Retaliation and "Temporal Proximity"

Here's an interesting fact pattern from a recent federal appeals court case (Walid el-Sayed v. Hilton Hotels (10-453-cv, 12/17/2010)): 

Employee complains of a discriminatory work environment based on his race and national origin. Employer begins an investigation into the employee and discovers that the employee had failed to report a prior job with one of the employer's other hotels in his job application.  Three weeks later the employee is discharged from employment.  The employee claims it was in retaliation for complaining of the discriminatory hostile work environment.  The employer claims it was because the employee had ommitted the prior-employment information from his job application.

As discussed below, the Court dismissed the case finding that mere "temporal proximity" is not sufficient to prove a case of retaliatory discharge.

Both federal and state law protect employees from being retaliated against because they file complaints of discriminatory conduct about themselves or others.  The courts use a "shifting burdens" standard to determine if their are sufficient facts to allow a retaliation claim to go to a jury. This shifting burdens standard requires the employee to make out, first, a "prima facie" case which includes four components:

(1) The employee was engaged in protected activity, such as complaining of discriminatory conduct;

(2) The employer was aware of that activity;

(3) The employee suffered an adverse employment action; and

(4) There was a causal connection between the protected activity and the adverse employment action.

Once the employee makes out a prima facie case, the burden then shifts to the employer to:  articulate a legitimate non-retaliatory basis for the adverse employment action.  Employers often rely upon their personnel manuals for proof that their is a legitimate non-discriminatory basis for the adverse employment action.

Once the employer satisfies that burden, the burden shifts again, back to the employee to prove that the articulated reason for the adverse employment action is a lie -- that it is "pretext."  If that burden is met, then the case is allowed by the courts to proceed to a jury.

In the recent Second Circuit case, the Court found that the "temporal proximity," that is the short period of time between the complaint of discrimination and the adverse employment action is sufficient to show the fourth element of the prima facie case (a causal connection between the protected activity and the adverse employment action). 

The Court found also that the employer had satisfied its burden when it showed that the omission in the job application was a dischargable offense.

Once the burden returned to the employee to show pretext -- that the employer's reason is not the real reason --, the Court dismissed the case finding that temporal proximity, while enough to satisfy the prima facie case burden, was insufficient, with nothing else, to prove pretext. 

The Court explains: 

"The temporal proximity of events may give rise to an inference of retaliation for the purposes of establishing a prima facie case of retaliation . . ., but without more, such temporal proximity is insufficient to satisfy appellant's burden to bring forward some evidence of pretext." 

Keep in mind that these facts have two interesting distinctions.  First, there was no question that the employee engaged in the misconduct (omitting the information on his job application) that the employer used as its justification for the discharge.  Second, the employee conceded that omitting this information from his job application was a dischargable offense.

Nathaniel K. Charny

Defamation in the Workplace

Here's a common question: Can I take legal action against my employer for defamation in the workplace? The answer is: maybe.

Under New York law, the elements of a defamation claim are: 

(i) a false statement; (ii) published to a third party without privilege or authorization; (iii) with fault amounting to at least negligence; (iv) that caused special harm or defamation per se.

In order to have a claim for defamation, the employee must be able to prove all four of these elements.  In the employment context, the most difficult element is the second element:  whether or not a special privilege applies to the communication.

New York Courts have long recognized a "common interest" privilege for otherwise defamatory statements within the employment context.  (Lieberman v. Gelstein, 80 NY2d 429 (1992)).  So, for example, a committee determining whether or not a college professor is going to receive tenure or the managers of a business making personnel decisions have some leeway in what they can say about the person, even if it is false.  The rationale for this privilege is that "so long as the privilege is not abused, the flow of information between persons sharing a common interest should not be impeded."  Constantine v. Teachers College, 116528/08 (2010).

But this leeway has limits.  When the offending statements are made "with malice," which means "with spite or ill will," the privilege is waived and you may have a claim for defamation.  Similarly, the privilege is waived if the statements are "made with a high degree of awareness of their probable falsity" (Liberman) and as with "malice," there will be no privilege protection and you may have a claim for defamation.

If you have a possible claim for defamation in the workplace, call Charny & Associates (845-876-7500) and let us give you a free consultation -- we'll listen to the facts and let you know what we think.

Nathaniel K. Charny

Misconduct and Eligibility for Unemployment Compensation

Here's a common question:  I was fired from my job because of alleged misconduct.  Am I entitled to unemployment compensation?  The answer is:  maybe.

In New York, a discharged employee is entitled to unemployment compensation unless they either quit or engaged in misconduct.  Misconduct for purposes of unemployment compensation is defined as "willful and wanton disregard of the employer's interest."  (In re Wlos, 839 N.Y.S.2d 330 (NYAD 2007)).  Just because you did not get along with your boss is not enough for a finding of misconduct. Even where a former employee's "personal traits provided a basis for discharge, but unless those traits rise to the level of misconduct, they are not a proper basis for the denial of unemployment insurance benefits."  (Llano v. Levine, 377 N.Y.S.2d 808 (NYAD 1976)).  Hence, just because the boss "didn't like your attitude and you didn't like hers," Raven v. Levine, 338 N.Y.S.2d 183 (NYAD 1972), a finding of misconduct is not warranted.

In order to find misconduct, the unemployment compensation board will look to whether or not the alleged misconduct adversely affected the employer's interest.  For example, if your job is taxicab driver and you refuse to accept a fare, you will be found to have engaged in misconduct.  (AB A-750-1284).

Another thing to consider is whether your conduct would "sustain a finding that the claimant should have realized that her conduct would probably provoke her discharge and there is certainly no substantial evidence to support an inference that the claimant desired to have her employment cease." (Raven, supra).  This notion of engaging in conduct that "provoked" your discharge is found only when the employee knew or should have known that his/her conduct would result in dismissal and engaged in the conduct anyway.

And what if the employer is claiming actual misconduct but it is just not true?  Well, the unemployment compensation process affords you the opportunity to participate in a hearing (usually by telephone) with an administative law judge, who will take testimony from both the employee and the employer and determine whether or not the misconduct occurred. 

 
The question of whether or not conduct in the workplace rises to the level of "misconduct" or "resignation" is a fact specific question.  Give Charny & Associates a call for a free consultation (845-876-7500) and we will let you know what we think and whether you have a claim for unemployment compensation benefits.

Nathaniel K. Charny

Wrongful Discharge for Filing a Complaint with Your Employer

The recently commenced Supreme Court term will address a conflict among the federal courts about what is required

Discriminating Supervisors and Employer Liability

The Supreme Court just answered the question of whether an employer can be held responsible for employment discrimination based on the discriminatory animus of an employee who influenced, but did not make, the ultimate employment decision.


In Staub v. Proctor Hospital (March 1, 2011), an 8-0 decision written by Justice Scalia, the Supreme Court found that the employer will be held liable for such discrimination in the workplace if: (1) a supervisor of the worker takes a step (writing up a negative evaluation, for example) that is done for a biased reason; (2) that supervisor intends to get the worker fired, demoted or otherwise penalized; and (3) the supervisor’s step is found to be the proximate cause of the ultimate decision -- even if the executive or supervisor who actually carries out the firing or other penalty is someone else, and that person was not at all biased.

The Supreme Court posed the question as follows:

The central difficulty in this case is construing the phrase “motivating factor in the employer’s action.” When the company official who makes the decision to take an adverse employment action is personally acting out of hostility to the employee’s membership in [a protected class such as military service, race or gender], a motivating factor obviously exists. The problem we confront arises when that official has no discriminatory animus but is influenced by previous company action that is the product of a like animus in someone else.

The Court answered the question in favor of the employee, finding that the employer can be held liable for discrimination:

[I]f a supervisor performs an act motivated by [illegal] animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable under [the statute].

The Court did provide one caveat, finding that if the ultimate decision maker conducts his/her own investigation and then takes the adverse employment action "for reasons unrelated to the supervisor’s original biased action" then the employer is not liable.

If you have any questions about a workplace issue, call Charny & Associates, 845-876-7500.

New York's Requirement That You Know Your Rate of Pay

New York State has always had strict laws related to the employer's responsibility to provide information to employees about their rate of pay and the basis for their paycheck. These requirements were made even stronger effective December 10, 2010, when Governor David A. Paterson signed into law the New York State Wage Theft Prevention Act (the Wage Act).

The Wage Act amends New York Labor Law (NYLL) Section 195 with respect to wage notice requirements and requires that employers provide such notices to each employee within 10 business days of hire and on or before February 1st of each subsequent year, in English as well as the employee's primary language, with the following additional information: (i) the basis of the employee's pay (e.g., hourly, weekly, salary, commission), (ii) any allowances the employer intends to claim as part of the minimum wage (e.g., tip or meal allowances), (iii) the employer's name (including d/b/a names), physical and mailing addresses and telephone number, and (iv) any other information the Commissioner of Labor deems material and necessary.


Every New York State employee's pay stub should also include a listing of gross and net wages and deductions, as well as the dates of work covered by the wage payment; rate of pay and basis of the rate of pay; any allowances claimed as part of the minimum wage; and, for overtime non-exempt employees, the regular pay rate and regular hours worked and overtime pay rate and overtime hours worked.

These changes come with increased penalties on employers if they fail to comply with the Wage Law. Employers who fail to provide employees with notices or wage statements in compliance with amended Section 195 are subject to a civil action by the affected employee with penalties of $50 per week for notice violations, up to $2,500, and $100 per week for wage statement violations, up to $2,500, together with costs, reasonable attorney's fees, and other relief, including injunctive and declaratory relief.

Another significant change in the Wage Act is the penalty for failing to pay proper wages due -- instead of 25% additional, the law now mandates 100% additional, which is the same as federal law.

These new requirements all become effective on April 9, 2011.

If you have any questions about these notice requirements, call Charny & Associates for more information.

The New York State Division of Human Rights: The Importance of Electing Your Remedies

If you have a claim of discrimination in New York, be careful before you rush to file your charge of discrimination with the NY State Division of Human Rights. Under New York's Human Rights Law (Article 15 of the NY Executive Law), you actually have a choice of where to file your charge of discrimination, and your decision has significant ramifications.

Under the Human Rights Law, you can either: (i) file a charge of discrimination with the Division of Human Rights (the DHR), which you have to do within one year of the discriminatory conduct (Section 297(1) of the HRL); or (ii) file a lawsuit in court alleging the discriminatory conduct (Section 297(9) of the HRL), which you have to do within three years of the discriminatory conduct. You cannot do both -- and by choosing the first option (filing a charge of discrimination with the DHR) you are giving up important rights, such as the right to a jury trial and the trial to enhanced damages set by a jury, instead of an administrative law judge.

There are, on the other hand, some good reasons to stick with the DHR. First, you don't need a lawyer -- filing a charge of discrimination with the DHR is easy and quick. The DHR will investigate your charge and lead you through the process without your needing counsel to advise you along the way. Also, the DHR process is quick, well, quick as compared to litigation in state or federal court. You can expect to have the matter investigated and considered within a year or so. Finally, the DHR process is entirely free. You pay nothing to file the charge and you pay nothing for it to be processed and investigated. State or federal court litigation costs money, not just in possible attorneys fees, but also in filing fees and litigation costs such as depositions.

But, if you opt to go with the DHR charge and not the lawsuit, be aware that you have selected your remedy and you cannot also file a lawsuit. If the DHR finds that there is no probable cause for discrimination, the DHR will dismiss your charge – and you will have no remaining claims under state law. If, on the other hand, you opt to file a lawsuit, you have far greater control – you or your counsel will be able to prosecute the litigation and the Court/Jury, not the DHR will decide whether or not you've been discriminated against.

If you've already filed a charge of discrimination with the DHR, do not fret -- there are available procedures to "annul" your election of remedies.

The NY State DHR procedures are complicated and the choices you make along the way have significant ramifications on your rights. If you have any questions, give Charny & Associates a call (845-876-7500) – we will help you determine how best to proceed with your claims of discrimination.

Nathaniel