Harrisman v. The City of New York Depatment of Transportation

Background

Jeffrey Harrisman proceeded without a lawyer and sued his former employer, the City of New York Department of Transportation (DOT); his union, Local 1549, District Council 37, American Federation of State, County and Municipal Employees, AFL-CIO; and employees of DOT or the Union. The defendants moved to dismiss under Rule 12(b)(6), which tests whether a complaint states a legally sufficient claim.

Harrisman alleged that he was subjected to a religiously hostile work environment and retaliation in violation of Title VII of the Civil Rights Act of 1964. He also alleged that DOT and the Union violated his due-process rights under Section 72 of the New York Civil Service Law when DOT placed him on involuntary leave because of mental illness.

Harrisman alleged that female co-workers talked loudly near his desk, gossiped about him, and disliked his religious beliefs concerning women. He complained by email to the director of his unit in November 2017. In January 2018, he had a dispute with co-worker Jacqueline Viera involving a fan. DOT placed him on emergency paid leave, later required a medical examination, and then placed him on unpaid leave under Section 72 after a medical officer determined that he was not fit to return to work. Harrisman challenged that determination in an administrative proceeding, but the administrative judge confirmed his unpaid leave.

Title VII hostile-work-environment claim

The court held that Harrisman did not plead a plausible hostile-work-environment claim. A hostile work environment requires conduct that is sufficiently severe or pervasive to alter the conditions of employment, along with a basis for holding the employer responsible for that conduct.

The court found that Harrisman alleged no facts beyond his own beliefs showing that his co-workers made derogatory comments in his presence or targeted him because of his religion. The allegations that co-workers occasionally talked too much near his desk were, at most, episodic and offensive rather than severe or pervasive. The court also found that the alleged false reports about the January 2018 incident were isolated events and did not establish a hostile work environment. The hostile-work-environment claim was dismissed.

Title VII retaliation claim

The court also dismissed Harrisman’s retaliation claim. To plead retaliation, he had to allege that he engaged in activity protected by Title VII, that the defendants took an adverse employment action, and that the protected activity was a but-for cause of that action. “But-for” causation means the adverse action would not have occurred without the alleged retaliatory motive, although retaliation need not have been the only cause.

The court held that Harrisman did not adequately allege protected activity because his November 2017 emails did not mention sexual harassment, religious discrimination, or another unlawful employment practice. The emails instead described workplace disagreements, including noise, unsolicited advice, and co-workers’ use of his first name. The court assumed without deciding that Harrisman subjectively believed he was opposing unlawful conduct, but found that such a belief was not reasonable under the circumstances.

The court separately concluded that the retaliation claim would fail even if the complaints were protected. Harrisman offered no specific facts showing that DOT relied on his complaints because of a retaliatory motive. The approximately three- to four-month period between the complaints and the leave decision was also insufficient, standing alone, to show causation, particularly because DOT placed him on emergency leave the day after the incident with Viera.

Due-process claim under Section 72

Harrisman asserted that DOT improperly used Section 72 to discipline him, failed to provide proper statutory notice, and used his leave time to pay him during the period before his administrative hearing. The court rejected these theories because a due-process claim based on the deprivation of property cannot proceed when the state provides a meaningful post-deprivation remedy.

The court held that a proceeding under Article 78 of New York’s Civil Practice Law and Rules provided an available and adequate method for challenging the alleged arbitrary, unlawful, or unconstitutional employment action. Because Harrisman did not pursue that proceeding, the court dismissed his federal due-process claims.

Other claims and disposition

The court treated claims under the New York State Human Rights Law as dismissed for the same reasons as the federal claims. It declined to exercise supplemental jurisdiction over any claims under the New York City Human Rights Law because those claims require a separate analysis under a different standard. The dismissal of any New York City Human Rights Law claims was without prejudice to refiling in state court.

The court stated that Harrisman’s previously asserted breach-of-duty-of-fair-representation and creed-discrimination claims were abandoned because they were not included in the amended complaint. It also dismissed any Title VII claims against the Union and its employees, substantially for the reasons stated in the Union’s briefing.

Judge Jesse M. Furman granted the defendants’ motions to dismiss and dismissed the complaint. Except for any New York City Human Rights Law claims, which were dismissed without prejudice to refiling in state court, the dismissal was with prejudice. The court declined to grant Harrisman further leave to amend because he had already amended once, had been warned that he would not receive another opportunity, and did not suggest additional facts that could cure the pleading defects. The court also certified that any appeal would not be taken in good faith and denied permission to appeal without paying filing fees.