Former employee's suit to go forward

• Published date: 01 October 2019
• DOI: http://doi.org/10.1002/nba.30668
• Date: 01 October 2019

NONPROFIT BUSINESS ADVISOR OCTOBER 2019

10 © 2019 Wiley Periodicals, Inc., A Wiley Company • All rights reserved

DOI: 10.1002/nba

Employment Law

Here’s a look at several recent notable lawsuits involving nonprots. Nonprots should regularly review

employment laws and their compliance efforts to avert similar issues.

Retaliation

Judge dismisses retaliation claim

The plaintiff was a U.S. citizen of Chinese descent

who had worked as an investigator at the New York

State Division of Licensing Services since 2007.

According to the plaintiff, his working conditions

soon became unbearable after he led an unspecied

Title VII discrimination charge with the U.S. Equal

Employment Opportunity Commission in March 2017.

In early April, he was allegedly assigned both an

“impossible and unachievable” caseload and unre-

alistic deadlines.

On April 18, he was asked to sign a counseling

memorandum that allegedly contained false and

misleading information about him. When he refused,

a supervisor purportedly yelled and screamed at him.

In May, the plaintiff was given another counsel-

ing memorandum. According to the plaintiff, its sole

purpose was to create a false record to intimidate and

retaliate against him for his EEOC charge, and also

to position him for termination.

The plaintiff also claimed that the department sent

an email to DLS investigators soliciting feedback in

connection with employee retention efforts, and he

was the only investigator who didn’t receive a copy.

The plaintiff led a suit claiming his work environ-

ment had become unbearable in retaliation for ling

the EEOC charge. He alleged all of the things that

had allegedly occurred and also claimed “various

instances of DLS harassment, alienation, and mis-

treatment” and “thinly-veiled gestures” to remind him

that it was punishing him for claiming discrimination.

The defendant led a motion to dismiss.

The district court judge said a plaintiff claiming

retaliation under Title VII must plausibly allege that

the defendant took an “adverse employment action”

against him because he opposed an unlawful employ-

ment practice. She explained that the term “adverse

employment action” meant something that could very

well dissuade a reasonable worker from either making

or supporting a charge of discrimination.

EMPLOYER WINS ➔ She acknowledged that

a workload increase could sometimes amount to an

“adverse employment action” for the purposes of a

retaliation claim if it was heavily disproportionate

to similarly situated co-workers, but she said the

complaint didn’t even mention any other employees.

The judge ruled that the allegedly false and mis-

leading counseling memos didn’t amount to adverse

employment actions because they weren’t accompa-

nied by other adverse consequences.

She also held that the purported yelling and

screaming weren’t adverse employment actions be-

cause they amounted to those petty slights or minor

annoyances that often take place at work, and that

all employees experience.

The judge similarly ruled that being excluded from

one email that was sent to all of the other investigators

also was a petty, slight or minor annoyance that didn’t

rise to the level of an adverse employment action.

Finally, the judge held that the claims of “various

instances of DLS harassment, alienation, and mis-

treatment” and “thinly-veiled gestures” were simply

too vague to be considered.

The judge dismissed the claim.

[Shi v. New York Department of State, Division of

Licensing Services, et al., U.S. District Court for the

Southern District of New York, No. 18 Civ. 3455,

04/11/19].

Privacy rights

Former employee’s suit to go forward

In 2015, the Cleareld County Career and Technol-

ogy Center hired the plaintiff as its executive director.

During the 2016–17 school year, the plaintiff main-

tained a Dropbox application on her work computer

that was completely separate and apart from all of her

work les. That arrangement allowed her to store items

in either her work les or Dropbox, or both places.

The plaintiff used that Dropbox application to

store personal items on her work computer that

weren’t accessible with her work username and pass-

word. The only personal item she had transferred

from Dropbox into her work les was a photograph

that depicted her skydiving.

The plaintiff’s personal Dropbox account on her

work computer was accessible only with her Dropbox

username and password, which she had provided to

the Cleareld IT department.

While he was replacing the hard drive on the