrated, prima facie, ... that the Plaintiff could not establish that City Defendants were aware of such activity, or that there was a causal connection between that activity and the alleged acts of retaliation and Plaintiff failed to raise a triable issue of fact.

The decision is posted on the Internet at:

July 02, 2019

Individuals seeking General Municipal Law §207-c disability benefits must prove a direct causal relationship between job duties and the resulting illness or injury


A deputy sheriff [Plaintiff] severed a nerve and tendon of a finger when, during his shift he used his pocket knife to release the blade of his partner's jammed pocket knife. These injuries required surgical repair and rendered him unable to return to work for a period of time. Petitioner applied for benefits available pursuant to General Municipal Law §207-c, but that application was denied. Ultimately a Hearing Officer recommended the denial of GML §207-c be sustained, finding Petitioner's injuries did not occur in the performance of his duties.*

The Respondent's Director of Risk Management [Respondent] issued a determination adopting the Hearing Officer's findings and recommendation in its entirety whereupon Petitioner commenced a CPLR Article 78 proceeding challenging the Respondent's determination. Supreme Court annulled the determination and Respondent appealed.

The Appellate Division, noting that the administrative determination was made after a hearing at which evidence was taken "pursuant to direction by law," said that the appropriate standard of review is whether the administrative  determination was "supported by substantial evidence."**

Explaining that the individual seeking §207-c benefits must prove a "direct causal relationship between job duties and the resulting illness or injury," the Appellate Division said that the unrebutted hearing evidence established that, although the pocket knives were personally owned by Petitioner and his partner and were not official equipment issued by the Sheriff's Office, "the officers were strongly encouraged to carry personal knives with them while they were on duty".

Further, said the court, the hearing testimony demonstrated that officers "were instructed during field training to obtain and carry a knife to assist them with various tasks, such as cutting seatbelts or cutting down people who attempted suicide by hanging" and that the officers were trained to use their personal knives "as a last-line of defense should they be stripped of their firearms or other weapons."

Noting that "most, if not all, officers" in the Respondent's Sheriff's Office regularly carried a personal knife, the Appellate Division said that the evidence "clearly established the utility of carrying a functioning knife while on duty and the necessity of fixing the jammed knife so that Petitioner and his partner could safely respond to their next call."

Under these circumstances, the Appellate Division found "a direct causal relationship" between Petitioner's job duties and the injuries he had suffered and that the Hearing Officer's findings to the contrary were not supported by the record.

Accordingly, the court granted Petitioner's application for General Municipal Law §207-c disability benefits.

* General Municipal Law §207-c provides law enforcement personnel with certain disability and other benefits, including full wages, while the officer is  temporarily unable to perform the duties of the position as the result of an injury suffered "in the line of duty."

** The Appellate Division said as matter of proper procedure Supreme Court should have transferred the matter to the Appellate Division and although it did not do so it would treat the matter as having been properly transferred and consider the substantial evidence issue de novo.

The decision is posted on the Internet at:


July 01, 2019

Employee found guilty of violating time and leave policy terminated from the position


A New York City eligibility specialist [Respondent] was found guilty of violating time and leave policy when she left work 5-7 minutes early on 215 occasions over the course of one year. At trial, it was shown that the Respondent had been ordered to cease and desist from the practice of leaving early, but had failed to comply with supervisor warnings on multiple occasions.

Office of Administrative Trials and Hearings Administrative Law Judge Ingrid M. Addison recommended termination of Respondent’s employment, since respondent had previously been disciplined for similar misconduct. 

The decision is posted on the Internet at:


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New York Public Personnel Law Blog Editor Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
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