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Employee loses claim of unlawful retaliation because of her disability after conceding she lacked the seniority required for transfer

Employee loses claim of unlawful retaliation because of her disability after conceding she lacked the seniority required for transfer
Ruane-Wilkens v Board of Educ. of City of New York, 2008 NY Slip Op 09062, Decided on November 18, 2008, Appellate Division, Second Department

Maryellen Ruane-Wilkens sued the New York City Board of Education in an effort to recover damages for alleged employment discrimination and retaliation pursuant to Executive Law §296. According to the decision, Ruane-Wilkens suffers from a disability.

When she requested a transfer from Prospect Heights High School to a different school, the transfer was denied because ?she did not have enough seniority.? Contending that the number of students in her swim class was temporarily increased from 25 to 40, and she was assigned to teach a weight-training class in retaliation for her filing a transfer request, Ruane-Wilkens filed a complaint alleging unlawful employment discrimination due to her disability pursuant to Executive Law §296, the State?s Human Rights Law.

After noting that it is unlawful to retaliate against an employee because he or she opposed statutorily-forbidden discriminatory practices, the Appellate Division said that in order to make a prima facie showing of retaliation, the employee must show that: (1) he or she participated in a protected activity, (2) the employer was aware of his or her participation in that activity, (3) the employer took an adverse employment action, and (4) there was a causal connection between the protected activity and the adverse employment action.

Dismissing Ruane-Wikens? appeal, the Appellate Division held that she failed to present any evidence that her transfer request was denied due to her disability. Indeed, said the court, ?[s]he herself conceded that it was denied because she did not have enough seniority.?

As the record contained no evidence that Ruane-Wikens ever complained about any discrimination, the Appellate Division said that she failed to raise a triable issue of fact as to whether she was engaged in an activity which would have given rise to a cause of action to recover damages for employment discrimination or retaliation. Accordingly, said the court, the Supreme Court properly granted the Board of Education's motion for summary judgment dismissing her complaint.

The full text of the decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2008/2008_09062.htm

Full post as published by New York Public Personnel Law on November 26, 2008 (boomark / email).