An administrative agency must follow the rules and regulations applicable to it in making its final administrative decision

An administrative agency must follow the rules and regulations applicable to it in making its final administrative decision
Matter of Hasberry v New York City Dept. of Educ., 2010 NY Slip Op 08792, decided on November 30, 2010, Appellate Division, First Department

The Department of Education (DOE) rejected applications for certification as New York City school bus drivers or bus escorts filed by a number of individuals on the basis of “criminal convictions that purportedly rendered them unsuitable to perform the duties associated with the transportation of school age children.”

While Supreme Court dismissed the petitions challenging this action, the Appellate Division reinstated the petitions with respect to DOE and remitted the matter to DOE for further proceedings.

Although the applicants were all denied certification on the basis of criminal convictions, the Appellate Division noted that the New York City Chancellor's Regulation C-105 provides that "If, prior to the conclusion of any background investigation, information of a derogatory nature is obtained which may result in denying the application for license, certification or employment, an applicant will be given an opportunity to review such information with the [Office of Personnel Investigation] and to include in the investigatory file, any written statements or documents which refute or explain such information."

In this instance, said the court, DOE did not provide the applicants with such an opportunity prior to making its determinations.

Conceding DOE’s concerns and “the need to protect the safety of children to be transported,” the Appellate Division said that DOE is bound by its own rules and regulations, including its procedural rules. Here the applicants were not given an opportunity to review the information that DOE relied upon in making its determination prior to its making its decision.

The court directed DOE to provide the applicants with an opportunity to review the information upon which DOE's determinations were based and to submit such statements and documents they wish in explanation or rebuttal of such information as required by Chancellor’s Regulation C-105.

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_08792.htm
NYPPL

Appointing authority’s threat to take action against an employee that is otherwise lawful to attain a desired result does not constitute duress

Appointing authority’s threat to take action against an employee that is otherwise lawful to attain a desired result does not constitute duress
Matter of Buric v Kelly, 2010 NY Slip Op 08786, Decided on November 30, 2010, Appellate Division, First Department

John Buric challenged the Police Commissioner’s determination that he be retired with ordinary disability retirement benefits.

Essentially Buric complained that his decision to file for a service retirement was involuntary and the result of fraud, duress, coercion, or other misconduct by New York City Police Commissioner Raymond Kelly.

Supreme Court rejected Buric’s claim that he was told that “he had to make an immediate decision with respect to his pension election, that he could not indicate on his election letter that his decision was made under duress, or that it would be futile to consult an attorney prior to making such an election.”

In affirming the lower court’s decision the Appellate Division observed that Supreme Court’s “findings of fact, based in large measure on its assessment of the credibility of the witnesses,” were supported by a fair interpretation of the record evidence.

Addressing Buric allegations that “he was given two unpalatable choices,* or that he chose the service retirement due to financial considerations,” the Appellate Division said that neither constituted duress, citing two decisions; Wolfe v Jurczynski, 241 AD2d 88, and Matter of Donato v Mills, 6 AD3d 966.

* In Rychlick v Coughlin, 63 NY2d 643, the Court of Appeals ruled that an appointing authority’s threat to undertake certain action that it otherwise had the legal right to take did not constitute duress.

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_08786.htm
NYPPL

Assumption of risk in a work-related activity

Assumption of risk in a work-related activity
Rios v Town of Colonie, 256 AD2d 900

Public safety agencies often sponsor athletic events or authorize members to participate in them. The Rios case involved Ramon Rios, a Town of Colonie corrections officer, who was injured while participating in “Department Olympics.”

Rios alleged that he was injured when he entered an obstacle course, which included a three-foot diameter black plastic culvert pipe and grazed his head on the “sharp and jagged edge of the pipe.” The cut to the top of his head required 21 sutures to close. He sued the town for his injuries.

Colonie objected and asked a Supreme Court judge to dismiss Rios’ complaint, contending that the doctrine of assumption of risk applied in this case.*

When the court dismissed the town’s motion, it appealed. The Appellate Division sustained the lower court’s ruling, indicating that Rios’ allegations had raised “genuine factual issues” as to whether the “sharp, razor-like and serrated edge” of the culvert pipe posed an open and obvious risk to him, or whether it constituted an “unassumed, concealed or unreasonably increased risk” to Rios.

Noting that Rios’ time to inspect the course was limited to a brief “walk-through” prior to the race, the Appellate Division returned the matter to the lower court for further action.

* The doctrine of assumption of risk holds that a participant in an athletic event of this type “assumed the risks that are generally inherent and flow from his [or her] participation” in these events. The participant in such events, however, does not assume risks that are unique and resulted from dangerous conditions.
NYPPL

Challenging a disciplinary penalty

Challenging a disciplinary penalty
Mantione v Levin, 277 AD2d 952

Ever wonder why some disciplinary action appeals are transferred to the Appellate Division by a State Supreme Court Judge? The Mantione decision sets out guidelines followed by the Appellate Division courts in determining whether a petition seeking to vacate or modify the penalty imposed in a disciplinary proceeding should be transferred to it.

Essentially, cases filed in Supreme Court that turn on whether or not the determination of guilt is supported by substantial evidence are to be transferred to the Appellate Division.

Salvatore S. Mantione was disciplined by the Commissioner of Insurance. Mantione admitted that he committed the acts alleged in the charges. Although neither party raised the issue whether the determination of guilt is supported by substantial evidence, a State Supreme Court judge decided that it was necessary to independently analyze the case to decide whether the substantial evidence test is properly applicable.

As any issue concerning substantial evidence is to be determined by an Appellate Division tribunal, the Supreme Court Judge sua sponte [on its own motion] determined that transfer was mandated by Civil Practice Law and Rules Sections 7803(4) and 7804(g) and sent it to the Fourth Department.

The Fourth Department said that the lower court was incorrect as a matter of law in finding an issue of substantial evidence and that the proceeding should not have been transferred.

It vacated the order transferring the action and returned the case to Supreme Court to review the penalty imposed. In other words, questions involving whether or not an administrative determination is supported by substantial evidence are to be resolved by the Appellate Division.

In contrast, questions concerning the reasonableness of the penalty imposed by an administrative tribunal after it finds a party guilty are to be initially considered by a State Supreme Court Judge.

As then State Supreme Court Judge Walter J. Relihan, Jr. stated in Eckstrom v City of Ithaca, [not officially reported], since the issue before him was not whether the administrative decision was supported by substantial evidence but rather whether the resolution violated Eckstrom’s rights as a matter of law, it should not be transferred to the Appellate Division.

Employee claims termination was in retaliation and that her employer defamed her

Employee claims termination was in retaliation and that her employer defamed her
Employee claims termination was in retaliation and that her employer defamed her
Gilligan v Town of Moreau, CA2, 2000 U.S. App. LEXIS 27198

In the Gilligan case the major issues involved allegations by a former employee of the Town of Moreau (a) that she was dismissed from her position with the Town in retaliation for her testifying before a grand jury and (b) that she had been defamed by Town officials.

Among the events that resulted in this litigation was a New York State Police investigation of the activities of the Town Supervisor, Michael Sullivan, and Frank Burt, a contractor hired to haul sand to the town’s landfill. Danielle Gilligan, an equipment operator at the landfill, and the other landfill employees, together with other Town employees, testified before the grand jury impaneled to consider criminal charges leveled against Burt and Sullivan.

During the summer and fall of 1995, Sullivan reportedly made vulgar, derogatory comments about Gilligan and told Board members of a rumor that Gilligan had been caught having sex on town property, even though he believed the rumor nonsensical. Gilligan was terminated from her position in February, 1996.

Gilligan sued, alleging that her terminations, and other adverse employment actions taken against her, were in retaliation for her grand jury testimony and that she had been defamed by Town officials.

Concerning retaliation

The Second Circuit, noting that [i]t is well settled that a public employer cannot discharge or retaliate against employees for the exercise of their First Amendment right to free speech, indicated that Gilligan’s grand jury testimony is such a protected activity. Further, said the court, it is well settled that discharge is an adverse employment decision.

In order to win a retaliatory discharge claim, however, the employee must, by a preponderance of the evidence, prove:

1. he or she engaged in a protected activity;

2. suffered an adverse employment decision; and

3. there was a causal link between her protected activity and the adverse employment decision.

The test to be met in order to demonstrate a causal connection between the protected activity and the retaliatory discharge: sufficient evidence to support an inference that the protected speech was a substantial motivating factor in the adverse employment action. Stated another way: the adverse employment action would not have been taken absent the employee’s protected speech.

The employee may prove such a casual connection by showing (a) the retaliatory action occurred close in time to the protected activities; (b) disparate treatment compared to similarly situated employees or (c) direct proof of retaliatory animus against the individual.

Here the Circuit Court concluded that Gilligan failed to show a causal connection between her grand jury testimony and her eventual discharge. Why? Because, said the court, Gilligan did not prove that the Town and the other defendants were aware of the substance of her protected speech before discharging her.*

Further, the Circuit Court decided that the defendants offered several legitimate, non-retaliatory reasons for its dismissing Gilligan which she failed to rebut -- there was not enough work at the landfill to justify employing three people; Gilligan was laid off because she lacked seniority; and she did not have the commercial driving license necessary to perform an essential job.

While Gilligan established a prima facie case, raising a presumption of retaliatory discharge, the Town overcame this presumption by offering legitimate, non-retaliatory reasons for her termination. Gilligan was then required to rebut this by demonstrating that the Town’s explanation was pretextual.

In the opinion of the court, Gilligan failed to produce sufficient evidence to support a rational finding that the legitimate, nondiscriminatory reasons proffered by the employer were false.... Accordingly, it affirmed the district court’s granting the Town’s motion for summary judgment in its favor.

Concerning defamation

Another aspect of the case involved Gilligan’s complaint that she had been defamed. Here the court ruled that “an employee may have a protectable liberty interest [w]here a person’s good name, reputation, honor, or integrity is at stake because of what the government is doing to him.”

Such an interest is implicated if [he or] she is dismissed based on charges that impose a stigma, or other disability, that prevent her from taking advantage of other employment opportunities. Such a stigma may be shown by proving that the statements will result in public opprobrium and damage to the employee’s reputation.

The circuit decided that the district court correctly found statements and rumors underlying Gilligan’s complaint did not satisfy the “stigma plus standard” followed in the Second Circuit. This standard requires a concurrent temporal link between the defamation and the dismissal.

In dismissing this element of Gilligan’s appeal, the court said that the statements were required to have been made close proximity to Gilligan’s separation and Gilligan failed to establish the statements were made concurrent with her layoff or the failure to rehire her.

While apparently not an issue in this appeal, if there was publication of the statements Gilligan alleged were stigmatizing by the Town, she probably could have demanded a name-clearing hearing.

A name-clearing hearing is available to a person, typically a temporary, provisional or probationary employee, who although lawfully terminated from his or her public employment, claims that the action disparaged his or her reputation in the community or adversely affected his or her ability to secure alternative employment.

In Donato v Plainview-Old Bethpage School District, 96 F.3d 623, the Second Circuit Court of Appeals held that a name-clearing hearing is available to the individual when he or she is terminated along with a contemporaneous public announcement of stigmatizing factors, including illegality, dishonesty, immorality, or a serious denigration of the employee’s competence.

Prevailing at a name-clearing hearing, however, would not have resulted in the employee’s having any claim to reinstatement or damages.

* Gilligan testified she told no one of the substance of her grand jury testimony prior to her testifying in open court at the Burt trial in April 1996. Gilligan was discharged in February 1996, two months before her in-court testimony.
NYPPL

Attorneys, Arbitrators, Consultants, Expert Witnesses

Attorneys, Arbitrators, Consultants, Expert Witnesses
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NYPPL readers often ask for the name of a professional to handle a personnel, retirement, civil rights or other employment related matter. If you or your firm is interested in being listed in NYPPL’s directory of professionals, send an e-mail to publications@nycap.rr.com with the word “Directory” as the subject and the details will be e-mailed back to you.
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The law of defamation in New York

The law of defamation in New York
Source: New York State Bar Journal

Mitchell H. Rubinstein, Adjunct Professor at the New York Law School and St. John's University - School of Law and a frequent contributor to NYPPL, has written an article entitled A Peek at New York Defamation Law that has been published by the New York State Bar Journal [82 N.Y.S. Bar J. 58 (Nov./Dec. 2010)],

This article is a primer on the law of defamation in New York. The author discusses the definition of defamation, litigation issues involving pre-complaint disclosure, defenses such as truth and opinion as well as the different types of privileges that may be applicable.

You can download the article from Professor Rubinstein's SSRN page [Publication #18] at no charge, here.

Lack of a transcript of a disciplinary arbitration not fatal to confirming the arbitrator’s award

Lack of a transcript of a disciplinary arbitration not fatal to confirming the arbitrator’s award
Matter of Jordan v Human Resources Admin. City of New York, 2010 NY Slip Op 08575, Decided on November 16, 2010, Appellate Division, Second Department

The Appellate Division ruled that Jerome E. Jordan failed to establish any grounds for vacating the arbitration award, including his argument that “under the circumstances here, the fact that the arbitration hearing was not transcribed did not provide a basis for vacating the arbitration award.”

N.B. In some instances a contract disciplinary procedure set out in a collective bargaining agreement provides that party may elect to have a transcript of the disciplinary arbitration hearing taken. Typically the cost of making a transcript of the hearing is at the requesting party’s own expense and frequently the CBA requires that the party requesting the transcript provide a copy to the arbitrator and the other party.

In contrast to a disciplinary arbitration, where the arbitrator makes the final determination, Civil Service Law §75 not only requires that a transcript of the hearing be made, it also requires that a transcript of the hearing be provided free of charge to the employee.

Further, a hearing officer or panel submits a report and a recommendation as to the penalty to be imposed to the appointing authority and it is responsibility of the appointing authority to conduct an independent review of the facts before rendering its decision.

In Ligreci v Honors, 162 AD2d 1010, the Appellate Division found that the appointing authority erred by making a determination in a disciplinary action before receiving the transcript of the hearing. Further, the courts have held that the failure to include transcript of the disciplinary hearing in a judicial challenge to the disciplinary determination or penalty imposed bars any “meaningful appellate review.”

Similarly, in a disciplinary action pursuant to, and consistent with, §3020-a of the Education Law, 8 NYCRR 82-1.11(c) provides that the Commissioner of Education is to arrange for “the preparation of a hearing transcript by a competent stenographer and shall compensate the stenographer for the cost of preparing the transcript and copies thereof for the hearing officer, each panel member, the department, the employee and the board.”

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_08575.htm
NYPPL

Disciplinary procedures set out in a collective bargaining agreement trumped the Civil Service Commission’s probationary termination rules

Disciplinary procedures set out in a collective bargaining agreement trumped the Civil Service Commission’s probationary termination rules
Gordon v Town of Queensbury, App. Div., 256 AD2d 784

Michael Gordon was terminated from his position as a motor equipment operator by the Town of Queensbury before he completed his probationary period. He challenged the town’s action, contending that the town failed to give him the written pre-termination notice required by rules promulgated by the Warren County Civil Service Commission and thus his termination was made “in bad faith.”

Rule XIV.5 of the Warren County Civil Service Commission requires that “a probationer whose services are to be terminated for unsatisfactory performance receive written notice of such termination at least one week prior thereto.”

Here, however, the Appellate Division decided that “the disciplinary provisions” set out in a collective bargaining agreement negotiated pursuant to the Taylor Law trumped the Commission’s rules. In its analysis of the case, the court pointed out that:

1. A county civil service commission has the authority to promulgate rules for the “conditions and extent of probationary service” which [when filed] have the force and effect of law.

2. “A violation of such rules may be sufficient to trigger a trial on the issue of bad faith.”

3. The former employee “bears the burden of presenting competent proof that his or her dismissal was made in bad faith.”

But, the court said, “it is equally true ... that the disciplinary procedures set forth in a collective bargaining agreement may be substituted for statutory procedures, in which case an employee is ‘entitled to no more procedural protections than those expressly afforded him [or her] under the collective bargaining agreement.”

The Appellate Division said that it was persuaded that the collective bargaining between Queensbury and Gordon’s collective bargaining agent, CSEA, governed the discipline and dismissal of probationary employees and therefore any alleged violation of the Commission’s rules by the town did not provide any basis for Gordon’s claim of bad faith.

Also noted in the opinion was the fact that “it is well settled that a probationary employee may be discharged without a hearing and without a statement of reasons absent proof that such discharge was for a constitutionally impermissible reason or in violation of statutory, decisional law, or in bad faith.

Since Gordon “failed to tender proof sufficient to raise a triable issue of fact in this regard,” the court decided that no hearing was required concerning the Town’s motivation in discharging him from the position and dismissed the appeal.
NYPPL

Police officer's termination for stealing money seized at a police raid ruled an appropriate penalty under the circumstances

Police officer's termination for stealing money seized at a police raid ruled an appropriate penalty under the circumstances
Renna v Safir, App. Div., 256 AD2d 219

In Renna v Safir the Appellate Division again applied the Pell standard – did the penalty imposed shock the conscience of the court.

Mary Renna was dismissed from her position as a New York City police officer after being found guilty of stealing money seized at an illegal gambling location during a police raid.

The court said that Renna’s guilt was supported by substantial evidence, including:

1. The images on a “videotape surveillance of the location,"

2. Renna's failure to report the allegations of corruption made against her in integrity tests conducted by Internal Affairs, and

3. Renna's admittedly false statements concerning the integrity test given in the departmental interview.”
NYPPL

Inability to perform essential duties trumps violation of American with Disabilities Act claims

Inability to perform essential duties trumps violation of American with Disabilities Act claims
Kees v Wallenstein, CA 9, 161 F.3d 1196

A number of correction officers in the State of Washington had been placed on light duty as a result of injuries sustained in the line of duty or as the result of non-work related illness. Their respective physicians had indicated that they should not have direct contact with prison inmates to avoid the possibility of further injury.

When the officers were removed from their positions they sued the Kings County Department of Adult Detention [Arthur Wallenstein, director], contending that their termination violated the Americans with Disabilities Act [ADA], 42 USC. Sections 12101-12213. The State of Washington, representing the county, argued that the officers involved were not “qualified individuals under the ADA” because their inability to have direct inmate contact prevented them from performing the essential functions of the corrections officer job.

The correction officers had informed Wallenstein that their conditions were permanent, and that no reasonable accommodation would allow them to have direct contact with inmates. After determining that direct inmate contact is an essential function of the corrections officer position, OHRM and Wallenstein separated plaintiffs from their jobs as corrections officers. The county had made a settlement offer -- each officer was offered a DAD non-commissioned, support position such as office technician, jail receptionist, or jail aide, at the full corrections officer salary. These employment offers were rejected because the positions required direct inmate contact.

The Circuit Court of Appeals said that in order to prevail on their claim, plaintiffs must establish that:

1. They are disabled within the meaning of the ADA;

2. They are qualified, with or without reasonable accommodation, to perform the essential functions of the job; and

3. The county terminated them because of their disability.

The Ninth U.S. Circuit Court of Appeals in San Francisco sustained the district court’s finding that the officers “are not qualified individuals with disabilities under the ADA.” It said that “no accommodation would allow them to have direct inmate contact, an essential function of the corrections officer position” as “their ability to restrain inmates during an emergency is critical to jail security.”

Another factor considered by the Circuit Court: the controlling collective bargaining agreement indicated that corrections officers are expected to rotate among several positions, most of which involve inmate contact.
NYPPL

Assurance of continued employment disqualifies educator for unemployment insurance benefits

Assurance of continued employment disqualifies educator for unemployment insurance benefits
Romano v Buffalo Bd. of Ed., App. Div., 256 AD2d 845
Cannizzaro v Buffalo Bd. of Ed., App. Div., 256 AD2d 846, Motion to appeal denied, 93 NY2d 815
Aljandari v Buffalo Bd. of Ed., App. Div., 245 AD2d 647
Dixon v Buffalo Bd. of Ed., App. Div., 256 AD2d 1046

A temporary teacher’s eligibility for unemployment insurance benefits upon termination of his or her temporary employment depends on whether or not he or she has been given “a reasonable assurance of continued employment” within the meaning of Section 590.10 of the Labor Law.

The following cases consider a number of different procedural and substantive issues involving claims for such benefits filed by temporary teachers. The basic lesson: employers will be required to provide substantial evidence of such assurances of continued employment to survive administrative and judicial scrutiny of objections to the payment of such benefits.

The Romano Case

Belmaries Romano and a number of other temporary teachers employed by the Buffalo Board of Education during academic 1994-95 were each sent a form letter dated June 9, 1995 indicating that they would be reemployed by the school board during the 1995-96 academic year.

Although initially unemployment insurance claims were denied on the basis of the form letter, an administrative law judge [ALJ] overturned that determination. The Unemployment Insurance Board [Board] affirmed the ALJ’s decision and then denied the school district’s application seeking to reopen the matter.

Although the Appellate Division recognized that “the decision to grant an application to reopen lies within the sound discretion of the Board,” it decided that the Board had abused its discretion when it rejected the school district’s application.

The court said that the school district’s motion for reopening and reconsideration of the issue of whether Romano and the other teachers “received a reasonable assurance of continued employment” as a result of the school district’s sending them a form letter should have been granted by the Board. The matter was remanded to the Board for further action.

The Cannizzaro and Aljandari cases

Both Eva Cannizzaro and Abdulla Aljandari were temporary teachers employed by the Buffalo City School District during the 1994-95 academic year. In June 1995, the school district sent each of them a letter “advising them that they would be reemployed during the then-upcoming 1995-1996 academic year.”

Both were denied unemployment insurance benefits on the grounds that they had received a reasonable notice of continued employment within the meaning of Section 590.10 at the end of the 1994-95 academic year. The Unemployment Insurance Appeals Board granted their applications to reopen and reconsider these denials of benefits.

The Board granted their applications and after reconsidering the matter, adhered to its prior rulings that both Cannizzaro and Aljandari had received reasonable assurances of continued employment.

The Appellate Division rejected their appeals, holding that the record indicated that the Board’s determinations regarding both teachers were supported by substantial evidence.

The Dixon decision

Amber Dixon and 19 other Buffalo City School District temporary teachers applied for unemployment insurance benefits at the end of the 1994-95 academic year. The Board ruled that the 20 teachers had not been provided with “a reasonable assurance of continued employment” for the 1995-96 academic year and approved their applications for unemployment insurance benefits.

The school district appealed, only to have the Appellate Division affirm the Board’s determinations. The court said that with respect to one teacher, Maria Orta, the district “admittedly failed to offer any proof [of such assurance] at the administrative hearing.”

As to the remaining 19 claimants, the Appellate Division set out the following guideline with respect to its considering Board determinations:

It is well settled that the issue of whether a claimant received a reasonable assurance of employment is a factual question for the Board to resolve and such determination, if supported by substantial evidence, will not be disturbed, even if other evidence in the record would support a contrary conclusion.

The Appellate Division said that although the teachers had been sent letters in June 1995 advising them that their services would be continued for the 1995-96 academic year “the Board concluded, in light of the proof adduced at the administrative hearings regarding the respective claimant’s particular employment situations, that the employer did not in fact provide claimants with a reasonable assurance of continued employment.”

The decision notes that 10 claimants worked in mathematics programs and the Board’s findings were supported by “extensive testimony regarding ... planned staff cuts for these departments.” As to the remaining teachers, the court said “it could not say that the Board erred in concluding that the employer failed to provide competent testimony regarding hiring lists and practices for those [other] areas [and thus] failed to demonstrate that it had provided these claimants with a reasonable assurance of employment for the 1995-1996 academic year.”
NYPPL