Long Island Employment Law Blog
One of the difficulties in employment retaliation cases is determining whether an action an employer has taken can be deemed retaliation under the law. This is because not every action which an employer takes against an employee can constitute a retaliatory act, even if the employer acted with a retaliatory motivation. For instance, a verbal reprimand which does not constitute discipline is typically not considered adverse enough to constitute unlawful retaliation.
On February 15, 2024, New York’s highest court, the Court of Appeals, issued a decision which discusses how courts should evaluate employment retaliation cases. Today’s Long Island employment law blog discusses the decision in Clifton Park Apartments, LLC v. New York State Division of Human Rights. Spoiler alert: The decision is mostly favorable for employees.
The facts of the Clifton Park case are as follows. Leigh Renner worked for a company called CityVision. CityVision is a not-for-profit corporation which tests housing facilities for discriminatory practices. CityVision’s employees pose as prospective tenants and call housing facilities to seek to rent an apartment. One housing facility which Renner called, Pine Ridge, was owned by Clifton Park Apartments, LLC.
CityVision alleged that when Renner called Pine Ridge, it steered her to a different apartment complex. CityVision alleged that Pine Ridge did so, after discovering that Renner intended to move into the apartment with her children. This, CityVision alleged, constituted discrimination based on familial status. Accordingly, CityVision filed a charge of discrimination with the New York State Division of Human Rights, New York’s agency which investigates claims of employment and housing discrimination, among other things.
The Division investigated the claims, but concluded probable cause did not exist to support a finding of discrimination based on familial status. The Division dismissed the complaint.
After the dismissal, Pine Ridge’s lawyer sent a letter to CityVision and Renner. The letter accused CityVision and Renner of making false, fraudulent and libelous allegations in its Complaint to the Division. The letter further said, among other things, that Pine Ridge intended to look to CityVision and Renner for damages.
CityVision and Renner then filed another complaint with the Division alleging that Pine Ridge’s letter constituted retaliation for filing the first complaint. The charge led to a public hearing which is akin to a trial. An administrative law judge (“ALJ”) hears the evidence and testimony and decides whether there was in fact unlawful conduct.
At the hearing, evidence from CityVision showed that staff was shocked by the letter and that they diverted resources to find a lawyer. The ALJ made two decisions which are ultimately relevant to the Court of Appeals’ decision. First, the ALJ determined that the letter was retaliatory. Second, the ALJ required Pine Ridge to prove that the first charge of discrimination was made in bad faith. The ALJ concluded that Pine Ridge did not do so, and that CityVision had proven its retaliation case.
Pine Ridge sought to annul the Division’s decision and the Division cross-filed to enforce its determination. The case wound up in New York’s first level appeals courts, the Appellate Division.
The Appellate Division annulled the determination, making two critical findings. The Appellate Division determined that the Division had improperly required Pine Ridge, instead of CityVision, to prove the first element of a retaliation case – whether the complainant had a good faith belief that the respondent was engaging in discrimination.
But, the Appellate Division also ruled that “the mere sending of a letter” does not constitute an adverse action, meaning the action the respondent took was not severe enough to constitute unlawful conduct.
The case then wound up in the Court of Appeals. The first question is whether the letter is conduct which can lawfully constitute retaliation. For background, not every action which is taken by a defendant in a discrimination or retaliation case is unlawful, even if there is an unlawful motivation. The action must be an adverse action, as defined by law. If, for example, an employee complains to the employer about feeling discriminated at work based on race, then the employer moves the employee’s desk to a different area of the office because of the complaint, the action is probably not an adverse action as defined by law.
The definition of an adverse action varies between discrimination and retaliation cases. In retaliation cases, an adverse action is one which would dissuade a reasonable worker from making or supporting a charge of discrimination. This standard derives from a Supreme Court case known as Burlington Northern. The Court of Appeals noted that the heart of the Burlington Northern decision requires a retaliation plaintiff to show an injury or harm and that Burlington Northern applies to New York’s anti-retaliation provision.
Noting that New York’s discrimination laws require courts to interpret the law “liberally,” the Court of Appeals ruled that the Appellate Division should have not ruled that the letter is not adverse action as a matter of law. Rather, the court question is a fact-specific determination which must be determined by the trier of fact.
In this case, the ALJ determined that the letter was an adverse action. The Court of Appeals concluded that the ALJ’s decision was supported and rational. Specifically, the letter required CityVision to divert resources, thus the letter could have dissuaded a reasonable person from pursuing a claim of discrimination.
The Court of Appeals was also required to determine whether the first element of a retaliation claim was handled appropriately by the ALJ. The first element requires that a plaintiff’s complaint of discrimination be made in good faith. The ALJ required Pine Ridge to prove that the complaint was not made in good faith. But, precedent requires that the plaintiff (or complainant) not the defendant (or respondent) prove that it had a reasonable belief that the defendant engaged in unlawful discrimination. Thus, the ALJ improperly decided the first element.
Though the Clifton Park case is a housing discrimination case, its lessons are applicable to employment discrimination. Employees, employers, and practitioners in the area of employment law should take note of the Court of Appeals decision, paying close to attention to adverse action analysis.
Contact us at (631) 352-0050 if you have questions about unlawful retaliation.
Court of Appeals clarifies retaliatory adverse actions