Labor & Employment Law Daily Despite lengthy wait to complain of anti-Semitic conduct, officer advances hostile environment claim
Tuesday, September 25, 2018

Despite lengthy wait to complain of anti-Semitic conduct, officer advances hostile environment claim

By Kathleen Kapusta, J.D.

Because a Jewish New York City police officer with dual U.S. and Israeli citizenship could not show that the denial of his transfer requests, failure to maintain confidentiality of his discrimination complaint, and his supervisors’ neglect of their duties to handle complaints and conduct inspections were adverse employment actions, his Title VII and NYSHRL race, religious, and national origin bias claims all failed on summary judgment. On the other hand, his hostile work environment claim, in which he alleged he experienced pervasive harassment, ridicule, and insult because he is Jewish, can proceed to trial, a federal court in New York ruled, observing that although the delay from when the discriminatory conduct first began and when he filed his complaint was significant, a jury could find he took advantage of the city’s preventive opportunities and that the more than two-year delay was reasonable (Attali v. City of New York, September 17, 2018, Torres, A.).

Three years after he began working for the NYPD, the officer was assigned to the World Trade Center Command where, he alleged, his fellow officers constantly referred to him by derogatory, anti-Semitic names such as “dirty Jew” and “f*****g kike,” referenced gas chambers, and texted him messages such as “Die Jew” and “U will burn at the stake Jew.” He also claimed they repeatedly vandalized his locker with swastikas, pictures of pork, ham, and bacon, and references to Hitler. Not only did his supervisors condone the name calling, he alleged, they conducted mandatory inspections of the locker room while the discriminatory material was in full view and never took any action. One supervisor denied his transfer request, he claimed, despite knowing it was a hostile environment.

Complaint and investigation. In May 2014, he filed a complaint with the NYPD Office of Equal Employment Opportunity (OEEO) alleging he had been subjected to discriminatory remarks by fellow officers for approximately two and a half years. His request to an OEEO investigator to help facilitate a transfer was denied as was a second request to his supervisor. In August 2014, the OEEO found the allegations against the individual officers could not be substantiated but that the allegations concerning the vandalization of his locker could. The OEEO recommended corrective actions to prevent the display of offensive material in the workplace.

Resigned? According to the city, the officer voluntarily resigned prior to the end of the investigation. The officer, however, claimed he was constructively discharged when he was forced to file retirement papers after the city denied his repeated requests for a transfer.

Discrimination claims. At issue in the officer’s Title VII and NYSHRL race, religion, and national origin discrimination claims was whether he suffered an adverse employment action. He claimed as adverse actions the refusal of the OEEO to facilitate his transfer request, the WTC command’s failure to maintain the confidentiality of his complaint, his supervisors’ neglect of their duties and responsibilities under the NYPD Patrol Guide requiring confidentiality in the handling of OEEO complaints and to conduct regular locker room inspections, and his supervisor’s denial of his transfer request. Disagreeing, the court found nothing in the record showing he was fired, demoted, or reassigned to a less desirable office or department during his tenure or that his compensation was reduced or otherwise altered. Thus, the complained-of acts did not materially affect the terms and conditions of his employment.

And while the Second Circuit has held that the denial of a transfer may constitute an adverse employment action when “the sought for position is materially more advantageous than the employee’s current position, whether because of prestige, modernity, training opportunity, job security, or some other objective indicator of desirability,” here the officer did not seek to be transferred to a position that was “objectively and materially better than the position [he] occupied,” but rather, to a comparable position located “anywhere” outside the WTC Command. Therefore, he failed to make out a prima facie case of discrimination.

Hostile work environment. Courts in the Second Circuit have noted that the “Nazi regime and swastika are symbols of hatred capable of arousing fear and intimidation,” said the court here, finding that the officer alleged that anti-Semitic remarks, including references to Nazi concentration camp “ovens” and “crispy skin,” were regular and continued over a period of two years. Further, he testified, he started coming to work early to avoid changing in the locker room with his coworkers and the treatment became so unbearable that he asked for a transfer “anywhere” because “all [he] wanted [was] to be left alone, just to get away from them…. I couldn’t handle it inside of my head, seeing them every day.” He was forced to seek professional psychotherapy, he claimed, in order to cope with these work conditions.

As to the officer’s claim that his supervisors were aware of the harassment but failed to take corrective action, the court noted evidence that two supervisors were present when a coworker told the officer “I wish I could go back to the 30s and shake Hitler’s hand,” and video evidence showing another coworker calling the officer a “dirty Jew” in front of a supervisor. Thus, said the court, he raised a fact issue as to whether the city knew or should have known about the harassment and failed to act.

Faragher/Ellerth affirmative defense. While the city argued that the NYPD Patrol Guide prohibited all forms of employment discrimination, as well as the posting of offensive materials of any kind in the stationhouse and that it provided ongoing training regarding anti-discrimination policies and procedures, it failed to show as a matter of law that the officer unreasonably failed to take advantage of this. He filed an internal charge of discrimination in May 2014, in which he alleged he had been subjected to discriminatory remarks by WTC Command police officers for approximately two and a half years. This delay, said the court, “from when the discriminatory conduct first began to when Plaintiff filed his OEEO complaint is significant, and a jury could certainly find it unreasonable.” But it was also shorter than in other cases in which the Faragher/Ellerth defense has been found to preclude relief as a matter of law at the summary judgment stage, the court pointed out.

Further, there was evidence that the city and the supervisors failed to report and correct discrimination occurring in their presence, failed to inspect the locker room on a daily basis as required by NYPD procedure, failed to facilitate a transfer based on the officer’s hostile work environment, failed to preserve digitally recorded evidence in his OEEO file, divulged his confidential OEEO complaint thereby subjecting him to retaliation, and denied his transfer requests despite knowing that he was in a hostile work environment. A reasonable jury could therefore find he took advantage of preventive or corrective opportunities and his delay in filing a complaint was reasonable.

Constructive discharge. His constructive discharge claim, however, would not advance, said the court. Viewing the totality of the circumstances as a whole, the alleged facts at most showed negligence by the city and supervisors, not deliberate conduct intended to make him resign.

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