Employment Law Daily Promotion denials were based on ineligibility due to absenteeism, not religion or national origin
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Tuesday, June 4, 2019

Promotion denials were based on ineligibility due to absenteeism, not religion or national origin

By Lisa Milam, J.D.

A Muslim officer of Iraqi descent and a Jewish officer of Israeli-Yemeni descent based their claims on vague assertions that “people’s outlook on the Middle East is not a positive one.”

Two Port Authority police officers could not escape summary judgment on claims they were denied promotions to sergeant based on their religion and national origin and were subjected to a hostile work environment. (One officer is Jewish, of Israeli and Yemeni descent; the other is a Muslim of Iraqi dissent.) A federal court in New York concluded that they presented little more than conclusory assertions that they were qualified for promotion (in the face of evidence they did not meet the stated attendance requirements) and that the decision-makers had discriminatory animus, and the cited incidents of harassment were infrequent and could not be imputed to their employer (Hindi v. The Port Authority of New York and New Jersey, May 30, 2019, Taylor Swain, L.).

Attendance matters. Each promotion announcement set forth the eligibility criteria, which included attendance requirements. Candidates who passed the promotion exam had their attendance records evaluated. To clear the initial screening, the candidate must not have more than three sick “occasions” (periods of being out sick) or 11 total sick days during two of the three years prior to the promotion announcement. (Injuries on duty, maternity leave, and hospitalizations did not count.) Candidates who were not screened out on this basis then proceeded to the “selection and appointment” stage, where even more exacting attendance criteria were imposed: candidates with seven or more absence occasions within a six-year time period (regardless of the reason for the absences) were ruled out.

The officers took and passed the qualifying examination, and they both passed the initial screening. However, they were deemed ineligible for promotion at the selection and appointment stage due to “unacceptable” attendance ratings. The officers did not provide attendance records contradicting the Port Authority’s finding that they did not meet the stated attendance requirements. Consequently, there was no genuine dispute whether they were qualified for promotion.

No showing of discriminatory intent. Moreover, the officers could not establish that there was any underlying discriminatory intent behind their non-promotion. They contended that such intent can be inferred based on the fact that there are no Middle Eastern sergeants at the Port Authority. However, they offered only speculation and conclusory testimony on this point; they did not back up this assertion with objective data showing the demographics of the Port Authority police department.

“The time we live in.” The officers also argued that several “less qualified” non-Middle Eastern officers were promoted to sergeant. One of the plaintiffs asserted, “[t]here is no other reason for me not to think they are not discriminating against me if I met the qualifications, and I know I can do a better job than half these people, and I am still not promoted.” He also said that discriminatory animus was evident in light of the fact that in “the time we live in people’s outlook on the Middle East is not a positive one.” The other officer testified that discrimination was apparent based on “all the stuff that’s happening in the news with terrorist attacks and with ISIS and Al-Qaeda and all that stuff.”

Further, the court said, there was no evidence that the individuals who made the promotion decisions knew of the plaintiffs’ religion or national origin, and no evidence that the employees who allegedly harassed the officers had any contact with, or influence over, the decision-makers.

No hostile work environment. As for the alleged harassment, the officers’ hostile work environment claims failed as well. The Jewish officer alleged that: someone drew a Jewish star next to his name on the list of officers selected for evaluation for promotion; after some coins dropped on the floor, a coworker stated, “money always finds its way to Jews”; a coworker referred to Jewish people as “Christ killers”; his ID badge was defaced with a hat and facial hair typically associated with members of the Middle Eastern or Orthodox Jewish community. The other plaintiff alleged that: in the break room, someone posted a picture of his face superimposed onto a picture portraying Osama Bin Laden; he was referred to with a name that was a derogatory reference to Al-Qaeda; a coworker asked him if he had arrived on his “magic carpet”; someone asked him if he was “sending money back to ISIS.”

The court held these incidents were not objectively abusive enough to create an actionably hostile work environment. The incidents were infrequent, occurring, on average, just once every two years. And they appeared to be isolated and sporadic—there was no evidence they were part of a concerted pattern of harassment. (None of the alleged perpetrators had been identified, leaving it hard for a reasonable fact finder to conclude the incidents were carried out by the same actor or group of actors.) Nor were the incidents sufficiently severe to create a hostile work environment, the court also found. The incidents were not physically threatening and they did not alter the terms and conditions of employment or interfere with the officers’ work performance. “Plaintiffs never sought a transfer of assignment; quite the opposite—they sought to extend the time they spent in these allegedly hostile work environments by electing to work significant overtime hours,” the court observed.

Finally, even assuming the alleged harassment constituted a hostile work environment, there was no basis to impute liability to the Port Authority. The employer provided a reasonable avenue for the officers to complain—clearly outlined procedures for making anonymous complaints to the authority’s EEO office—and neither officer availed himself of the opportunity to do so. And they failed to present any evidence that the Port Authority knew or should have known about the harassment nonetheless.

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