Wednesday, March 6, 2013

Workplace fight not enough to dismiss retaliation case

Is fighting with co-workers a legitimate reason for fire someone? Usually, yes. In this case, no.

The case is Asabor v. Archdiocese of New York, an Appellate Division First Department case decided on January 22. Plaintiff is a Nigerian-born woman who worked as a mental health nurse at a mental health facility in Staten Island. She alleges that co-workers, including Quattrachi and Mascara, subjected her to endless racial harassment. Plaintiff complained to management about this, but very little was done to stop the harassment. One day, a patient at the facility started hallucinating and called the police. As the First Department puts it:

Mascara called Kimberly Flory, Beacon's senior program supervisor, who advised her to call the patient's therapist. Plaintiff thought that she should be involved, because she was a nurse, but Mascara told her to leave the area. Plaintiff got angry, a fight began and it quickly escalated. At some point Quattracchi got involved. One or more doors were pushed into various individuals, and both plaintiff and Mascara suffered injuries. Flory had advised Mascara that plaintiff should be asked to leave the unit. Morgan eventually called plaintiff and asked her to leave the premises. Plaintiff followed his directive, but questioned the fairness of singling her out as the only one asked to leave. Plaintiff testified that she told Morgan that she was contacting counsel to address the racism at Beacon and the manner in which defendants condoned it.
So this dispute over how to respond to this patient emergency resulted in a fight between plaintiff and her two antagonists. All three were fired for engaging in this altercation. Plaintiff filed a lawsuit under the State Human Rights Law (but not the New York City law) for retaliation because she had earlier complained about discrimination at work. State Supreme Court dismissed the case, finding that the jury could only conclude that plaintiff was fired for the altercation, not her discrimination complaints. The Appellate Division disagrees. It notes that "Defendants proffered a legitimate nondiscriminatory basis for terminating plaintiff — the prohibition against workplace altercations." But the jury could see things differently:

However, the fight was the direct result of 13 months of escalating hostility of which defendants were aware, and which the record reflects stemmed from racial animus. It is arguable that by firing all three participants in the fight — plaintiff, Quattracchi and Mascara — defendants were acting in a race neutral manner. An equally plausible inference, given the nature and degree of unaddressed racial animus at Beacon, is that defendants were motivated by a justified fear of liability stemming from an insufficient response to plaintiff's complaints.
I can say with confidence that the Second Circuit would never interpret Title VII this way. But this case is filed in state court, so plaintiff can take her claims to trial. The dissenting justice says this reasoning is "preposterous." He says:

the majority reinstates plaintiff's retaliatory discharge claim notwithstanding unrefuted evidence that she was terminated for violating her employer's prohibition on conduct clearly intolerable in the workplace (fighting), a policy that the employer applied equally to the other employees involved in the same incident who did not threaten to sue (and who were not members of plaintiff's protected class). In so doing, the majority sends the message that an employee who commits workplace misconduct may deter the employer from taking disciplinary action by the simple expedient of threatening to sue before a penalty is imposed. I do not believe that the Human Rights Law was intended to afford such protection to employees who engage in misconduct in the workplace, as the record shows plaintiff did here. It is simply preposterous to suggest that the Human Rights Law was meant to call an employer to task for dismissing an employee at a mental health facility who involves herself in a physical altercation at work.

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