New York Law Review

Tag: Retaliation

  • Tipaldo v. Lynn, 18 N.Y.3d 201 (2011): Whistleblower Protection and the Meaning of “Good Faith” Reporting

    18 N.Y.3d 201 (2011)

    A public employee who reports alleged misconduct is deemed to have acted in “good faith,” even if the report was not made directly to the appointing authority, where reporting to the authority would have been impractical or would likely impede resolution of the matter.

    Summary

    In Tipaldo v. Lynn, the New York Court of Appeals addressed a whistleblower claim under Civil Service Law § 75-b. The plaintiff, a high-ranking official in the New York City Department of Transportation (DOT), reported alleged bid-rigging by his superiors, the Commissioner and Deputy Commissioner. The court held that the plaintiff satisfied the statute’s “good faith” reporting requirement, even though he did not directly report the misconduct to his superiors (the “appointing authority”), because doing so would have been impractical. The court also determined that the plaintiff was entitled to prejudgment interest on his back pay award because the law sought to make whistleblowers whole.

    Facts

    John Tipaldo, an Acting Assistant Commissioner for Planning and Engineering at the NYC DOT, discovered a scheme by Commissioner Christopher Lynn and First Deputy Commissioner Richard Malchow to award a signage contract in violation of public bidding rules. Tipaldo informed his immediate supervisors and, shortly thereafter, reported the alleged misconduct to the DOT’s Office of the Inspector General. Tipaldo claimed Lynn and Malchow retaliated against him, eventually demoting him from his position. He sued under Civil Service Law § 75-b, alleging retaliation for reporting improper governmental activity.

    Procedural History

    Tipaldo sued in 1997. The trial court granted the defendants’ motion for summary judgment, finding that Tipaldo failed to comply with Civil Service Law § 75-b by not reporting the misconduct to the appointing authority before contacting the Inspector General. The Appellate Division reversed, holding Tipaldo’s actions met the “good faith” reporting requirement. After a trial on damages, the trial court awarded Tipaldo back pay but denied prejudgment interest. The Appellate Division modified the judgment to include prejudgment interest and ordered Tipaldo’s reinstatement to the same or an equivalent position. The Court of Appeals granted leave to appeal from the Appellate Division’s judgment.

    Issue(s)

    1. Whether Tipaldo made a “good faith effort” to comply with the reporting requirements of Civil Service Law § 75-b(2)(b)?
    2. Whether prejudgment interest is available under Civil Service Law § 75-b and Labor Law § 740(5)?

    Holding

    1. Yes, because reporting directly to the appointing authority (who were the alleged wrongdoers) would have been impractical under the circumstances.
    2. Yes, because the intent of the law is to make a whistleblower whole.

    Court’s Reasoning

    The Court of Appeals first addressed the “good faith” reporting requirement of Civil Service Law § 75-b(2)(b). The statute requires employees to make a “good faith effort to provide the appointing authority…the information to be disclosed” before reporting to outside agencies, unless there is imminent danger. The Court recognized the “good faith” provision affords courts the discretion to evaluate the employee’s actions. The Court considered the specific context of the case; the appointing authorities were the individuals accused of wrongdoing. The Court reasoned that strict adherence to the requirement would be counterproductive: “In cases such as this — where the appointing authority is the one engaging in the alleged misconduct — an employee’s good faith effort to report the misconduct should be evaluated with attention to the employee’s practical inability to report to the appointing authority.” Furthermore, the Court emphasized that it was important that “employees in situations like plaintiff’s should not be required to report to the appointing authority where such a report would prove impractical and possibly impede prompt resolution of the matter.” The Court found that Tipaldo’s actions, including reporting to his supervisors and then the Inspector General, demonstrated good faith, given his practical inability to report to the appointing authority directly. The court found, “an overall view of his actions demonstrates good faith compliance with Civil Service Law § 75-b.”

    Next, the Court considered whether prejudgment interest was available. Civil Service Law § 75-b(3)(c) incorporates the remedies found in Labor Law § 740(5), which includes compensation. The court found that the remedies available, viewed as a whole, indicated an intention to make the whistleblower whole. Quoting its previous decisions, the Court cited Matter of Aurecchione v New York State Div. of Human Rights, where it concluded that “a liberal reading of the statute is explicitly mandated to effectuate the statute’s intent.” The Court found that prejudgment interest was properly awarded because it was consistent with this purpose to fully compensate victims and make the employee whole.

  • Albunio v. City of New York, 20 N.Y.3d 475 (2013): Defining “Opposed” in Retaliation Claims Under the NYC Human Rights Law

    Albunio v. City of New York, 20 N.Y.3d 475 (2013)

    Under the New York City Human Rights Law, “opposing” discrimination, for the purposes of a retaliation claim, can include expressing disapproval of discriminatory treatment, even without explicitly using terms like “discrimination,” especially when the context makes clear that discrimination is the issue.

    Summary

    Two New York City Police Department officers, Albunio and Connors, sued the city, alleging retaliation for opposing discrimination against a third officer, Sorrenti, based on his perceived sexual orientation. Albunio, the commanding officer, recommended Sorrenti for a position, but Inspector Hall rejected him after questioning him about his sexuality. Connors filed an EEO complaint on Sorrenti’s behalf. Both Albunio and Connors claimed adverse employment actions followed. The court held that Connors’s EEO filing clearly constituted protected activity, and the jury could reasonably find that Albunio’s statement at a meeting, defending her recommendation of Sorrenti, constituted “opposition” to discrimination, thus supporting their retaliation claims. The court emphasized the broad interpretation required by the Local Civil Rights Restoration Act.

    Facts

    Albunio, as commanding officer, was impressed with Sorrenti and requested he fill a DARE position. Inspector Hall, Albunio’s supervisor, interviewed Sorrenti, asking intrusive questions about his personal life and relationship with another male officer. Hall then told Albunio he “found out some fucked up shit about Sorrenti” and didn’t want him around children, leading Albunio to believe Hall thought Sorrenti was gay and didn’t want him near kids. Hall also spoke to Connors, angrily discussing Sorrenti’s loan to a fellow officer and stating he “wouldn’t be able to sleep at night knowing that Sorrenti is going to be working around kids.” Albunio began to hear rumors she’d be removed. Connors filed an EEO complaint after Albunio was directed to find another assignment.

    Procedural History

    Albunio and Connors sued the City, Hall, and Patrick, alleging retaliation under the NYC Human Rights Law. Sorrenti also sued for discrimination, but his case is not part of this appeal. The jury found the City and Hall retaliated against both plaintiffs and awarded damages. The trial court entered judgment on the verdict. The Appellate Division affirmed, with one Justice dissenting as to Albunio. The Court of Appeals granted leave to appeal.

    Issue(s)

    1. Whether the record supports the jury’s finding that Albunio and Connors “opposed” discrimination against Sorrenti based on his perceived sexual orientation, as required to establish a retaliation claim under New York City Administrative Code § 8-107 (7)?

    Holding

    1. Yes, because Connors filed a discrimination complaint on Sorrenti’s behalf, and there was evidence Hall knew of the complaint and subjected Connors to adverse employment actions afterward. As for Albunio, Yes, because while she did not explicitly accuse anyone of discrimination, her statement at the October 31 meeting, defending her recommendation of Sorrenti after Hall criticized it, could be interpreted by a jury as communicating her disapproval of Hall’s discriminatory treatment, satisfying the “opposed” requirement.

    Court’s Reasoning

    The court emphasized the Local Civil Rights Restoration Act of 2005 (LCRRA), which mandates a broad and liberal construction of the New York City Human Rights Law in favor of discrimination plaintiffs. As to Connors, the court found the case straightforward, as his filing of a discrimination complaint was undeniably protected activity. As to Albunio, the court acknowledged the issue was closer, as she hadn’t filed a complaint or explicitly accused anyone of discrimination before facing adverse actions. However, the court reasoned that Albunio’s statement at the October 31 meeting, where she defended her recommendation of Sorrenti, could be interpreted as “opposition” to discrimination. The court stated, “[W]hile she did not say in so many words that Sorrenti was a discrimination victim, a jury could find that both Hall and Albunio knew that he was, and that Albunio made clear her disapproval of that discrimination by communicating to Hall, in substance, that she thought Hall’s treatment of Sorrenti was wrong.” The court highlighted the importance of context and the broad reading required by the City Human Rights Law when assessing whether conduct constitutes “opposition.”

  • Matter of State (Office of Children & Family Servs.) v. Civil Serv. Empls. Ass’n, Inc., 98 N.Y.2d 81 (2002): Arbitration Vacatur Based on Public Policy and Fair Representation

    98 N.Y.2d 81 (2002)

    An arbitration award may be vacated if it violates public policy or was procured through corruption, fraud, or misconduct, including a breach of the union’s duty of fair representation, although a separate plenary action is typically required to establish such a breach.

    Summary

    A correction officer was terminated for falsely accusing another employee. He sought to vacate the arbitration award upholding his termination, claiming retaliation for his testimony in a federal racial bias case. He argued his union attorney failed to raise this defense. The Court of Appeals affirmed the Appellate Division’s reinstatement of the award, holding the officer failed to prove the award violated public policy, as the retaliatory motive was not established. Furthermore, a CPLR 7511(b)(1)(i) claim based on breach of fair representation requires a plenary action, not vacatur of the arbitration award.

    Facts

    A correction officer with 14 years of service was terminated after allegedly falsely accusing another employee of sexual relations with an inmate. The employee denied the accusation and filed a complaint. Disciplinary charges were filed against the officer, and the matter proceeded to arbitration under the collective bargaining agreement. The officer was found guilty of violating departmental rules and discharged.

    Procedural History

    The officer filed a proceeding to vacate the arbitration award, arguing retaliation for testimony in a federal racial bias case, which he claimed his union attorney failed to raise. The Supreme Court granted the relief and vacated the award. The Appellate Division reversed and reinstated the arbitration award. The Court of Appeals affirmed the Appellate Division’s decision.

    Issue(s)

    1. Whether the arbitration award should be vacated as violative of public policy because the disciplinary charges were allegedly retaliatory.

    2. Whether the arbitration award should be vacated under CPLR 7511(b)(1)(i) due to the union attorney’s alleged breach of the duty of fair representation.

    Holding

    1. No, because the premise that the disciplinary charges were retaliatory was unproven, and this factual matter was for the arbitrators to resolve.

    2. No, because a claim of breach of the duty of fair representation typically requires a plenary action, not a proceeding to vacate the arbitration award.

    Court’s Reasoning

    The Court reasoned that the officer’s public policy argument rested on the unproven premise of retaliatory motive. The court stated, “To ask the court to vacate the award on the basis of the public policies against retaliatory discharge is to beg the very question that was placed before the arbitrators.” The court emphasized that whether the charges were retaliatory was a factual issue for the arbitrators, and the officer could not circumvent this by claiming a violation of public policy without proving the underlying retaliation.

    Regarding the fair representation argument, the Court noted that such claims are traditionally asserted in plenary actions. The Court stated, “even assuming that petitioner had a viable fair representation claim under New York State law, a proceeding to vacate the arbitration award was not the proper forum for asserting it.” The Court reasoned that a separate action is needed to determine both whether the union’s duty was breached and whether the collective bargaining agreement was violated.

    The dissent argued that the award should be vacated due to the strong public policy against retaliatory discharges, as expressed in Civil Service Law § 75-b (2), and the union attorney’s failure to raise this issue. The dissent referenced the findings in Santiago v. Miles, highlighting the officer’s prior testimony regarding racial bias and the subsequent hostility he faced. The dissent advocated for a rehearing with new counsel to consider the genesis of the misconduct charges and whether they were pretextual retaliation.

  • Pace University v. New York City Commission on Human Rights, 85 N.Y.2d 125 (1995): Retaliation Claims Require Proof of Retaliatory Motive

    85 N.Y.2d 125 (1995)

    To establish a retaliation claim under the New York City Human Rights Law, a complainant must present evidence of a subjective retaliatory motive by the employer, and the mere absence of legitimate, non-retaliatory reasons for the adverse employment action is insufficient to prove such motive.

    Summary

    Pace University appealed a decision by the New York City Commission on Human Rights finding that Pace unlawfully retaliated against a former professor, Mittleman, for filing a sex discrimination complaint. Mittleman was initially denied tenure, offered an adjunct position, and later, after settlement negotiations failed, was not offered a renewal of her adjunct contract. The Commission found retaliation. The Court of Appeals reversed, holding that the Commission’s finding lacked substantial evidence and was based on an error of law. The Court emphasized that a retaliation claim requires proof of a retaliatory motive, which was absent in this case. The university presented a legitimate, non-discriminatory reason for not renewing the contract, which Mittleman failed to prove was pretextual.

    Facts

    Mittleman was hired as a full-time assistant professor at Pace University in 1981 and was denied tenure in 1986 for lacking a Ph.D. and sufficient scholarly publications. She was then offered a half-time adjunct lecturer position, which she accepted. After filing a sex discrimination complaint regarding the denial of tenure, she continued teaching as an adjunct. Settlement negotiations failed in 1989, and Pace informed her that her adjunct contract would not be renewed for the following year. Mittleman then filed a second complaint alleging retaliation for her initial sex discrimination claim.

    Procedural History

    Mittleman filed complaints with the New York City Commission on Human Rights. The Commission dismissed the sex discrimination claim but found that Pace unlawfully retaliated against Mittleman. Pace appealed, and the Appellate Division affirmed the Commission’s finding of retaliation. Pace then appealed to the New York Court of Appeals.

    Issue(s)

    Whether substantial evidence supported the Commission’s finding that Pace University retaliated against Mittleman for filing a sex discrimination complaint, and whether the Commission erred in determining that the nonrenewal of Mittleman’s adjunct contract, absent legitimate non-retaliatory grounds, automatically constituted retaliation.

    Holding

    No, because the record lacked evidence of a subjective retaliatory motive on the part of Pace University for not renewing Mittleman’s adjunct contract. Additionally, the Commission erred in concluding that the absence of legitimate, non-retaliatory reasons for the nonrenewal automatically constituted retaliation.

    Court’s Reasoning

    The Court of Appeals held that a prima facie case of retaliation requires evidence of a subjective retaliatory motive. The court found no evidence of such motive in the record. Mittleman continued to teach for two and a half years after filing her initial complaint. The Court reasoned that Pace’s June 1989 letter, explaining the nonrenewal due to the failure to reach an agreement on adjunct contracts, was not direct evidence of retaliatory animus. The Court noted that the letter referred to Mittleman’s refusal to sign standard adjunct contracts, which were not contingent on withdrawing her discrimination claim. Furthermore, Pace presented a legitimate, independent, and non-discriminatory reason for the nonrenewal: the university concluded that Mittleman would not sign an adjunct contract short of full tenure, which was unacceptable. The Court cited Matter of Miller Brewing Co. v State Div. of Human Rights, 66 N.Y.2d 937, 939, emphasizing that even if a prima facie case of retaliation existed, the burden shifted to Mittleman to show that Pace’s stated reason was pretextual, which she failed to do. The court stated that “[t]he mere absence of evidence that Mittleman’s nonrenewal was based upon either of the two aforementioned reasons, standing alone, is insufficient to support a finding of retaliatory intent.”