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

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Employee loses claim ofunlawful retaliation because of her disability after conceding she lacked theseniority required for transfer
Ruane-Wilkens v Board of Educ. of City of New York, 56 AD3d 648

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

When she requested a transfer from Prospect Heights High School to a differentschool, the transfer was denied because “she did not have enough seniority.”Contending that the number of students in her class was temporarily increasedfrom 25 to 40, and she was assigned to teach another class in retaliation forher filing a transfer request, Ruane-Wilkens filed a complaint allegingunlawful employment discrimination due to her disability pursuant to ExecutiveLaw §296, the State’s Human Rights Law.

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

Dismissing Ruane-Wikens’ appeal, the Appellate Division held that she failed topresent any evidence that her transfer request was denied due to herdisability. Indeed, said the court, “[s]he herself conceded that it was deniedbecause she did not have enough seniority.”

As the record contained no evidence that Ruane-Wikens ever complained about anydiscrimination, the Appellate Division said that she failed to raise a triableissue of fact as to whether she was engaged in an activity which would havegiven rise to a cause of action to recover damages for employmentdiscrimination or retaliation. Accordingly, said the court, the Supreme Courtproperly granted the Board of Education's motion for summary judgmentdismissing 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