Representation by a layperson in an administrative disciplinary proceeding

Representation by a layperson in an administrative disciplinary proceeding

Sam v Metro-North Commuter Railroad, App. Div., 1st Dept., 287 AD2d 378

One of the issues in the Sam v Metro-North Commuter Railroad was Sam's contention that he was denied administrative due process because a non-attorney union official rather than an attorney served as his representative at a disciplinary hearing.*

Carlson Sam, an employee of Metro-North Commuter Railroad (Metro-North), was discharged from his employment for conduct unbecoming a Metro-North employee and failing to comply with a lawful order of a Metro-North police officer. The Special Board of Adjustment, which reviewed the disciplinary administrative tribunal's trial and determination, sustained Sam's being found guilty and the penalty imposed, dismissal.

The decision states that Sam was found guilty of leaving his assigned post and becoming involved in an altercation with a homeless man whom he though had stolen his car radio. The altercation, in which both plaintiff and the homeless man brandished weapons, spilled over into the terminal and into the track area of the station. Sam refused to obey the orders of Metro-North Police present during the incident, and Metro-North police officer Barreto had to physically removed the weapon from Sam's control and wrestle him to the ground and arrested him.

In reaching its decision, the Board noted multiple reasons justifying Sam's termination, including the fact that he left his assigned post, engaged in a violent altercation, refused a police officer's lawful order to lay down his weapon, and engaged in conduct requiring his forcible arrest. As to the penalty of dismissal, the Board found that termination was warranted since Sam, who only had three years of seniority, had already been disciplined several times previously.

Sam then sued Barreto and Metro-North asserting claims of assault, false arrest, false imprisonment, malicious prosecution, defamation, as well a claim that his 42 USC 1983 civil rights were violated.

As to Sam’s assertions concerning the lack of counsel, the Appellate Division agreed that he was not represented by an attorney at his administrative trial. However, said the court, “here the absence of counsel is not determinative since [Sam] was represented by a union official whose competence and experience were amply demonstrated by the trial record.”

The union representative “thoroughly questioned the various witnesses, raised appropriate objections, and requested a continuance to present additional witnesses, a request that was granted.” This, in the view of the court, provided Sam with appropriate representation for the purposes of satisfying administrative due process in a disciplinary setting.

* Section 75.2 of the Civil Service Law provides that an individual against whom disciplinary charges have been preferred may be represented by an attorney or by a representative of a recognized or certified collective bargaining organization.

Independent contractors and Title VII

Independent contractors and Title VII

Holtzman v The World Book Company Inc., USDC, EDPa.

It is not uncommon for a public employer to engage the services of an “independent contractor” to perform certain tasks.

In deciding the Title VII complaint filed Arlene Holtzman, a former employee of the World Book Company, Senior U.S. District Court Judge Lowell A. Reed Jr. ruled that Title VII protects workers who are “employees,” but does not apply to independent contractors.

According to the decision, Holtzman's position was “outsourced” by World Book and she became an “independent contractor” although she performed essentially the same duties she had performed as a World Book employee. This change in status, said Judge Reed, meant that Title VII no longer was applicable as Title VII only covers applicants for employment and employees.*

The court noted that in 1995 World Book reorganize its sales operations. As a result, it negotiated contracts with individuals designated “regional directors.” When Holtzman was told of the new arrangement, she approached Rosemarie Lee, a former World Book branch manager. Lee had formed her own corporation, Leer Services. Leer's sales force included a number of former World Book sales representatives. Holtzman signed a contract with Leer Services.

Was Holtzman an employee, and if so, whose employee? Judge Reed said that the U.S. Supreme Court set out a number of factors to be considered in determining whether or not an individual is an employee or an independent contractor in Nationwide Mutual Insurance Company v Darden, 503 US 318.

The Supreme Court's “common law test” for determining who qualifies as an “employee” in Darden lists the following factors to be considered in making the determination:

1. The hiring party's right to control the manner and means by which the work is accomplished.

2. The skill required;

3. The source of the supplies and tools used by the individual;

4. The location of the work;

5. The duration of the relationship between the parties;

6. Whether the hiring party has the right to assign additional duties or projects to the hired party;

7. The extent of the hired party's discretion over when and how long to work;

8. The method of payment;

9. The hired party's role in hiring and paying assistants;

10. Whether the work is part of the regular business of the hiring party;

11. Whether the hired party is in business;

12. Whether the hiring party provides employee benefits; and

13. The tax treatment of the hired party.”

Applying the Darden factors to Arlene Holtzman's position selling World Book's educational products, Reed found that her status had clearly changed in 1995 from employee to independent contractor and thus she was not able to maintain her Title VII action.

* Title VII defines the term “employee” as “an individual employed by an employer ....”

Investigation of an anonymous “phone tip” by the appointing authority

Investigation of an anonymous “phone tip” by the appointing authority

Matter of Civil Serv. Employees Assn., Inc., Local 1000, AFSCME, AFL-CIO v New York State Pub. Empl. Relations Bd., 35 A.D.3d 1005

One of the issues considered in resolving an appeal from PERB’s dismissal of an improper practice charge alleging retaliation for participation in “protected union activities” involved the employer’s investigation of an “anonymous tip” concerning an employee.

Frank Williams, a union local president, was employed at the State University of New York Purchase [SUNY]. A “vocal and active president, filing many grievances on behalf of union members,” Williams contended (1) his reassignment from the evening and weekend shift to a weekday shift and (2) SUNY’s investigation of the status of his driver's license after receiving an anonymous tip constitute improper practices within the meaning of the Taylor Law (Civil Service Law § 209-a [a], [c]). Williams contended that these acts were in retaliation for his participation in protected union activities.

Ultimately PERB dismissed the improper practice charge.

CSEA appealed and the Appellate Division said “Substantial evidence supports [PERB’s] finding that SUNY's reassignment of Williams was unrelated to his union activities, and was instead in furtherance of SUNY's operating needs”

As to SUNY's investigation of Williams' driver's license, when SUNY received an “anonymous phone tip that Williams did not have a valid driver's license,” it ran a search in a statewide database. The court said that it was reasonable for SUNY to verify that Williams was a licensed driver, as he drove his vehicle onto campus for each shift and employees in his department had access to state vehicles, even if he personally never drove one.

Affirming PERB’s dismissal of the improper practice charge, the Appellate Division noted that SUNY’s investigation revealed that Williams did not possess a New York driver's license but was licensed in Rhode Island, despite having lived in New York State for over 30 years.

As this decision demonstrates, anonymous allegation may pose a serious problem for the administrator. The allegations may be false, made as a result of malice or may simply be a mistake on the part of the accuser. Nevertheless, it is necessary for the administrator to assume the charges are valid and undertake an investigation of the matter.

Such an investigation probably need not be as intensive as would be the case were the allegations made by a supervisor in the normal course of business or by a known party. However, the administrator should satisfy himself or herself that there is no substance to the allegation. If the investigation reveals that there is some substance to the allegations, and if true would constitute misconduct, further action should be taken by the administrator.

Anonymous communications that allege improper conduct by an employee place the appointing authority on the horns of a dilemma. If the employer ignores the communication, it may later develop that there was some substance to the allegation, and the employer will be exposed to criticism (or liability) for failing to act “on the information.” On the other hand, if the appointing authority confronts the employee, relying solely on the information it received anonymously, it may be criticized for taking adverse action against the employee based on such information alone. Such was the situation that faced the appointing authority after it received an anonymous letter alleging that one it its firefighters, Scott Wilson, was using illegal drugs.

Wilson v City of White Plains, 95 NY2d 783, sets out the standard applied by the Court of Appeals when it considered the actions taken by White Plains based on its receiving anonymous information alleging Wilson was using illegal drugs.

White Plains ordered Wison to submit to blood and urine. Ultimately disciplinary charges were filed against Wilson. A hearing officer found Wilson guilty of six charges of misconduct. The Commissioner of Public Safety adopted the findings and recommendations of the hearing officer and dismissed Wilson from his position. Wilson appealed his termination and persuaded the Appellate Division that his removal was arbitrary. In annulling Wilson’s dismissal the Appellate Division said that “in directing [Wilson] to submit to blood and urine tests, the fire department officials “relied upon an unsubstantiated and anonymous letter” and that there “was no objective evidence which would have suggested that the [firefighter] was abusing alcohol or drugs.”

The Court of Appeals disagreed and reversed the Appellate Division’s determination.

According to the high court, in addition to its receiving an “anonymous letter” concerning Wilson’s alleged use of drugs, “the City presented evidence of Wilson’s physical manifestations of substance abuse the day he was tested, long record of excessive absences, prior substance abuse problems, reputation for showing up at work under the influence, as well as his understanding that he could be tested if he showed any signs of recurring substance abuse.”

Statements contained in a disciplinary post-hearing brief may be considered by the appointing authority to support its conclusions

Statements contained in a disciplinary post-hearing brief may be considered by the appointing authority to support its conclusions

Sisco v Board of Trustees, 288 AD2d 230

The Board of Trustees of the Village of Havestraw dismissed police officer Keith Sisco after finding him guilty of disciplinary charges alleging misconduct filed against him.

Sisco appealed, contending that he had been denied a fair hearing because the Board incorporated portions of the Police Department's written post-hearing brief its determination. In effect, claimed Sisco, the inclusion of such statements indicated that the Board had ceded it decision-making powers to the Department.

The Appellate Division rejected Sisco's arguments, in effect indicating that there was nothing improper in the decision maker referring to, or including, statements set out in a post-hearing brief to support its conclusions.

The court also said that the Board's determination was supported by substantial evidence in the record, including Sisco's admissions in the related criminal charges brought against him. The court did not appear to have difficulty in allowing the use of such admissions in a subsequent administrative disciplinary action based on the same alleged acts of misconduct.

Indeed, a guilty verdict in a criminal court automatically serves to establish guilt in an administrative disciplinary hearing involving the same events.  In Kelly v Levin, 440 NYS2d 424, the court ruled that is a reversible error for an administrative disciplinary tribunal to acquit an employee if the individual has been found guilty of a criminal act involving the same allegations.

Reasonable accommodation under the Americans With Disabilities Act

Reasonable accommodation under the Americans With Disabilities Act

Lovejoy-Wilson v NOCO Motor Fuel, CA2, 263 F.3d 208

The Lovejoy-Wilson case points out that offering a disabled individual one reasonable accommodation will not necessarily excuse the employer from considering subsequent requests for an alternative accommodation submitted by the individual.

Diane Lovejoy-Wilson suffers from epilepsy and experiences seizures of varying seriousness on practically a daily basis. Because of her epilepsy and New York State's requirement that an epileptic be seizure-free for two years in order to obtain a driver's license, Lovejoy-Wilson is unable to drive a motor vehicle.

Lovejoy-Wilson was told that she could not be considered for promotion to an assistant manager position because she did not drive and driving to a bank to make deposits was an essential duty of an assistant manager. However, she was later offered a promotion to the position of assistant manager at a store at which an armored car service picked up the store's receipts and transported them to the bank for deposit.

Rejecting this assignment because of its undesirable location, Lovejoy-Wilson told NOCO that she felt that she was being discriminated against because of her disability in violation of the ADA and suggested six possible accommodations of her disability that would, in her view, be reasonable. In her words, any one of the following would provide a reasonable accommodation of her disability:

1. Another manager can pick her up on the way to the bank.

2. She could hire a service to drive her when necessary for her job.

3. NOCO could hire a service to drive disabled employees in management and supervisory positions when necessary.

4. She could hire an individual to drive her when necessary for the job.

5. NOCO could hire an individual to drive disabled management and supervisory employees when necessary.

6. Where practical and possible, she could use public transportation when travel is necessary for her job.

NOCO's president, Robert Newman, rejected all of these suggestions. He wrote Lovejoy-Wilson: The ADA is not for intimidating employers to change non-discriminatory operational policies. Given our past record of accommodating employees with disabilities, I find your position weak at best.

When a promotion failed to materialize Lovejoy-Wilson submitted her resignation effective September 15, 1994 and commenced working for another employer the next day. She also filed a complaint with EEOC alleging that NOCO had discriminated against her because of her disability.

Eventually Lovejoy-Wilson obtained a “right-to-sue letter” and brought an action in federal district court against NOCO for unlawful discrimination. The district court granted NOCO's motion for summary judgment, concluding that while Lovejoy-Wilson was a qualified individual with a disability, she had not been constructively discharged.

Both Lovejoy-Wilson and NOCO appealed the district court's judgment. Lovejoy-Wilson challenged the district court's dismissal of her accommodation, promotion, and retaliation claims while NOCO contested the district court's determination that Lovejoy-Wilson is a qualified individual with a disability under the ADA.

The Second Circuit said that the ADA provides that “[n]o covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.”

Further, said the court, under ADA, the term “discriminate” includes “not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee....”

The district court's dismissal of Lovejoy-Wilson's complaint, said the Circuit Court of Appeals, was based on its conclusion that Lovejoy-Wilson's desire to become an assistant manager at a particular location was based on personal convenience, not her disability, and that NOCO accommodated her disability by promoting her to assistant manager at a store with armored car service in May 1994.

The court held that in so doing, the district court misinterpreted and misapplied the requirements underlying providing a reasonable accommodation under the ADA and failed to consider the facts in the light most favorable to Lovejoy-Wilson.

Rejecting NOCO's argument that by offering Lovejoy-Wilson a promotion at an armored car store was, as a matter of law, a reasonable accommodation, the Second Circuit cited its ruling in Wernick v Federal Reserve Bank, 91 F.3d 379. In Wernick the court said that in requiring reasonable accommodation, “Congress intended simply that disabled persons have the same opportunities available to them as are available to nondisabled persons.”

As to a disabled individual requesting placement at a particular location, the court commented that: If an employer offers its workforce an opportunity for promotion to a higher level of employment without honoring any requests for a particular location (or shift), then an ADA plaintiff cannot complain of assignment to a less favorable location. However, if the employer permits its workers to apply for promotion at a preferred location (or shift), then a disabled person must have the same opportunity.

The decision states that “the evidence thus far developed in this case indicates that NOCO's employees could apply for promotion at a particular store.” Accordingly, if its employees could apply for promotion to assistant manager at stores of their choice, then Lovejoy-Wilson had the right to seek the assistant manager job at the store she desired free from discrimination.

The Circuit Court concluded that in making the determination whether or not NOCO failed to accommodate Lovejoy-Wilson's disability, the reason for her desire for that particular job -- personal convenience or otherwise -- does not matter. Lovejoy-Wilson was entitled to a reasonable accommodation, if one was available, to permit her to compete with nondisabled applicants on an equal basis to become assistant manager at the store of her choice.

A rational jury could find on the basis of the evidence adduced that such a reasonable accommodation was available but not offered to her.

Finally, said the court, there is more than enough evidence to support a jury finding that “NOCO flatly refused to afford the plaintiff the reasonable accommodation to which she was entitled.” After sustaining portions of the lower court's decision, the matter was remanded for further action in the district court.

Union activity not a shield for an employee the appointing authority decides not to retain for bona fide reasons

Union activity not a shield for an employee the appointing authority decides not to retain for bona fide reasons

Kunjbehari v. Wyandanch Union Free School District, Supreme Court, Justice Costello, Appeal to 2nd Department withdrawn (Index No. 26164/00)

Kunjbehari challenged the District's decision to deny him tenure and sought a court order directing his reinstatement as District Administrator, retroactive to July 1, 2000, together with all back pay and other benefits.

Kunjbehari held tenure with the Wyandanch as an Attendance Teacher. In July 1996, he was appointed to the position of Assistant Director of Student Services, a new position in which he was required to serve a three-year probationary period. In July 1997, Kunjbehari was appointed Director of Testing, Evaluation and Attendance. In April 1999, the then Superintendent of School, Dr. James Lotheridge, recommended that Kunjbehari be granted tenure. The Board of Education rejected that recommendation, but approved Kunjbehari's request that he be permitted to serve another year of probation. The extended probationary period was for the period of July 1, 1999 to June 30, 2000.

In March 2000, Kunjbehari was told by Dr. Brian DeSorbe, the Acting Superintendent, that he was recommending that the Board of Education not grant him tenure. Dr. DeSorbe provided Kunjbehari a written statement setting out the fifteen reasons which formed the basis for Dr. DeSorbe's recommendation he be denied tenure. Kunjbehari submitted a written response to Dr. DeSorbe's statement that was forwarded to the Board of Education. The Board denied Kunjbehari tenure.

Kunjbehari sued, contending that the Superintendent's decision not to recommend him for tenure “was arbitrary and capricious and in bad faith motivated by Dr. DeSorbe's desire to retaliate against petitioner for his union activity.” He alleged that “underlying Dr. DeSorbe's decision to deny [him] tenure was the fact that [he] served as the President of the Wyandanch Administrators' Association and, in that capacity, that he filed and pursued grievances on behalf of himself and three other district administrators against the School District during the 1998-1999 school year arising out the School District's denial of merit pay increases to these administrators.

The court said that while “a board of education has an unfettered right to terminate the employment of a teacher or administrator during his or her probationary period, without a hearing,” it may not do so for “a constitutionally impermissible purpose or in violation of a statutory proscription.” Further, Justice Costello said that “[a]s broad as the board's discretion may be, however, it is also the rule that a school board may not deny tenure to retaliate for a teacher's or administrator's exercise of his or her constitutional rights of free speech and association.”*

In addition, Justice Costello commented that “it is the clear public policy of this State, as set forth in the Taylor Law (Article 14 of the Civil Service Law), that a school board may not discriminate against teachers or administrators for exercising their right to belong to or participate in an employees' union.” However, an individuals' union activity will not provide a shelter for a teacher or administrator whom the school district decides not to retain for bona fide reasons.

* Justice Costello also commented that “[i]t is uncontroverted that the Board of Education lacks the authority to reject the Superintendent's recommendation that tenure be denied, citing Anderson v. Board of Education, 46 AD2d 360, affirmed 38 NY2d 897.”

Depression as a disability within the meaning of the Americans With Disabilities Act

Depression as a disability within the meaning of the Americans With Disabilities Act

Swanson v University of Cincinnati, CA6, 268 F.3d 307

Is the inability to work in a particular area due to a medical condition a disability within the meaning of the Americans With Disabilities Act [ADA]? The Circuit Court of Appeals, Sixth Circuit, decided that where an individual can perform satisfactorily in other areas, he or she does not suffer from a substantially limiting disability sufficient to maintain a claim of unlawful discrimination within the meaning of the ADA.

The Swanson case involved a surgical resident's claim of disability based on his inability to work in one area of medicine due to depression. Dr. John Swanson claimed that the University of Cincinnati [UC] and University Hospital [UH] unlawfully discriminated against him by failing to accommodate his disability -- major depression arising from the break-up of a significant four-year relationship, his parents' separation while he was in college, and other personal losses.

The district court ruled that Swanson's major life activities were not substantially limited by his condition because any restrictions were short-term in nature and mitigated by medication. In addition, his limitations were no greater than those experienced by the average person. As to Swanson's claim of “substantial limitation in his ability to work,” the district court noted that he did not miss any days of work; “his reviewers consistently noted he was able to work hard, even at the peak of his illness”; and his record at the University of Nevada indicated Swanson could give a “solid” performance in surgery with proper medication.

Based on these factors, the court decided that his depression had only a short-term effect on his performance and he was not substantially limited in the major life activity of working.

UH, on the other hand, contended that it did not believe Swanson was disqualified from performing a broad range of jobs, and encouraged him to switch to another medical specialty. Apparently Swanson declined to do so. In any event, the district court rejected his claim that UC and UH regarded him as disabled. Finding that Swanson was not disabled, the district court granted summary judgment to UC and UH.

To establish a prima facie case of discrimination because of disability the individual must show that he or she:

1. is an individual with a disability according to the statute;

2. is “otherwise qualified” to perform the job requirements, with or without reasonable accommodation;

3. suffered an adverse employment decision;

4. the employer knew or had reason to know of his disability; and

5. the position remained open after the adverse employment decision or the disabled individual was replaced.

The Circuit Court, agreeing with the district court, said that Swanson did not show that he could not perform all medical task due to depression, merely those associated with surgery, affirmed the lower court's dismissal of his complaint. 

Determining “in-service” status for the purposes of qualifying for a disability retirement allowance

Determining “in-service” status for the purposes of qualifying for a disability retirement allowance

Matter of Jetter, 288 A.D.2d 591 [see also Jetter v. McCall, 241 A.D.2d 746; Jetter v. Hevesi, 5 A.D.3d 941]

The Jetter case points out that although an applicant for disability retirement benefits has the burden of demonstrating his or her eligibility for such benefits, there must be substantial evidence in the record to support the Retirement System's rejection of the application.

New York State Trooper Roy P. Jetter discovered that he was awarded in-service disability retirement benefits pursuant to Retirement and Social Security Law [RSSL] Section 363-b (b) (2) (b), rather than pursuant to RSSL Section 363-b (b) (2) (a). Benefits received pursuant to Section 363-b (b) (a) apparently are treated more favorably for Federal personal income tax purposes.*

Jetter asked the Retirement System to reconsider its determination. The System decided that although Jetter's disability indeed was casually related to the October 1992 incident, such incident did not occur while he was “in service” and, therefore, he was not entitled to in-service benefits. Jetter appealed.

The Appellate Division noted that to be eligible to receive benefits under Section 363-b (b) (2) (a), Jetter had to establish that he sustained an in-service disability. Jetter's attorney, however, elected to object to the System's interjection of the in-service issue instead of offering proof concerning the issue. This tactical decision, said the court, does not entitle Jetter to a new hearing.

Notwithstanding this, the Appellate Division concluded that the System's “underlying determination is not supported by substantial evidence” and thus Jetter was entitled to a re-hearing because of this.

The only evidence presented on the in-service issue came from (1) Jetter's application for benefits, in which the then Superintendent of the State Police indicated that his injury was sustained while Jetter was “on-duty”; and (2) Jetter's hearing testimony during which he stated that “[w]ith the police department and the use of the [government] vehicle[s], you are on duty when you leave your house and begin to drive.”

While the System was free to reject any or all of Jetter's testimony on this point, its determination “must still be supported by substantial evidence in the record, which would include evidentiary facts and inferences which could fairly be drawn therefrom.”

As the record did not contain any evidence concerning Jetter's regular work schedule or assigned duties, his specific schedule and assigned tour on the day of the incident or whether he engaged in any work-related activities while he was en route to his office, the System's finding that Jetter's injury occurred “before [he] was scheduled to begin his tour” cannot stand.

Significantly, the court said that although Jetter had not entered his place of employment prior to sustaining the disabling injury, that fact, standing alone, does not constitute substantial evidence to support the underlying determination, and cross-examination of Jetter did not result in the elicitation additional facts from which it could be inferred that Jetter was not in service at the time he was injured.

The court's conclusion: Since the record made before the Retirement System did not have sufficient evidence to make a reasoned determination concerning whether or not Jetter had been injured “while in-service,” this case had to be returned to the Retirement System “for a further hearing on that limited point.”

* RSSL retirement benefits are not subject to New York State personal income tax.

Terminated probationer denied a name-clearing hearing

Terminated probationer denied a name-clearing hearing

Matter of Johnston v Kelly, 35 A.D.3d 297, 828 N.Y.S.2d 10

Kevin Johnston, because he served as a probationary police officer, could be terminated from his position without a hearing or a statement of reasons, for any reason or no reason at all, provided the dismissal was not made in bad faith, was not for constitutionally impermissible reasons, or was not in violation of law.

After Johnston was terminated from his position before completing his probationary period, he sued and obtained a court order from Supreme Court directing that he be given a “name-clearing hearing.”

The Appellate Division held that Supreme Court’s granting Johnston’s petition for such a hearing was incorrect. The Appellate Division pointed out that the lower court had improperly granted Johnston’s request for a name-clearing hearing as “the sole purpose of a name-clearing hearing is to afford the employee an opportunity to prove that the stigmatizing material in the personnel file is false."

Here, said the Appellate Division, Johnston has not demonstrated that the materials contained in his personnel file are stigmatizing. More importantly, Johnston had not denied the truth of the central factual assertions in his personnel records that formed the basis for his probationary termination. The decisions notes that Johnston “denied facts that were not stated in the report,” or denied statements in the report that were, at most, “tangential to the central issues.”

In any event, the satisfaction that the individual could expect obtain following the holding of a name clearing hearing is limited. Although it could result in a terminated probationary or provisional employee "clearing" his or her name, clearing his or her name does not automatically result in the individual winning reinstatement to his or her former position.

As the Court of Appeals held in Matter of Stanziale [55 NY2d 735], -- where the basis for dismissal is of a "stigmatizing nature" the individual is entitled to some due process so as to clear his or her name --. However the courts have not yet held that an individual is entitled to more than "some due process" insofar as redress or relief within the context of a name-clearing hearing is concerned.

In contrast to the ruling in Johnston, in Matter of Murphy v City of New York, Appellate Division, First Department, 35 A.D.3d 319, the court ruled that John J. Murphy was entitled to a name clearing hearing following his “coerced retirement” from his position with the New York City Employees’ Retirement System.

Here the Retirement system conceded that the element of dissemination has been satisfied. Murphy had sufficiently alleged that the report prepared by Retirement System personnel contains inaccuracies and that the report's conclusions are stigmatizing, “as they arguably accused Murphy of immorality.” Regardless whether Murphy resigned or was fired, the court said that he has satisfied the requirement of loss of employment that is necessary to demand a name-clearing hearing.

Determining the creditability of a witness

Determining the creditability of a witness

Sarmiento v Newsday, 287 A.D.2d 851

Newsday dismissed Marta Sarmiento from her position after she allegedly uttered a racial epithet in Spanish to a fellow employee in violation of Newsday's rules governing its employees’ conduct. When Sarmiento applied for unemployment insurance, her application was denied on the ground that she had lost her employment due to her misconduct.

Sarmiento appealed and ultimately the Unemployment Insurance Appeals Board, affirming the decision of its Administrative Law Judge [ALJ], ruled that Sarmiento was entitled to benefits. The ALJ had found Sarmiento's “testimony to be the more credible and lacking any disinterested witnesses to the incident in question.” Newsday appealed.

The Appellate Division, Third Department, affirmed the Board's determination, holding that while “[o]ffensive conduct in the workplace, including the use of abusive language, can be found to constitute disqualifying misconduct,” here the only direct evidence that Sarmiento uttered a racial slur was given by the alleged victim thereof who had admittedly been at odds with claimant for some time. Accordingly, the Board's decision was based on it view as to the credibility of the testimony of the witnesses.

The issue of credibility is one for the Board to resolve and as there is substantial evidence to support the Board's decision finding claimant entitled to receive unemployment insurance benefits, the court declined to overturn its ruling.