In cases involving alleged abuse of a minor child courts owe “unusual deference” to a school official’s decision to report reasonably suspected abuse and neglect

In cases involving alleged abuse of a minor child courts owe “unusual deference” to a school official’s decision to report reasonably suspected abuse and neglect

Maco v. Baldwin Union Free School District et. al, USCA Second Circuit, Docket No.17-1539

Rhonda L. Maco, alleging that two Baldwin Union Free School District employees, Lori A. Presti, and Carrie Billitzki reported "potential child abuse to a state agency in retaliation for a complaint Maco made about Billitzki’s treatment of Maco’s minor child [Minor Child]," sued the Baldwin School District, Presti and Billitzki, [Defendants] in federal district court.

The district court dismissed Maco's complaint, holding that "no reasonable jury could find that the Defendants had a retaliatory motive or that Maco sustained an injury. Maco appealed the district court summary dismissal of her petition contending that "Defendants failed to show entitlement to judgment because a reasonable juror could find that Presti’s report of suspected child abuse was 'motivated or substantially caused' by Maco’s complaint about M.C.'s treatment" by Presti.

The Circuit Court sustained the district court's ruling. Rejecting Maco's arguments, the court explained  that it "owes 'unusual deference' to school administrators (or 'mandated reporters') who are required by law to report suspected child abuse, absent a 'clear showing of retaliatory or punitive intent,' where the administrator has 'a sufficient basis to suspect potential abuse,' the report is, as a matter of law, not retaliatory."

The decision states the Minor Child told Presti that Maco had checked Minor Child out of school and taken her home, where Maco had slapped her face multiple times and struck her three times with a belt. School records showed that Maco had signed Minor Child out of school for an appointment earlier that day. This, said the court, was a “sufficient basis to suspect potential abuse,” even though Presti’s pre-report investigation was relatively brief and did not include speaking to Minor Child’s teacher.

Although Maco, relying on decisions interpreting Title VII of the Civil Rights Act of 1964, argued that a retaliation claim can lie even where there are “objectively valid grounds” for the retaliatory action, the Circuit Court noted that in the specialized context of a school administrator’s decision to report suspected child abuse, a more demanding standard applies.

The court also rejected Maco’s assertion of protected speech involving a complaint she made concerning Billitzki in June 2013, ten months prior to Presti’s April 2014 report of suspected child abuse. Although Billitzki was admittedly upset with Maco’s complaint at the time, there was no evidence in the record that Maco’s complaint was a consideration when Presti reported the abuse.

Noting that it is true that there is no “bright line . . . beyond which a temporal relationship is too attenuated to establish a causal relationship” in retaliation cases, in this case the court observed that "the lapse of time between speech and adverse action (and the lack of evidence connecting them) negates any inference of causation," even if, as Maco suggests, Minor Child’s report of corporal punishment provided Defendants with their “first actual opportunity to retaliate.”

The Circuit Court also noted that Maco’s remaining evidence was "even less probative of retaliatory motive" with respect to the fact that Presti reported the suspected abuse without first discussing Minor Child’s behavior with the child's teacher, even though Presti allegedly should have known that Minor Child was a habitual liar.

Presti, said the court, correctly evaluated Minor Child’s credibility on the day in question as "Maco had, in fact, taken [Minor Child] out of school and struck her multiple times—this evidence is scarcely probative of motive." Although this and other factors set out in the decision, may, in some circumstances, "support an inference of retaliatory motive," in this instance the court said it concluded that Maco’s evidence falls short of the requisite “clear showing of retaliatory or punitive intent.”

The court, in consideration of the “unusual deference” it owes to school administrators’ “decisions to report reasonably suspected abuse and neglect,” concluded that Presti’s report was non-retaliatory as a matter of law."

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/e908bc3a-9153-4d7b-bc24-582a4862afd6/5/doc/17-1539_so.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/e908bc3a-9153-4d7b-bc24-582a4862afd6/5/hilite/

Acquiring tenure in the position by tenure by "operation of law," sometimes referred to as tenure by estoppel or tenure by acquiesce

Acquiring tenure in a position by "operation of law," sometimes referred to as  tenure by estoppel or tenure by acquiesce
Matter of Mogilski v Westbury Union Free Sch. Dist., 2018 NY Slip Op 01063, Appellate Division, Second Department

Should the appointing authority fail, or neglect, to timely notify a probationer that he or she is to be terminated for failure to satisfactorily complete his or her probationary period  on or before the end of the individual's probationary period, the employee is deemed to have obtained tenure by "operation of law," sometimes referred to as  tenure by estoppel or tenure by acquiesce.

In Mogilski v Westbury Union Free School District the Appellate Division determined that Mogilski had obtained tenure in his position by "operation of law."

Westbury Union Free School District [District] appointed Anthony Mogilski as a Supervisor of School Facilities and Operations on September 21, 2015 subject to Mogilski's satisfactory completion of a 26-week probationary period scheduled to end March 21 next following.  On February 2, 2016, the District informed Mogilski that his probationary period was being extended for 12 days due to school closings for holidays, which, said the District, extended his probationary period through April 6, 2016.

The District's request for the extension was approved by the Nassau County Civil Service Commission [Commission] and on March 28 the School Board of Education adopted a resolution terminating Mogilski's employment "effective the last day of his probationary period, which is March 29, 2016 ...." A termination of employment letter was delivered to Mogilski on March 29.

On March 29, however, the District was informed by the Commission that it had incorrectly "authorized the extension" of Mogilski's probationary period for 12 days when the extension should have been 6 days, thereby resulting Mogilski'sprobationary period "officially" ending on March 29 rather than April 6.

Mogilskifiled an Article 78 petition seeking a court order reinstating him to his former position in which he alleged that the District exceeded its jurisdiction, and acted arbitrarily,  capriciously, and irrationally in extending his probationary period. He contended that the Commission's rules with respect to a probationer's term being extended for authorized or unauthorized absences on "workdays" does not authorize such an extension for school closings on holidays.*

Although Supreme Court denied Mogilski's petition, holding it was not an abuse of discretion for the District to treat absences resulting from "holiday" school closings the same as absences for sick leave, vacation, jury duty, and other authorized or  unauthorized absences for purposes of extending a probationer's term, the Appellate Division disagreed and reversed Supreme Court's ruling.

The Appellate Division explained that the relevant Commission rule indicated that "it is proper to extend a probationary term by the number of 'workdays' an employee is 'absent' or 'workdays' an employee missed due to sick leave, vacation, or jury duty" and that this court had previously ruled "it is rational to interpret 'workdays' to include 'all of those days when [Mogilski's] presence would normally have been required.'" However, said the court, a school closing due to a holiday "is not a day when [Mogilski's]would have required" to work and the extension of his probationary period in consideration of the school being closed due to a holiday was improper.

The court directed the District to reinstate Mogilski to his position of Supervisor of School Facilities and Operations with back pay and all benefits of his employment.

* 4 NYCRR 4.5(g), addressing absence during probationary term with respect to employees of the State as the employer, in pertinent part, provides that "Any periods of authorized or unauthorized absence aggregating up to 10 workdays during the probationary term, or aggregating up to 20 workdays if the probationary term or maximum term exceeds 26 weeks, may, in the discretion of the appointing authority, be considered as time served in the probationary term ... Any such periods of absence not so considered by the appointing authority as time served in the probationary term, and any periods of absence in excess of periods considered by the appointing authority as time served in the probationary term pursuant to this subdivision, shall not be counted as time served in the probationary term. The minimum and maximum periods of the probationary term of any employee shall be extended by the number of workdays of his absence which, pursuant to this subdivision, are not counted as time served in the probationary term."

Many local civil service commissions and personnel officers have adopted a similar rule.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_01063.htm

A resolution increasing a NYSHIP participating employer's contribution for health insurance premiums is temporary absent a manifest intent to create a permanent right

A resolution increasing a NYSHIP participating employer's contribution for health insurance premiums is temporary absent a manifest intent to create a permanent right

Bruckman v New York State Thruway Auth., 2018 NY Slip Op 01526, Appellate Division, Third Department

The complainants [Petitioners] in this CPLR Article 78 action are retired employees of New York State Thruway Authority [NYSTA]. NYSTA, a participating employer in the New York State Health Insurance Program [NYSHIP] as set out in Article 11 of the Civil Service Law, provides health insurance benefits to its employees and retirees.

A participating NYSHIP employer must pay at least 50% of the cost of the premium for individual coverage and not less than thirty-five% of the cost of premium or subscription charges for the coverage of dependents of such employees and retired employees. A participating NYSHIP employer, however, may elect to pay higher rates of contribution towards the employees' health insurance premiums for employees, retired employees, and the dependents of employees and retired employees. Further, a participating employer may elect to pay a higher or lower rate of contribution for its retired employees or their dependents, or both, than that paid by the State for its retired employees or their dependents, or both.

NYSTA's policy governing payment of health insurance premiums for retirees, last amended in 1976, provided that retirees would not be required to make any contribution toward the cost of individual coverage and each Petitioner received individual health coverage at no cost pursuant to the policy as it then existed upon his or her retirement.

In November 2015, NYSTA amended this the policy to require that retirees who had been retired for less than 25 years, and whose health insurance premium contribution rates were not subject to the provisions of a collective bargaining agreement negotiated pursuant to Article 14 of the Civil Service Law, commonly referred to as the Taylor Law, were to contribute six percent of the cost of the premiums for their individual coverage effective April 1, 2016.* As Petitioners served in positions designated "managerial or confidential" within the meaning of the Taylor Law, neither their employment nor their retirement was subject to the provisions of a collective bargaining agreement.

In March 2016, Petitioners commenced this Article 78 action seeking to, among other things, have the court annul NYSTA's decision to modify the contribution amount Petitioners had to pay for health insurance, contending that the revised policy breached "their vested right to receive individual health insurance coverage in retirement at no cost" and that the NYSTA's adoption of the revised policy was arbitrary and capricious.

Supreme Court dismissed the petition and Petitioners appealed.

Essentially Petitioners argued that the NYSTA policy that was in effect when each of them retired constituted "a unilateral offer by NYSTA to provide them with lifetime individual health insurance coverage in retirement at no cost," and that their right to such coverage vested and became an enforceable contract upon retirement.

Citing Aeneas McDonald Police Benevolent Assn. v City of Geneva, 92 NY2d 326, the Appellate Division disagreed with Petitioners, holding that "A municipal resolution is, in general, a unilateral action that is temporary in nature and, thus, it does not create any vested contractual rights."  The court explained that it is presumed that such resolutions do not "create private contractual or vested rights but merely declare a policy to be pursued until the legislative body shall ordain otherwise" and "[p]rivate contractual rights are created by municipal resolution only where the language of the resolution and the attendant circumstances clearly manifest the intent to create such rights."

Noting that there was nothing in the language of NYSTA's 1976 policy that would create private contractual rights, the decision pointed out that the rules and regulations governing NYSHIP specifically provide that a participating employer "that increases its rate of contribution toward the cost of health insurance benefits may thereafter decrease its rate of contribution to the statutory minimum."

* In Lippman v Board of Educ. of Sewanhaka Cent. High School Dist., 66 NY2d 313,  the Court of Appeals held that health insurance upon retirement is not a retirement benefit subject to the provisions of Article V, §7 of the State Constitution [Membership in retirement systems; benefits not to be diminished nor impaired].

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_01526.htm

A school board member who acts on the advice of counsel will not be found to have engaged in a willful violation or neglect of duty

A school board member who acts on the advice of counsel will not be found to have engaged in a willful violation or neglect of duty

Application for the removal of certain school officials, Decisions of the Commissioner of Education, Decision No. 17,307

Monique McCray, Doris Dodson and Kelly Valentin [Petitioners] submitted an appeal to the Commissioner of Education seeking for the removal of certain  members of the Board of Education of the Central Islip Union Free School District, the removal of Dr. Craig Carr as Superintendent [collectively Respondents] involving was school constructions project substantially completed by May 2004.

At the result of Central Islip's failure to timely file final cost reports concerning the construction projects to the State Education Department [SED], SED, except for one project, discontinued the apportioned payments and sought to recoup the state aid apportionments in the amount $13,619,929 in "overpayments" over the course of three years by annual deductions from Central Islip's general State aid payments.

Central Islip then initiated an Article 78 in Supreme Court, contending that it was "entitled" to the overpayment claimed by SED. Supreme Court granted Central Islip's request for a temporary restraining order, which resulted in a payment from SED to Central Islip in the amount of approximately $7.5 million during the 2011-2012 school year. Governor Andrew Cuomo, however, had then signed Chapter 57 of the Laws of 2012 excusing "the actions and omissions of any school district which failed to file timely final cost reports for otherwise eligible school construction projects so long as the reports were filed by December 31, 2012.” If the school district filed by this deadline, Chapter 57 required SED to pay apportioned aid to the district in full except for a late filing penalty.[1][1] 

In March 2014, the Office of the New York State Comptroller [Comptroller] issued a report of examination entitled “Central Islip Union Free School District Financial Management” which covered the period from July 1, 2012 to June 30, 2013. The Comptroller concluded that district officials had “underestimated revenues and overestimated expenditures in the School Board-adopted budgets for fiscal years 2008-09 through 2012-13 ....”  The Comptroller also noted that, after Central Islip learned of the potential $13.6 million liability to SED in February 2010, “the entire amount needed was accumulated in unexpended surplus funds by the end of the 2010-11 fiscal year, due to the operating surplus incurred that year.”  Although district officials had “hoped that funds for this contingent liability could be placed in a reserve and excluded when calculating the statutory limit,” the Comptroller opined that “there is no statutory authority to establish a reserve for this liability.”

Petitioners in this appeal to the Commissioner contended that the Respondents willfully violated the Real Property Tax Law [RPTL] §1318 by retaining funds greater than four percent of the next fiscal year’s budget for the 2010-2011, 2011-2012 and 2012-2013 fiscal years and that during this period although the community was experiencing economic decline and high home foreclosure rates, district officials increased the tax levy, generating operating surpluses in excess of $25 million from 2008-2009 through 2012-2013.

The Petitioners also argued that Respondents had "a responsibility ... to bring information to the community about matters that affect their legal obligation to pay taxes” and “were obligated to be truthful and ethical and not jeopardize the community’s trust.” 

McCray and Dodson were alleged to have “raised questions about the [d]istrict’s practices of deliberately creating excess funds by under estimating revenue and over estimating expenditures” at an April 8, 2013 board meeting, and Respondents “acknowledge[d]” that there were “no internal controls to measure whether budget expenditures are efficient and increases are warranted.”  Petitioners request that Respondents be removed from their respective offices.

The Commissioner first address what she characterized as a "preliminary matter," Respondents claim that she would be "unable to issue an impartial decision in this matter because ... the application concerns an ongoing dispute between SED and respondent board."

The Commissioner, noting that Education Law §306 provides for an application to the Commissioner of Education when a petitioner seeks the removal of a board member or school officer, said that although "recusal may be necessary in an adjudicatory proceeding before the Commissioner under certain circumstances," she found that no such circumstances existed in this case.  In particular, the Commissioner said that she did not find that the lawsuit, which has concluded, "compromises [her] impartiality or otherwise requires [her] recusal in this case.

After addressing a number of procedural issues, the Commissioner addressed the Petitioners' appeal and found that [a]lthough the application must be denied as untimely, it would also be denied on the merits."

The Commissioner explained that RPTL §1318(1) provides that at the conclusion of each fiscal year, a board of education must apply any unexpended surplus funds to reduce its tax levy for the upcoming school year.  Surplus funds are defined as “any operating funds in excess of four percent of the current school year budget, and shall not include funds properly retained under other sections of law.” The Commissioner then observed that it has been "repeatedly held that, at the end of each school year, all unexpended operating funds in excess of the statutorily permitted four percent of the amount of the budget for the upcoming school year must be applied to reduce the tax levy."

As to Petitioners' seeking the removal of a member of the board of education or a school officer, Education Law §306 so permits "when it is proven to the satisfaction of the Commissioner that the board member or school officer has engaged in a willful violation or neglect of duty under the Education Law or has willfully disobeyed a decision, order, rule or regulation of the Board of Regents or Commissioner of Education." Further, said the Commissioner, to be considered willful, "the board member or officer’s actions must have been intentional and with a wrongful purpose."

Observing that in an appeal to the Commissioner, the petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief, the Commissioner decided that while Petitioners in this appeal have alleged and proved violations of the RPTL, which Respondents have in fact admitted, "the actions of which [P]etitioners complain do not rise to the level of a willful violation or neglect of duty under the Education Law."

In the words of the Commissioner, "[P]etitioners have produced no evidence that any [R]espondent acted with a wrongful purpose" nor have Petitioners contested Respondents' contention that "that they took the actions which resulted in the accumulation of unexpended surplus funds during the disputed timeframe after receiving the advice of counsel."

Citing a number of Decisions of the Commissioner of Education, including Application of Goldin, 39 Ed Dept Rep 14, Decision No. 14,158, the Commissioner opined that "It is well-settled that a board member who acts on the advice of counsel will not be found to have engaged in a willful violation or neglect of duty that would justify removal under Education Law §306" and denied the Petitioners' application.

Addressing one final administrative matter, the Commissioner granted the Respondents'  have request for Certificates of Good Faith pursuant to Education Law §3811(1) thereby authorizing the School Board to indemnify them for legal fees and expenses incurred in defending a proceeding arising out of the exercise of his or her powers or performance of duties as a board member or other title listed in §3811(1).  

As it is appropriate to issue such certification unless it is established on the record that the requesting respondent acted in bad faith, the Commissioner concluded that as there has been no finding that any respondent acted in bad faith, she so certified "solely for the purpose of Education Law §3811(1) that ... Philips, Devine, Softy and Carbajal are entitled to receive the requested certificate [and] to the extent such a certificate is necessary, that [R]respondent Carr, who was the superintendent at the time of the events giving rise to this application, is also entitled to receive the requested certificate."

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume57/d17307

---

[1][1] Following passage of this legislation, Supreme Court dismissed the board’s lawsuit as moot on January 30, 2013, which was affirmed by the Appellate Division on October 30, 2014 (see Bd. of Educ. of Cent. Islip Union Free Sch. Dist. v. Steiner, 121 AD3d 1473).

Alcoholism as a defense in a disciplinary action

Alcoholism as a defense in a disciplinary action

OATH Index No. 0005/18

A New York City correction officer admitted that he brought alcohol onto his post, drank it through his tour of duty and falsely reported in the Department’s logbook that he conducted his required tours of the inmates. The correction officer, however, argued that he should not be fired because he was an alcoholic and that this condition caused his misconduct.

OATH Administrative Law Judge Susan J. Pogoda found that the correction officer did not show that his misconduct was caused by a disability and recommended termination of correction officer’s employment. Judge Pogoda's recommendation was adopted by the appointing authority and the correction officer was dismissed from his position.

As to alcoholism as a defense in a disciplinary action, in Murolo v Safir, Appellate Division, 246 A.D.2d 653, leave to appeal denied, 91 N.Y.2d 813, David Murolo challenged his disciplinary dismissal by contending his misconduct was caused by an alcohol abuse problem that he had since overcome. He claimed that his firing violated the Human Rights Law, citing In McEniry v Landi, 84 NY2d 554.

In McEniry the Court of Appeals had held that alcoholism qualifies as a disability within the meaning of the State’s Human Rights Law [see §292.21, Executive Law].

Although a Supreme Court justice accepted Murolo’s argument and remanded the case to the Commissioner for the imposition of a lesser penalty, the Appellate Division disagreed and reinstated the Commissioner’s original determination terminating Murolo from his position. The Appellate Division distinguishing the situation in McEniry from Murolo’s. 

The court explained that in Murolo the disciplinary hearing officer found that Murolo called in a false alarm and while his fellow firefighters were responding to the false alarm, Murolo took $223 of “communal money” from the station house. The hearing officer determined that Murolo's status as a recovering alcoholic did not shield him from discipline for misconduct and recommended his termination. The Commissioner adopted the hearing officer’s recommendation.

In contrast, in McEniry the issue was whether alcoholism prevented the individual from satisfactorily performing the duties of his or her position.

In McEniry the Court of Appeals held that if an individual establishes a prima facie case that his or her discharged was based on his or her alcoholism, the burden shifts to the employer to show either that (1) the employee was not disabled by alcoholism, (2) there was an alcoholism disability but no reasonable accommodation was possible or (3) there an alcoholism disability but termination was for other reasons than behavior stemming from alcoholism.

The OATH Index No. 0005/18 decision is posted on the Internet as:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/17_cases/17-2417.pdf

New York City police officer who filed fabricated complaints with the New York City Civilian Complaint Review Board dismissed from the department

New York City police officer who filed fabricated complaints with the New York City Civilian Complaint Review Board dismissed from the department

Artiles v Kelly, 2018 NY Slip Op 01435, Appellate Division, First Department

Wilkyn Artileswas terminated from his position as a New York City police officer after he was found guilty of impersonating four individuals to file false complaints with the New York City Civilian Complaint Review Board [CCRB], and making a false report of police corruption to the police department's Internal Affairs Bureau [IAB].

The Appellate Division found that substantial evidence supported the administrative disciplinary determination dismissing Artiles, which included he following findings:

1. The fabricated complaints filed with the CCRB were sent from an IP address corresponding to Artils' home, at a time when he was off-duty;

2. The IAB's report indicated that the claims Artiles had filed were unsubstantiated as the alleged victim denied the allegations.

The hearing officer's determination was also in accord with due process, having been made after a seven-day hearing, at which [Artiles] was represented by counsel and had the opportunity to present evidence and cross-examine witnesses, and at which 17 witnesses testified and 28 exhibits were introduced.

In the course of the disciplinary proceeding Artils complained that "one box of evidence was lost and could not be produced" and that a proposed witness, who had moved to another state, refused to testify despite being served with a subpoena. The Appellate Division, however, determined that the missing evidence related to a prior IAB investigation that was not the basis for the decision terminating Artils and "was relevant only insofar as it gave [Artils] a motive to make the false complaints." In addition, said the court, Artils' motive was corroborated by his own testimony, and by the testimony of several other police officers. The Appellate Division concluded that Artils' rights to due process had not been violated by the omission of this evidence.

Ruling that the penalty of dismissal is not disproportionate to Artils' "serious misconduct so as to shock the conscience," the court observed that "[i]n matters of police discipline, [courts] must accord great leeway to the Commissioner's determinations concerning appropriate punishment, because [the Commissioner] ... is accountable to the public for the integrity of the Department."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_01435.htm

Paid Leave available to public officers and employees undertaking screening for cancer

Paid Leave available to public officers and employees undertaking screening for cancer 

Statutory authority: New York State Civil Service Law §159-b

Effective March 18, 2018, §159-b of the New York State Civil Service Law, which provides public officers and employees of the State and its political subdivisions with excused leave to undertake a screening for cancer,* has been amended to read as follows:

§159-b of the New York State Civil Service Law, which provides public officers and employees of the State and its political subdivisions with excused leave to undertake a screening for cancer,* has been amended to read as follows:

"1. Every public officer,** employee of this state, employee of any county, employee of any community college, employee of any public authority, employee of any public benefit corporation, employee of any board of cooperative educational services (BOCES), employee of any vocational education and extension board, or a school district enumerated in section one of chapter five hundred sixty-six of the laws of nineteen hundred sixty-seven, employee of any municipality, employee of any school district or any employee of a participating employer in the New York state and local employees' retirement system or any employee of a participating employer in the New York state teachers' retirement system shall be entitled to absent himself or herself and shall be deemed to have a paid leave of absence from his or her duties or service as such public officer or employee of this state, employee of any county, employee of any community college, employee of any public authority, employee of any public benefit corporation, employee of any board of cooperative educational services (BOCES), employee of any vocational a school district enumerated in section one of chapter five hundred sixty-six of the laws of nineteen hundred sixty-seven, employee of any municipality, employee of any school district, or any employee of a participating employer in the New York state and local employees' retirement system or any employee of a participating employer in the New York state teachers' retirement system for a sufficient period of time, not to exceed four hours on an annual basis, to undertake a screening for cancer.

"2. The entire period of the leave of absence granted pursuant to this section shall be excused leave and shall not be charged against any other leave such public officer, employee of this state, employee of any county, employee of any community college, employee of any public authority, employee of any public benefit corporation, employee of any board of cooperative educational services (BOCES), employee of any vocational education and extension board, or a school district enumerated in section one of chapter five hundred sixty-six of the laws of nineteen hundred sixty-seven, employee of any municipality, employee of any school district or any employee of a participating employer in the New York state and local employees' retirement system or any employee of a participating employer in the New York state teachers' retirement system is otherwise entitled to."

* N.B. §159-c, Excused leave to undertake a screening for prostate cancer, is repealed effective March 18, 2018

** Although not every public employee is a public officer, every public officer is a public employee.

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