Labor & Employment Law

Disciplinary dismissal not discrimination

Disciplinary dismissal not discrimination
Myrick v NYC Employees' Retirement System, USSC, Cert. Denied, 540 US 912

According to Albert Myrick, his former employer, the New York City Employees' Re­tirement System [NYCERS] fired him in retaliation for his charging that his superiors discriminated against him in violation of Title VII. Myrick alleged that the reasons given for terminating him were a "pretext for [the] underlying motivation to terminate [him] for charging supervisors and superiors with discriminatory behavior...."

NYCERS, on the other hand, advanced a significantly different version of the situation. It said that although Myrick claims that he suffered years of harassment, discrimination, and eventually, retaliatory termination for complaining about race discrimination within the agency, Myrick was an incompetent employee whose insubordinate behavior and repeated failures to complete his assigned tasks led to his discharge.

The System pointed to Myrick's "long series of poor performance evaluations and an equally lengthy string of grievance complaints filed during the last ten years of Myrick's employment."

Ultimately NYCERS filed disciplinary charges against Myrick setting out twenty specifi­cations of incompetence or misconduct, including his failure to fulfill the tasks of his job, disrupting "the discipline, efficiency and morale" of the agency, insubordination, and absences without leave. NYCERS later amended the charges, adding more allegations of a similar nature, resulting in a total of thirty-six specifications of misconduct.

The Section 75 hearing officer found that NYCERS "had carried its burden and demon­strated Myrick's guilt on twenty-nine of the thirty-six specifications of incompetence and insubordination.

Notwithstanding Myrick's long-term service with NYCERS, the hearing officer conclud­ed that, as with other employees "who have demonstrated fundamental incompetence, engaged in repeated insubordination, and shown little inclination to change," termination would be "the only appropriate penalty for respondent." NYCERS adopted the hearing officer's Report and Recommendation in its entirety, and terminated fired Myrick on April 28, 1995.

Federal District Court Justice Lynch observed that although Myrick alleged retaliatory motivation on the part of his supervisors, the decision to fire him was not made by them. Rather, said the court,"The decision [to terminate Myrick] was based on findings of fact made by an administra­tive law judge [ALJ] following an evidentiary hearing.?

The decision notes that guarding against dismissal "on the whim or caprice of [an] employer," allegations of misconduct or incompetence "must not be a `mere subterfuge to get rid of the person,'" quoting from Van Tine v Purdy, 221 NY 396. Here, said the court, Myrick had "received the full benefit of these procedural protections."

Myrick filed a discrimination complaint with the New York State Division of Human Rights [SDHR]. SDHR gave preclusive effect to the determination of the ALJ in the disciplinary proceeding, concluding that "the record is clear that ... NYCERS disciplined, and ultimately terminated, [Myrick] for legitimate, non-discriminatory reasons and not in retaliation for his engaging in any protected activity under the Human Rights Law."

The bottom line, the courts agreed that NYCERS has presented legitimate reasons for Myrick's termination, and that Myrick has not presented sufficient evidence to permit a reasonable fact-finder to conclude that these reasons were pretextual.

Full post as published by New York Public Personnel Law on June 10, 2008 (boomark / email).