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January 21, 2011
Challenging administrative rulings
Malitz v NYC Transit Authority, NYS Supreme Court, Justice Stallman [Not selected for publication in the Official Reports]
The Malitz case points out the differences in the standards that are used by the courts when reviewing different types of agency or administrative determinations.
In cases involving challenges to an agency’s administrative determination made without having held an administrative hearing, the test applied is whether or not the agency’s determination can be supported on any reasonable basis. Stated another way: was the administrative determination arbitrary or capricious?*
In contrast, Justice Michael D. Stallman pointed out that when a court considers a challenge to an administrative determination resulting from a quasi-judicial proceeding, i.e., an administrative hearing, it applies the substantial evidence test. The substantial evidence standard arises only when there has been a quasi-judicial hearing, and evidence taken pursuant to law, said Justice Stallman, citing Colton v Berman, 21 NY2d 322.
The issue before the court in the Malitz case: which was the appropriate test to be applied in addressing Malitz’s Article 78 petition?
The case arose as a result of the New York City Transit Authority [NYCTA] filing disciplinary charges against one of its railroad clerks, Bryan Malitz. NYCTA alleged that Malitz failed to properly relieve another railroad clerk, Holmes.
According to the decision, on August 1, 1997 Holmes had incorrectly tallied fare cards resulting in a $2,100 shortage. Malitz did not detect this error and carried over the same incorrect information during his shift. Malitz’s relief, Bayo, repeated Holmes’ and Malitz’s error. Holmes then relieved Bayo without detecting the error. Finally the $2,100 error was discovered by Malitz when he relieved Holmes for a second time.
The Authority terminated Malitz. The grievance arbitration panel upheld the termination, ruling that Malitz did not make a ‘proper relief’ [and] this failure did warrant dismissal since the per se procedural violation went to the heart of a railroad clerk’s responsibilities and was a serious failure of duty. Neither Holmes nor Bayo were terminated as a result of the error that Holmes made on August 1.
Malitz then filed a complaint with the New York State Division of Human Rights [NYSDHR] contending that he had been unlawfully terminated from his position due to his sleep apnea disability in violation of the New York State Human Rights Law [Section 296, Executive Law]. He also asserted that the charges leading to his dismissal were false. NYSDHR dismissed his discrimination complaint, finding that there was a lack of probable cause.
NYSDHR decided that Malitz had been terminated because of performance infractions unrelated to his sleep apnea. In reviewing Malitz’s complaint, the Division took into consideration various performance infractions set out in Malitz’s personnel record. These other infractions included episodes involving insubordination, arguing with customers, closing his window, refusing to sell tokens, exposing himself while on duty and sleeping on duty.
NYSDHR decided that NYCTA’s decision to penalize but not terminate Holmes or Boyd did not support a claim that NYCTA’s termination of Malitz constituted unlawful discrimination. NYSDHR noted that Holmes’ and Boyd’s employment dossiers, unlike Malitz’s, did not contain any reports of procedural violations prior to the August 1, 1997 incident.
Malitz appealed NYSDHR’s determination. His Article 78 petition alleged that NYSDHR’s dismissal of his complaint was not supported by substantial evidence. The court rejected this theory, indicating that Malitz’s reliance on the substantial evidence test in his case was misplaced.
The decision states that NYSDHR has the discretion to (1) determine how an investigation will be conducted and (2) to dismiss a complaint for lack of probable cause without a hearing where appropriate. As there was no hearing held concerning Malitz’s complaint, the appropriate test to be applied was whether the Division’s determination was rational, not whether it was supported by substantial evidence.
Justice Stallman ruled that the division’s action satisfied the rational test. He said that NYSDHR dismissed petitioner’s discrimination claim for lack of probable cause after a thorough investigation and review of all factors, including his sleep apnea diagnosis. Under the circumstances this, the court concluded, was reasonable.
Clearly, since Malitz’s complaint was dismissed for lack of probable cause and a quasi-judicial hearing was not held by the NYSDHR, the substantial evidence test was not applicable. As to his challenge to the administrative dismissal of his complaint, the court said that because he did not present any evidence that NYSDHR’s dismissal of his complaint was arbitrary or capricious, his petition had to be dismissed.
* The arbitrary and capricious standard involves a review of whether a particular administrative action is justified. In effect, the rationality of the decision is reviewed under this standard.
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