retaliation - Famighetti & Weinick

“Drumbeat of Retaliation” Case Decided

Famighetti & Weinick — Thu, 24 May 2018 19:14:29 GMT

Retaliation in the workplace is illegal. The law protects employees who speak up when they believe the employer discriminated against them because of a protected characteristic such as race, gender, age, disability, religion, or national origin. Employers cannot try to “get back” at the employee by negatively affecting his or her job such as by demoting, firing, or reducing the employee’s hours or pay.

To successfully establish a retaliation case, the employee has to show that the negative employment action he or she suffered was “adverse” and that it occurred as a result of the employee complaining about the discrimination.

Technically, courts have ruled that an action is “adverse” when a reasonable employee would be hesitant or dissuaded from filing a discrimination complaint fearing that the same negative consequences would occur to them.

In practice, however, the actual meaning of “adverse” remains unclear. In fact, what action a court deems sufficiently “adverse” may surprise you. For example, in 2017, in Bien-Aime v. Equity Residential, a federal district court in New York decided that not saying good morning to an employee and speaking without a “warm welcome in his voice” were considered adverse actions.

Today’s employment law blog discusses a recent retaliation case, Duplan v. City of New York, decided by New York’s federal appellate court on April 30, 2018. Although this case did not clarify the meaning of “adverse,” it did change other parts of the legal landscape for retaliation cases in New York. Below are the facts of the case.

Duplan, a gay black male from Haiti, worked as the Director of Operations in the City’s HIV/AIDS Prevention and Control Bureau. Alleging that he was subjected to employment discrimination on the basis of his race, national origin, and sexual orientation, Duplan filed a discrimination lawsuit under Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 USC Section 1981, and further alleged violations of his Constitutional rights via 42 USC Section 1983.

In the lawsuit, Duplan also alleged that his supervisors retaliated against him after he filed discrimination charges, in 2011 and 2014, with the Equal Employment Opportunity Commission (“EEOC”) and the New York State Division of Human Rights (“NYSDHR”). Specifically, some of his allegations were that his supervisors took away some of his job responsibilities, ostracized him, and repetitively denied him from promotions that he was otherwise qualified to receive.

The district court dismissed Duplan’s retaliation case because the court did not believe that Duplan proved an essential element of a retaliation case – causation. The causation element of a retaliation case requires a plaintiff to prove that the employer took action against the employee because of the employee’s complaint of discrimination. Duplan appealed his case to New York’s federal circuit court.

On appeal, the Second Circuit Court of Appeals agreed with most of the lower court’s decision, except for the retaliation portion. On appeal, the Second Circuit determined that sufficient evidence in the record supported the causation element. The court held that collectively, Duplan’s supervisors had “persistently discouraged him” and were slowly but surely trying to get rid of him which the court labeled as a “drumbeat of retaliatory animus.” These actions showed that his supervisors maintained a retaliatory animus against Duplan.

Additionally, the court also decided this was the chance to clarify two other parts of the law concerning retaliation.

First, the Second Circuit joined with several of its sister courts and held that discrimination claims under Section 1981 were off limits to government employees. This effectively leaves government employees with the option of bringing claims under only Title VII or Section 1983.

Next, the court discussed Title VII’s exhaustion requirements. Exhausting a claim is a pre-requisite to filing a discrimination claim under Title VII in court. Employees are generally required to first file a charge of discrimination with an administrative agency such as the EEOC within specific time limits, generally 300 days from the time of the discrimination or retaliation.

Prior to the Duplan decision, reasonably related claims were considered automatic exceptions to the exhaustion requirement. The Duplan decision, however, changed this after holding that reasonably related claims were an exception only if they occurred during the time that the EEOC was investigating the case or if the suit had been timely filed.

This new rule created an issue for Duplan’s retaliation claims that allegedly occurred prior to December 27, 2013, because he had not followed the timeliness requirements. For example, in 2011, he ignored the 90-day time limit to file a lawsuit which employees must comply with after receiving a right sue letter from the EEOC.

After the decision in Duplan, it is important that employees file their claims correctly and adhere to the time limitations. Otherwise, a court may later dismiss a claim.

The Long Island employment lawyers at Famighetti & Weinick PLLC can help you decide what agency it may be better to file a discrimination or retaliation case with, help you understand important time and filing requirements, and other important considerations that may be the key to a successful lawsuit.

Contact a Long Island employment lawyer at Famighetti & Weinick at 631-352-0050 for a free consultation. Our website is https://www.linycemploymentlaw.com/.

Today’s employment law blog was written by law clerk Thalia Olaya.

Am I an Employee: The Threshold Question in Employment Discrimination

Famighetti & Weinick — Tue, 30 Jan 2018 16:21:46 GMT

Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against employees based on, among other reasons, the employee’s race, religion, national origin, and sex. Title VII also protects employees from retaliation by their employer for reporting or opposing the employer’s discriminatory actions. Before bringing an employment discrimination case, however, the employee must be able to show that he or she is in fact an employee and not, for example, an independent contractor. Today’s Long Island employment discrimination blog discusses the Second Circuit Court of Appeals case, Knight v. State University of New York Stony Brook, which addressed the question of how to determine whether an individual is an employee.

The Discriminatory and Retaliatory Conduct

Anthony Knight is African American and was a member of an electrician’s union. The union had agreed to provide electricians to Stony Brook, when Stony Brook needed additional workers for large construction projects. In April 2011, the union sent Knight to help Stony Brook with a project. While working at Stony Brook, Knight found “racist” graffiti in the bathroom and reported it to his foreman. After the report, Stony Brook terminated Knight’s work. Knight sued Stony Brook alleging the graffiti was discriminatory and the termination was taken in retaliation for his complaint about the graffiti. The court dismissed the discrimination claim, but the retaliation claim went to trial.

Whether the Plaintiff was an Employee

At trial, Stony Brook argued that Knight was not an employee and since he was not an employee, he was not protected by Title VII so his claim should be dismissed.

To determine whether a plaintiff is an employee under Title VII, courts use the Reid factors. These 13 factors were set forth in 1989 by the United States Supreme Court and are:

1. the hiring party’s right to control the manner and means by which the product is accomplished

2. the skill required

3. the source of the instrumentalities and tools

4. the location of the work

5. the duration of the relationship between the parties

6. whether the hiring party has the right to assign additional projects to the hired party

7. the extent of the hired party’s discretion over when and how long to work

8. the method of payment

9. the hired party’s role in hiring and paying assistants

10. whether the work is part of the regular business of the hiring party

11. whether the hiring party is in business

12. the provision of employee benefits

13. the tax treatment of the hired party

In Knight, the trial court held that it could not determine whether Knight was an employee because the 13 factors were not clearly in favor of one party or the other. Rather, some of the factors favored a finding that Knight was employee and other factors favored Stony Brook’s argument that Knight was not an employee. So, the court submitted the question to the jury and instructed the jurors about the 13 Reid factors. Ultimately, the jury determined that Knight was not an employee, leading Knight to appeal the decision.

The Appellate Court’s Decision

The Second Circuit is New York’s highest federal appellate court. In deciding Knight’s case, the court relied on several legal arguments, without reaching a determination as to whether the jury properly decided that Knight was not an employee. First, the court determined the question of whether Knight was an employee was an appropriate question for the jury to decide. Knight argued that the judge should have made that determination, but the Second Circuit disagreed.

Next, Knight argued that using the Reid factors was not appropriate because that test is used to determine whether an individual is an employee or an independent contractor. Knight further argued that since Stony Brook was not arguing that Knight was an independent contractor, then it was improper to use the Reid factors. The court disagreed with this argument, as well, noting the Supreme Court indeed intended that the Reid factors be used to determine whether an individual is an employee and, moreover, Knight had not suggested any other alternative test.

Finally, the court rejected Knight’s argument that the Reid factors compel the conclusion that he was an employee. Here, again, the court relied on a procedural point rather than reviewing the Reid factors. The court held that the Federal Rules of Civil Procedure require parties to renew motions for a directed verdict after a jury trial in order to preserve the right to appeal the issue. Because Reid did not renew his motion after the jury verdict, he waived his right to appeal.

Long Island Employment Discrimination Lawyers

Famighetti & Weinick, PLLC are employment discrimination lawyers on Long Island, New York. If you have questions about Title VII, discrimination, retaliation, or whether you are an employee, contact one of our Long Island employment lawyers at 631-352-0050 or on the internet at https://www.linycemploymentlaw.com.

The information in today’s Long Island employment law blog was taken from Knight v. State University of New York at Stony Brook, No. 17-54, Jan. 29, 2018, Second Circuit Court of Appeals.