The conduct of a municipality or government entity may serve to ratify the terms and conditions of an agreement not approved as provided by law

The conduct of a municipality or government entity may serve to ratify the terms and conditions of an agreement not approved as provided by law

Prudenti v County of Suffolk, Appellate Division, 2016 NY Slip Op 06203

On September 20, 2011, the then Suffolk County Executive entered into a Memorandum of Agreement [MOA] with the Suffolk County Deputy Sheriffs Police Benevolent Association [DSPBA] pursuant to which DSPBA agreed to defer the payment of approximately $4 million in retroactive pay increases its members that had been awarded to DSPBA members by an arbitration panel for the period January 2008 through December 2010 until December 2015. In exchange, Suffolk County agreed not to transfer any of the DSPBA members' official duties to other law enforcement officers through December 2017. Suffolk and DSPBA also agreed that any disputes concerning the interpretation and, or, implementation of any provision of the MOA could be submitted to arbitration.

Notwithstanding the “no transfer” provision in the MOA, in September 2012, the successor County Executive and the County entered into an agreement with the Suffolk County Police Benevolent Association [PBA] that provided that the County would transfer certain highway patrol and enforcement work previously assigned to DSPBA members to PBA members.

DSPBA filed a demand for arbitration and subsequently commenced a CPLR Article 75 action seeking a preliminary injunction prohibiting Suffolk County from transferring the highway patrol and enforcement work to members of the PBA pending resolution of the arbitration proceeding and, in addition, for a judgment declaring that the MOA is valid and enforceable.

Suffolk County cross-moved to permanently stay the arbitration proceeding contending [1] that no valid agreement to arbitrate the MOA had been made and [2] that the wage deferral provisions of the MOA were invalid because they called for an additional appropriation of funds that had not been approved by the County Legislature.* The Suffolk County Superior Officers Association [SOA] and PBA joined in the motions to stay the arbitration and to dismiss DSPBA’s complaint.

Supreme Court held that the MOA entered into by the former Suffolk County Executive and the DSPBA was valid and enforceable and rejected motions pursuant to CPLR 7503(b) by Suffolk, the PBA, and the SOA to permanently stay arbitration. The court also directed Suffolk County and DSPBA to proceed to arbitration. Suffolk County, PBA and SOA appealed.

The Appellate Division first ruled that, contrary to the contentions of Suffolk County, the PBA, and the SOA, Supreme Court's declaration upholding the validity of the MOA was procedurally proper.

Addressing the merits of the action, the Appellate Division held that Supreme Court correctly determined that the MOA was valid and enforceable as matter of law, regardless of whether the wage deferral provisions required legislative approval pursuant to Civil Service Law §204-a(1), because the County Legislature had ratified those provisions by its conduct.

The court explained that a contract that is not approved by the relevant municipal or governmental body as required by law, rule, or regulation may be ratified by the municipality or government body by its subsequent conduct. In this instance, said the Appellate Division, it was demonstrated “prima facie” that the County Legislature “accepted the benefits of the MOA and partially performed thereunder with knowledge of its terms in a manner clearly referable to the agreement.”

As the County, the SOA, and the PBA failed to raise a triable issue of fact, the Appellate Division said the Supreme Court properly concluded that the County Legislature had ratified the MOA.

* Civil Service Law §204-a.1 requires that “Any written agreement between a public employer and an employee organization determining the terms and conditions of employment of public employees shall contain the following notice in type not smaller than the largest type used elsewhere in such agreement: "It is agreed by and between the parties that any provision of this agreement requiring legislative action to permit its implementation by amendment of law or by providing the additional funds therefor, shall not become effective until the appropriate legislative body has given approval."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_06203.htm

Rescinding an offer of employment after employee failed to complete necessary routine paperwork does not constitute “unlawful retaliation”

Rescinding an offer of employment after employee failed to complete necessary routine paperwork does not constitute “unlawful retaliation”
Ruderman v City of New York, 2016 NY Slip Op 06148, Appellate Division, First Department

An order of Supreme Court granting the motion of the City of New Yorkto dismiss Irving Ruderman complaint alleging “retaliation” was unanimously affirmed by the Appellate Division, which noted that although the Supreme Court’s order did not expressly address Ruderman’s retaliation claim, it unambiguously granted New York City’s motion to dismiss in its entirety.

In order to establish a prima facie case of retaliation, the individual is required to show that:

(1) he or she had engaged in protected activity,

(2) his or her employer was aware that he or she participated in such activity,

(3) he or she suffered an adverse employment action based upon his or her activity, and

(4) there is "a causal connection between the protected activity and the adverse [personnel] action" alleged to have suffered by the individual.

The Appellate Division explained Ruderman’s retaliation claims brought pursuant to Federal and State Civil Rights Law and under the New York City Human Rights Law was properly dismissed by Supreme Court because Ruderman's complaint failed to provide a basis for a reasonable jury to conclude that the job offer that was extended to him was rescinded because of his inquiry he had sent to the Equal Employment Opportunity Commission [EEOC].

The court noted that there was no dispute that the job offer made to Ruderman was re-confirmed “even after City of New York employees were aware of the inquiry” Ruderman had submitted to EEOC.

Nor, said the Appellate Division, was there any dispute that Ruderman failed to complete the required routine paperwork related to his employment. Indeed, said the court, Ruderman was advised that his failure to complete this paperwork might result in his not being appointed to the position that was offered. Notwithstanding this warning, Ruderman did not complete the paperwork.

With respect to Ruderman's allegations of unlawful retaliation, the Appellate Division ruled that he failed to allege facts sufficient to demonstrate any causal connection between his not being appointed to the position and his having made an “EEOC inquiry.” 

In addition, said the court, the reason given by the City for rescinding its job offer -- Ruderman's failure to complete the required paperwork -- did not constitute a pretext for unlawful retaliation in violation of the relevant Federal, State or City discrimination laws.

As the United States Court of Appeals for the 5^thCircuit held in Wallace v Methodist Hospital System, 271 F.3d 212, where the employer has presented a lawful reason to rebut an individual’s prima facie evidence of unlawful discrimination, the burden shifts to the charging party to “present facts to rebut each and every legitimate non-discriminatory reason advanced by [the employer] in order to survive [a motion for] summary judgment” submitted to the court by the employer. Implicit in this ruling: if but one of the explanations offered by an employer in defending itself against allegations of unlawful discrimination survives, the employer will prevail.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_06148.htm

Penalty of termination to “jolt” the employee to understand of the seriousness of his misconduct remanded for the imposition of a lesser penalty

Penalty of termination to “jolt” the employee to understand of the seriousness of his misconduct remanded for the imposition of a lesser penalty
2016 NY Slip Op 06184, Appellate Division, First Department

The Appellate Division reversed, on the law, Supreme Court’s denial of an CPLR Article 75 petition filed by a teacher seeking an order vacating that part of an arbitration award that terminated his employment as a tenured teacher. The matter was then remanded to the appointing authority for the imposition of a lesser penalty.

The evidence presented at the disciplinary arbitration hearing established that the teacher, an eighth-grade physical education teacher, had initiated conversations with at least two of his female students asking them "if they had older sisters, and, if so, how old they were, whether they had boyfriends, and whether they had photographs of them" and accepted the phone number of one student's 23 year-old sister.

One student had testified that the teacher’s conduct made her feel "uncomfortable," and another said that his conduct "aggravated" her.

Of the 12 specifications filed against the teacher, the Hearing Officer dismissed five. Finding the teacher guilty of the seven remaining specifications, including an allegation that he had engaged in similar behavior in a previous school year, the hearing officer said that he had found the teacher “to be insufficiently remorseful, that his actions revealed ‘moral failings,’ and that, although termination might be ‘too severe,’ it was the only penalty that could ‘jolt’ [the teacher] into an understanding of the seriousness of his misconduct.”

In view of “all the circumstances of the case, including the lack of any prior allegations of misconduct [filed] against the teacher during 13 years of service and the fact that the misconduct does not violate any specific rule or regulation,” the Appellate Division said that it found the penalty imposed, termination, sufficiently “disproportionate to the offenses to shock the conscience” of the court.

Further, said the court, the teacher had never been warned or reprimanded regarding the conduct at issue, and, contrary to the conclusion of the Hearing Officer, “there is no evidence that a warning or reprimand or other penalty short of termination would not have caused [the teacher] to cease the objectionable conduct immediately.”

The Appellate Division panel adjudicating this appeal, Justice Tom dissenting, said although it shared some of Justice Tom’s concern regarding the teacher’s behavior and his failure to express any deeper understanding of the inappropriate nature of his actions, it did not agree that the law supports imposing the penalty of termination “at this time.”

The court noted that the Hearing Officer found only that the teacher had made "inappropriate inquiries of his 8th grade female students regarding their female relatives, in furtherance of a personal agenda having nothing to do with school or his responsibilities as a teacher." Further, said the majority, the Hearing Officer did not find that the teacher actually intended to, or did, have any “romantic/sexual interactions” with anyone nor was there any evidence that the teacher “had made any sexual comments to his students.”

In the words of the majority, the teacher “showed very poor judgment, but he has not been shown to have violated any law, or even any rule or regulation of the Department of Education,” explaining that its decision does not excuse the teacher’s behavior but merely directs imposing “a less serious punishment.”

However, warned the majority, should such behavior continue, termination of the teacher “may well be in order in the future.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_06184.htm

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A Reasonable Penalty Under The Circumstances - a 618-page volume focusing on New York State court and administrative decisions addressing an appropriate disciplinary penalty to be imposed on an employee in the public service found guilty of misconduct or incompetence. For more information click on http://booklocker.com/7401.html

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Determining the appropriate procedure to be followed when filing disciplinary charges against a police officer of a town

Determining the appropriate procedure go be followed when filing disciplinary charges against a police officer of a town

Town of Goshen v Town of Goshen Police Benevolent Assn., 2016 NY Slip Op 06090, Appellate Division, Second Department

§155 of the Town Law provides that charges brought against members of a police department that are subject to procedures prescribed by a town board "shall not be brought more than sixty days after the time when the facts upon which such charges are based are known to the town board."

Subject to certain exceptions not here relevant, §75.4 of the Civil Service Law provides that disciplinary charges brought against an employee must be brought within 18-month of the occurrence of the alleged act or acts of incompetence or misconduct.

A Town of Goshen police officer was served with disciplinary charges pursuant to Local Law No. 1 of 2013 of the Town of Goshen. Local Law No. 1 had been enacted by the Town Board pursuant to the authority granted to it by Town Law §155.  

Significantly, the record established "that the disciplinary proceeding was untimely commenced more than 60 days after the Town Board learned the facts upon which the disciplinary charges were based."

Town of Goshen Police Benevolent Association [PBA] brought a hybrid proceeding pursuant to CPLR Article 75 seeking a court order declaring that the disciplinary charges against the police officer were time-barred as they were brought pursuant to Town Law §155 more than 60 after the alleged acts of misconduct were know to the Board.

The Town, on the other hand, contended that the disciplinary action had timely served within the  longer 18-month statute of limitations prescribed by Civil Service Law §75.4 “incorporated in the collective bargaining agreement” between the Town and the PBA.* The Town argued that the contract procedure controlled and the disciplinary charges had been timely served on the police officer as authorized by §75.4 of the Civil Service Law.

Supreme Court** agreed with the PBA that the disciplinary charges filed against the police officer were untimely as the statute of limitations set out in the Town Law rather than the Civil Service Law controlled and granted the PBA’s petition.

The Appellate Division affirmed the lower court's ruling, explaining that contrary to the Town’s claim that the statute of limitations set by §75.4 controlled, by enacting Local Law No. 1 the Town Board "affirmed that the subject of police discipline resides with it" and as a result "discipline" was a prohibited subject of collective bargaining between the Town and the PBA. In other words, the provisions dealing with disciplinary action set out in the collective bargaining agreement negotiated pursuant to the Taylor Law were a nullity.

In Town of Wallkill v CSEA, Town of Wallkill Police Department, 19 NY3d 1066, the Court of Appeals said that the discipline of police officers "may not be a subject of collective bargaining under the Taylor Law when the Legislature has expressly committed disciplinary authority over a police department to local officials." Accordingly, the Town of Wallkill's local law made police discipline subject to the Board's procedures and the mandates of Town Law §155 rather than the disciplinary procedures set out in a collective bargaining with respect to initiating and prosecuting a disciplinary action against a Town of Wallkill police officer.

* §76 of the Civil Service Law provides that §§75 and 76 of such law “may be supplemented,  modified or replaced by agreements negotiated between the state  and  an   employee  organization  pursuant  to  Article  14 of this chapter.”

** A summary of the Supreme Court’s decision is posted on the Internet at: http://publicpersonnellaw.blogspot.com/2013/11/town-adopts-local-law-replacing.html

The Appellate Division’s decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_06090.htm

______________

The Discipline Book - A 458 page guide to disciplinary actions involving public officers and employees. For more information click on http://booklocker.com/books/5215.html

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In considering a motion to dismiss, the court is to give allegations in the complaint a liberal construction and consider facts alleged in the complaint true

In considering a motion to dismiss, the court is to give allegations in the complaint a liberal construction and consider facts alleged in the complaint true

Kaplan v New York City Dept. of Health & Mental Hygiene, 2016 NY Slip Op 06063, Appellate Division, Second Department

Constance Kaplan was serving with the New York City Department of Health and Mental Hygiene [HMH] as a temporary worker. She alleged that after notifying HMH that she had been sexually harassed by her supervisor during a training session and intended to sue under the relevant human rights laws she was terminated from her position. She also alleged that her dismissal constituted reprisal for taking action to seek redress for the supervisor’s alleged sexual harassment.

Supreme Court granted HMH’s motion to dismiss Kaplan's petition alleging sexual harassment pursuant to New York City’s Human Rights Law “for failing to state a cause of action." The court granted HLMH's motion after determining that Kaplan's failed to show that the behavior of her supervisor "constituted more than a petty slight or trivial inconvenience"

The Appellate Division disagreed with Supreme Court’s ruling and said that the lower court should have given Kaplan’s complaint a liberal construction and accepted all facts alleged in the complaint to be true. Further, said the court, a contention that the behavior being complained of “was a petty slight or trivial inconvenience” constituted an affirmative defense, which should be raised in HMH’s answer, and did not lend itself to a pre-answer motion to dismiss. 

A motion to dismiss, said the Appellate Division, “merely addresses the adequacy of the pleading, and does not reach the substantive merits of a party's cause of action.”

The Appellate Division also found that Supreme Court erred in dismissing Kaplan’s cause of action alleging retaliation within the meaning of both the State’s and the City’s human rights laws. 

Kaplan had alleged in her complaint that her employment was terminated approximately two weeks after she informed HMH of her claims of sexual harassment and advised it of her intent to sue. Viewed in the light most favorable to Kaplan, the Appellate Division concluded that these allegations stated a cause of action alleging retaliation within the meaning of the State’s Human Rights Law and New York City’s Human Rights Law, the latter being "more liberal that its state counterpart.”

HMH had also submitted several emails in support of its motion to dismiss which it contended established that Kaplan was not discharged from her employment. 

The Appellate Division said that the emails submitted by HMH did not establish that Kaplan’s allegation that she was discharged from her employment “is not a fact.” Again the Appellate Division found that “Supreme Court erred in determining that emails from [Kaplan] and her temporary employment agency constituted party admissions and were admissible under an exception to the hearsay rule,” as the emails HMH relied upon were not inconsistent with Kaplan’s position that she was terminated from her employment.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_06063.htm

LawBlogs with a New York State focus

LawBlogs with a New York State focus

Source: Justia Practice Areas

Justia reports on 6,536 Blawgs in 74 subcategories of which there are 303 New York State LawBlogs listed.

The most popular NYS LawBlog "for all time" was “Real Estate Law Blog,” rank number 11 the 6.536 LawBlogs Justia follows.. It’s current postings are listed at: http://www.nyrealestatelawblog.com/

You may check out all the current NYS LawBlog listings on Justia “for all time” at

http://blawgsearch.justia.com/blogs/countries/united-states/new-york?page=1&sortby=popularity&dispmode=expanded&popmode=all

and quickly sign-up to “subscribe” to any LawBlogs of interest via a daily “feed” to receive postings on a continuing basis using the link provided for each LawBlog.

Employee’s continuing to accept public assistance benefits after being employed to manage public assistance benefits held incompatible with such employment

Employee’s continuing to accept public assistance benefits after being employed to manage public assistance benefits held incompatible with such employment

Human Resources Admin. v Charleman, OATH Index No. 1653/16

In disciplinary proceeding conducted in accordance with §75 of the Civil Service Law,  New York City Office Of Administrative Trials And Hearings Administrative Law Judge Susan J. Pogoda recommended the termination of the employment of Desiree Charleman, an eligibility specialist with the New York City Human Resources Administration [HRA], after finding her guilty of failing to report her arrest for shoplifting, her fraudulently accepted food stamps, and her failing to report acceptance of public assistance rent checks from her sister. Judge Pogoda explained that Charleman’s dishonesty did not comport with the duties of her job.

The ALJ noted that the penalty of termination was recommended in a number of other similar disciplinary action such as in OATH Index No. 1381/03 in which the employee was terminated for failing to report purchase of rental income property as required by agency rules and OATH Index Nos. 542/99, in which three employees who failed to report income and received from $3,000 to $11,000 in public assistance to which they were not entitled.

Although Charleman had expressed remorse over her actions, Judge Pogoda found that while she was specifically informed when she was hired that, as a public assistance client she had an obligation to immediately inform her caseworker of her employment, she failed to do so. Also, said the ALJ, Charleman’s defense that she made mistakes because she was preoccupied with family issues during the relevant time period was inconsistent with her statement to an investigator that “she didn’t know why she kept redeeming the benefits”. In addition, Judge Pogoda found that although Charleman was subsequently notified by a mailed notice of a $600 recoupment claim for benefits, she continued to access her benefits without informing her caseworker of her current income.

The ALJ concluded that Charleman’s acceptance and redemption of benefits for up to nine months after she was employed by HRA, “when she must have known that she was not entitled to them, suggests a high level of dishonesty that is incompatible with continuing to be employed to manage public assistance benefits.

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/16_cases/16-1653.pdf

____________

A Reasonable Penalty Under The Circumstances - a 618-page volume focusing on New York State court and administrative decisions addressing an appropriate disciplinary penalty to be imposed on an employee in the public service found guilty of misconduct or incompetence. For more information click on http://booklocker.com/7401.html

______________

Boston police officer union denied injunction to temporarily block body-worn camera test

Boston police officer union denied injunction to temporarily block body-worn camera test

By Dave Strausfeld, J.D.

Posted in Wolters Kluwer's WorkDayhttp://www.employmentlawdaily.com/

A union of Boston police officers was not entitled to an injunction to temporarily block implementation of a pilot program to test body-worn cameras, held a Massachusetts Superior Court judge. While the union sought the injunction to maintain the status quo during arbitration of the union’s grievance over the manner in which the body camera pilot program was implemented, the union did not show a likelihood of success on the merits of the case, especially because a Massachusetts statute grants police commissioners significant non-delegable control over officers’ uniforms and equipment. And the union did not make a showing of irreparable harm: While a recent Rand Corporation study indicated that body cameras are associated with increased assaults against police, other studies have reached different conclusions (Boston Police Patrolmen’s Association, Inc. v. City of Boston.

Mr. Straisfeld’s article is posted on the Internet at:

http://www.employmentlawdaily.com/index.php/news/boston-police-union-cant-get-body-camera-program-temporarily-enjoined/?utm_source=feedburner&utm_medium=email&utm_campaign=Feed%3A+CCH-Workday+%28WK+WorkDay%29

© 2016 CCH Incorporated. All rights reserved. The foregoing summary is reprinted with permission. This article was published in Wolters Kluwer Daily Reporting Suite on September 14, 2016. For more information, please click here [http://www.dailyreportingsuite.com/files/DailiesReprintPermissionsAfter7Days.pdf]

Objecting to producing certain documents demanded pursuant to a non-judicial subpoena duces tecum

Objecting to producing certain documents demanded pursuant to a non-judicial subpoena duces tecum

New York State Joint Commission. on Public Ethics v Campaign for One N.Y., Inc., 2016 NY Slip Op 26290, Supreme Court, Albany County, Denise A. Hartman, J.

The New York Joint Commission on Public Ethics (JCOPE) commenced a proceeding in Supreme Court, Albany County, to compel Campaign for One New York, Inc. (Campaign) to comply with  non-judicial subpoena duces tecum that it issued in 2015 and in 2016 pursuant to Executive Law §94.

Campaign cross-moved for a protective order limiting production of certain documents demanded pursuant to the 2015 subpoena and to quash the 2016 subpoena.

Finding that JCOPE has established that it had the authority to issue both subpoenas, Judge Hartman addressed a number of issues raised by Campaign in objecting to the production of certain of the documents demanded pursuant to the subpoenas including the application of the Deliberative Process Privilege; protection as a Proprietary Trade Secret; the Attorney-Client Privilege; the Attorney Work Product privilege; and the Common Interest Doctrine

The Deliberative Process Privilege

Campaign asked the court to shield 41 documents pursuant to the deliberative process privilege. However, said the court, as Campaign is not a governmental agency, it does not have the right to assert the deliberative process privilege explaining that the privilege is a common law privilege that has been codified as an exception to FOIL.

As so codified,  the privilege shields from FOIL disclosure inter-agency or intra-agency materials that are prepared to assist a government agency's substantive decision-making process and, citing Matter of World Trade Ctr. Disaster Site Litigation, 2009 WL 4722250, the court noted that the privilege has also been applied to protect documents containing "advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated" for the purpose of "enhanc[ing] the quality of agency decisions by protecting open and frank discussion among those who make them within the Government."

While the language of FOIL only protects inter-agency and intra-agency materials, the Court of Appeals has extended the privilege to materials prepared for a government agency, at its request, "by an outside consultant."* As the privilege protects the deliberative processes of the government agency it affects, it must be invoked by that agency and not the private entity acting on the agency's behalf. In so doing, the governmental agency invoking the privilege must demonstrate "what interests would be harmed, how disclosure under a protective order would cause the harm, and how much harm there would be" and the court must balance the agency's interests against the interests mitigating in favor of disclosure. 

Proprietary Trade Secrets

Addressing Campaign’s contention that certain documents were  privileged as “trade secrets,” the court said that typically proprietary trade secrets will be shielded from disclosure "except to the extent that [disclosure] appears to be indispensable for ascertainment of the truth." Citing Ashland Management Inc. v Janien, 82 NY2d 395, the court said that “[a] proprietary trade secret is ‘any formula, pattern, device or compilation of information which is used in one's business, and which gives [the business] an opportunity to obtain an advantage over competitors who do not know or use it’” and “[a] conclusory statement in an attorney's affidavit that a document contains trade secrets is insufficient to meet the burden required to assert the privilege.”

Attorney-Client Privilege

Campaign also asserted that eight documents sought by JCOPE were protected by the attorney-client privilege. The court ruled that six were not protected because they were disclosed while a third party was present and that Campaign did not demonstrated that the remaining two were predominantly of a legal character.

While the attorney-client privilege prevents confidential communications made between the attorney and the client in the course of professional employment from being disclosed "[t]he party asserting the privilege bears the burden of establishing its entitlement to protection by showing [1] that the communication at issue was between an attorney and a client for the purpose of facilitating the rendition of legal advice or services, in the course of a professional relationship, [2] that the communication is predominantly of a legal character, [3] that the communication was confidential and [4] that the privilege was not waived." In any event, said the court, such a communication is not confidential if it is "made in the presence of third parties, whose presence is known to the client." 

Attorney Work Product

Campaign claimed that eight documents were exempt from disclosure under the “attorney work product doctrine.”  Noting that the party asserting the doctrine has "the burden of demonstrating that particular items are exempt or immune from disclosure ... the mere assertion that items constitute attorney's work product ... will not suffice," the court said that “[f]our of the documents appear, even from the scant descriptive information provided by Campaign, to fall outside the ambit of the privilege” and “the Court will conduct an in camera** review to determine whether the privilege applies.”

 Common Interest Doctrine

The court ruled that Campaign could not use the common interest doctrine to shield  any of the documents at issue from disclosure, explaining that the common interest doctrine extends attorney-client privilege in the presence of a third party where "attorney-client communications . . . are revealed to one another for the purpose of furthering a common legal interest," but it is limited to "disclosure ... deemed necessary to mount a common claim or defense." 

* Matter of Xerox Corp. v Town of Webster, 65 NY2d 131

** In private.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_26290.htm

Inadequate investigation by employer supports employee’s Title VII claim that the employees’ supervisors used the n-word

Inadequate investigation by employer supports employee’s Title VII claim that the employees’ supervisors used the n-word

By Lorene D. Park, J.D.

Posted in Wolters Kluwer's WorkDayhttp://www.employmentlawdaily.com/

Denying summary judgment on an African-American employee’s Title VII hostile work environment claim, a federal court in New York held that a jury could find that the repeated use of the n-word against him by two first line supervisors was severe and pervasive, that the employer’s investigation was inadequate, and that it should therefore be vicariously liable. However, the employee’s remaining discrimination and retaliation claims failed, largely because the record was clear that he was terminated because he failed to turn in FMLA paperwork and he accepted a better-paying job Holt v. Dynaserv Industries, Inc..

Ms. Park’s article is posted on the Internet at:

http://www.employmentlawdaily.com/index.php/news/supervisors-use-of-n-word-inadequate-investigation-support-title-vii-claim/?utm_source=feedburner&utm_medium=email&utm_campaign=Feed%3A+CCH-Workday+%28WK+WorkDay%29

© 2016 CCH Incorporated. All rights reserved. The foregoing summary is reprinted with permission. This article was published in Wolters Kluwer Daily Reporting Suite on September 14, 2016. For more information, please click here [http://www.dailyreportingsuite.com/files/DailiesReprintPermissionsAfter7Days.pdf]

Applying the principles of statutory construction in the course of litigation

Applying the principles of statutory construction in the course of litigation

Carver v Nassau County Interim Fin. Auth., 2016 NY Slip Op 05995, Appellate Division, Second Department [Decided with Donohue v Nassau County Interim Fin. Auth., 2016 NY Slip Op 05996, Appellate Division, Second Department]

In 2000, the County of Nassau was in the grip of a fiscal crisis involving a $2.7 billion debt. In response, the State Legislature created the Nassau County Interim Finance Authority [NIFA].*NIFA was created as a public benefit corporation to oversee the County's finances and created three periods of oversight: [1] an initial "interim finance period," [2] an ensuing period of "monitoring and review," and, when triggered by fiscal decline as defined in the Act, [3] a "control period" to restore fiscal balance.

On January 26, 2011, NIFA ordered a control period upon projecting a substantial budget deficit during which it imposed successive wage freezes upon County employees. A number of employee organizations representing employees in several collective bargaining units challenged NIFA’s imposition of these wage freezes.**

Ultimately the merits of the contention that NIFA was not granted statutory authority to extend the wage freezes beyond the interim finance period, which expired in 2008, was considered by Supreme Court in a proceeding pursuant to CPLR Article 78. The employee organizations sought a court order annulling and vacating certain resolutions adopted by NIFA and an order compelling compliance with salary provision set out in the relevant collective bargaining agreements.

In so doing, the plaintiffs relied on relied on Public Authorities Law §3669(3)(a), which provides, in relevant part:

"3. Authorization for wage freeze.

"(a) During a control period, upon a finding by the authority that a wage freeze is essential to the adoption or maintenance of a county budget or a financial plan that is in compliance with this title, the authority, after enactment of a resolution so finding, may declare a fiscal crisis. Upon making such a declaration, the authority shall be empowered to order that all increases in salary or wages of employees of the county and employees of covered organizations which will take effect after the date of the order pursuant to collective bargaining agreements, other analogous contracts or interest arbitration awards, now in existence or hereafter entered into, requiring such salary increases as of any date thereafter are suspended. Such order may also provide that all increased payments for holiday and vacation differentials, shift differentials, salary adjustments according to plan and step-ups or increments for employees of the county and employees of covered organizations which will take effect after the date of the order pursuant to collective bargaining agreements, other analogous contracts or interest arbitration awards requiring such increased payments as of any date thereafter are, in the same manner, suspended. . . . The suspensions authorized hereunder shall continue until one year after the date of the order and, to the extent of any determination of the authority that a continuation of such suspensions, to a date specified by the authority, is necessary in order to achieve the objectives of the financial plan, such suspensions shall be continued to the date specified by the authority, which date shall in no event be later than the end of the interim finance period, provided that such suspensions shall terminate with respect to employees who have agreed to a deferral of salary or wage increase upon the certification of the agreement by the authority pursuant to paragraph (b) of this subdivision"(emphasis supplied by the court in its decision).

Supreme Court denied the petition and dismissed the proceeding. The Appellate Division sustained the lower court’s rulings.

Citing Sabot v Lavine, 42 NY2d 1068, the Appellate Division explained that to address the plaintiffs’ argument “the familiar principles of statutory construction” must be applied whereby "Any statute or regulation . . . must be interpreted and enforced in a reasonable ... manner in accordance with its manifest intent and purpose." The court then set out the following test to be considered by courts with respect to determining “legislative intent:”

1. “A statutory interpretation that is ‘contrary to the dictates of reason or leads to unreasonable results is presumed to be against the legislative intent’;

2. “When presented with a question of statutory interpretation, [the court's] primary consideration is to ascertain and give effect to the intention of the Legislature;

3. "The clearest indicator of legislative intent is the statutory text, ‘the starting point in any case of interpretation must always be the language itself, giving effect to the plain meaning thereof’;

4. “A further fundamental rule of statutory construction when construing statutes under the same legislative act is that the court must ‘take the entire act into consideration, or look to the act as a whole, and all sections of a law must be read together to determine its fair meaning’; and

5. "A court should avoid a statutory interpretation rendering the provision meaningless or defeating its apparent purpose."

Applying these principles to the above-quoted section of the NIFA Act, as well as the NIFA Act's requirement that it "shall be liberally construed to assist the effectuation of the public purposes furthered hereby," the Appellate Division found that, contrary to the petitioners' contention, the Supreme Court correctly determined that NIFA was authorized under the NIFA Act to impose the challenged wage freezes.

Public Authorities Law §3669(3), said the court, expressly provides for NIFA's authority to declare a control period by adopting a resolution finding a fiscal crisis, and upon such finding, order that all increases in salary or wages of county employees be suspended. Further, noted the court, the Act provided that NIFA may be declared control periods "at any time."

Although the petitioners argued that other language in Public Authorities Law §3669(3) confines wage freeze authority to the interim finance period alone, the Appellate Division said that the petitioners had ignored the fact “that wage freeze authority was placed in a statutory section entitled "Control Period." The plain language preceding the use of the term "interim finance period" in that section by the Legislature clearly and unequivocally conferred wage freeze authority upon NIFA during control periods.

In the words of the court, … “petitioners' reliance upon certain language of Public Authorities Law §3669(3) that references the interim finance period is misplaced, as that language is followed by a ‘provided’ qualifier that does not apply here.” Further, petitioners’ construction of §3669(3) conflicts with the meaning of the statute as a whole, as well as with the Legislature's expressed intent that NIFA be vested with recognized tools for dealing with ongoing fiscal crises.

Accordingly, the Appellate Division concluded that NIFA and the County respondents established their objections in point of law and held that Supreme Court properly, in effect, denied the petition and dismissed the proceeding.

* Public Authorities Law §§3650-3672.

** The decision sets out in some detail the procedural actions taken by the parties in advancing their respective claims.

The decision in Carver v Nassau County Interim Fin. Auth is set out on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_05995.htm

The decision in Donohue v Nassau County Interim Fin. Auth. is set out on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_05996.htm

Students with a “disability for the purposes of IDEA” cannot establish a prima facie of unlawful discrimination based on the student being disabled for the purposes of ADA and §504

Students with a “disability for the purposes of IDEA” cannot establish a prima facie of unlawful discrimination based on the student being disabled for the purposes of ADA and §504

B.C., et al. v. Mount Vernon School District, et al, USCA 2^nd Circuit, No. 14‐3603‐cv

In addressing a question of “first impression”, the United State Circuit Court of Appeals, Second Circuit, held that as the definition of “disability” for the purposes of the Americans with Disabilities Act, 42 U.S.C. §12102(1), [ADA] claims and claims under the Rehabilitation Act, 29 U.S.C. §705(20), [§504] differ from the definition of “disability” for the purposes of claims advanced pursuant to the Individuals with Disabilities Education Act, 20 U.S.C. §1401(3)(A) [IDEA].*

Accordingly, said the court, an individual with a “disability” under the IDEA does not categorically qualify as an individual with a disability under the ADA and §504 and data relating to “child[ren] with a disability” under the IDEA cannot establish a prima facie case with respect to a claim predicated on the plaintiff having a disability under the ADA and §504.

The court explained that “To establish a prima facie case of discrimination under either the ADAor §504, a plaintiff must show the following: (1) plaintiff is a “qualified individual with a disability;” (2) plaintiff was “excluded from participation in a public entity’s services, programs or activities or was otherwise discriminated against by [the] public entity;” and (3) “such exclusion or discrimination was due to [plaintiff’s] disability.”

Further, said  the Circuit Court, “[t]he ADAasks whether an impairment ‘substantially limits’ a major life activity,  while the IDEA trains on whether an impairment necessitates ‘special education and related services.’ Thus, a child might ‘need special education and related services’ by reason of an impairment, id., even if that impairment does not ‘substantially limit … [a] major life activit[y].’” Citing Ellenberg v. N.M. Military Inst., 572 F.3d 815, 821 (10th Cir. 2009), the court said “one may … qualify as ‘disabled’ under the IDEA for purposes of that statute without demonstrating a ‘substantially limit[ing]’ impairment.”

* The ADA and Section 504 define the term “disability” differently than the IDEA does. The ADA defines “disability” as a “physical or mental impairment that substantially limits one or more major life activities.” 42 U.S.C. §12102(1)(A). Section 504 expressly incorporates, with certain qualifications not applicable here, the ADA’s definition. 29 U.S.C. §705(20)(B). By contrast, under the IDEA, a “child with a disability” has one or more of an enumerated list of impairments requiring “special education or related services."

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/1be964f6-7e36-45ae-bd05-cbb35e4158b1/1/doc/14-3603_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/1be964f6-7e36-45ae-bd05-cbb35e4158b1/1/hilite/

Selected reports issued by the New York State Comptroller during the week ending September 17, 2016

Selected reports issued by the New York State Comptroller during the week ending September 17, 2016

Source: Office of the State Comptroller

[Internet links highlighted in color]

Former Pennellville Fire Chief Pleads Guity to petit larceny

Pennellville Volunteer Fireman’s Association (VFA) former Fire Chief Duane Royal pleaded guilty to petit larceny for stealing VFA gas for his private process-serving business. http://www.osc.state.ny.us/press/releases/sept16/091516.htm?utm_source=weekly+news&utm_medium=email&utm_term=corruption&utm_content=20160918&utm_campaign=fiscal+oversight

Sunset Park, Brooklyn, an economic snapshot

The population, the number of jobs and businesses, and the wages being paid in Sunset Park, Brooklynare all growing at a rapid pace, according to a report released by New York State’s Comptroller Thomas P. DiNapoli.

http://www.osc.state.ny.us/osdc/rpt5-2017.pdf

Disparate treatment on the basis of a foreign accent is evidence of discrimination based on race or national origin

Disparate treatment on the basis of a foreign accent is evidence of discrimination based on race or national origin

Jeudy v City of New York, 2016 NY Slip Op 06045, Appellate Division, First Department

St. Jean Jeudy, born in Haiti, emigrated to the United States in 1994 and received a bachelor's degree in forensic science in 2003. Employed as a Criminalist I-B at New York City’s Office of the Chief Medical Examiner [OCME], in 2007 he applied for promotion to Criminalist II in early 2007 and was rejected.

By late 2010, Jeudy had been by employed by OCME for more than six years, but was still in an entry-level Criminalist I-B position. In contrast, a number of "non-black, American-accented" criminalists who were junior to him were promoted to Criminalist II and III.

Jeudy continued applying for promotion, and continued to be rejected. In March 2011, at his 2010 year-end review meeting, his supervisor told him that he was not being promoted because of his foreign accent. According to Jeudy, management had a standing practice of not promoting foreign-accented criminalists to Criminalist II, the level at which criminalists would be expected to testify in court, because management did not believe that foreign-accented criminalists could testify effectively.

The Appellate Division’s decision reports that:

1. A “Criminalist III told Jeudy that, as a result of his persistence and repeated complaints about not being promoted, management was 'out to get him'.”

2. “Thereafter, managers, including the heads of the Homicide and Sex Crimes Group to which Jeudy was assigned, embarked on a campaign to write [him] up for minor errors and give him unfavorable year-end reviews.”

3. Jeudy was served with “disciplinary charges and a suspension, which were resolved by a probationary retraining period.”

4. Jeudy “was given an unfavorable "Conditional" final performance rating, which was inconsistent with the favorable preliminary review he had been given only a month earlier.”

5. These actions resulted in Jeudy’s termination effective February 12, 2014.

In May Jeudy filed an Article 78 petition in Supreme Court asserting causes of action for racial and national origin discrimination and retaliation in violation of the New York State and New York City Human Rights Laws [HRL].

Supreme Court granted the City motion to dismiss Jeudy’s complaint on the grounds that they were [1] time-barred and that [2] he failed to state a cause of action. Jeudy appealed.

With respect to the question of timeliness, the Appellate Division said that the statute of limitations under the State and City HRLs is three years. Thus, said the court, as Jeudy filed his complaint in this action on May 23, 2014, allegedly discriminatory acts committed before May 23, 2011 are facially untimely. However, said the court, his claims under the New York State HRL for failure to promote after May 23, 2011 are timely as Jeudy had alleged sufficient facts to meet his pleading burden for purposes of defeating the City’s motion to dismiss.

Further, said the court, his claims for failure to promote under the City HRL were also timely as Jeudy has adequately alleged "a single continuing pattern of unlawful conduct [starting from his first promotion rejection in 2007] extending into the [limitations] period immediately preceding the filing of the complaint” which permits consideration under the City HRL of all actions relevant to that claim, including those that would otherwise be time-barred.*

In the words of the Appellate Division, “it is undisputed that [Jeudy] made out the first three elements of his claim of invidious employment discrimination under the State and City HRLs. We find that he also made out the fourth element, that he was adversely or differently treated because of his race or national origin ... by alleging that management had a standing practice of refusing to promote foreign-accented criminalists, invoked this practice against him, and ultimately suspended and then terminated him when he persisted in seeking promotion and complaining about his rejections."

The court said that notwithstanding the City’s contentions to the contrary, “disparate treatment on the basis of a foreign accent is evidence of discrimination based on race or national origin.”

In addition, the court noted that Jeudy’s complaint also state a cause of action for retaliation under both the State and City HRLs, rejecting the City’s argument that  Jeudy had not been engaged in a protected activity. The Appellate Division explained that as Jeudy’s complaint was that he was not being promoted on account of his accent and a “plaintiff's foreign accent is inextricably linked with his national origin.”

The Appellate Division also rejected the City’s arguments that Jeudy failed to show a causal relationship between his complaints and his suspension and termination and the allegations in his complaint establish that the City's concerted campaign of excessive scrutiny following Jeudy's persistent applications for promotion and complaints about continual rejection was calculated to, and did, lead directly to his suspension and termination.

* The Appellate Division also noted that “… while, as plaintiff concedes, the continuing violations doctrine only applies to his claims of failure to promote under the City HRL [citations omitted], even under the State HRL, he ‘is not precluded from using the prior acts as background evidence in support of a timely claim.’”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_06045.htm