December 29, 2010

Criticism of employee performance serving pursuant to a contract with a private entity

Criticism of employee performance serving pursuant to a contract with a private entity
Brackman v City of New York, Supreme Court, [Not selected for publication in the Official Reports]

If a public employee does not have tenure, he or she may be dismissed at any time, for any reason, or for no reason, provided that the termination does not otherwise constitute an unlawful act on the part of the public employer. At best, such an individual may demand, and receive, a name clearing hearing if there has been publication of the alleged disparaging remarks concerning his or her work performance.

Being successful in clearing one’s name via a name-clearing clearing hearing, however, does not entitle the individual to reinstatement to his or her former position.

The Brackman case involved a novel variation of this type of situation -- the rights of a terminated employee of an independent contractor performing work for a public entity.

The contractor, Data Industries, was to perform certain data processing related services for the City of New York. City officials were extremely critical of the work being done under the contract by Brackman, one of Data Industries’ employees.

City officials complained that Brackman was not performing satisfactorily and did not provided the services the City expected. This criticism resulted in Brackman’s dismissal from the project and from Data Industries.

Brackman sued for damages for the alleged defamation arising in the context of his work as a computer consultant for New York City’s Department of Employment. The court granted the City motion to dismiss Brackman’s petition for two reasons:

1. Brackman had signed a release in exchange for a sum of money when he was terminated by Data Industries covering “all actions, causes of action [and] suits [...] by reason of any matter, cause or thing whatsoever against Data Industries, the City of New York, the Department of Employment and its Management Information System Division;” and

2. The allegedly defamatory remarks are “quintessential expressions of opinion,” which are fully protected by the state and federal constitutions.

Justice Stallman said that all of the statements concerning Brackman’s abilities and his performance on the project use loose, figurative language, and none of the statements are objectively capable of being characterized as true or false.

Citing Williams v Varig Brazilian Airlines, 169 AD2d 434, the court said that “Disparaging remarks concerning a person’s job performance are routinely held to be constitutionally protected opinion.”

Dismissing Brackman’s petition, Justice Stallman said that as an at-will employee in the private sector there was no tort liability for wrongful or abusive discharge.

The lesson gleaned from Brackman is that as an at-will employee -- the private sector equivalent of a provisional or temporary public employee -- Brackman did not even have a right to a name clearing hearing, much less the right to sue the City or it officials for damages after being fired by the Data Industries.

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