Court Dismisses “Political Activities” Discrimination Claim Under NY Labor Law § 201-d

In Truitt v. Salisbury Bank and Trust Company, 2020 WL 4208452 (S.D.N.Y. July 21, 2020), the court dismissed plaintiff’s discrimination and constructive discharge claims under New York Labor Law § 201-d(2)(a), which prohibits discrimination because of “an individual’s political activities outside of working hours, off of the employer’s premises and without use of the employer’s equipment or other property.”

The statute defines “political activities” as “(i) running for public office, (ii) campaigning for a candidate for public office, or (iii) participating in fund-raising activities for the benefit of a candidate, political party or political advocacy group.”

In sum, at the time of his hiring by defendant as a Mortgage Lending Officer Trainee in January 2018, plaintiff William Truitt was a Republican member of the Dutchess County Legislature and was serving in his second term. In April 2018, plaintiff announced on Facebook that he would be campaigning for the office of NYS Assembly District 106. Defendant ultimately denied plaintiff’s request for outside employment, and plaintiff left defendant’s employ.

The court summarized the law as follows:

Courts applying New York law have held that, to establish a claim under N.Y.L.L. § 201-d, a plaintiff must demonstrate that his or her “termination was improperly based on his [or her] outside political activities.” Shabbir v. Pakistan Int’l Airlines, No. 99 CV 5601(CLP), 2008 WL 938427, at *3 (E.D.N.Y. Apr. 7, 2008) (quoting Baker v. City of Elmira, 271 A.D.2d 906, 907 (3d Dep’t 2000) (internal quotations omitted)). Thereafter, the burden shifts to a defendant to come forward with “admissible evidence showing that plaintiff[’s] political affiliations and activities did not play a substantial part in its decision.” Id. (quoting Baker, 271 A.D.2d at 907).14

Inherent in the above standard is that a plaintiff must have suffered an adverse employment action. “An adverse employment action includes inter alia discharge, refusal to hire, refusal to promote, demotion, reduction in pay, and reprimand.” Jean-Gilles v. Cty. of Rockland, 195 F. Supp. 2d 528, 534 (S.D.N.Y. 2002) (citing Kaluczky v. City of White Plains, 57 F.3d 202, 208 (2d Cir. 1995)). This definition includes constructive discharge, which is “functionally the same as an actual termination.” See Cronin v. St. Lawrence, No. 08-CV-6346 (KMK), 2009 WL 2391861, at *4 (S.D.N.Y. Aug. 5, 2009) (quoting Pa. State Police v. Suders, 542 U.S. 129, 148 (2004)).

A constructive discharge occurs “when an employer ‘deliberately makes an employee’s working conditions so intolerable that the employee is forced into an involuntary resignation.’ ” … Indeed, “constructive discharge cannot be proven merely by evidence that an employee disagreed with the employer’s criticisms of the quality of his work, or did not receive a raise, or preferred not to continue working for that employer.” Spence, 995 F.2d at 1156. “Nor is the test merely whether the employee’s working conditions were difficult or unpleasant.” Id. Instead, the evidence must establish that the conditions were so intolerable that “when, viewed as a whole, they [were] ‘so difficult or unpleasant that a reasonable person in the employee’s shoes would have felt compelled to resign.’ ”

In applying the law, the court held that plaintiff did not suffer an “adverse employment action,” nor could he establish constructive discharge.

The court agreed with defendants that plaintiff’s “departure from the Bank’s employment to pursue his campaign was a resignation, not a termination,” noting undisputed facts supporting the conclusion that plaintiff “chose to discontinue his employment with Defendants when presented with the decision between continued employment and his candidacy.”

Furthermore, while noting that “[a] threat of termination may be evidence of a constructive discharge if it presents the employee with the choice to resign or be fired,” this case did not present that factual scenario. “Rather, the undisputed evidence indicates that Defendants merely presented Plaintiff with a simple choice: continue his employment at the Bank or pursue his campaign for the New York State Assembly.”

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