Union official removed from elected and appointed positions after being found guilty of "disloyalty to the organization" by a disciplinary hearing officer

Union official removed from elected and appointed positions after being found guilty of "disloyalty to the organization" by a disciplinary hearing officer

Abbitt v Carrube, 2018 NY Slip Op 01394, Appellate Division, First Department

Supreme Court denied Serena Abbit'spetition to annul the Subway Surface Supervisors Association [SSSA] decision sustaining the recommendation of SSSA's trial committee that Abbitt be removed from her elected position as Section Vice President. The court then dismissed the proceeding and granted SSSA's motion to dismiss Abbitt's libel claims.

The Appellate Division affirmed the Supreme Court's decision, explaining that SSSA's removal of Abbitt from her elected position was "consistent with its constitution and is rational and not arbitrary and capricious.

The court said that Abbitt persistent using her personal business cards, her personal email address, and her personal cell phone number notwithstanding directions to use those provided by SSSA, constituted a disregard of SSSA's direction and disloyalty to the organization.

The Appellate Division also noted the Abbitt [1] was provided with the requisite notice of the charges and an opportunity to be heard; [2] fully participated in the hearing, at which she was represented by counsel; and [3] at which hearing the charges were clarified. Abbitt, said the court, failed to identify anything in SSSA's constitution that supports her contention that she is entitled to the same due process protections with respect to her appointed position.

As to Abbitt's claim of libel,  the Appellate Division held the such claim against SSSA was correctly dismissed "since absolute immunity from liability for libel attaches to [a] the trial committee's charges initiating the quasi-judicial proceedings against her and [b] to the hearing officer's decision.

As to Abbitt's libel claim against SSSA's president, Michael Carrube, this claim was correctly dismissed as the alleged libelous statement that Abbitt "violated the chain of command," was at least substantially true and Carrube's description of Abbitt's behavior as "unethical" and "detrimental to the members [of SSSA]" was an expression of pure opinion and "supported by a factual predicate."

The Appellate Division then ruled that libel claim against the New York City Transit Authority [NYCTA] Senior Vice President of Labor Relations Johnson based on statements in an email to Carrube about the nature of the relationship between NYCTA's Office of Labor Relations and SSSA and the need for "mutual cooperation" and "respect" between them in which the Senior Vice President use of words such as "inappropriate," "disrespect," and "intimidation" to characterize Abbitt's conduct was also an expression  opinion regarding her performance and its effect on SSSA's relationship with NYCTA, and, considering the context of the entire email, including its tone and purpose, is not actionable.

Finally, the Appellate Division held that the only factual statement in Senior Vice President's  email challenged by Abbitt was made to someone "with a common interest in the subject matter" and was therefore protected by a qualified privilege and Abbitt's allegation of malice on the Senior Vice President's part "is conclusory and therefore insufficient to overcome the privilege."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_01394.htm

Supreme Court correctly applied the Doctrine of Collateral Estoppel to the hearing officer's determinations as to the reasons for the employee's termination

Supreme Court correctly applied the Doctrine of Collateral Estoppel based on the hearing officer's determinations as to the reasons for the employee's termination

Johnson v Department of Educ. of City of N.Y., 2018 NY Slip Op 01179, Appellate Division, Second Department

Linda C. Johnson  sought to recover damages for alleged unlawful employment discrimination on the basis of age and unlawful retaliation in violation of Administrative Code of the City of New York §8-107. Supreme Court granted the New York City Department of Education's motion pursuant to CPLR 3211(a) to dismiss Johnson's complaint.

The Appellate Division affirmed the Supreme Court's determination.

The Department of Education of City of New York had filed disciplinary charges pursuant to §3020-a of the Education Law against Johnson alleging "absenteeism, failure to prepare lesson plans, and verbal abuse and corporal punishment of students." Rejecting Johnson's defense that the main reason the charges were brought against her was "personality," in that the administration did not like her "for personal reasons," and that the administration failed to offer her remediation because it did not want "to deal with her," the New York State Department of Education's Hearing Officer sustained most of the specifications, and Johnson's employment was terminated by the New York City Department of Education. The Hearing Officer found that there was no evidence that certain members of the administration had treated Johnson unfairly, or that she was "targeted or discriminated against because of her personality or for any other reason."

The Appellate Division explained that the findings of a hearing officer after a hearing pursuant to Education Law §3020-a are entitled to collateral estoppel effect and, in this context, collateral estoppel applies if "[1] the issue sought to be precluded is identical to a material issue necessarily decided by the administrative agency in a prior proceeding; and [2] there was a full and fair opportunity to contest this issue in the administrative tribunal."

However, cautioned the Appellate Division, a termination of employment for cause does not necessarily preclude the possibility of termination being motivated by unlawful animus. Indeed, a court or a jury could find that the plaintiff's employment was terminated for discriminatory reasons, even if there were other, and legitimate, reasons for terminating the individual's employment.

Where such "mixed motives" are involved, a plaintiff need only demonstrate that discrimination was one of the motivating factors for the defendants' conduct. Accordingly, said the court, "even where the reason for termination is legitimate, the plaintiff may state a cause of action based upon allegations of disparate treatment or that the explanation for the termination of the plaintiff's employment was pretextual.

In Johnson's case the Appellate Division decided that the reasons advanced for the termination of the Johnson's employment were not pretextual, and that her termination was not motivated by age discrimination, explaining that "[t]he Hearing Officer further found that there was no evidence that [Johnson] 'was targeted or discriminated against because of her personality or for any other reason.'" Further, noted the Appellate Division, the reason why Johnson "was not offered more remediation efforts" was attributed to Johnson's "resistance to such efforts" by the Hearing Officer.

Thus, concluded the Appellate Division, the Hearing Officer's findings were entitled to collateral estoppel effect and Supreme Court correctly directed the dismissal of so much of Johnson's complaint as alleged unlawful employment discrimination on the basis of age.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_01179.htm

Applying the Doctrine of Res Judicata [claim preclusion] and, or, the Doctrine of Collateral Estoppel [issue preclusion] in federal actions alleging unlawful discrimination

Applying the Doctrine of  Res Judicata [claim preclusion] and, or, the Doctrine of Collateral Estoppel [issue preclusion] in federal actions alleging  unlawful discrimination

Mohamed Abdelal v Police Commissioner Raymond W. Kelly, City Of New York, USCA, 2nd Circuit, Docket #17-1166-cv

Mohamed Abdelal, a naturalized United States citizen who was born in Egypt and is Muslim, who served as a police officer with the New York Police Department [NYPD] from 2006 until he was terminated in 2013 after having been found guilty of misconduct "after notice and hearing."

1. The hearing officer found Abdelal guilty of nine charges, dismissed two charges, and recommended the imposition of a penalty of a "one-year dismissal probation" and forfeiture of 45 vacation days.

2. The Police Commissioner adopted the factual findings of the hearing officer but rejected the hearing officer's proposed penalty and, instead, offered Abdelal a "negotiated penalty" that would require Abdelal to immediately file for vested retirement.

Abdelal rejected the penalty proposed by the Commissioner and was terminated from his position.

Abdelal subsequently filed a lawsuit in federal district court alleging that he had been unlawfully discriminated against him and subjected him to a hostile work environment because of his (1) Egyptian national origin, (2) Arab ancestry, and (3) Muslim religion. Abdelal appealed the district court dismissed Abdelal's  complaint, ruling that (1) Abdelal's disparate treatment claims based on his termination were ʺbarred by res judicataʺ; and (2) his hostile work environment claims were time-barred.

The Circuit Court of Appeals vacated the lower court's judgment, explaining:

1. To the extent the district court relied on the doctrine of res judicata [claim preclusion], which "bars an action if the plaintiff could have raised the claim in a prior proceeding," even a plaintiff failed to do so, the Circuit Court, citing Colon v. Coughlin, 58 F.3d 865, said the lower court's decision was in error because the doctrine of res judicata ʺgenerally does not operate to bar a §1983 suit following the resolution of an Article 78 proceeding, since the full measure of relief available in the former action is not available in the latter.ʺ

2. Abdelal's federal claims were not barred by collateral estoppel [issue preclusion] as the doctrine of issue preclusion only applies ʺ(1) the issue in question was actually and necessarily decided in a prior proceeding, and (2) the party against whom the doctrine is asserted had a full and fair opportunity to litigate the issue in the first proceeding.ʺ

The Circuit Court held that the Police Department failed to meet its burden of showing that the identical issues had been decided in the Article 78 proceeding, noting that the district court explicitly pointed out that that Abdelal had not raised his race and religion claims of discrimination in the Article 78 proceeding nor did the Appellate Division, First Department, mention of any discrimination claim in its decision dismissing the Article 78 petition.

The fact that the First Department concluded that the administrative record contained ʺsubstantial evidence to support the finding that [Abdelal] engaged in conduct prejudicial to the good order, efficiency and discipline of the NYPD,ʺ does not mean that the court considered and rejected Abdelal's claims that he was subjected to harassment and disproportionate punishment for discriminatory reasons.

Accordingly, Circuit Court conclude that the district court erred in holding that Abdelal's discrimination claims are precluded by the Article 78 proceeding.

Finally, disagreeing with the district court finding that Abdelal's hostile work environment claims were untimely, the Circuit Court noted that "[t]he express cause of action for damages created by §1983 constitutes the exclusive federal remedy for violation of the rights guaranteed in §1981 by state governmental units." Whether construed as a stand-alone §1981 claim or a §1983 claim that vindicates the rights guaranteed in §1981, the Circuit Court opined that Abdelal's claim "is timely either way."

The Circuit Court then remand the case to the district court "to consider, in the first instance, the merits of the claims, as to which [it expressed] no view."

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/659e649b-9250-48d8-8ac5-e87a10f46b6e/7/doc/17-166_so.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/659e649b-9250-48d8-8ac5-e87a10f46b6e/7/hilite/

AELE case notes, publications, and seminars alert for March 2018

AELE case notes, publications, and seminars alert for March 2018

Posted March 1, 2018

1. Monthly Law Journal 
Article: U.S. Supreme Court Revisits the Basics of Probable Cause and Qualified Immunity.

View at http://www.aele.org/law/2018all03/2018-03MLJ101.pdf

2. Seminars:  
AELE's next seminar is on Use of Force in Las Vegas on April 30-May 3, 2018. For more information and to register click here:

http://www.aele.org/menu-lethal.html

Next is AELE's seminar on Discipline and Internal Investigations. Join us in Las Vegas on Oct. 29-Nov. 1, 2018. For more information and to register click here: http://www.aele.org/menu-disc.html

 3. AELE periodicals 
Three  AELE periodical have been uploaded. The current issues, back issues since 2000, and case digests since 1975 are FREE. Everyone is welcome to read, print or download AELE publications without charge. The main menu is at: http://www.aele.org/law

4. Law Enforcement Liability Reporter
This issue has cases on assault and battery: physical, defenses: qualified immunity, domestic violence and child abuse, Federal Tort Claims Act, firearms related: intentional use, firearms relations: Second Amendment issues, First Amendment, and search and seizure: home and business.

View at http://www.aele.org/law/2018all03/LR2018MAR.html

5. Fire, Police & Corrections Personnel Reporter

This issue has cases on Family and Medical Leave Act, First Amendment related, pensions, privacy rights, political discrimination, retaliatory personnel action, retirement rights and benefits, sexual harssment, whistleblower protection, and U.S. Supreme Court employment decisions.

View at http://www.aele.org/law/2018all03/FP2018MAR.html

6. Jail and Prisoner Law Bulletin
This issue has cases on access to courts/legal info, DNA testing, false imprisonment, filing fees, immigration detainees, medical care, medical cost recovery, prison and jail conditions: general, prisoner assault: by officers, and religion.
View at http://www.aele.org/law/2018all03/JB2018MAR.html

7. The current issues, back issues since 2000, and case digests since 1975 are FREE. 
Everyone is welcome to read, print or download AELE publications without charge. The main menu is at: http://www.aele.org/law

8. Selected criminal law and procedure cases are at three other free websites.
https://www.fletc.gov/the-informer
http://www.kenwallentine.com/Xiphos.html
http://le.alcoda.org/publications/point_of_view/

Supreme Court correctly applied the Doctrine of Collateral Estoppel based on the hearing officer's determinations as to the reasons for the employee's termination

Supreme Court correctly applied the Doctrine of Collateral Estoppel based on the hearing officer's determinations as to the reasons for the employee's termination

Johnson v Department of Educ. of City of N.Y., 2018 NY Slip Op 01179, Appellate Division, Second Department

Linda C. Johnson  sought to recover damages for alleged unlawful employment discrimination on the basis of age and unlawful retaliation in violation of Administrative Code of the City of New York §8-107. Supreme Court granted the New York City Department of Education's motion pursuant to CPLR 3211(a) to dismiss Johnson's complaint.

The Appellate Division affirmed the Supreme Court's determination.

The Department of Education of City of New York had filed disciplinary charges pursuant to §3020-a of the Education Law against Johnson alleging "absenteeism, failure to prepare lesson plans, and verbal abuse and corporal punishment of students." Rejecting Johnson's defense that the main reason the charges were brought against her was "personality," in that the administration did not like her "for personal reasons," and that the administration failed to offer her remediation because it did not want "to deal with her," the New York State Department of Education's Hearing Officer sustained most of the specifications, and Johnson's employment was terminated by the New York City Department of Education. The Hearing Officer found that there was no evidence that certain members of the administration had treated Johnson unfairly, or that she was "targeted or discriminated against because of her personality or for any other reason."

The Appellate Division explained that the findings of a hearing officer after a hearing pursuant to Education Law §3020-a are entitled to collateral estoppel effect and, in this context, collateral estoppel applies if "[1] the issue sought to be precluded is identical to a material issue necessarily decided by the administrative agency in a prior proceeding; and [2] there was a full and fair opportunity to contest this issue in the administrative tribunal."

However, cautioned the Appellate Division, a termination of employment for cause does not necessarily preclude the possibility of termination being motivated by unlawful animus. Indeed, a court or a jury could find that the plaintiff's employment was terminated for discriminatory reasons, even if there were other, and legitimate, reasons for terminating the individual's employment.

Where such "mixed motives" are involved, a plaintiff need only demonstrate that discrimination was one of the motivating factors for the defendants' conduct. Accordingly, said the court, "even where the reason for termination is legitimate, the plaintiff may state a cause of action based upon allegations of disparate treatment or that the explanation for the termination of the plaintiff's employment was pretextual.

In Johnson's case the Appellate Division decided that the reasons advanced for the termination of the Johnson's employment were not pretextual, and that her termination was not motivated by age discrimination, explaining that "[t]he Hearing Officer further found that there was no evidence that [Johnson] 'was targeted or discriminated against because of her personality or for any other reason.'" Further, noted the Appellate Division, the reason why Johnson "was not offered more remediation efforts" was attributed to Johnson's "resistance to such efforts" by the Hearing Officer.

Thus, concluded the Appellate Division, the Hearing Officer's findings were entitled to collateral estoppel effect and Supreme Court correctly directed the dismissal of so much of Johnson's complaint as alleged unlawful employment discrimination on the basis of age.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_01179.htm

Summarily terminating a federal officer holding a term appointment from his or her position

NYPPL earlier summarized the decision in PHH Corporation v Consumer Financial Protection Bureau, a decision in which the United States Circuit Court of Appeals,  District of Columbia Circuit  considered the issue of summarily removing a public officer holding a term appointment from his or her position.*

In PHH the Circuit Court concluded that a federal administrator appointed for a fixed term of office may only be removed for cause after notice and hearing. In particular the court ruled that the structure of the Consumer Financial Protection Bureau [CFPB] is constitutional and that its director can be terminated by the President only for cause.

In the words of the majority of the Circuit Court, sitting en banc: "Applying binding Supreme Court precedent, we see no constitutional defect in the statute preventing the President from firing the CFPB Director without cause."

Is the PHH decision relevant with respect to an effort by the President to summarily remove Special Counsel Robert Mueller from his position?

In this reviewer's opinion, PHH probably would not control as the Special Counsel currently so serving has not been appointed for a fixed term of office. 

However, 28 CFR 600.7(d) provides as follows:

"(d) The Special Counsel may be disciplined or removed from office only by the personal action of the Attorney General [or under the present circumstances, Deputy Attorney General Rod J. Rosenstein]. The Attorney General may remove a Special Counsel for misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmental policies. The Attorney General shall inform the Special Counsel in writing of the specific reason for his or her removal."

Deputy Attorney General Rosenstein's letter to Mr. Mueller** setting out the terms and conditions of his appointment as Special Counsel states that §§600.4 through 600.10 of the Code of Federal Regulations are applicable to the Special Counsel.

Further, 28 CFR 600.9 Notification and Reports by the Attorney General, in pertinent part, provides:

"(a) The Attorney General will notify the Chairman and Ranking Minority Member of the Judiciary Committees of each House of Congress, with an explanation for each action -

"(2) Upon removing any Special Counsel."

Although not specifically so stated in 28 CFR 600.7(d), "due process of law" may require that the removal of a Special Counsel be effected only upon his or her  being found guilty of "misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmental policies" after notice and hearing.

*The PPH decision is posted on the Internet at:

https://www.cadc.uscourts.gov/internet/opinions.nsf/B7623651686D60D585258226005405AC/$file/15-1177.pdf

** The appointment letter is posted on the Internet at:

https://www.documentcloud.org/documents/3726408-Rosenstein-letter-appointing-Mueller-special.html

The individual's retiring from his or her position to avoid disciplinary action may have unexpected consequences

The individual's retiring from his or her position to avoid disciplinary action may have unexpected consequences

Castro v Safir, 291 A.D.2d 212

An employee may elect to retire from his or her position when charges of incompetency or misconduct have been, or are about to be, filed against the individual.

4 NYCRR 5.3(b), which applies to officers and employees of the State as the employer in the Classified Service and employees of certain other public entities, provides, in pertinent part, that "... when charges of incompetency or misconduct have been or are about to be filed against an employee, the appointing authority may elect to disregard a resignation filed by such employee and to prosecute such charges and, in the event that such employee is found guilty of such charges and dismissed from the service, his termination shall be recorded as a dismissal rather than as a resignation." Many local civil service commission and county personnel officers have promulgated a local law, rule or regulation similar to 4 NYCRR 5.3(b).

In certain situations an individual who seeks to retire after he or she is terminated from his or her position as the result of being found guilty of disciplinary charges may find that he or she has forfeited the pension portion of his or her retirement allowance to which he or she may have otherwise been entitled.*

In Castro, the basic issue involved the result of his disciplinary termination from his position prior to the effective date of his retirement. If he had been lawfully so dismissed from the position, any pension benefits to which he would have otherwise been entitled would be forfeited pursuant to §13-173.1 of the New York City Administrative Code.**

Castro sued the Department contending that it had terminated him in bad faith in order to frustrate his eligibility for pension benefits as the New York City Employees' Retirement System's Medical Board had earlier found Castro eligible for ordinary disability retirement.***

The Appellate Division ruled that Castro had forfeited his pension benefits as he had been dismissed from his position for cause before he effective date of his retirement on ordinary disability and thus he was not in service on the effective date of his retirement, a ruling  consistent with the Court of Appeals' holding in its Waldeck and Barbaro rulings.

In Waldeck v NYC Employees' Retirement System, 81 N.Y.2d 804, decided with Barbaro v NYC Employees' Retirement System, the Court of Appeals said that §13-173.1 provides that an employee's disciplinary termination prior to effective date of his or her voluntary resignation results in a forfeiture of his or her eligibility for pension benefits.

Sometimes a disappointed retiree, as did Castro, alleges his or her termination constituted the employer acting in bad faith.

In Cipolla v Kelly 26 A.D.3d 171, the Appellate Division held that “The fact that [the individual] was about to retire, or that [the individual] ultimately settled the criminal charges by pleading to a violation, does not demonstrate [that the individual’s] termination [from his or her position was made] in bad faith.”

* The decision in Blair v Horn, 2008 NY Slip Op 32581(U), not selected for publication in the Official Reports, suggests that a court could deem a retirement to be the equivalent of a resignation within the meaning of 4 NYCRR 5.3(b) [See  http://www.nycourts.gov/reporter/pdfs/2008/2008_32581.pdf].

** §13-173.1 requires an employee to "be in service" on the effective date of his or her retirement or vesting of retirement benefits. If the employee is not "in service" on that date, he or she forfeits his or her pension benefits.

*** According to the decision, Castro was terminated from his position after he had applied for ordinary disability retirement but before he was actually retired for disability.

The Castro decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2006/2006_00697.htm

Penalty of dismissal recommended for an employee found guilty of violating the public trust and other disciplinary charges

Penalty of dismissal recommended for an employee found guilty of violating the public trust and other disciplinary charges

OATH Index No. 1767/17

A New York City Division of Housing housing inspector, whose duties included inspecting private and multiple dwellings for safety and "illegal conversions in cellars" was served with disciplinary charges alleging that he had [1] unlawfully converting the cellar of his two-family residence into single rooming units; [2] unlawfully installing kitchen and plumbing fixtures in the cellar space and [3] his failure to advise his employer of his ownership of his residence constituted a conflict of interest.

New York City Office of Administrative Trials and Hearings Administrative Law Judge Joycelyn McGeachy-Kuls found that the inspector had, indeed, unlawfully converted his cellar into rooming units, which he rented to tenants. Further, the ALJ noted that the rooms were unsafe because "they lacked the required means of egress."

Finding that the inspector's conduct showed disregard for the housing and safety standards he was charged with enforcing and was in violation of the public trust, Judge McGeachy-Kuls recommended that the inspector be terminated from his employment with the Division of Housing.

Also noted was a procedural element that the ALJ had to address. The inspector's employer called [the inspector as a witness] and asked him if "he had been arrested for violations at the subject premises." The inspector declined to answer the question invoking his Fifth Amendment right not to provide information that might be incriminating.*

The Division of Housing asked Judge McGeachy-Kuls that she "draw an adverse inference from the [inspector's] refusal to answer questions. The inspector then "stipulated to the admission of the criminal complaint filed against [him] citing violations at the subject premises."

Under the circumstances the ALJ said that she found it "unnecessary to draw an adverse inference."

* At the time of this disciplinary hearing was held criminal charges filed against the inspector were still pending.

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/17_cases/17-1767.pdf

Complying with administrative procedural requirements prior initiating litigation seeking information pursuant to the Freedom of Information Law

Complying with administrative procedural requirements prior initiating litigation seeking information pursuant to the Freedom of Information Law

Empire Ctr. for Pub. Policy, Inc. v N.Y.C. Off. of Payroll Admin., 2018 NY Slip Op 01143, Appellate Division, First Department

Supreme Court granted the Empire Center for Public Policy's CPLR Article 78 petition seeking to compel the New York City Office of Payroll Administration [Administration] to disclose certain information it had requested pursuant to the Freedom of Information Law [FOIL]. The court also referred the matter to a special referee to hear and report on the appropriate amount of attorney's fees to be awarded to the Center.

The Appellate Division unanimously reversed Supreme Court's ruling "on the law" without costs and dismissed the Center's Article 78 petition.

The Appellate Division noted that the Center and Administration had corresponded regarding Administration's attempt to comply with the Center's request. Administration indicated it would not be able to compile the date requested until October 2015. On November 5, responding to the Center's inquiry concerning Administration's failure to yet provide all the data it had requested, Administration ask Center for an additional 20 days to provide the requested data.

Acknowledging that in South Shore Press v Havemeyer, 136 AD3d 929, it was held that a failure to provide an approximate date when a petitioner's FOIL request would be granted constituted a constructive denial, the Appellate Division ruled that here the Center's appeal was premature as Administration had not constructively denied the Center's FOIL request in that Administration had provided "most of the information" by November 18."

The Appellate Division, conceding that a custodian of a public record's failure to provide an approximate date when a FOIL request would be granted constituted a constructive denial, found that the Center "did not file an administrative appeal from [the Administration's November 18 response] and thus the Center failed to exhaust its administrative remedies before commencing its Article 78 action.

The decision notes that in Taylor v NYC Police Department, FOIL Unit, 25 AD3d 347, [leave to appeal denied 7 NY3d 714], despite the FOIL Unit's untimely response to Taylor's FOIL request, Taylor improperly institute an Article 78 action "without first taking an administrative appeal" challenging the untimely response to his FOIL request.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_01143.htm

Employer advanced good faith reasons supporting its decision to terminate a probationary employee

Employer advanced good faith reasons supporting its decision to terminate a probationary employee

Cooper v City of New York, 2018 NY Slip Op 01240, Appellate Division, First Department

Supreme Court annulled the New York City Department of Education's determination terminating probationary employee John Cooper's from his position. The Appellate Division reversed the lower court's ruling "on the law."

The Appellate Division held that Cooper failed to establish that he was terminated in bad faith in view of the record demonstrating that his performance during his probationary period was unsatisfactory.

On the contrary, said the court, "the record demonstrates that [the New York City Department of Education] had a good faith reason for its determination" in that there were issues with Cooper's leadership, communication, and project management skills, which not resolved despite Cooper's supervisor's repeated advice that he needed to improve and her efforts to assist him.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_01240.htm

Selected reports posted in Employment Law News by WK Workday

Selected reports posted in Employment Law News by WK Workday

Source: Wolters Kulwer

Selected reports posted by WK Workday February 23, 2018

Click on text highlighted in color to access the full report.

Telecommuting for 10 weeks could be reasonable accommodation for in-house attorney

Yard-Man inferences can’t create ambiguity in CBA to find lifetime vesting of healthcare benefits

EEOC ‘regarded as’ ADA claims fail for therapist fired over concern she might contract Ebola

Employee fired for violating workplace violence policy, not for PTSD

Network administrator can’t use docs stolen from HR director’s email in his race bias lawsuit

Sexual harassment roundtable slated for March 1 with complimentary CLE

Federal whistle blower protection against retaliation is not triggered unless the individual complies with the procedures set out in the controlling federal law, rule or regulation

Federal whistle blower protection against retaliation is not triggered unless the individual complies with the procedures set out in the controlling federal law, rule or regulation

Digital Realty Trust, Inc. v. Somers, USSC, No. 16-1276

Both the Sarbanes-Oxley Act of 2002, typically referred to as the Sarbanes-Oxley Act and the 2010 Dodd-Frank Wall Street Reform and Consumer Protection Act, generally referred to as the Dodd-Frank Act, shield whistle blowers from retaliation by their employer for "whistle blowing" but they differ in important respects.

Sarbanes-Oxley applies to all "employees" who report misconduct to the Securities and Exchange Commission [SEC], any other federal agency, Congress, or an internal supervisor [see 18 U. S. C. §1514A(a)(1)].

In contrast, Dodd-Frank defines a "whistle blower" as any individual who provides . . . information relating to a violation of the securities laws to the SEC, in a manner established, by rule or regulation, by the SEC [see, generally, 15 U. S. C. §78u– 6(a)(6)].

Paul Somers alleged that his employer, Digital Realty Trust, Inc., [DRT] terminated him shortly after he reported suspected securities-law violations by the company to senior DRT management. Somers then initiated litigation against DRT, contending that he had been terminated in retaliation for his "whistle blowing" in violation of Dodd-Frank.

DRT asked the court to dismiss Somers lawsuit contending that Somers was not a whistle blower within the meaning of 15 USC §78u-6(h) because he failed to alert the Security and Exchange Commission of the suspected violations of Dodd-Frank prior to his termination.

The District Court denied the motion, and the Ninth Circuit affirmed. The Court of Appeals concluded that §78u-6(h) does not necessitate recourse to the SEC prior to gaining "whistle blower" status, and it accorded deference to the SEC's regulation, citing Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837.

The Supreme Court reversed, holding that the Dodd-Frank anti-retaliation provision does not extend to an individual who, like Somers, had not reported a violation of the securities laws to the SEC prior to his or her termination from his or her employment.

The court explained that "When a statute includes an explicit definition, [the court] must follow that definition ...."An individual who falls outside the protected category of “whistle blowers” as defined in the law, rule or regulation is ineligible to seek redress regardless of the conduct in which that individual has engaged. 

With respect to officers and employees of New York State as an employer and its political subdivisions, §75-b of the Civil Service Law provides as follows:

"2. (a) A public employer shall not dismiss or take other disciplinary or other adverse personnel action against a public employee regarding the employee's employment because the employee discloses to a governmental body information: (i) regarding a violation of a law, rule or regulation which violation creates and presents a substantial and specific danger to the public health or safety; or (ii) which the employee reasonably believes to be true and reasonably believes constitutes an improper governmental action. "Improper governmental action" shall mean any action by a public employer or employee, or an agent of such employer or employee, which is undertaken in the performance of such agent's official duties, whether or not such action is within the scope of his employment, and which is in violation of any federal, state or local law, rule or regulation" [emphasis supplied].

In Ringle v Onondaga County, 267 AD2d 1088, in determining Ringle’s and Sawyer’s rights under Section 75-b of the Civil Service Law, the Appellate Division noted that alleged violations of Section 75-b are typically challenged by the individual bringing an Article 78 action [Article 78, Civil Practice Law and Rules].* 

In filing such a petition, said Appellate Division, the individual seeks to vindicate a private rather than a public right. What private right? The right not to be dismissed or otherwise subjected to reprisals because of his or her disclosures to other governmental agencies of the media.

This conclusion meant that both Ringle and Sawyer had fallen into a procedural trap.

The Appellate Division said that because the “Civil Service Law Section 75-b causes of action Ringle and Sawyer brought sought to vindicate only their individual interests their claims were properly dismissed by the lower court because neither had filed a notice of claim as required by Section 50-a of the General Municipal Law Section and Section 52 of the County Law.**

In addition, the court pointed out that Section 75-b does not serve as a shield against disciplinary action being taken against an employee where there is a “separate and independent basis” for discipline the individual.

Finally, the Appellate Division observed that “by commencing actions pursuant to Civil Service Law Section 75-b, Ringle and Sawyer are barred from asserting any other State law cause of action related to the alleged retaliatory discharges.”

* In contrast, in DiGregorio v MTA Metro-N. R.R., 140 AD3d 530, the court ruled that where the collective bargaining agreement so provides, an allegation that the employer violated the “whistle-blower” statute is adjudicated in accordance with the terms of the agreement.

** This ruling implies that where an individual sues a school district or BOCES claiming he or she was dismissed or subjected to punitive action in violation of Section 75-b, he or she must file a notice of claim in accordance with Section 3813(1) of the Education Law. 

The decision is posted on the Internet at:

https://www.supremecourt.gov/opinions/17pdf/16-1276_b0nd.pdf