August 31, 2018

School bus safety

School bus safety
Source: Office of the State Comptroller

Click on text highlighted in color to access the full report

On August 30, 2018 the New York State Comptroller, Thomas P. DiNapoli, announced the following report on school bus safety was issued.

State Comptroller Thomas P. DiNapoli released an audit that examined seven upstate school districts and their compliance with school bus safety requirements. The audit found school districts are not confirming all school bus drivers are completing required training and drug testing, and that school bus safety drills and inspections are done.

“When parents place their children on school buses each day, they do so with the expectation that every safety measure possible has been fulfilled,” said DiNapoli. “Failing to ensure that school bus drivers are properly trained and vetted, and safety drills take place could endanger students. With the upcoming school year upon us, superintendents and school boards need to act quickly to address their district’s shortcomings identified in our audit.”

DiNapoli’s audit focused on seven districts in upstate New York during the 2016-17 school year: Clarence Central School District (Erie County), Cornwall Central School District (Orange), Horseheads Central School District (Chemung), Rome City School District (Oneida), Saratoga Springs City School District (Saratoga), Watertown City School District (Jefferson) and the West Irondequoit Central School District (Monroe).

Of the seven districts examined, five contracted out with eight different vendors for some or all of their student transportation needs. Three of those five also provided some in-house transportation. The remaining two districts provided all in-house transportation.

Auditors reviewed the districts’ and vendors’ compliance with five state and federal requirements. Specifically, they examined whether drivers were subject to random drug testing, completed required safety training and were annually approved by the district superintendent. Auditors also looked into whether or not districts and vendors conducted and documented bus safety drills and bus inspections were completed and reviewed.

Horseheads met three of the five requirements, while Rome and Saratoga Springs met none. Clarence, Cornwall, Watertown and West Irondequoit only met one of the requirements.

Not All Drivers Were Subject to Drug and Alcohol Testing

Drivers for Cornwall and West Irondequoit were all documented as subject to random drug and alcohol tests. The other five districts and vendors did not have processes in place to ensure that their current roster of drivers were included on the random drug and alcohol testing list.

In West Irondequoit, neither the district nor the vendor could provide documentation to support that two of its drivers, who began transporting students in 1999 and 2006, completed mandatory drug and alcohol tests.

Safety Drills Not Always Properly Conducted

Students are required to participate in a minimum of three bus safety drills each school year. These drills are required for all students, not only those who consistently ride the bus. The drills are to address various topics, including emergency evacuation, safe boarding and exiting, seasonal weather hazards, bus behavior and rules, and seat belt usage.

Of the 864 required drills required during the period examined, 324 (38 percent) either lacked evidence that they were conducted or lacked a district official’s signature indicating they were observed. Two districts – Horseheads, which provides in-house transportation, and Watertown, which contracts out for a majority of its transportation needs − completed and adequately documented all required safety drills.

The remaining five districts either could not provide documentation to support that all safety drills were conducted or provided documentation that lacked a district official’s signature.  

Bus Inspections Fall Short

Buses should have daily pre-trip inspections conducted prior to each run, whereby the driver indicates that they have observed various aspects of the bus and that all is in proper working order.

While the majority of the districts and vendors examined did conduct pre-trip inspections, there was no documented review of all pre-trip inspections reports by the head mechanic or another designated official, as recommended by the State Education Department. Therefore, districts may lack assurance that all pre-trip inspections are performed. This could result in hazardous issues not being identified on the buses or that identified hazards are not corrected in a timely manner.

For example, auditors observed that Rome’s 11 in-house drivers did not conduct the pre-trip inspections; however, the auditors did find documentation indicating the inspections had been completed.

Not All Drivers Trained as Required

While all districts and vendors had individuals who were responsible for facilitating training and ensuring that drivers met all requirements, auditors found that all but one district had deficiencies. Of the 777 district and vendor drivers reviewed, 169 (22 percent) did not complete the required training. In Rome, 53 percent of drivers lacked proper training documentation. Horseheads was the only district to have documentation to support that each of the district drivers attended all required training.

Complaints Not Adequately Documented

None of the school districts examined were properly recording, investigating or following up on complaints made by citizens, parents and employees with regard to drivers, monitors, attendants, bus stops or any other safety concerns. The lack of a centralized complaint log and process could result in specific dangers not being identified or resolved. This creates a risk that issues and problems could go unnoticed and result in safety risks for students.

Not All Superintendents Annually Approved Drivers

While Clarence and Horseheads superintendents annually approved all their drivers, Cornwall, Rome, Saratoga Springs, Watertown and West Irondequoit superintendents did not. Failure to annually approve drivers creates a risk that any known issues regarding a driver may not be considered in evaluating the driver’s fitness.

DiNapoli recommended school officials take immediate steps to address the deficiencies identified in the audit, including:

Ensuring that the superintendent annually approve all drivers that transport district students, including contracted transportation vendor drivers.

Taking an active role in overseeing transportation department and contracted vendors’ activities and their compliance with requirements. This should include ensuring that:

All drivers meet the minimum training requirements to transport district students;

All drivers are included on the random drug and alcohol testing list;

All drivers are subject to observation by a trained official to ensure that they are not under the influence of drugs or alcohol prior to starting a run;

All bus safety drills are actively observed and all safety drill forms are signed; and

All buses have pre-trip inspections conducted, reviewed timely and adequately documented.

Establishing procedures for the intake, documentation and resolution of complaints.

The final reportcan be found online at

August 24, 2018

Amending disciplinary charges "to conform with the testimony" given in the course of the disciplinary hearing

Amending disciplinary charges "to conform with the testimony" given in the course of the disciplinary hearing
Office of Administrative Trials and Hearings, OATH Index Nos. 1213/18 and 1215/1

Two correction officers [Respondents] were charged with making false reports about a use of force incident involving an inmate.

Judge Lewis also denied a request by the Appointing Authority, made on the second day of hearing, to expand the scope of its redirect examination of its primary witness and to amend the charges to conform to any testimony derived from the expanded questioning.

The ALJ concluded that amendment of the charges at that juncture would cause substantial prejudice to Respondents who had already spent a full day defending the charges filed against the correction officers.

Citing Block v. Ambach, 73 N.Y.2d 323 and DiAmbrosio v. Dep’t of Health, 4 N.Y. 3d 133, Judge Lewis explained that "Charges in administrative proceedings must apprise the party whose rights are being determined of the charges against him ... to allow for the preparation of an adequate defense. In an administrative trial, as in a criminal trial, [n]o person may lose substantial rights because of wrongdoing shown by the evidence, but not charged.” 

As to the merits of the disciplinary charges filed against the officers who were part of a team sent to search for contraband in a housing area, during the search, a third officer sprayed an inmate with a chemical agent. In their reports, Respondents wrote that the inmate, who was facing a wall, turned around or spun away from the wall in an aggressive manner before he was sprayed.

Video of the incident showed that the inmate turned his head to look at a struggle involving another inmate. But the inmate did not aggressively turn his body or spin away from the wall. OATH Administrative Law Judge Faye Lewis sustained the false statement charges relating to the characterization of the inmate acting aggressively.

One of the two officers was also charged with making a second false statement in his use of force report concerning another inmate. ALJ Lewis dismissed that portion of the charge for lack of sufficient evidence to support the allegation.

A 15-day suspension recommended for one Respondent and a 45-day suspension for the other, based upon the second officer’s prior disciplinary record involving similar misconduct.

The decision is posted on the Internet at:

August 23, 2018

Employee found guilty of charges of submitting a substituted urine sample during the administration of a random drug test

Employee found guilty of charges of submitting a substituted urine sample during the administration of a random drug test
OATH Index No. 1880/18

A New York City sanitation worker was served with disciplinary charges alleging that he had submitted a "substituted urine sample" during a random drug test because no creatinine was detected in his sample.

The federal government has determined that when creatinine drops below 20 milligrams per deciliter, it is a diluted sample; when it drops below two milligrams per deciliter, it is a substituted sample.

The employer’s expert noted that the worker had six prior negative/dilute results and she opined that he was trying to beat the test by drinking lots of water.

OATH Administrative Law Judge Alessandra F. Zorgniotti sustained the charge.

The ALJ also found the employee guilty of having committed time and leave violations and insubordination and recommended that the individual be terminated from his position.

The decision is posted on the Internet at:

Placing an employee on disability leave pursuant to Civil Service Law Section 72

Placing an employee on disability leave pursuant to Civil Service Law Section 72
Jimenez-Reyez' v State of New York, 2018 NY Slip Op 05649, Appellate Division, Third Department

§72 of the Civil Service Law provides for the placement of an employee unable to perform the duties of his or her position as the result on an injury or disease that is not "job related" on leave without pay.* The employee, however, may elect to use his or her leave credits to remain on the payroll until such leave credits are exhausted.

The basics with respect to placing an employee on disability leave pursuant to §72, except where the appointing authority determines that the individual's continued presence at the job site constitutes a danger to the individual or to his or her coworkers or agency clients within the meaning of §72.5 of the Civil Service Law, are as follows:

1. An employee may not be place on §72 leave until employee has been examined by a physician designated by the State Department of Civil Service or a municipal commission having jurisdiction;

2. In the event the physician certifies that the individual is unable to perform the duties of his or her position and the appointing authority decides to place the individual on §72 leave, the employee must be notified of this decision and of his or her right to appeal the determination before being placed on such leave and except as permitted by Section 72.5, the appointing authority may not place the individual on Section 72 leave until a final determination is made by the appointing authority.*

3. An individual placed on Section 72 leave has the right to appeal the appointing officer's "final determination" placing him or her of such leave to the "civil service commission having jurisdiction."

In contrast, in the event the appointing authority deems the employee's continued presence at the job site a danger to the individual or to his or her coworkers or agency clients, the employee may be placed on disability leave immediately and involuntarily pursuant to §72.5 of the Civil Service Law.

Johnny Jimenez-Reyez [Petitioner] was employed as a police officer by the State University of New York Downstate Medical Center [Downstate]. Petitioner was placed on immediate involuntary medical leave pursuant to §72.5 of the Civil Service Law after psychological testing conducted by an emergency health services physician determined that he was mentally unfit to perform the duties of his position at that time.

Petitioner's employment was terminated** one year later based on the written decision of a Hearing Officer who concluded that Petitioner had been properly placed on leave of absence involuntarily by the appointing authority because he was mentally unfit at that time he was placed on such leave pursuant to §72.5. The Hearing Officer also recommended that Petitioner be terminated from his position.

In an earlier proceeding initiated by Petitioner commenced after his employment was terminated by the Appointing Authority and his request for a post-termination hearing was denied, the Appellate Division "confirmed the determination placing [Petitioner] on involuntary leave, annulled the determination terminating his employment and remitted the matter to Downstate to conduct a post-termination hearing."

The "post-termination" Hearing Officer found that Petitioner failed to prove that he was mentally fit to return to work on the date of his termination and Downstate notified Petitioner that his employment was terminated. Petitioner thereupon commenced a second Article 78 proceeding seeking a court order annulling Downstate's determination to terminate his employment and reinstating him to his position with back pay and benefits.

Rejecting Petitioner's argument that the Hearing Officer incorrectly placed the burden of proof on Petitioner to demonstrate that he was mentally fit to return to work on the date of termination, the Appellate Division explained that the Civil Service Law requires that an employee who seeks reinstatement after being placed on leave pursuant to §72.1 or §72.5 to first apply for a medical examination to be conducted by a medical officer selected by the responsible civil service commission or personnel officer. Further, said the court, an employee absent on §72 for one year or longer may be terminated from his or her position in accordance with the provisions of Civil Service Law §72.4 of the Civil Service Law.***

In the event the individual is terminated, §73 of the Civil Service Law provides that the employee can be restored to employment only upon a finding that he or she is medically fit to perform the duties of the position and the individual must apply for such a medical examination within one year of the termination of his or her disability.

In this instance, said the Appellate Division, Petitioner failed to comply with the statutory requirement of applying for a medical examination to test his fitness for reinstatement nor did he submit proof at the post-termination hearing that his mental condition had sufficiently improved prior to the effective date of his termination to allow him to perform the duties of his position.

Finding that the record of the post-termination hearing was substantively the same record on which the Appellate Division based its prior determination that Petitioner was properly placed on leave because he was mentally unfit to perform the duties of his position, the court ruled that Petitioner's failure to produce evidence that he had become mentally fit to perform the duties of his position as of the effective date of his termination required the confirmation of the appointing authority decision to terminate his employment pursuant to §73 of the Civil Service Law.

* An employee suffering an "occupational injury or disease" as defined in New York State's Workers' Compensation Law may be placed on disability leave pursuant to §71 of the Civil Service Law.

** Typically the appointing authority's "final determination" placing an employee on leave pursuant to §72 is preceded by a hearing conducted by an "independent hearing officer" agreed upon by the employee and the appointing authority or as may be required pursuant to the terms and conditions of collective bargaining agreement. With respect to employees of the City of New York, such a hearing may be conducted by a hearing officer employed by the New York City Office of Administrative Trials and Hearings.

*** §72.4 of the Civil Service Law provides as follows: 4. If an employee placed on leave pursuant to this section is not reinstated within one year after the date of commencement of such leave, his or her employment status may be terminated in accordance with the provisions of section seventy-three of this article.

The decision is posted on the Internet at:

August 22, 2018

Determining if an employer-employee relationship existed for the purposes of determining providing unemployment insurance coverage to an individual

Determining if an employer-employee relationship existed for the purposes of determining providing unemployment insurance coverage to an individual
Matter of New York State Sheriffs' Assn., Inc. (Commissioner of Labor), 2018 NY Slip Op 05644, Appellate Division, Third Department

New York State Sheriffs' Association, Inc. [Association] is a nonprofit trade organization that represents, provides training and offers legal resources for elected sheriffs in New York State. The Association also advocates on behalf New York State Sheriffs.

The Department of Labor issued an initial "audit determination" that assessed the Association for additional unemployment insurance contributions on behalf of two individuals who provided service to the Association; one in marketing and communication services, and a second who provided bookkeeping services. Following the affirmation of that finding by an Administrative Law Judge, which was ultimately sustained by the Unemployment Insurance Appeals Board, the Association appealed the Board's determination.

The Appellate Division affirmed the Board's determination explaining "[w]hether an employer-employee relationship exists is a question of fact, to be decided on the basis of evidence from which it can be found that the alleged employer exercises control over the results produced . . . or the means used to achieve the results." Further, said the court, "... no one factor is determinative and the determination of the . . . [B]oard, if supported by substantial evidence on the record as a whole, is beyond further judicial review even though there is evidence in the record that would have supported a contrary conclusion."

Here, said the court, both individuals were represented on the Association's website as staff members, and had email addresses and contact telephone numbers at the Association. They both were provided with office space, equipment and supplies, parking spots and the access code to enter the Association's offices.

With respect to the individual performing marketing and communication services, the decision notes that "she submitted a resume and was hired by the executive director of the Association, without a contract, to write the Association's weekly newsletter, maintain its website and social media information, and enlist vendors for the Association's biannual conference" among other duties. The Associationg provided her with business cards identifying her as the Association's marketing and communications manager and negotiated her rate of pay, as well as paid vacation. It paid her "in her personal capacity" and provided her with additional "employee benefits."

The individual providing bookkeeping service had been "the Association's bookkeeper for over 10 years," had been hired after submitting a resume in response to an advertisement by the Association, performed typical bookkeeper duties such as billing customers, paying bills, balanced accounts, wrote checks and processed the time records for the payroll. Although the bookkeeper "had a bookkeeping business," the Appellate Division noted that "he is no longer actively pursuing clients, no longer submits a business invoice to the Association for his services and is paid by the hour, biweekly through direct deposit to his personal account."

This, said the court, provides substantial evidence demonstrating that the Association retained overall control over important aspects of the services performed by these two workers "that they are employees, and the Department properly assessed the Association for additional unemployment insurance contributions.

The decision is posted on the Internet at:

August 21, 2018

Positive drug test results rebutted as "false positive" by employee's expert witness

Positive drug test results rebutted as "false positive" by employee's expert witness
Office of Administrative Trials and Hearings, OATH Index No. 1717/18

A New York City correction officer who tested positive for morphine and codeine denied that he had used illegal drugs and claimed that the test result was a "false positive."

OATH Administrative Law Judge John B. Spooner found the officer's witness had rebutted the employer's allegation that the employee had tested positive as the result of having ingested unlawful drugs and he recommended dismissal of the charge. 

The ALJ credited the officer’s testimony that he had eaten bagels that contained poppy seed prior to the drug test. 

Judge Spooner found the qualifications of the officer’s expert, a toxicologist, were superior to those of petitioner’s expert, the lab manager. The toxicologist had testified that the relatively low levels of the drugs found in the officer’s urine could only be explained by eating poppy seed bagels because the quantities were at non-therapeutic doses and the relative proportions were inconsistent with heroin or morphine or codeine ingestion.

The decision is posted on the Internet at:

SUNY student entititle to administrative due process in a disciplinary hearing involving allegations of violations of the student code of conduct

SUNY students entitled to administrative due process in a disciplinary hearing involving allegations of violations of a student code of conduct
Matter of Agudio v State Univ. of N.Y., 2018 NY Slip Op 05647, Appellate Division, Third Department

In this appeal to review a determination of the State University of New York at Albany [SUNY] that, following a Student Conduct Board [SCB] hearing, found the student petitioner [Petitioner] guilty of violating SUNY Albany's student code of conduct and expelled the student, the Appellate Division sustained the disciplinary action taken SUNY and the penalty imposed on the Petitioner.

The SCB found that Petitioner had found Petitioner guilty of three of the charges filed against her and imposed the sanction of dismissal from SUNY Albany. Petitioner appealed the SCB determination to an Appeal Board. Ultimately the SCB's determination and penalty was sustained by SUNY Albany's assistant vice-president for student affairs, based on a written recommendation from the Appeal Board.

The court  noted that a "college's determination that a student violated its code of conduct will be upheld if supported by substantial evidence in the record." Further, the decision notes that administrative determinations may be based entirely on hearsay evidence as long as "such evidence is sufficiently relevant and probative or sufficiently reliable and is not otherwise seriously controverted." Here, said the Appellate Division, "the record contains direct evidence against [Petitioner], as well as hearsay."

Although the disciplinary action before the SCB was held "in absentia" as the result of Petitioners failure to appear at the hearing,* the court ruled that Petitioner's due process rights were not violated by SUNY Albany's student disciplinary procedures as Petitioner was given written notice of the charges prior to a hearing, the names of the witnesses against her, an opportunity to hear and confront evidence against her and to present a defense and to be advised in writing of the factual findings and discipline imposed.

Additionally, citing Matter of Miller v Schwartz, 72 NY2d 869 and other decision, the Appellate Division noted that "there is no general constitutional right to discovery in . . . administrative proceedings."

Finally, under the circumstances of this case, the Appellate Division concluded that the penalty of dismissal from SUNY Albany imposed on Petitioner was not disproportionate to the offense, citing Lampert v State Univ. of N.Y. at Albany, 116 AD3d 1292, leave to appeal denied, 23 NY3d 908.

*The decision notes that Petitioner [1] had an attorney who communicated with SUNY Albany's Community Standards Office prior to the hearing raising certain complaints regarding the procedure and stated that Petitioner would not attend if those complaints were not remedied and [2] that Petitioner could have attended the hearing with her attorney, who could have advised her, but she did not do so.

The decision is posted on the Internet at:

August 20, 2018

Implementing an arbitrator's decision after the appointing authority failed to timely comply with the provisions set out in a collective bargaining agreement

Implementing an arbitrator's decision after the appointing authority failed to timely comply with the provisions set out in a collective bargaining agreement
Appeal of Nadav Zeimer, Decisions of the Commissioner of Education, Decision No. 17468

The relevant provision of the collective bargaining agreement [COB] required the Chancellor of the New York City Department of Education [Chancellor] issue a written decision within 15 days of the employee's request that the Chancellor review the arbitrator's decision.

When the Chancellor failed to comply with this provision of the COB, Nadav Zeimer [Petitioner] requested that the Commissioner of Education [Commissioner] to “disregard the Chancellor's [d]ecision and consider [Petitioner’s appeal letter] a direct appeal of the Arbitration Decision.”

The Commissioner noted that the Chancellor had issued a determination addressing Petitioner’s December 5, 2017 appeal well after the 15 days required by both the CBA and an earlier order of the Commissioner set out in Appeal of Zeimer, 57 Ed Dept Rep, Decision No. 17,357.*  This, noted the Commissioner, is not the first time that the Chancellor has missed this deadline, citing Appeal of Chou, 55 Ed Dept Rep, Decision No. 16,848.**

In the words of the Commissioner, "The Chancellor’s unexplained delay is particularly egregious because the record shows that NYCDOE filed a proceeding under Article 75 of the Civil Practice Law and Rules (“CPLR”) contesting the arbitrator’s reinstatement of petitioner, and that this proceeding was fully submitted on April 27, 2018, six days prior to the Chancellor’s determination at issue herein, which was required to be timely rendered by the Agreement and by my March 26, 2018 decision and order in Appeal of Zeimer (57 Ed Dept Rep, Decision No. 17,357)."

After admonishing the Chancellor "to review the provisions of the Agreement and its legal obligation to ensure that the Chancellor renders a determination within 15 days of an arbitrator’s determination pursuant to Article VII(J)(4)(a)(6) of the Agreement," the Commissioner, nevertheless, declined to strike the Chancellor’s determination in this case. However, said the Commissioner, in view of tthe "the lack of demonstrated prejudice to [Petitioner] and in the interests of justice," she declined "to strike the Chancellor’s determination in this case." The Chancellor was then "cautioned" that future noncompliance may warrant additional corrective measures.

* The Commissioner took judicial notice that at the time Petitioner initiated Appeal of Zeimer, 57 Ed Dept Rep, Decision No. 17,357, the Chancellor was Carmen FariƱa.  The instant Chancellor is Richard A. Carranza.

** Indeed, observed the Commissioner, the Chancellor cited Appeal of Chou "for the proposition that 'the Commissioner previously authorized a decision by the Chancellor despite the delay in its issuance' to support consideration of the Chancellor’s late determination" in the instant appeal. 

The decision is posted on the Internet at:

August 17, 2018

Claiming exempt volunteer firefighter status for the purposes of Civil Service Law §75.1(b)

Claiming exempt volunteer firefighter status for the purposes of Civil Service Law §75.1(b)
Serviss v Incorporated Vil. of Floral Park, 2018 NY Slip Op 05597, Appellate Division, Second Department

§75.1 of the Civil Service Laws generally bars the termination of a tenured officer or employee in the Competitive Class of Classified Service of the State or a political subdivision of the State "except for incompetency or misconduct shown after a hearing upon stated charges."

The Incorporated Village of Floral Park terminated Joseph Serviss without notice or a hearing. Serviss challenged his termination, contending that although the position from which he had been terminated was in the Labor Class of the Classified Service and employees serving in the Labor Class were generally not subject to the provisions of Civil Service Law §75.1, he was entitled to these protections provided by §75.1 because he served an "volunteer fire fighter with the Rocky Point Fire Department since September 30, 2013," citing  §75.1(b).

§75.1(b), in pertinent part, provides that "a person holding a position by permanent appointment or employment   in  the  classified  service  of  the  state  or  in the several cities,   counties, towns, or villages thereof, or in any other political or civil   division of the state or of a municipality,  or  in  the  public  school   service,  or in any public or special district, or in the service of any  authority, commission or  board,  or  in  any  other  branch  of  public  service,  who  was  honorably  discharged  or  released  under honorable  circumstances from the armed forces of the United States  having  served   therein  as such member in time of war as defined in section eighty-five   of this chapter, or who is an exempt volunteer firefighter as defined in   the general municipal law,  except  when  a  person  described  in  this paragraphholds the position of private secretary, cashier or deputy of  any official or department,...."

In response to Serviss' Article 78 petition challenging the Village's action, the Village  moved pursuant to dismiss Serviss' petition on the basis that it was deficient as a matter of law, contending that "the petitioner failed to allege in his petition that he was an 'exempt' firefighter as defined in General Municipal Law §200." Serviss then asked Supreme Court "for leave to renew his opposition to the Village's motion to dismiss the petition" and in support of that branch of his motion submitted a certificate and supporting documentation in an effort to establish that he was an "exempt" firefighter as defined in General Municipal Law §200.

Supreme Court denied that branch of Serviss' motion, holding that he failed to offer a reasonable justification for failing to submit the certificate in opposition to the Village's motion to dismiss. Serviss appealed from that order.
Addressing the merits of Serviss' appeal, the Appellate Division explained:

1. In general, a motion for leave to renew must be based upon new facts not offered on the prior motion that would change the prior determination.

2. The new or additional facts presented "either must have not been known to the party seeking renewal or may, in the Supreme Court's discretion, be based on facts known to the party seeking renewal at the time of the original motion."

3. A reasonable justification' for the failure to present such facts on the original motion must be presented."

Noting that Supreme Court "lacks discretion to grant renewal where the moving party omits a reasonable justification for failing to present the new facts on the original motion" the Appellate Division explained that "A motion for leave to renew is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation." It then agreed with the Supreme Court's finding that the Serviss failed to offer a reasonable justification for his failure to present the documents relating to his status as an "exempt" firefighter in opposition to the original motion to dismiss.

However there are two procedural elements that must be met by an individual claiming exempt volunteer firefighter status for the purposes of §75.1(b) that should be noted.

1. The individual claiming exempt volunteer firefighter status has the burden of demonstrating that he or she enjoys such status [see People v Hayes, 135 AD 19]; and

2. Notice of the fact that the individual is an exempt volunteer firefighter must be given to the employer prior to the individual's effective date of termination [see Badman v Falk, 4AD2d 149]. 

Presumably the courts would apply these two procedural elements in cases involving individuals claiming §75.1(b) military service benefits. 

The decision is posted on the Internet at:

August 16, 2018

Evaluating the inclusion of "longevity allowance payments" in computing an employee's final average salary for retirement benefit purposes

Evaluating the inclusion of "longevity allowance payments" in computing an employee's final average salary for retirement benefit purposes
Bohlen v DiNapoli,2018 NY Slip Op 05720, Appellate Division, Third Department

In this action Petitioners ask the court to review the Comptroller determination excluding certain compensation from the final average salary in calculating the retirement benefits of 11 long-term, executive level key employees [Petitioners] of the Port Authority of New York and New Jersey [Authority], all members of New York State and Local Employees' Retirement System [System].

After the September 11, 2001 terrorist attack on the World Trade Center that resulted in the destruction of its headquarters, the loss of virtually all of its records and the death of over 70 of its employees, the Authority elected to participate in a temporary retirement incentive program that was passed by the Legislature for employees who were members of the System but advised Petitioners, who were all eligible to retire at that time without penalty, that they would be exempted from the program. Instead, the Authority offered each of them, in addition to their regular salary, a "parity" benefit described as a longevity allowance payment that was based on a percentage of their salary to be paid biweekly, provided that they continued their employment beyond December 31, 2002.

Petitioners each signed memorandum agreements accepting the offer and the Port Authority began making longevity allowance payments to them under what it called an "Employee Retention Program."

In 2012 the System concluded that the longevity allowance payments were not includable  in determining the final average salaries of certain then retiring Petitioners because they were paid "in anticipation of eventual retirement." The System also reevaluated the retirement benefits that were being paid to other of these Petitioners who had earlier retired and came to the same conclusion.

Petitioners challenged the determinations of the Retirement System and requested a hearing. The Hearing Officer found that the System acted reasonably in excluding the longevity allowance payments in computing Petitioners' final average salaries, consistent with the provisions of Retirement and Social Security Law §431. The Comptroller accepted the Hearing Officer's findings and Petitioners initiated a CPLR Article 78 proceeding challenging the Comptroller's decision contending that the longevity allowance payments should have been included in the calculation of their final average salaries.

The Appellate Division agreed with the Petitioners, indicating that:

1. There is no dispute that the 2002 enabling legislation establishing the retirement incentive authorized participating employers to determine which titles would be eligible;

2. The Authority was authorized to determine that Petitioners — all recognized as key employees eligible to retire — would be ineligible for the program;

3. The Authority entered into a memorandum agreement with each Petitioner that provided for a "longevity allowance in consideration of [petitioners] not retiring" (emphasis by the court); and 

4. The "consideration" factor is significant for the Authority was entitled to exclude Petitioners from the retirement incentive without providing any consideration, regardless of whether Petitioners intended to retire at that time.

The memorandum agreement, noted the Appellate Division, indicated that the longevity allowance would make Petitioners' pension calculation "roughly equivalent" to what it would have been under the retirement incentive, provided that they remained employed for three years beyond December 31, 2002. Significantly, said the court, "the additional payments were made on a biweekly basis in the same way as regular salary for services as they were performed."

These payments, in the view of the Appellate Division, "are more appropriately characterized as payments genuinely made to delay [P]etitioners' retirements, not to artificially inflate their final average salary in anticipation of retirement" as they were provided for the primary purposes of [a] retaining key employees following the September 11, 2001 terrorist attack and [b] to adequately compensate Petitioners for their dedication and commitment to remain in their vital positions.

Further, observed the court, there was "neither a lump-sum payment on the eve of retirement nor a disproportionate salary increase designed to artificially inflate a pension benefit that would be properly excluded from the computation of the final average salary."

Although both the System and the Hearing Officer, whose recommendation the Comptroller adopted, characterized the payments as having been made "in anticipation of eventual retirement" (emphasis provided in the decision) the Appellate Division noted that the term "eventual" is not part of the statutory standard and use of the term eventual actually reflects the Comptroller's own recognition that there was no actual retirement date anticipated in the memorandum agreement.

Justice Lynch, in an opinion in which Justices Devine and Pritzker concurred, held that the Comptroller's determination to uphold the System's exclusion of these payments from the computation of Petitioners' pension benefits was not supported by substantial evidence and that the final average salaries of the Petitioners for the purpose of determining their retirement benefits should be recalculated.  Justice Clark wrote a dissenting opinion in which Presiding Justice McCarthy concurred.

These decisions are posted on the Internet at:

August 15, 2018

Determining the economic damage suffered by a victim of unlawful discrimination

Determining the economic damage suffered by a victim of unlawful discrimination
Rensselaer County Sheriff's Dept. v New York State Div. of Human Rights, 2018 NY Slip Op 05719, Appellate Division, Third Department

The Appellate Division reviewed a determination of the Commissioner of Human Rights' award of damages to compensate Lora Abbott Seabury for the pension benefits that she lost due to the Rensselaer County Sheriff's Department [Respondent] discriminatory actions.*

Lora Abbott Seabury, a former correction officer employed by Respondent filed a complaint with State Division of Human Rights [SDHR] alleging that she had been subjected to, among other things, sexual harassment by male coworkers. After holding a hearing, a SDHR Administrative Law Judge [ALJ] found that Seabury proved that she had been sexually harassed by her male coworkers and recommended that Petitioner be ordered to pay Seabury nearly $450,000 in economic damages and $300,000 in noneconomic damages. The ALJ also recommended that Seabury "should be made whole with regard to her pension."

The Commissioner of Human Rights adjusted the amount of economic damages to approximately $315,000, but otherwise adopted the ALJ's recommendations and, in addition, included an order directing Seabury "to involve" the Office of the State Comptroller and the New York State and Local Retirement System, "presumably [said the court] to have them provide an actual pension to Seabury based on 25 years of service."

The Appellate Division confirmed the determination that Seabury had been subjected to sexual harassment and then remitted the matter to SDHR for the limited purpose of determining the amount of damages that Seabury sustained due to diminishment of her pension benefits, specifically noting that, for the purposes of such a calculation, [1] Seabury's testimony that she planned to work for 25 years was credited, [2] Seabury provided the relevant portions of her collective bargaining agreement and [3] Seabury provided evidence of her wages for the final three full years of her employment, which allows for the computation of her final average salary.**

On remittal, SDHR requested that Petitioner submit documentation demonstrating the monetary award necessary to compensate Seabury for diminution of her pension.

Contending that Seabury was not entitled to any such damages based on the possibility that she would receive disability benefits in an amount greater than the pension that she would have been eligible to receive upon completing 25 years of service, Petitioner submitted a written report from an economist who estimated the total pension benefits that Seabury would have received based on her years of actual service and after 25 years of service. Seabury submitted documentation in rebuttal to Petitioner's submissions, including a written report from an economist who also estimated Seabury's lost pension benefits.

Ultimately the Commissioner ordered Petitioner to pay Seabury $809,507.97 to compensate her for the reduction in her pension that resulted from Petitioner's discriminatory actions.

Petitioner appealed the Commissioner's determination contending that SDHR's calculation of the damages award was both procedurally improper and incorrect while Seabury contended that the damages awarded by the Commissioner did not fully compensate her for the reduction in her pension.

Seabury then requested that Supreme Court either dismiss the petition or transfer the proceeding to the Appellate Division, whereupon Supreme Court transferred the matter to the Appellate Division, resulting in this proceeding.

Explaining that it had remitted explicitly for the limited purpose of requiring SDHR to determine such damages because it had never made an initial determination of such damages, the Appellate Division rejected the Petitioner's claim that SDHR violated the applicable rules of procedure when it afforded both parties the opportunity to make additional submissions on remittal because SDHR was authorized to reopen the record of the proceeding.

The Appellate Division also rejected Petitioner's contention that SDHR erred by failing to reduce the damages awarded for loss of pension benefits to present value. The Court said that although the question of whether the Human Rights Law requires that awards for future damages be discounted to present value is an issue of first impression in the appellate courts of New York, citing Matter of Aurecchione v New York State Div. of Human Rights, 98 NY2d 21, it noted that the Court of Appeals had observed that federal case law is instructive in the employment discrimination context.

Acknowledging that the award for Seabury's lost pension benefits can only be a "rough approximation" of the amount necessary to restore her to the position that she would have occupied had she not been the victim of sexual harassment because neither her lost income stream nor the effect of future price inflation can be predicted with complete confidence, the Appellate Division opined that "One permissible method for approximating damages that arises from a loss of future income - known as the "total offset" method - is to neither consider future salary increases nor discount the damages to present value based on the presumption that future salary increases are offset by the discount rate used to calculate the present value of a damages award."

Thus, said the court, SDHR did not err by adopting the total offset method to determine the value of Seabury's lost pension benefits and confirmed its determination.

* See Executive Law §298.

The decision is posted on the Internet at:

August 14, 2018

Employer's termination of a biologically male employee transitioning from male to female held unlawful discrimination on the basis of sex

Employer's termination of a biologically male employee transitioning from male to female held unlawful discrimination on the basis of sex
EEOC v R.G. and G.R. Harris Funeral Home., USCA, 6th Circuit, No. 16-2424

Plaintiff, born biologically male, while living and presenting as a man, worked as a funeral director at R.G. & G.R. Harris Funeral Homes, Inc. [Funeral Home], a closely held for-profit corporation.

In an unlawful discrimination complaint filed with the Equal Employment Opportunity Commission [EEOC] Plaintiff alleged that the Funeral Home terminated her* after she had advised the Funeral Home that she intended to transition from male to female and would commence presenting herself and dress as a woman while at work.

In the course of EEOC investigation of Plaintiff's complaint it found that the Funeral Home provided its male public-facing employees with clothing that complied with the company’s dress code while female public-facing employees received no such allowance.

The EEOC subsequently brought suit against the Funeral Home in which the EEOC charged the Funeral Home with violating Title VII of the Civil Rights Act of 1964 [Title VI] by (1) terminating Plaintiff's employment on the basis of her transgender or transitioning status and her refusal to conform to sex-based stereotypes; and (2) administering a discriminatory-clothing-allowance policy.

In its motion for summary judgment, EEOC argued that it was entitled to judgment as a matter of law on both of its claims.

The Funeral Home, in contrast, contended that it had not violate Title VII by requiring Plaintiff to comply with a sex-specific dress code that it asserts equally burdens male and female employees, and, in the alternative, that Title VII should not be enforced against the Funeral Home because requiring the Funeral Home owners to employ Plaintiff while she dresses and represents herself as a woman would constitute an unjustified substantial burden upon the Funeral Home’s owner's sincerely held religious beliefs in violation of the Religious Freedom Restoration Act [RFRA].

The federal district granted summary judgment in favor of the Funeral Home on both claims.

The Circuit Court of Appeals reversed, holding that:

[1] the Funeral Home engaged in unlawful discrimination against Plaintiff on the basis of her sex; and 

[2] the Funeral Home has not established that applying Title VII’s proscriptions against sex discrimination to the Funeral Home would substantially burden its owner's exercise of their religious beliefs and, therefore, the Funeral Home was not entitled to a defense under RFRA.

Further, said the Circuit court, (a) even if the Funeral Home's owner's religious exercise were substantially burdened, the EEOC established that enforcing Title VII is the least restrictive means of furthering the government’s compelling interest in eradicating workplace discrimination against Plaintiff and (b) that the EEOC may bring a discriminatory-clothing-allowance claim in this case because such an investigation into the Funeral Home’s clothing-allowance policy was reasonably expected to grow out of the original charge of sex discrimination that Plaintiff submitted to the EEOC.

The Circuit Court issued a judgment to the EEOC on its unlawful-termination claim, and remanded the case to the district court "for further proceedings consistent with this opinion."

* The Circuit Court used female pronouns in its decision in accordance with the preference Plaintiff expressed through her briefing to this court.

The decision is posted on the Internet at:


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NYPPL Blogger Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
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