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HNRK Obtains Summary Judgment on Discrimination and Retaliation Claims in a Significant Win for Employers


On July 17, Hoguet Newman Regal & Kenney, LLP secured the dismissal of a multi-plaintiff employment and civil rights lawsuit against two public agencies. The case is a significant win for employers because the court rejected the idea that poorly performing employees who claim they were discharged in retaliation for engaging in protected activity can demonstrate pretext by arguing that their employers tolerated their poor performance prior to the protected activity.

This issue can arise in cases, for example, where employers give struggling employees a number of “second chances” before their patience runs out. One of the plaintiffs in this case, a contract consultant for the MTA Capital Construction Company, had made an internal race discrimination prior to Capital Construction’s decision not to renew her contract for performance reasons. The plaintiff argued that the nonrenewal was retaliatory and that the performance issues that Capital Construction cited as the reasons for its decision were pretext because it supposedly “tolerated” the plaintiff’s shortcomings “from the outset.”

 The court succinctly rejected this argument, noting “[N]early all sub-standard employee performance is tolerated for some time by the employer before it results in a discharge.” The court’s rationale reflects a common-sense recognition of the realities of the modern workplace, and we imagine this language will be cited frequently in defense briefs and judicial opinions in the future.

 The case is Mitchell v. Metropolitan Transportation Authority Capital Construction Corporation, No. 16 CIV. 3534 (KPF), 2018 WL 3442895 (S.D.N.Y. July 17, 2018). The court dismissed the plaintiffs’ Title VII, Section 1981, and New York State Human Rights Law discrimination and retaliation claims with prejudice. It declined to exercise supplemental jurisdiction over the plaintiffs’ New York City Human Rights Law claims and dismissed those claims without prejudice.

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