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Documentation often Critical when Proving Employment Retaliation Lawsuits in New York

A federal court has upheld the dismissal of a New York employment lawsuit by an employee who claimed he was forced to retire from Staten Island Rapid Transit as retaliation for complaining about a sexually charged cartoon.

A Great Neck, New York employment attorneyshould always be consulted when an employee is terminated under questionable circumstances. Wrongful termination can occur for any number of reasons, including retaliation for reporting race or age discrimination, sexual harassment or other violations of workplace rights protected under state and federal law.The United States Court of Appeals, Second Circuit examined the employee’s claim of retaliation in the workplace after he complained about a sexually-charged cartoon. The burden of proof typically rests with the employee when filing a New York employment retaliation or federal employment retaliation claim.

The plaintiff must show that he engaged in a protected activity, that his employer was aware of the activity, that the employer took adverse action against him, and that a connection exists between the adverse action and the protected activity. In this case, Staten Island Rapid Transit acknowledged the employee’s complaint and admitted that it was a protected activity. But the system denies an adverse employment action.

The court found no proof that adverse working conditions resulted from the employee’s complaint about the offensive cartoons. The plaintiff said he complained in the late 1990s after 20 years of seeing the cartoons posted in the workplace. Posting of the cartoons ceased and it wasn’t until May 2003 that the employee retired.

“There is thus no evidence that Borski’s complaint was met with retaliatory harassment,” the court wrote. “Furthermore, no reasonable jury could conclude that a reasonable person would feel compelled to quit his job over conduct that had ceased years earlier.”

We can make several observations here. First, the employer did itself a favor by responding proactively to the complaint. Ignoring employee complaints that involve sex, age, race or religious discrimination is always a mistake. Second, it is certainly possible that a complaint over long-standing cartoons in the workplace (whether for religious or other reasons) could have led to workplace harassment.

In such cases, it is always best for an employee to consult a New York employment lawyer. Documentation of such harassment would have gone a long way toward assisting the employee in proving his case in this instance.

Lacking such documentation, the court found not reasonable jury would conclude the plaintiff was constructively discharged from his position. Consequently, the court ruling sided with the district court decision to grant summary judgment to SIRT, dismissing the employee’s claims.

The Law Offices of Ira S. Newman represent businesses and employees dealing with employment issues, including discrimination, wage and hour issues and wrongful termination. Call 516-487-7375 or contact us through the website.