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.

For more information click HERE

Municipal and school district audits issued during the week ending February 5, 2021

New York State Comptroller Thomas P. DiNapoli announced the following municipal and school district audits were issued during the week ending February 5, 2021.

Click on the text highlighted in color to access the complete audit report

 MUNICIPAL AUDITS

Town of Owasco – Real Property Tax Exemptions Administration (Cayuga County)  

The assessor did not properly administer select real property tax exemptions. Granted property exemptions were not always properly applied for or supported. Of the 99 property tax exemptions that auditors reviewed, 75 of the exemptions totaling over $4.1 million were not properly applied for or supported. Property owners received $4,014 in 2019 town tax reductions for these unsupported exemptions.

 

Stamford-Harpersfield-Kortright Fire District – Financial Activities (Delaware County)  

The board did not establish adequate controls or provide adequate fiscal oversight of the treasurer. As a result, district assets were not safeguarded. The board did not adequately monitor fiscal operations and properly document disbursement approvals. The board also did not conduct required audits or adopt a procurement policy, investment policy or code of ethics, as required. Although the treasurer’s financial records and reports that auditors reviewed were accurate, and financial transactions were appropriate and properly accounted for, the treasurer performed all financial duties, including receiving and disbursing cash, signing district checks and maintaining the accounting records, with no oversight.

 

SCHOOL DISTRICT AUDITS

Groton Central School District – Cash Management (Cayuga County, Cortland County and Tompkins County)

School district officials did not maximize interest earnings. During the audit period, the district’s interest earnings totaled $72,555, but the district could have earned another $367,963 if officials invested available funds in a financial institution that offered higher interest rates. Business officials did not develop and manage a comprehensive investment program or comply with the district’s board of education’s investment policy. District officials should solicit interest rate quotes to maximize interest earnings and prepare monthly cash flow forecasts.

 

The Workers' Compensation Law provides the exclusive remedy if an employee is injured by a coworker while both are performing the duties of their positions

In an action to recover damages for personal injuries, the petitioners* appealed the Supreme Court granting the respondents, a Police District and a coworker, respective motions to dismiss the complaint insofar as they were named as a defendants.

The genesis of this action was an accident involving a police officer [Plaintiff] operating a Police District police motorcycle in his official capacity colliding with a Police District vehicle operated by another Police District police officer. Supreme Court granted the Police District's motion to dismiss Plaintiffs' complaint based on the Police District's argument that Plaintiffs' action was barred by the exclusivity provisions of the Workers' Compensation Law. Plaintiffs appealed the court's ruling.

The Appellate Division held that Supreme Court "properly granted" the Police District's motion explaining that in considering a motion to dismiss a complaint pursuant to CPLR 3211(a)(1), "the documentary evidence must utterly refute the plaintiff's factual allegations, conclusively establishing a defense as a matter of law."

Citing Gould v Decolator, 121 AD3d 845, the Appellate Division observed that the Police District had submitted documentary evidence conclusively establishing that the Petitioners' causes of action insofar as asserted against it were barred by the exclusivity provisions of the Workers' Compensation Law.

In addition, the Appellate Division opined that Supreme Court properly awarded summary judgment to Plaintiff''s coworker as the Workers' Compensation Law was "designed to ensure that an employee injured in the course of his or her employment will be made whole and to protect a co-employee who, acting within the scope of his or her employment, caused the injury." Further, the court observed that Workers' compensation qualifies as an exclusive remedy when both the plaintiff and the defendant are acting within the scope of their employment, as co-employees, at the time of injury," citing Macchirole v Giamboi, 97 NY2d 147. 

The Appellate Division also noted that §29[6] of the Workers' Compensation Law provides that the right to compensation or benefits under this chapter, "shall be the exclusive remedy to an employee ... when such employee is injured or killed by the negligence or wrong of another in the same employ" and a coworker has the protection of this exclusivity provision if he "was acting within the scope of his employment and was not engaged in a willful or intentional tort."

The Appellate Division held that, in this instance, the defendant police officer had established his prima facieentitlement to judgment as a matter of law dismissing the complaint insofar as asserted against him by establishing that both he and the Plaintiff were co-employees acting within the scope of their employment when the Plaintiff was injured.

* A police officer and his spouse suing derivatively were the petitioners in this action.

Click HERE to access the Appellate Division's decision.

 

New York State Comptroller appoints senior budget and policy staff

On February 3, 2021 New York State Comptroller Thomas P. DiNapoli announced the appointment of Maria Doulis as deputy comptroller and Todd Scheuermann as assistant comptroller in the Division of Budget and Policy Analysis. These appointments are to fill currently vacant positions.

Ms. Doulis is a recognized expert on New York’s budget and fiscal issues and has broad experience in leading policy and research development. She has written extensively on government budgeting, labor relations, public workforce and infrastructure issues, and is well-respected for her ability to distill complex research into understandable and actionable reports. She was most recently the vice president for Strategy, Operations and Communications at the Citizens Budget Commission (CBC), where she oversaw the organization’s research, operations, communications and other critical functions. Ms. Doulis was also the director of NYC studies and held several research positions at CBC. She has served as an adjunct lecturer and taught a capstone course for graduate students.

She has a bachelor’s degree in Political Science from Queens College, a master’s degree in Public Administration from George Washington University, and completed her doctoral coursework in public policy and quantitative research methods at the Robert F. Wagner Graduate School of Public Service at New York University.

Mr. Scheuermann has held high-level positions in the New York State Senate and the state Division of the Budget over his 25-year career in state government.

Prior to joining the Comptroller’s office, Mr. Scheuermann was the secretary to Senate Finance Committee. He oversaw a team of budget and revenue analysts and was the lead budget negotiator for the Senate Majority Conference. He spent the greater part of his professional career in different positions within the state Division of the Budget, developing budget and policy recommendations for major programs and state agencies.

He has a bachelor’s degree in Political Science from the University of Illinois Urbana Champaign and a master’s degree in Public Administration from Ohio State University.