Transfer to “Absent Teacher Reserve” Was Not an “Adverse Employment Action”; Discrimination Claim Dismissed

In Petit v. Department of Educ. of the City of N.Y., 2017 NY Slip Op 32541(U), 155523/2016 (Sup. Ct. NY Cty. Dec. 1, 2017), the court dismissed plaintiff’s claims for discrimination, hostile work environment, and retaliation in violation of the New York State and City Human Rights Laws. Here I will discuss the court’s evaluation of plaintiff’s discrimination claim.

Plaintiff was employed by the DOE as a guidance counselor. He alleged, inter alia, that his school’s principal discriminated against him on the basis of his Haitian origin and because he studied Voodoo.

The court held that plaintiff failed to demonstrate an “adverse employment action.”

The court explained the law:

An adverse employment action requires a materially adverse change in the terms and conditions of employment. To be materially adverse a change in working conditions must be more disruptive than a mere inconvenience or an alteration of job responsibilities …. A materially adverse change might be indicated by a termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices … unique to a particular situation.

Applying the court held:

Plaintiff alleges that he was adversely affected because now, in the A TR, he is a temporary substitute who is assigned on a weekly basis to a different school. However, being placed in the ATR is not an adverse employment action, because it did not “amount to a materially adverse change in the terms and conditions of [plaintiffs] employment.” Humphries v City Univ. ofN.Y., 146 AD3d 427, 427 (I” Dept 2017). It is undisputed that, while in the ATR, plaintiff still receives his full salary and benefits while waiting for another permanent position to become available. …

Furthermore, to be considered materially adverse, a change in working conditions must be more disruptive than a mere inconvenience or an alteration of job responsibilities. … Thus, requiring plaintiff to teach at a different school every week does not amount to an adverse employment action. Having to travel more, along with plaintiffs other complaints, are simply inconveniences.

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