NYPD Corrections Officer’s Title VII Disparate Treatment Claim Survives Dismissal; “Adverse Employment Action” Sufficiently Alleged

In Valerio v. City of New York, 18-cv-11130, 2020 WL 353749 (S.D.N.Y. Jan. 21, 2020), the court, inter alia, held that plaintiff sufficiently alleged claims of employment discrimination – based on his national origin, race, and color – in violation of Title VII of the Civil Rights Act of 1964 and the New York State and City Human Rights Laws.

As to his discrimination claims, in sum, plaintiff alleged that he was subject to racially-charged comments and conduct by a DOC physician, including the mocking of his accent, being ordered to “speak properly”, and enduring comments such as “I don’t care about Dominican people.” The court agreed with plaintiff that he suffered an “adverse employment action” in the form of an extended mis-categorization, first as “medically monitored restriction” (MMR), when he was qualified for the sick list, and later, on the sick list, when plaintiff claims he was able to perform light duty.

Judge Oetken explained:

The first period of mis-categorization, Valerio alleges, resulted in extended unauthorized absences, and, consequently, a disciplinary action that became a part of his permanent employment record and the loss of 60 of his sick days, while the second resulted in an extended involuntary absence that deprived Valerio of the opportunity to earn overtime and to participate in other professional opportunities.

The court rejected defendants’ argument, based on Figueroa v. N.Y. City Health & Hosps. Corp., 500 F. Supp. 2d 224 (S.D.N.Y. 2007), noting that that case did not hold, contrary to defendants’ characterization, that “[a] denial of sick leave was not [an] adverse employment action because plaintiff was not prohibited by her employer from returning to work.”

The court observed that “it is well established that a written discipline may constitute a materially adverse action when it is placed in a permanent file that is consulted when making future employment decisions regarding promotions or pay” and held that “[t]he allegations regarding the disciplinary action and the forfeiture of 60 sick days sufficiently plead an adverse employment action under Title VII.”

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