Second Circuit Vacates Dismissal of NY Labor Law § 201-d “Political Activities” Discrimination Claim

In Truitt v. Salisbury Bank and Trust Company, 2022 WL 14995367 (2d Cir. Oct. 27, 2022), the U.S. Court of Appeals vacated a lower court order that granted defendant summary judgment on plaintiff’s claim that defendant discriminated against him for engaging in “political activities” in violation of New York Labor Law § 201-d.

In this case, plaintiff is a one-time candidate for the New York State Assembly, who sued his employer, a bank, following the cessation of his employment after he announced his candidacy. The court addressed two issues: (1) whether Truitt presented evidence from which a reasonable jury could find that he suffered an adverse employment action, and, if so, (2) whether his employer demonstrated, as a matter of law, that it had a legitimate, non-discriminatory reason for its employment decision.

The court answered both questions in plaintiff’s favor.

As to the first, it explained:

Truitt began campaigning for the Assembly seat, and his campaign was not interfering with his work. The managers at the Bank were not aware of any complaints from his colleagues that he was unable to perform his work responsibilities because of the campaign. Nevertheless, he was given less than a week to decide between continuing his campaign or continuing to work for the Bank.11 It was apparent that the Bank was not going to permit him do both. Cahill and Cantele made clear that “if [he] was running [he] could no longer continue working for the bank.” Joint App’x at 639. As Truitt’s May 1 email noted, Cahill and Cantele both “confirmed” that his employment with the Bank would “not be continued” if he pursued the campaign. Id. at 179. And that “ultimatum,” Truitt explained, made him understand that he “had to pick one or the other.” Id. at 639. Thus, a reasonable jury could find that he was given an illegal choice between continuing his employment and exercising his right to engage in statutorily protected political activities, and that he was discharged “because of” his choice to continue his campaign.

We are not persuaded by the Bank’s argument that it gave Truitt a genuine choice and that he voluntarily resigned. The Bank determined that a job as an assemblymember was incompatible with Truitt’s job as a mortgage lending officer and that it would “not provide [Truitt with] an exception to the Bank’s policy on outside employment.” Id. at 271. The Bank therefore asked Truitt, on or around April 26, 2018, to decide by May 1 whether he “wanted to continue with his … campaign for the Assembly.” Id. at 338.

The Bank asserts that it “may have had to make a decision whether to terminate Truitt’s employment if his campaigning interfered with his employment … or if Truitt was elected to office” but that it made no such decision before “Truitt resigned from his position.” Id. at 272. Even though the Bank claims that it had not decided to discharge Truitt when it learned of his “Decision,” on this record a reasonable jury could find that the Bank had already concluded that Truitt would be discharged if he did not give up his campaign.
For these reasons, a reasonable jury could find that Truitt suffered an adverse employment action by being forced to choose between his campaign and his job in violation of New York Labor Law § 201-d.

As to the second, it explained:

The district court chose not to proceed to the second step of a McDonnell Douglas-style burden-shifting framework because it held Truitt had “failed to establish that he was terminated.” Truitt I, 2020 WL 4208452, at *9 n.14. It concluded that summary judgment was warranted because executives of the Bank had “proffered significant testimony and evidence that establishe[d] that the basis for their decision was that management did not feel that [Truitt] could handle the rigors of his job and a campaign for, and potential elected position within, the New York State Assembly.” Id. at *11 n.16; see also id. at *4 n.5.12 The district court erred, as a matter of law, in granting summary judgment on this basis.

A reasonable jury could find that the Bank failed “to come forward with admissible evidence showing that [Truitt’s] political … activities did not play a substantial part in its decision” subjecting Truitt to an adverse employment action. See Baker, 707 N.Y.S.2d at 514 (quoting McManus, 663 N.Y.S.2d at 724). The district court erred because it erroneously conflated evidence concerning the possibility Truitt might serve as an assemblymember with evidence concerning his campaign for the Assembly. The district court disregarded this distinction because it did not “see how [it] [wa]s relevant.” Truitt II, 2021 WL 1089888, at *5. But, as explained above, the distinction is relevant because New York law specifically protects employees running for political office from discrimination. See N.Y. Lab. Law § 201-d(1)(a) (defining protected activities to include “(i) running for public office” (emphasis added)). Moreover, even assuming the Bank might have had a legally permissible reason to bar Truitt from serving as an assemblymember while employed at the Bank, terminating his employment if he won election would not have required the Bank to bar him from campaigning for office.

To be sure, the record does include evidence that the Bank considered the time commitment required to serve as an assemblymember. See, e.g., Joint App’x at 322 (notes from the April 27, 2018, meeting of Salisbury’s Board of Directors explaining that Truitt had “announced his campaign to run for NYS Assembly” and that “[m]anagement ha[d] determined that this position pays approximately $80,000 per year and requires approximately 65 days per year in Albany” (emphasis added)). Likewise, the Bank argues before us that its executives were primarily concerned about the time Truitt would have to commit to his duties as a member of the Assembly. See Defendants-Appellees’ Br. at 19-21. Truitt, contrariwise, argues that he would have been able to serve as an assemblymember outside of his working hours at the Bank. We need not address that factual dispute because, regardless of whether Truitt could have served in the Assembly without interference with his working hours or performance, the record does not include evidence that the Bank had any reason to believe that Truitt’s campaign would cause such interference.

The Bank points to Truitt’s deposition testimony, claiming that he “acknowledged that, prior to the election, he would engage in a campaign for the seat and that his campaigning would continue even after he would be elected.” Joint App’x at 269. But, as the Bank conceded at oral argument, no evidence in the record suggests that Truitt was campaigning during working hours. The Bank also points to the four months Truitt took off to campaign from a job as a finance officer at a construction company, which he secured after his employment with the Bank ended. The record, however, does not show that Truitt had requested, or that the Bank determined that he would need, time off to campaign while working at the Bank.

While the Bank’s evidence includes some stray references to campaigning, most of these references concern not the campaigning process itself but rather the desired effect of campaigning, i.e., winning the election; other references concern whether Truitt could handle additional, future campaigns if he was elected to office. For instance, Cahill testified during his deposition that his concern with Truitt “run[ning] for the Assembly” was that Truitt would “potentially be away from the bank anywhere from two to four days a week for six months of the year, essentially 60 days that it’s in session.” Joint App’x at 124. Cantele testified during his deposition that if Truitt were to “take this other job which required him to be out of the bank for at least sixty days a year,” then “common sense would say, given this job, that there would be campaigning to be done.” Id. at 141; see also id. at 277-78 (same sentiment in Cantele declaration); id. at 279-80 (same sentiment in Cahill declaration).

For these reasons, a reasonable jury could find that the Bank’s actions violated New York Labor Law § 201-d because the bank failed to demonstrate a legitimate, non-discriminatory reason for the adverse employment action it took against Truitt.

Based on this, the court concluded that the district court erred in granting summary judgment dismissing Truitt’s New York Labor Law § 201-d claim, and vacated the district court’s granting the employer’s motion for summary judgment.

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