The Court of Appeals, New York State's highest court, has unanimously affirmed jury verdicts for two New York City Police Department officers who claimed that they suffered retaliation for opposing discrimination against another officer who was perceived as being gay. The jury had awarded Lori Albunio $579,728.83 and Thomas Connors $588,113.45, plus attorneys fees. The case is Albunio v. City of New York, 2011 Westlaw 1157706 (March 31, 2011).
Albunio was commanding officer of the Youth Services section and Connors was operations coordinator of the section. Officer Robert Sorrenti had applied to transfer to the section, and Albunio recommended him after interviewing him for a specific vacancy. The recommendation went to James Hall, commanding officer of Community Affairs, who decided to interview Sorrenti himself before approving the transfer. The job would involving working with kids. Hall evidently perceived Sorrenti to be gay and resolved not to approve the transfer. Based on the evidence presented to the jury, the jury could have concluded that Hall believed that gay people should not be assigned to work with kids. Hall found somebody else to fill the vacant position in Youth Services, and told Albunio "that there was something not right about that guy" and that he "found out some fucked up shit about Sorrenti and … wouldn't want him around children."
At a later point, Hall called Connors into his office and spoke angrily about Sorrenti, using "many expletives," speculating that there was something going on between Sorrenti and another male officer to whom Sorrenti had loaned some money, and said that he "wouldn't be able to sleep at night knowing that Sorrenti is going to be working around kids." Connors responded to these comments by saying that he thought Sorrenti "would be more than qualified to work around kids."
In the fall of 2002 Albunio heard rumors that she was being transferred out of Youth Services and asked for a meeting with Deputy Commissioner Frederick Patrick. Hall was present at the meeting. When Albunio asked why she was being relieved of her Youth Services command, she was told that she had used poor judgment in requesting personnel, giving Sorrenti as the primary example. Albunio responded that "Sorrenti was the better candidate" and that she would recommend him again. She was told to find a different assignment and ended up with something worse.
When Albunio told Connors, her subordinate, what had happened, he filed a complaint with the police department's EEO office, alleging that Hall had discriminated againt Sorrenti due to Sorrenti's perceived sexual orientation. (Ultimately, Sorrenti also filed a discrimination charge against NYPD and won a jury verdict of $491,706 plus legal fees that was upheld by the Appellate Division. Presumably the City didn't settle that case outright because the officers denied the discrimination allegations, but the jury believed the testimony of Albunio, Connors and Sorrenti.)
Connor's act of filing the complaint brought the matter back to Hall's attention, and soon Connors found himself in a boring desk job after he resigned from Youth Services, probably correctly perceiving that his position there was in danger with Albunio's removal. Albunio and Connors filed retaliation complaints, asserting they suffered adverse consequences for opposing discrimination against Sorrenti, and won jury verdicts with substantial damage and fee awards.
The Appellate Division affirmed the jury's verdict in their favor, with one judge dissenting as to Albunio. The dissenter accepted the City's argument that Albunio first opposed discrimination against Sorrenti after the decision was made to relieve her from Youth Services, but the majority accepted the argument that her assignment to a comparatively undesirable petition followed the meeting with Patrick and Hall.
Affirming the jury verdicts, the court of appeals stressed that it was commanded by New York City's Local Civil Rights Restoration Act of 2005 to give a very broad construction to the City's Human Rights Law in favor of discrimination plaintiffs, and thus the court could be liberal in interpreting the requirement that the plaintiffs have suffered retaliation for opposing discrimination. The court found Connors' case to be relatively easy, in any event, since he suffered adverse consequences after filing a discrimination complaint about the way Sorrenti was treated by Hall.
Albunio presented the harder case, as the Appellate Division dissent indicated. Writing for the Court of Appeals, Judge Robert Smith said that the record showed no "opposition" by Albunio to the discriminatory treatment suffered by Sorrenti prior to Albunio's meeting with Hall and Patrick concerning the rumors about her own transfer. Although Albunio had been displeased that Sorrenti didn't get the job, she didn't do anything affirmatively about it that would constitute "opposition" to discrimination.
In that meeting, however, when she was criticized about having recommended Sorrenti, she said he was the better candidate and she would recommend him again. "While she did not say in so many words that Sorrenti was a discrimination victim," wrote Judge Smith, "a jury could find that both Hall and Albunio knew that he was, and that Albunio made clear her disapproval of that discrimination by communicating to Hall, in substance, that she thought Hall's treatment of Sorrenti was wrong. Bearing in mind the broad reading that we must give to the New York City Human Rights Law, we find that Albunio could be found to have 'opposed' the discrimination against Sorrenti at the October 31 meeting."
Since nobody disputes that Albunio ended up with a worse assignment patroling in the subway system after that meeting, the elements of a retaliation claim are complete.
It would be interesting to know whether Hall, whose discriminatory actions will have cost the City well over $2 million dollars in damages and plaintiffs' attorneys fees, plus the costs to the City of defending the case at trial and taking it through two levels of appeal, has suffered any adverse consequences as a result of his clear violations of the law? Neither the Court of Appeals opinion nor that of the Appellate Division (issued on November 5, 2009) reveals his fate.