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February 09, 2021

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."

 

 

February 08, 2021

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.

 

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