Employee alleges Employer subjected him to unlawful retaliation and other unlawful acts and served him with false disciplinary charges

Plaintiff was served with Civil Service Law §75 disciplinary charges. After a Civil Service Law §75 hearing, a Hearing Officer found that Plaintiff was guilty a charge of speeding on the Thruway but found that all remaining disciplinary charges were not sustained. 

Although the Hearing Officer recommended that Plaintiff be restored to his position,  Plaintiff was reassigned to another facility, more than a three hour drive from Plaintiff's residence.

Plaintiff sued his Employer and other named individuals [Defendants] alleging that he was subjected to retaliation and other actions acts by Defendants including being served with disciplinary charges based on "false and manufactured charges", and a disciplinary suspension. The matter proceeded to trial and a jury considered the following three causes of action:

(1) Deprivation of Plaintiff's 14th Amendment right to equal protection pursuant to 42 USC §1983; 

(2) Retaliation in violation of 42 USC §1983; and 

(3) Tortious interference with business relations.

The jury found for Plaintiff and awarded Plaintiff $500,000 in damages for "pain, suffering, and emotional distress, harm to reputation, and loss of enjoyment of life". 

Supreme Court awarded Plaintiff $185,392 in attorneys' fees. 

Defendants appealed the Supreme Court's ruling, contending Supreme Court erred in denying that part of their CPLR 3211 motion seeking dismissal of Plaintiff's equal protection cause of action. The Appellate Division rejected that contention. 

Defendants, citing Engquist v Oregon Dept. of Agriculture (553 US 591), also argued that "a class-of-one equal protection claim is unavailable in the public employment context, and an equal protection claim based on selective enforcement, such as alleged by [Plaintiff], is likewise barred. Noting that the Second Circuit has left open that question and that there is a split of authority in the district courts, the Appellate Division said it was "persuaded by the reasoning in Airday v City of New York (2020 WL 4015770), that selective-enforcement claims survive after Engquist.

Defendants' further argued that, "even if selective-enforcement claims survived Engquist, they are entitled to qualified immunity under 42 USC §1983". The Appellate Division said that such an argument was not preserved for its review, and, in any event, is without merit, observing that "Public officials may invoke qualified immunity under 42 USC §1983 unless, inter alia, the unlawfulness of their conduct was clearly established at the time." Further, opined the Appellate Division, malice-based selective-enforcement claims premised on the violation of equal protection were recognized at the time of Defendants' actions and thus Defendants were aware of the purported unlawfulness of their conduct.

Defendants next contend that, with respect to Plaintiff's equal protection cause of action, Plaintiff failed to identify "a materially similar comparator whom [Defendants] treated differently and [Defendants] are therefore entitled to a directed verdict on that cause of action". The Appellate Division held that "[Defendants'] contention [was] not preserved for [its] review inasmuch as [Defendants] did not raise that issue in their motion for a directed verdict."

Defendants also argued that Supreme Court erred in denying that part of their CPLR 3211 motion seeking to dismiss the retaliation cause of action because Plaintiff's speech was not protected inasmuch as it was speech he made as an employee, not as a citizen. The Appellate Division rejected that argument, noting that "To establish a claim for retaliation under the First Amendment, a plaintiff  'must demonstrate that (1) [their] speech addressed a matter of public concern, (2) [they] suffered an adverse employment action, and (3) a causal connection existed between the speech and the adverse employment action, so that it can be said that [their] speech was a motivating factor in the determination'". 

In contrast, the Appellate Division noted that "[W]hen public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline".

The Appellate Division said it agreed with Defendants that the court lacked subject matter jurisdiction over the tortious interference cause of action, observing that "Generally, actions against [New York] State officers acting in their official capacity in the exercise of governmental functions are deemed to be, in essence, claims against the State and, therefore, suable only in the Court of Claims".

Finally, the Appellate Division rejected Defendants' contention that the matter should be remitted to Supreme Court for a recalculate the award of attorneys' fees and unanimously affirmed the Supreme Court's judgment without costs.

Click HERE to access the Appellate Division's decision posted on the Internet.

New York State Local Government and School District audits posted on the Internet

On September 11, 2026, New York State Comptroller Thomas P. DiNapoli  announced the following local government and school audits were issued.

   Click on text highlighted in COLOR to access the audit report posted on the Internet.

Averill Park – Sand Lake Fire District No. 2 – Claims Auditing (Rensselaer County) The board did not conduct a thorough audit of claims paid. Auditors reviewed 62 claims totaling $280,832 and determined that none of the claims were audited and approved by the entire board as required. Auditors determined that the 62 claims were properly supported and for valid and legal purposes. However, the lack of a claims audit increased the risk that claims for improper purposes could be paid, or that irregularities could go undetected and uncorrected.

City of Olean – Financial Management (Cattaraugus County) City officials did not properly manage the city’s fund balance or ensure that financial activity was accurately recorded and reported. Specifically, city officials did not consistently maintain unrestricted fund balance in accordance with the city’s fund balance policy, and the city’s accounting records and financial reports were inaccurate.

Fulton City School District – Financial Condition (Oswego County) The board adopted budgets that relied on appropriated fund balance and underestimated expenditures, resulting in recurring operating deficits that significantly depleted the district’s financial cushion. As a result, the district's surplus fund balance declined to $607,034 at the end of the 2024-25 fiscal year, representing just 0.6% of the ensuing year’s budget. The district also issued $8 million in revenue anticipation notes to address year-end cash flow needs.

Groton Central School District – Building Access (Cayuga County, Cortland County and Tompkins County) District officials did not properly manage and monitor building access accounts and devices. Specifically, of the accounts auditors reviewed, the district had active, but unneeded, accounts with assigned key fobs in the system. As a result, there was a potential risk for unauthorized access to district school buildings, compromising building security and safety for students, teachers, staff and visitors.

Hancock Rural Fire District – Board Oversight (Delaware County) The board did not provide adequate oversight of the district’s financial operations. As a result, contracts were incomplete, required policies were not adopted, commissioners did not complete required fiscal oversight training and the board did not annually audit the treasurer’s records.

Malverne Union Free School District – Building Access (Nassau County) District officials did not properly manage and monitor building access accounts and devices. Specifically, the district had active, but unneeded, accounts with assigned key cards in the system. As a result, there was a potential risk for unauthorized access to district school buildings.

North Brookfield Volunteer Fire Department – Investments (Madison County) Department officials did not adopt a written investment policy or establish procedures to govern the investment of department funds or provide a framework to help ensure funds were invested safely and prudently, and that the department’s resources were not exposed to unnecessary financial risk. During the audit period, the department invested $77,200 with a local tax preparer/insurance agent who issued promissory notes that promised an 8% annual return. The individual whom the department invested their funds with subsequently filed for bankruptcy in April 2023 and was convicted of operating a Ponzi scheme involving more than $50 million. Although the department recovered $6,442 through the bankruptcy proceedings, it lost $45,758 of its principal investment and never received a return on the investment.

Snyder Fire District – Claims Auditing (Erie County) The board did not properly audit all claims before payment, and the district incurred unnecessary costs totaling approximately $9,700 as a result. Auditors reviewed 137 claims totaling approximately $367,000 and determined that 115 claims totaling approximately $357,000 (84% of the claims reviewed, and 97% of dollars examined) did not have sufficient documentation to support a proper audit and should not have been approved and paid for.

Springfield Fire District – Board Oversight (Otsego County) The board did not provide adequate oversight of the treasurer’s accounting records and financial reports or ensure that all required Annual Financial Reports (AFRs) were filed. As a result, the board lacked assurance that the district’s accounting records and financial reports were accurate, financial operations were properly monitored and statutory reporting requirements were met. In addition, when AFRs are not filed, the board, taxpayers, the Office of the State Comptroller and other interested parties are prevented from obtaining timely and reliable information to assess the district’s financial condition.

Town of Galway – Salaries and Employee Benefits (Saratoga County) The board authorized salaries and benefits through resolutions and a collective bargaining agreement (CBA). Time worked was supported by time records containing supervisory approval, all payrolls were certified by the town supervisor, and leave accruals were generally earned and used appropriately. However, the town supervisor did not adequately monitor salaries paid and benefits provided to ensure employees were paid and received benefits consistent with approved board resolutions and the CBA.

Town of Portage – Supervisor’s Records and Reports (Livingston County) The supervisor did not maintain complete, accurate and up-to-date accounting recors and reports. Although the supervisor assigned his duties for maintaining the accounting records and preparing disbursements and financial reports to a bookkeeping firm, the supervisor did not provide adequate oversight of these duties.

Town of Rose – Supervisors’ Records and Reports (Wayne County) The supervisors did not maintain complete, accurate and up-to-date accounting records and reports. Although the supervisors assigned their duties for maintaining their accounting records and preparing disbursements and financial reports to the appointed clerk to the supervisor, the supervisors did not provide adequate oversight of these duties.

Village of South Glens Falls – Budgeting and Financial Management (Saratoga County) The board and village officials did not adopt realistic and structurally balanced budgets or effectively manage fund balance and reserve funds during the audit period. The board routinely overestimated appropriations, did not consistently receive or review monthly budget-to-actual reports and did not adopt fund balance or reserve policies. These practices contributed to accumulating excessive surplus funds which may indicate that taxes and fees were higher than necessary to fund operations.

Waterloo Central School District – Building Access (Seneca County) District officials did not properly manage and monitor building access accounts and devices. Specifically, of the accounts auditors reviewed, the district had active, but unneeded, accounts with assigned badges in the system. As a result, there was a potential risk for unauthorized access to district school buildings.

###

Selected items posted on the Internet during the week ending September 11, 2026

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Employee on a pregnancy-related leave terminated after failing to commit to a return-to-work date

In this action to recover damages for alleged unlawful employment discrimination on the basis of gender in violation of Executive Law §296 and the Administrative Code of the City of New York §8-107, Plaintiff appealed from an order of the Supreme Court granting the Defendant's motion for summary judgment dismissing her complaint. 

Plaintiff had taken a pregnancy-related leave but had repeatedly failed to commit to a date on which she would return from such leave. Defendant terminated Plaintiff's employment at the end of her pregnancy-related leave.

Plaintiff commenced the instant action alleging unlawful discrimination on the basis of gender and retaliation within the meaning of the New York State Human Rights Law [NYSHRL] (Executive Law §296) and the New York City Human Rights Law [NYCHRL] (Administrative Code of the City of New York §8-107). Defendant moved for summary judgment dismissing Plaintiff's complaint. 

Supreme Court granted Defendant's motion for summary judgment and Plaintiff appealed the Supreme Court's ruling.

The Appellate Division found that:

1. Defendant met its prima facie burden by demonstrating that Plaintiff's employment was terminated for a nondiscriminatory reason, namely her failure to commit to a return-to-work date, citing Niemotko v Mount St. Mary Coll., 241 AD3d at 703; and

2. Plaintiff failed to raise a triable issue of fact as to whether the Defendant's reason for terminating her employment was a pretext for pregnancy discrimination, citing D'Agostino v MMC E., LLC, 184 AD3d 719.

The Appellate Division held that "Supreme Court properly granted that branch of the [Defendant's] motion which was for summary judgment dismissing the cause of action alleging pregnancy discrimination in violation of the NYSHRL", noting that "the [Defendant] met its prima facie burden by establishing that there was no evidentiary route that could allow any jury to believe that the [Plaintiff's] employment was terminated for discriminatory reasons".

The Appellate Division also noted that Plaintiff "failed to raise a triable issue of fact as to whether the proffered explanation [by the Defendant] was a pretext for discrimination or whether discrimination was one of the motivating factors for the challenged action".

Opining that "Supreme Court properly granted that branch of the [Defendant's] motion which was for summary judgment dismissing the cause of action alleging gender discrimination in violation of the NYCHRL", the Appellate Division dismissed Plaintiff's appeal.

Click HERE to access the Appellate Division's decision posted on the Internet.