Judge Rejects Assistant A.G.'s Employment Bias Lawsuit

Hussey, who had practiced environmental law, joined the attorney general's office in 1999 and worked in the Environmental Protection Bureau in New York City. In December 2008, Hussey said she applied orally to Katherine Kennedy, the bureau chief, for the position of toxic and cost recovery section chief. Hussey was told that Janice Dean, a white attorney in the office, had been given the position. Hussey acknowledged that Dean had received the agency's highest internal evaluation and was regarded as a “star.”

Hussey asked Kennedy to explain her reasoning and Kennedy responded that Hussey's writing needed to improve and that her duties as a single parent could interfere with an increased workload if she was promoted. That explanation was a “pretext to cover up racial discrimination,” alleged Hussey, although she had been criticized about her writing in the past.

'Scapegoat' for a Complicated Case

Hussey had been handling New York State v. Next Millennium Realty, 06-cv-01133, a case pertaining to the contamination of soil and groundwater that is now pending in the U.S. Court of Appeals for the Second Circuit. Hussey said that Dean, before her promotion, had been tasked with preparing the government's privilege log. Opposing counsel had complained the log was faulty. When Eastern District Magistrate Judge Michael Orenstein asked Hussey if she had read the log, she said she had not reviewed it because Dean had prepared it. Orenstein had excoriated Hussey, saying the government's conduct was an “outrage.”

The defendants soon after filed a sanction motion based on the log's flaws. It was denied. Hussey claimed in her suit that other staffers heard James Rogers, deputy attorney general for social justice, yelling that Hussey messed up the case. Hussey said Rogers later told her she was being removed as lead attorney on the case, but would stay on it in a non-leadership role.

After the decision to downgrade Hussey's role, her superiors filed a “counseling memo” in June 2010 criticizing Hussey for her work ethic and work product. Hussey filed a discrimination claim with the state's Division of Human Rights. The department issued a “right to sue” letter in October 2010.

The suit ' seeking $5 million in damages ' named the office, Dean, Rogers and others as defendants. The attorney general's office moved for dismissal, saying Hussey's suit was based on “nothing more than speculation and conclusory claims.”

The Ruling

In her March 20 decision, Mauskopf said Hussey did not state a claim for race discrimination under Title VII of the Civil Rights Act of 1965. For instance, Hussey “offer[ed] no facts” to substantiate the assertion that Kennedy was using concerns about Hussey's writing skills and work-life balance as a “pretext” to mask racial discrimination.

Mauskopf noted that Hussey acknowledged receiving criticism on her writing in the past and had contrasted her performance with Dean's evaluations.

Hussey's “reliance on Dean's evaluation wholly undermines her claim that Kennedy's criticism about Plaintiff's writing was mere pretext. Indeed, such reliance fully supports defendants' legitimate reasons for promoting Dean” over Hussey, the judge said. The judge also waved off Hussey's assertions of discriminatory hiring and promotion policies within the office.

Turning to Hussey's demotion on the Next Millennium case, Mauskopf said there were “legitimate, non-discriminatory” reasons for the office to take that step. The office had argued that Rogers was reasonably acting in the state's “best interests” to have another attorney spearhead the litigation.

The judge also rejected a claim by Hussey that she had been defamed by Rogers' remarks that she had “messed up” the Next Millennium case as well as by the contents of his counseling memo.

Andrew Keshner writes for the New York Law Journal, in which this article also appeared. He can be contacted at [email protected].

A federal judge has thrown out a lawsuit by a New York state assistant attorney general who claims she was passed over for a promotion and demoted on a major case because she is black.

“Plaintiff has failed to set forth any link between the failure to promote her and the alleged discriminatory animus of the defendants that could save her claim from defendants' motion to dismiss,” Eastern District Judge Roslynn Mauskopf wrote in Hussey v. New York State Department of Law/Office of Attorney General, 11-cv-0206. The judge, however, dismissed the claims of Jeanna Hussey without prejudice.

The Case

Hussey, who had practiced environmental law, joined the attorney general's office in 1999 and worked in the Environmental Protection Bureau in New York City. In December 2008, Hussey said she applied orally to Katherine Kennedy, the bureau chief, for the position of toxic and cost recovery section chief. Hussey was told that Janice Dean, a white attorney in the office, had been given the position. Hussey acknowledged that Dean had received the agency's highest internal evaluation and was regarded as a “star.”

Hussey asked Kennedy to explain her reasoning and Kennedy responded that Hussey's writing needed to improve and that her duties as a single parent could interfere with an increased workload if she was promoted. That explanation was a “pretext to cover up racial discrimination,” alleged Hussey, although she had been criticized about her writing in the past.

'Scapegoat' for a Complicated Case

Hussey had been handling New York State v. Next Millennium Realty, 06-cv-01133, a case pertaining to the contamination of soil and groundwater that is now pending in the U.S. Court of Appeals for the Second Circuit. Hussey said that Dean, before her promotion, had been tasked with preparing the government's privilege log. Opposing counsel had complained the log was faulty. When Eastern District Magistrate Judge Michael Orenstein asked Hussey if she had read the log, she said she had not reviewed it because Dean had prepared it. Orenstein had excoriated Hussey, saying the government's conduct was an “outrage.”

The defendants soon after filed a sanction motion based on the log's flaws. It was denied. Hussey claimed in her suit that other staffers heard James Rogers, deputy attorney general for social justice, yelling that Hussey messed up the case. Hussey said Rogers later told her she was being removed as lead attorney on the case, but would stay on it in a non-leadership role.

After the decision to downgrade Hussey's role, her superiors filed a “counseling memo” in June 2010 criticizing Hussey for her work ethic and work product. Hussey filed a discrimination claim with the state's Division of Human Rights. The department issued a “right to sue” letter in October 2010.

The suit ' seeking $5 million in damages ' named the office, Dean, Rogers and others as defendants. The attorney general's office moved for dismissal, saying Hussey's suit was based on “nothing more than speculation and conclusory claims.”

The Ruling

In her March 20 decision, Mauskopf said Hussey did not state a claim for race discrimination under Title VII of the Civil Rights Act of 1965. For instance, Hussey “offer[ed] no facts” to substantiate the assertion that Kennedy was using concerns about Hussey's writing skills and work-life balance as a “pretext” to mask racial discrimination.

Mauskopf noted that Hussey acknowledged receiving criticism on her writing in the past and had contrasted her performance with Dean's evaluations.

Hussey's “reliance on Dean's evaluation wholly undermines her claim that Kennedy's criticism about Plaintiff's writing was mere pretext. Indeed, such reliance fully supports defendants' legitimate reasons for promoting Dean” over Hussey, the judge said. The judge also waved off Hussey's assertions of discriminatory hiring and promotion policies within the office.

Turning to Hussey's demotion on the Next Millennium case, Mauskopf said there were “legitimate, non-discriminatory” reasons for the office to take that step. The office had argued that Rogers was reasonably acting in the state's “best interests” to have another attorney spearhead the litigation.

The judge also rejected a claim by Hussey that she had been defamed by Rogers' remarks that she had “messed up” the Next Millennium case as well as by the contents of his counseling memo.

Andrew Keshner writes for the New York Law Journal, in which this article also appeared. He can be contacted at [email protected].