Friday, March 17, 2017

A claim of discrimination based on national origin.

The Appellate Division affirmed dismissal of this claim in which plaintiff alleged that the City agency failed to select him for two promotions and paid him less than it paid a peer of a different national origin.

Plaintiff established prima facie that he was passed over for promotion under circumstances raising an inference of discrimination. In response, defendants offered legitimate, nondiscriminatory reasons for promoting two employees who were not of plaintiff's origin. Agency decision-makers demonstrated that plaintiff limited his work to fulfilling the minimal requirements of his job; that he sometimes balked at assignments without good reason; and that he failed to meet all of his goals. Defendants further demonstrated that, in contrast, the promoted employees had done outstanding work in positions relevant to the two vacancies at issue.

Plaintiff failed to raise triable issues of fact as to whether defendants' proffered reasons for their decisions were pretextual or incomplete, given the absence of any evidence from which a reasonable jury could infer that his national origin played a role in defendants' passing him over for the promotions. Plaintiff admittedly never complained about the promotion process before commencing this action, and there is no indication that he raised any internal complaints of discrimination. Even if the promotions contravened Civil Service Rules and Regulations § 3.3(a) because the promoted individuals were provisional rather than permanent employees, this technical violation does not establish a discriminatory motive. Plaintiff's other claims that the promotions violated policies and regulations are unsupported. His testimony that the promoted employees were appointed based on friendship with the decision-makers is unavailing. The agency's failure to advertise the positions does not give rise to an inference of discrimination, but merely relieves a plaintiff of the burden to show that he applied for the position.

Plaintiff's deposition testimony recounting two occasions when one of the decision-makers allegedly shouted admonitions at him or another employee of plaintiff's national origin does not establish discrimination based on national origin.  Mere personality conflicts must not be mistaken for unlawful discrimination, lest the antidiscrimination laws become a general civility code.

Finally, plaintiff failed to make a prima facie showing in support of his claim that he was paid less than a peer of another national origin. Although both he and the other employee had the same civil service title, they were not similarly situated in light of the differences in their experience, the other employee's earlier salary, and their differing job responsibilities.

Case:  Uwoghiren v. City of New York, NY Slip Op 01782 (1st Dep't March 9, 2017)

Here is the decision.

Monday's issue:  A fall down the stairs.