Some unpleasant realities when suing for retaliation under Section 1983

There are some unpleasant realities guiding employment law that plaintiffs may not know about. This case highlights a few of them.

The case is Gonzalez v. City of New York, a summary order issued in February 9. Plaintiff worked for the City. He claims retaliation under Section 1983 because, after he refused to terminate a Black employee under his supervision, he was denied a promotion. Plaintiff may have a prima facie, or preliminary, case of retaliation, but he cannot prove that management's reason for the promotion denial are false. Management said plaintiff was denied the promotion because he did not interview well for it. In a shrewd evidentiary maneuver, management produced the interview notes that said his resume misstated his work, he dissembled over this failure to pass the bar examination, he was promoted very recently and could not articulate a reason why he was ready for a second promotion so quickly, or what lasting improvements had he'd made in his division that warranted a promotion. 

What this evidence means is that while plaintiff may be able to show he was denied the promotion shortly after he refused what he deemed a racially-motivated termination, that timing is not enough to prove the employer's reason for the promotion denial was pretextual. The case holding that is El Sayed v. Hilton Hotels Corp., 627 F.3d 931 (2d Cir. 2010). So that's one unpleasant reality of these cases. 

The other unpleasant reality is what happens when an administrative tribunal, such as the NYC Office of Administrative Trials and Hearings (OATH), reaches adverse findings against the plaintiff pursuant to Civil Service Law section 75, and those findings are relied upon by management tries to justify the adverse action, in this case, a failure to interview the plaintiff for another position. The OATH administrative law judge said plaintiff had excessive absences and had engaged in other misconduct. Those are the reasons the City claimed justified the failure to interview the plaintiff. Cases hold that ALJ findings can constitute a defense to cases like this. We call that issue preclusion, provided the plaintiff had a full and fair opportunity to defend himself at the OATH hearing and the issues at the hearing and in the lawsuit are identical. The case on that point is Matusick v. Erie County Water Auth., 757 F.3d 31 (2d Cir. 2014).

Plaintiff noted that a finding of termination for just cause does not necessarily mean there was no discrimination. This argument could win the appeal. But the City has a way around it, the Court of Appeals (Jacobs, Bianco and Park) says, because the district court expressly declined to preclude plaintiff's case on the preclusion issues and instead determined that his excessive absenteeism and other misconduct were legitimate reasons for the City not to interview him for the position.

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