Employee's terminated after being found guilty of "time theft" and "time fraud"

Supreme Court denied the Plaintiff's petition to seeking to annul a determination of  the New York City Department of Education [DOE] terminating Plaintiff's employment with DOE and granted DOE's cross-motion to dismiss the Plaintiff's petition. Supreme Court granted DOE's motion and dismissed Plaintiff's petition filed pursuant to CPLR Article 78. Plaintiff appealed.

Citing Matter of Royal Realty Co. v New York State Division of Housing & Community Renewal, 161 AD2d 404, the Appellate Division's decision noted that DOE terminated Plaintiff following an investigation by DOE's Office of Special Investigations that substantiated allegations that Plaintiff had committed "time theft and time fraud" over a period of nearly two years. The Appellate Division opined that DOE's determination was "rationally based on the record" and was not arbitrary and capricious.

The Appellate Division, citing Matter of 333 E. 49th Partnership, LP v New York State Division of Housing & Community Renewal, 165 AD3d 93, leave to appeal denied, 33 NY3d 908, pointed out that Plaintiff's submissions, including affidavits from her former colleagues and New York Post newspaper articles about the investigation, were not properly before the Court and a Court's review is limited to consideration of evidence and arguments raised by a party before the employer's administrative determination was rendered.

As to the penalty imposed on Plaintiff by DOE, termination, the Appellate Division found that "Plaintiff's contention that the penalty of termination shocks the conscience" was unpreserved, as it was not raised in the Plaintiff petition.

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

Appellate Division finds Petitioner failed to demonstrate that circumstances existed that would give rise to an inference of unlawful discrimination on the basis of age, disability, or sex

Petitioner, a former firefighter, filed an administrative complaint with the New York State Division of Human Rights [SDHR] charging his former employer [Respondent] with employment discrimination on the basis of age, disability, and sex. After a hearing, an administrative law judge [ALJ] made certain findings and a recommendation that the administrative complaint be dismissed. The Commissioner of the SDHR adopted the ALJ's findings and recommendation and dismissed the administrative complaint. Petitioner commenced the instant proceeding pursuant to Executive Law §298 and CPLR  Article 78 to review the SDHR's determination. Supreme Court transferred the proceeding to the Appellate Division.

Observing that judicial review of SDHR's] determination made after a hearing is limited to consideration of whether substantial evidence supports the agency determination", explained that "Courts may not weigh the evidence or reject [the SDHR's] determination where the evidence is conflicting and room for a choice exists" and found that there was substantial evidence in the record to support the SDHR's determination that the Petitioner failed to establish, prima facie, that he was discriminated against on the basis of age, disability, and sex.

In the words of the Appellate Division, Petitioner "failed to demonstrate that similarly situated people who did not share his age, disability, or sex were treated more favorably than he was treated". Further, opined the Appellate Division,  Petitioner also failed to demonstrate "that circumstances existed that would give rise to an inference of discrimination on the basis of age, disability, or sex", noting that although the Petitioner was served with three notices of disciplinary charges ... the record contains substantial evidence that the charges were based wholly upon [Petitioner's] misconduct rather than discriminatory animus.

Addressing Petitioner's claim that he was subjected to a hostile work environment, Appellate Division said "A hostile work environment exists where the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment". Citing La Marca-Pagano v Dr. Steven Phillips, P.C., 129 AD3d 918, the Appellate Division observed that there was substantial evidence in the record to support the SDHR's determination that the Petitioner failed to establish a prima facie case with respect to his claim that he was subjected to a hostile work environment.

Turning to Petitioner's claim of "retaliation" the court said that a retaliation claim is analyzed under "a burden-shifting framework" and the employee bears the burden to establish a prima facie retaliation claim. Then the burden shifts to the employer to rebut the presumption of discrimination "by clearly setting forth, through the introduction of admissible evidence, legitimate, independent, and nondiscriminatory reasons to support its employment decision". 

If the employer meets its burden, then the burden shifts back to the employee "to prove that the legitimate reasons proffered by [the employer] were merely a pretext for discrimination".

Although SDHR found that Petitioner established a prima facie case of retaliation by showing that he received a notice of disciplinary charges just five days after filing an unlawful discrimination charge with the Equal Employment Opportunity Commission [EEOC], SDHR's had determination that Petitioner's employer had rebutted Petitioner's prima facie case of retaliation with a legitimate, nondiscriminatory, or nonretaliatory reason for its challenged actions with substantial evidence.

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

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Payment of back salary upon reinstated from a disciplinary suspension without pay

Supreme Court granted a petition brought pursuant to CPLR Article 78 seeking to vacate or annul the determination of the Employer discharging Plaintiff from his employment and directed that the Employer conduct a hearing pursuant to Civil Service Law §75(1)(c). Employer appealed.

The Appellate Division unanimously affirmed the Supreme Court's decision, which had denied that portion of Plaintiff's petition seeking a judgment that Petitioner be immediately awarded "full back pay." 

The Appellate Division explained that although Plaintiff may ultimately be found to be entitled to backpay starting 30 days after his suspension without pay, the amount of such backpay, if any, and the application of any offsets to any amount awarded in consideration of other employment or from unemployment benefits, "is a matter that should be addressed in the first instance at the hearing 0rdered by the court".

It should be noted that in 1985 §§76 and 77 of the New York State Civil Service Law*, which apply to certain employees in the classified service of a public employer, were amended by Chapter 851, Laws of 1985. §§76 and 77 currently provide that an employee reinstated pursuant to either of these subdivisions is to receive the salary to which he or she would have otherwise been entitled, less the amount of any unemployment insurance benefit that he or she may have received during such period. The amendment did not include the clause providing for a "reduction" in the amount to be paid for any such compensation the individual earned in other employment or occupation during during such period of the employee's suspension without pay. 

* See https://publicpersonnellaw.blogspot.com/search?q=back+pay. 

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

New York State's Commissioner of Education directs the respondent school districts to allow all students to access the school districts' facilities that most closely align with their gender identity

Petitioners in this administrative appeal to New York State's Commissioner of Education, Dr. Betty A. Rosa, the parents of transgender students attending the Respondent New York State public school districts, contended that:

[1] Certain resolutions adopted by the two Respondent school districts were "arbitrary and capricious because [of their reliance] upon an erroneous interpretation of federal law"; and 

[2] Certain resolutions adopted by the two Respondent school districts "prohibiting transgender and gender nonconforming students from using facilities that align with their gender identity are contrary to State law, including [New York State's] Dignity for All Students Act".  

The Petitioners sought annulment of the Respondents' resolutions and that the Commissioner direct the Respondent school districts to permit their transgender children "to access school facilities, including bathrooms and locker rooms, that align with their gender identity".

Commissioner Rosa sustained the Petitioners' appeals.

In consideration of the scope of Commissioner Rosa's decision, rather than attempt to summarize the Commissioner's comprehensive ruling, NYPPL has elected to recommend that the reader click on Decision No. 18,726 | Office of Counsel to access the Commissioner's decision posted on the Internet.