Factors considered by courts in evaluating the disciplinary penalty imposed on an employee found guilty of misconduct

Supreme Court denied an Educator's petition seeking to vacate the determination of the New York City Board of Education [DOE] terminating her from employment after a Disciplinary Hearing Officer had found her guilty of a number of charges and specifications.

The Appellate Division said that the hearing officer's findings had a rational basis and were supported by adequate evidence and  included a finding that Educator had  abdicated her responsibilities as a teacher in violation of school protocol by "leaving a student in crisis with a school aide," and other incidents that the court's decision characterized as "causing unwelcome confusion for the student and her family."

Citing Bolt v New York City Department of Education, 30 NY3d 1065, the Appellate Division noted that considering "controlling precedent," its sense of fairness was not shocked by DOE's imposing the penalty of termination following the Educator's being found guilty of the several charges and specifications filed against her.  The Appellate Division also noted Educator's "poor judgment, and her failure to take responsibility for her actions or demonstrate any remorse gave no indication that her inappropriate behavior was likely to change."

The court then opined that absent a disciplinary penalty being obviously disproportionate to the misconduct and in contravention of the public interest and policy reflected by the agency's mission, in this instance "the mere fact that a penalty is harsh, and imposes severe consequences on an individual," did not affront its sense of fairness that it shocked the conscience of the court.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_02962.htm

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Setting the terms and conditions of a disciplinary probationary period

Pleading nolo contendere* to criminal charges that he had recklessly operated his personal automobile while off-duty, a New York City police officer and the New York City Police Department "disposed" of the subsequent administrative disciplinary action taken against the officer by entering into a "settlement agreement." Under the terms of the settlement agreement the officer was placed on "disciplinary probation" for a specified period. This meant that the tenure he previously enjoyed was suspended for the duration of the disciplinary probationary period agreed upon and he could be summarily dismissed at any time during the probationary period by the appointing authority without notice and hearing.

While in disciplinary probationary status the police officer was arrested on assault charges alleged by a third party, which led to the officer being summarily dismissed from his position. 

Subsequently the assault charges were withdrawn. The officer then sued, seeking a court order directing his reinstatement to his former position, an awarded of back pay and an order directing the Police Department to give him a "name-clearing hearing." Supreme Court dismissed his CPLR Article 78  petition and the officer appealed the ruling to the Appellate Division.

Addressing the police officer's contention that he was unlawfully terminated and therefore should be reinstated to his former position with back salary and benefits, the Appellate Division said that as a probationary employee the officer could be dismissed without a hearing or a statement of reasons. Only in the event the officer demonstrated that his dismissal was made in bad faith or was for a constitutionally prohibited reason or was prohibited by statutory or case law could the officer claim wrongful discharge.**

In contrast, in the event the stipulation establishing the employee's "disciplinary probation period" sets out the acts or omissions that could trigger the individuals being summarily termination from his or her position, the employee may be summarily terminate without notice and hearing only in the event he or she is found to have violated the specified term or condition stipulated in the disciplinary probationary period agreement.

This point is illustrated in ruling by the Appellate Division in Taylor v Cass, 505 NY2d 929.

Under the terms of a disciplinary settlement, Taylor could be terminated without any hearing if, in the opinion of his superior, his job performance was adversely affected by his consumption of alcohol. 

Taylorwas subsequently summarily terminated from his position for allegedly sleeping on the job without notice and hearing and initiated an Article 78 proceeding against his former employer seeking reinstatement to his former position.

Although the employer contended that it terminating Taylor without a hearing was permitted under the terms of the disciplinary settlement agreement, the Appellate Division disagreed and directed the agency to reinstate Taylor to his position with back pay and benefits.

The court pointed out that the reason given for summarily terminating Taylor -- sleeping on the job -- was not a reason justifying his being summarily dismissed from his position authorized by the settlement agreement. The court explained that under the terms of the settlement agreement Taylor could only be terminated without a hearing if he was found to have violated the specific reason set out in the agreement, i.e., his performance of his duties was unsatisfactory because of his consumption of alcohol. 

* Nolo contendere is a plea by which a defendant in a criminal prosecution accepts his or her of conviction of the charge or charges as though he or she had entered guilty plea but does not actually admit guilt. A plea of "nolo contendere," however, has the same primary legal effects as had the individual entered a plea of "guilty as charged."

** See Green v New York City Police Department, et al., 235 AD2d 475.  The Appellate Division  also rejected the police officer's demand for "a name-clearing hearing," explaining that a former employee is entitled to a name clearing hearing only if he or she can demonstrate that the employer publicly disclosed false and stigmatizing reasons for his or her termination.

The Taylor decision is posted on the Internet at:

https://www.leagle.com/decision/19861007122ad2d8852320

Evaluating conflicting testimony and the credibility of witnesses in a disciplinary hearing

A court may not weigh the evidence or reject the choice made by the hearing officer in a disciplinary proceeding where there is conflicting evidence and room for choice exists. Where  there is room for choice, the court may not substitute its judgment for that of the hearing officer regarding the credibility of the witness.*

In Crossman-Battisti v Traficanti, Appellate 235 A.D.2d 566, the Appellate Division rejected the employee's claim that all the witnesses had motives to lie and fabricate their testimony, finding that there was no basis "to disturb the resolution of issues of credibility implicit in [the employer's] determination [and] the duty of weighing the evidence and making the choice between conflicting inferences which can be drawn from the evidence is for the administrative agency, not the courts."

Citing  Matter of Di Vito v State of New York, Dept. of Labor, 48 N.Y.2d 761, the Appellate Division explained that considering "the broad discretion afforded to an administrative agency in cases involving internal discipline," it would not substitute its judgment for that of the appointing authority.

Addressing the employee's "retaliation defense" for whistle-blowing asserted in her answer [see Civil Service Law §75-b(3)], the court opined that the whistle-blowerdefense "applies only where the disciplinary proceeding is based solely on the employer's unlawful retaliatory action." Where, as here, explained the Appellate Division, "the employer presented evidence of specific incidents of inappropriate conduct which are found to demonstrate a separate and independent basis for the action taken, a defense under Civil Service Law §75-b cannot be sustained."

As to the penalty imposed by the appointing authority, termination of the employee, the court ruled that "there is no basis to disturb the penalty of dismissal imposed in this case, which we do not find so disproportionate to the offenses as to be shocking to one's sense of fairness," applying the Pell Doctrine.**

The Appellate Division sustained the agency's terminating the employee after finding her guilty of "unauthorized activity, altercations with other employees, unauthorized absences and abuse of leave time."

* Kolanik v Safir, 231 A.D.2d 720.

** Matter of Pell v Board of Educ., 34 N.Y.2d 222.

The decision is posted on the Internet at:

https://www.leagle.com/decision/1997801235ad2d5661271

Establishing a prima facie case of unlawful discrimination triggers the McDonnell Douglas Corp. protocols used to evaluate employee's claims

In this appeal the United States Circuit Court of Appeals, Second Circuit, considered the employee's [Plaintiff] challenge to a federal district court's summarily dismissing his Title VII  complaint  "in the entirety" on the motion of his former employer [Defendant] and the lower court's dismissal of his New York City Human Rights Law"* allegations. Essentially Plaintiff alleged that Defendant had unlawfully discrimination against him on the basis of his race, ethnicity, or national origin in violation of Title VII.

The Circuit Court observed that summary judgment must be granted to the moving party “if the pleadings, the discovery and disclosure materials [in] the files, and any affidavits show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” The court then explained that a petitioner's federal law unlawful discrimination claims are to be analyzed under the three-step McDonnell Douglas burden-shifting framework, in which the employee must initially present a prima facie case of unlawful discrimination.**

By establishing a prima facie case of unlawful discrimination, the employee shifts the burden of going forward to the employer, requiring the employer to articulate a legitimate, non-discriminatory reason for its actions.

In the event the employer presents a legitimate, non-discriminatory reason for its actions, the burden of going forward then shifts back to the employee, who must now show that the employer’s explanation or justification for its action is merely a "pretext" in order for the individual to go forward with his or her claim of unlawful discrimination.

In this action the federal district court held that although the Plaintiff satisfied the requirements of articulating a prima facie case of unlawful employment discrimination, the Defendant, citing the Plaintiff's poor work performance, had set out a legitimate, non-discriminatory basis for its dismissing Plaintiff from his position. The district court then rejected Plaintiff's contention that the Defendant's allegation of "poor work performance"  as its justification for Plaintiff's termination was "mere pretext" for its action.

Thus, in the words of the Circuit Court, the central issue on appeal is were the reasons advanced by the Defendant as justification for its action "pretext." The Circuit Court decided that the Plaintiff had, in fact, demonstrated the existence of a triable issue of fact as to whether Defendants' proffered reason for his dismissal was mere pretext.

The court observed that in both Plaintiff's federal district court complaint and in an exhibit to his complaint to the New York State Division of Human (sic), Plaintiff asserted that he had overheard one of the named Defendants state during a phone to another party that she “know[s] how to terminate this stupid [referring to Plaintiff's nationality] guy” and submitted other evidence of discriminatory animus towards him, including additional comments made by said Defendant to others.

In reviewing a district court’s grant of summary judgment de novo, and "construing the evidence in the light most favorable to the non-moving party," here the Plaintiff, and drawing all reasonable inferences in the non-moving party's favor,” the Circuit Court concluded that "it [was] for the jury to determine whether to credit Plaintiff's representation, and vacated both of the federal district court’s rulings.

The Circuit Court then remanded the matter to the federal district court "for further proceedings consistent with this order."

* The Circuit Court noted that with respect to Plaintiff's New York City Human Rights Law claim, which it considered separately, it was “construing [its] provisions broadly in favor of discrimination plaintiffs, to the extent that such a construction is reasonably possible", citing Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d 102.

** McDonnell Douglas Corp. v. Green, 411 U.S.792.

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/958d92a9-8f01-4893-bdc0-4a764f2d7068/4/doc/17-1051_so.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/958d92a9-8f01-4893-bdc0-4a764f2d7068/4/hilite/

Standing to challenge the appointing authority's decision finalizing a disciplinary action taken against an employee

Certain residents and taxpayers of the Village [Plaintiffs] commenced a CPLR Article 78 proceeding seeking a court order annulling a resolution adopted by the Village's Board of Trustees [Board] approving, by a three-to-two vote, a modified disciplinary settlement agreement entered into by the Village and an employee of the Village.

The Plaintiffs, among other things, alleged that the Board's action violated the Village's Code of Ethics as one of the Board members who voted in favor of the resolution was the employee's brother-in-law. The Village and the employee separately moved to dismiss the Plaintiffs' Article 78 petition on various grounds, including lack of standing.

Supreme Court granted those branches of the separate motions of the Village and the employee seeking to dismiss the proceeding for lack of standing, thus denying the petition and dismissing the proceeding. The Plaintiffs appealed.

The Appellate Division said it agreed with the lower court's ruling, explaining:

1. Plaintiffs "effectively concede" that they are unable to show the existence of an injury in fact; and

2. Plaintiffs "do not qualify for common-law taxpayer standing."

The Doctrine of "Common-Law Taxpayer Standing" referred to by the Appellate Division was considered by the Court of Appeal in its decision in Matter of Transactive Corp. v New York State Dept. of Social Servs., 92 NY2d 579.  The Transactive court  noted "it is one thing to have standing to correct clear illegality of official action and quite another to have standing in order to interpose litigating plaintiffs and the courts into the management and operation of public enterprises."

As the Court of Appeals explained in Colella v Bd. of Assessors, 95 NY2d 401, it fashioned a remedy for taxpayers to challenge important governmental actions, despite such parties being otherwise insufficiently interested for standing purposes, when "the failure to accord such standing would be in effect to erect an impenetrable barrier to any judicial scrutiny of legislative action." The Doctrine, opined the court, should not be applied, however, to permit challenges to the determinations of local governmental officials having no appreciable public significance beyond the immediately affected parties, by persons having only the remotest legitimate interest in the matter.

Citing General Municipal Law §51, which provides for the prosecution of municipal officers for illegal acts, the Court of Appeals commented that its position with respect to the Doctrine of Common Law Taxpayer Standing is reinforced by the fact that "the Legislature has seen fit to confer general taxpayer standing to challenge the actions of local governmental officials in only limited situations."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_02703.htm

Considering the strong policy of including all public employees within the ambit of the Taylor Law, authority to designate certain employees managerial or confidential is to be read narrowly

For the purposes of Article 14 of the Civil Service Law, the Taylor Law, the term "public employee" means any person holding a position by appointment or employment in the service of a public employer except:

[1] judges and justices of the unified court system;

[2] persons holding positions by appointment or employment in the organized militia of the state; and 

[3] persons who may reasonably be designated from time to time as managerial or confidential upon application of the public employer to the appropriate body in accordance with such body's duly established procedures. 

Such persons, however, remain subject to the provisions of §210 of the Taylor Law, "Prohibition of strikes" and §211 of the Taylor Law which provides for obtaining "injunctive relief" where required.

Further, only persons (i) who formulate policy or (ii) who may reasonably be required on behalf of the public employer to assist directly in the preparation for and conduct of collective bargaining pursuant to the Taylor Law or to have a major role in the administration of collective bargaining agreements and, or, negotiated memoranda of understandings, or in personnel administration, provided that such role is not of a routine or clerical nature and requires the exercise of independent judgment, may be designated "managerial" within the meaning of the Taylor Law while only employees who assist and act in a confidential capacity to employees designated "managerial" may be designated "confidential" for the purposes of the Taylor Law.*

Managerial  or confidential employees may not be an officer or a member of any employee organization that is currently, or seeks to become, the certified  or recognized representative of the public employees employed by the public employer of such managerial or confidential employee.

Following the New York City Board of Certification's [the Board] approving an application by the Organization of Staff Analysts [the Organization] to add the title of Senior Auditor to the Organization's collective bargaining unit, the New York City Health + Hospitals [NYC Health] initiated an Article 78 action in Supreme Court seeking a court order annulling the Board's determination. 

Supreme Court dismissed NYC Health's petition. NYC Health appealed but the Appellate Division unanimously affirmed the Supreme Court's decision.

The Appellate Division opined that Supreme Court had properly deferred to the Board's rational interpretation of the applicable statutes, including the Board's finding that the exemption to public employees' eligibility for collective bargaining set out in the Taylor Law is controlling. Citing Viruet v City of New York , 97 NY2d 171, the Appellate Division explained that as the Taylor Law is incorporated into the New York City Health and Hospitals Corporation Act and the exemptions in the Act are substantially consistent with Article 14 of the Civil Service, "the override provision of Unconsolidated Laws §7405(5) does not apply" in this instance.

Noting that the exclusions for managerial and confidential employees are an exception to the Taylor Law's strong policy of extending its coverage to all public employees and are to be read narrowly, the court concluded that here the Board had a rational basis for finding that Senior Auditors were not "managerial" employees within the meaning of the Taylor Law. Although a Senior Auditor specifies how audits are to be conducted and may proposed changes based on the audit's findings, the Appellate Division said that "the Board reasonably found that submitting such nonbinding recommendations" does not constitute "formulat[ing] policy." Further, said the court, the Board also rationally found that Senior Auditors are not "confidential" employees within the meaning of the Taylor Law.

* For the purposes of the Taylor Law, §201.7(b) of the Civil Service Law provides that assistant attorneys general, assistant district attorneys, and law school graduates employed in titles leading to promotion to assistant district attorney upon admission to the New York bar are "managerial" employees. Confidential investigators employed by the New York State Department of Law are "confidential" employees within the meaning of the Taylor Law pursuant to §201.7(b).

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_02812.htm

By commencing a CPLR Article 78 action involving arbitrable issues, the petitioner may be deemed to have waived his or her right to demand arbitration of those issues

The Village of Bronxville terminated the employment of one of its police officers [Employee] and notified him that his "health insurance coverage, as well as any other insurance coverage that had been provided by the Village, would terminate." Employee objected, contending that the collective bargaining agreement [CBA] between the Village and the Bronxville Police Taylor Act Committee [BPTC] provided that he was entitled to individual and family health insurance coverage as a disability retiree.

The CBA outlined a grievance procedure to resolve "[a]ny dispute arising concerning the interpretation, construction or application" of the terms of the CBA. Under the terms of the CBA, if the dispute was not resolved through the grievance procedure, the parties were to submit the matter to arbitration. Ultimately the Village Board of Trustees denied the grievance. When BPTC served a demand to arbitrate the matter, the Village commenced an CPLR Article 75 proceeding seeking a permanent stay of arbitration of Employee's claim for health insurance benefits pursuant to the terms set out in the relevant collective bargaining agreement.

The Village argued that the BPTC and Employee [1] had waived the right to arbitration the grievance, and [2] that arbitration should be permanently stayed for laches. Supreme Court granted the Village's petition holding that while the BPTC had not waived the right to arbitrate Employee's claim, arbitration should be permanently stayed pursuant to the doctrine of laches and BPTC appealed.  

The Appellate Division agreed with Supreme Court's determination granting a stay of arbitration, but for a different reason. Explaining that the doctrine of laches bars the enforcement of a right where there has been an unreasonable and inexcusable delay that results in prejudice to a party and prejudice may be demonstrated "by a showing of injury, change of position, loss of evidence, or some other disadvantage resulting from the delay," and although the BPTC unreasonably and inexcusably delayed filing a demand for arbitration, the Village failed to demonstrate that it suffered any prejudice as a result of that delay. Thus, concluded the Appellate Division, the doctrine of laches does not bar the arbitration in this instance.

Citing Sherrill v Grayco Bldrs., 64 NY2d 261, the Appellate Division opined that "[l]ike contract rights generally, a right to arbitration may be modified, waived or abandoned." The court then noted that Employee had previously commenced a proceeding pursuant to CPLR Article 78 against, among others, the Village, challenging the Village's determination to terminate his health insurance benefits. In that proceeding Employee had alleged that the Village had breached the collective bargaining agreement by failing to provide him with disability retiree health insurance coverage.*

"By commencing an action at law involving arbitrable issues" pursuant to Article 78 the Appellate Division opined that BPTC and Employee "had waived whatever right [they] had to arbitration," citing Hart v Tri-State Consumer, Inc., 18 AD3d 610.

The Appellate Division then ruled that Supreme Court should have permanently stayed the arbitration on the ground that BPTC and the Employee had waived any right to arbitrate the matter.

* The Appellate Division noted that "Where a party affirmatively seeks the benefits of litigation, in a manner 'clearly inconsistent with [its] later claim that the parties were obligated to settle their differences by arbitration,' the right to arbitrate has been waived."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_02710.htm

Medical records related "solely to an employer's hiring practices" are not available to the applicant pursuant to New York's Public Health Law §18 unless necessary to make informed decisions concerning medical treatment

In this Article 78 proceeding the Plaintiff asked Supreme Court to [a] annul the New York-New Jersey Port Authority's [Authority] determination that he was not qualified to serve as a police officer in its public safety department in consideration of the results of his psychological evaluation and [b] to direct the Authority to provide him copies of all of its records related to his psychological evaluation.

Ultimately Supreme Court [a] granted the Authority's motion to dismiss that portion of Plaintiff's petition seeking to annul the Authority's rejection of Plaintiff for appointment as a police officer but [b] granted that portion of Plaintiff's petition seeking a court order requiring the Authority to provide him with "his psychometric testing results related to his psychological evaluation" pursuant to New York's Public Health Law §18.

The Authority appealed and the Appellate Division reversed that portion Supreme Court's judgment that ordered the release of the documents related to Plaintiff's psychometric testing results related to his psychological evaluation. The court explained that Plaintiff was not entitled to his psychometric testing results pursuant to §18 because §18 was intended to give individuals access to their medical records "to obtain necessary information about their medical treatment and condition and to make fully informed choices about their medical care."

Here, however, the court said that in this instance Plaintiff was not seeking to procure these psychological testing results as "necessary information about [his] medical treatment and condition . . . to make fully informed choices about [his] medical care."

Rather, opined the Appellate Division, the Authority's psychological testing results related "solely to its hiring practices," a wholly internal matter, which the Authority characterized as part of "the process used to recruit, screen, and evaluate candidates seeking to serve as police officers." The Appellate Division agreed with this characterization, commenting that this was "a quintessential example of an internal operation and a core employer-employee relations matter."

The court also took note that the Authority, as an interstate compact agency, is not subject to New York legislation governing its "internal operations," e.g. employer-employee relations, "unless both New York and New Jerseyhave enacted legislation providing that the same is applicable to The Port Authority, which is not the case here."

In contrast, however, the Appellate Division, citing Salvador-Pajaro v Port Auth. of N.Y. & N.J., 52 AD3d 303, pointed out that although a bi-state entity, the Authority "is subject to New York's laws involving health and safety, insofar as its activities may externally affect the public."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_02661.htm

Employee terminated "for failing to maintain a minimum qualification of her employment"

An employee [Petitioner] of the Office for Persons with Developmental Disabilities [OPWDD] was suspended from her employment without pay and thereafter charged with six charges alleging misconduct and, or, incompetence related to alleged criminal conduct. Petitioner, was subsequently indicted on a number of criminal charges related to her employment with OPWDD and notified by the Office of the Medicaid Inspector General  that, "based on the pendency of felony charges against her," she was excluded from participation in the State's Medicaid program."

Notified by OPWDD that her employment was subject to termination, Petitioner failed to attend two scheduled meetings for the purpose providing with an opportunity to present documentary evidence showing that she "was not an excluded provider" whereupon OPWDD wrote to Petitioner that her employment was terminated as of close of business on November 1, 2016. On October 26, 2016, following a jury trial, Petitioner was acquitted of all criminal charges for which she had been indicted. Notwithstanding her acquittal of the criminal charges, OPWDD terminated Petitioner effective November 1, 2016. 

In February 2017 Petitioner initiated a CPLR Article 78 proceeding against OPWDD seeking, among other things, reinstatement to her former position, contending that her termination was made without administrative due process and "was otherwise arbitrary and capricious." Supreme Court dismissed her petition and Petitioner appealed.

The Appellate Division affirmed Supreme Courts ruling, rejecting her contention that she was denied due process when OPWDD failed to follow the disciplinary procedures mandated by the Civil Service Law Section 75 and set forth in the relevant collective bargaining agreement.

The court explained that Petitioner not been terminated from employment by OPWDD based upon any allegation of incompetence or misconduct but was terminated "for failing to maintain a minimum qualification of her employment" - continued eligibility for the Medicaid program -- and, therefore, "the disciplinary procedures mandated by the Civil Service Law and the collective bargaining agreement were not applicable in this instance."

Further, opined the Appellate Division, it saw no violation of Executive Law §296, New York State's Human Rights Law, as Petitioner had been terminated for failing to possess a minimum qualification of employment that was "expressly set forth in OPWDD's employee handbook, which indicates that an offer of employment may not be made until a potential candidate has been screened against both the state and federal databases of Medicaid excluded individuals."* This requirement was also set out in a state regulation, a special advisory bulletin and during a mandatory annual Medicaid compliance job training for employees, and was the subject of quarterly screenings to ensure that such employees maintained their eligibility in the Medicaid program.

Accordingly, the Appellate Division rule that Petitioner received all the due process to which she was entitled as "it is not disputed that she received notice of the charge that led to her termination and was provided an adequate opportunity to contest same." Further, said the court, the fact the Petition allegedly regained her eligibility to participate in the Medicaid program based on her subsequent acquittal of the criminal charges brought against her "did not render irrational OPWDD's determination to terminate [Petitioner's] employment in the first instance" and affirmed Supreme Court's dismissal of her Article 78 petition.

*This requirement "was also set forth in a state regulation, a special advisory bulletin and a mandatory annual Medicaid compliance job training for employees, and was the subject of quarterly screenings to ensure that such employees maintained their eligibility in the Medicaid program."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_08993.htm

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The Discipline Book - A concise guide to disciplinary actions involving public officers and employees in New York State. To order your copy of The Discipline Book, please go to: http://thedisciplinebook.blogspot.com/

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Morgan Lewis Pro Bono Team to Be Honored for Pro Bono Representation of Immigrants in Detention

The American Immigration Council will recognize the law firm of Morgan Lewis with its Stephen K. Fischel Distinguished Public Service Award on April 11 at The Capitol View at 400 in Washington, D.C. The award, which recognizes individuals or organizations who exhibit an outstanding commitment and dedication to America’s heritage as a nation of immigrants and to the struggle for fair and humane immigration policies in the United States, will be presented at the D.C. Immigrant Achievement Awards reception. 

Notably, Carolyn Silane, an associate at Morgan Lewis’ New Yorkoffice, successfully represented an adoptive parent who was separated from his two-year-old son in the early days of family separation and was denied reunification because the government claimed he was “not the father.”

Morgan Lewis’ pro bono legal services in immigration include helping vulnerable immigrants obtain legal immigration status, which includes providing legal representation to individuals fleeing persecution overseas, undocumented and unaccompanied minors who came to the United Stateswhen they were young, immigrant women whose immigration status is dependent on an abusive spouse, and victims of human trafficking and other crimes. The firm’s team of lawyers have also helped many abused, abandoned, or neglected young children to obtain Special Immigrant Juvenile Status in the United States.

The Council has recognized the achievements of many outstanding immigrants and their advocates. Past honorees include General Colin Powell, Senator Daniel Inouye, the Southern Poverty Law Center, TheDream.Us, and Gerda Weissman Klein.

For more information, contact Maria Frausto at the American Immigration Council at mfrausto@immcouncil.orgor 202-507-7526.

Health insurance benefits set out in collective bargaining agreement found to have survived expiration of agreement and the employee's resignation

The plaintiff [Petitioner] in this action was initially employed by the City of Lockport [Lockport] in a position in a collective bargaining unit represented by the American Federation of State, County and Municipal Employees [AFSCME]. Lockport subsequently promoted Petitioner to a position in a collective bargaining unit represented by the Civil Service Employees Association [CSEA]. In 2008 Petition later left Lockport's employ and commenced working for Niagara County [County]. In 2016, Petitioner asked Lockport provide him medical benefits set out in the relevant collective bargaining agreements [CBAs] between Lockport and AFSCME and between Lockport and CSEA.

When Lockport refused to do so, Petitioner commenced an action for breach of contract and sought a court order declaring that Lockport was required to provide him with the medical benefits set out in the relevant CBA. Ultimately Supreme Court granted Plaintiff's motion for summary judgment, ruling that Lockport was obligated to provide Petitioner with medical benefits under the Lockport and AFSCME CBA. The Appellate Division, in response to Lockport's appeal challenging the Supreme Court's decision, affirmed the lower court's ruling.

The court explained that "[a]s a general rule, contractual rights and obligations do not survive beyond the termination of a collective bargaining agreement .... However, [r]ights which accrued or vested under the agreement will, as a general rule, survive termination of the agreement . . . , and [the court] must look to well established principles of contract interpretation to determine whether the parties intended that the contract give rise to a vested right."

Citing Kolbe v Tibbetts, 22 NY3d 344, the Appellate Division observed that whether a provision in a collective bargaining agreement "is ambiguous is a question of law and extrinsic evidence may not be considered unless the document itself is ambiguous. In contrast, said the court, where the language in the collective bargaining agreement "is 'reasonably susceptible of more than one interpretation, extrinsic or parol evidence may be then permitted to determine the parties' intent as to the meaning of that language,'" referencing Fernandez v Price, 63 AD3d 672 quoting Chimart Assoc. v Paul, 66 NY2d 570.

In this instance the Appellate Division concluded that Supreme Court "properly determined that the plain meaning of the provisions at issue in the AFSCME CBA establishes that [Petitioner] has a vested right to medical benefits, [that] those rights vested when he completed his 20th year of service, and [Petitioner] became eligible to receive said benefits when he reached retirement age."

Further opined the Appellate Division, Petitioner's right to medical benefits "vested when he satisfied the criteria in the AFSCME CBA, and there is no language in the AFSCME CBA indicating that employees would forfeit or surrender their vested rights if they transferred jobs or unions prior to reaching retirement age." Accordingly the court concluded that Supreme Court's interpretation of the AFSCME CBA "give[s] fair meaning to all of the language employed by the parties to reach a practical interpretation of the expressions of the parties so that their reasonable expectations will be realized ... and does not leave one of its provisions substantially without force or effect."

N.B. Motion to dismiss appeal granted, Motion #CA 18-00924 [see
http://www.nycourts.gov/reporter/motions/2018/2018_66476.htm]

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_08792.htm

Property owner liable if a firefighter is injured in the line of duty due to the owner's failure to comply with law, rule or regulation that resulted in the injury

General Municipal Law §205-a "gives a firefighter . . . a right of action against any person whose negligent failure to comply with a government provision either  directly or indirectly results in injury" suffered in the "line of duty."

A city firefighter, who had sustained injuries in the course of performing firefighting duties when he "stepped onto a roof, slipped on the snowy surface and fell to the ground," and his spouse [Plaintiffs] sued the owner, [Defendant] alleging the Defendant was liable, citing General Municipal Law §205-a and General Obligations Law §11-106. Supreme Court granted the Defendant's motion and Plaintiffs appealed.

The Appellate Division ruled that Supreme Court properly granted Defendant's motion for summary judgment, explaining that while General Municipal Law §205-a "gives a firefighter . . . a right of action," to successfully make out such a claim, a plaintiff:

1. Must identify the statute or ordinance with which the defendant failed to comply;

2. Describe the manner in which the firefighter was injured; and

3. Set out the facts from which it may be inferred that the defendant's negligence directly or indirectly caused the harm to the firefighter.

In contrast, to succeed on a motion for summary judgment dismissing the plaintiff's action in this context, a defendant must show either:

1. Defendant did not violate any relevant governmental provision or;

2. If a relevant government provision was violated, that such violation did not directly or indirectly cause [the firefighter's] injuries."

Defendant had submitted his deposition testimony and the affidavit of an expert opining that Defendant's house contained no building code violations that contributed to the firefighter's injuries.

Plaintiffs contended that Defendant had violated statutory and building code provisions requiring all multifamily dwellings to contain fire-resistant enclosures at the base or top of stairways or both and that the lack of such enclosures contributed to the firefighter's injuries.

The court, however, observed that Plaintiffs' expert contended that Defendant violated provisions of these laws, but his opinions were based on assumptions without any explanation of how these laws were applicable in this instance.

Further, although Plaintiffs also assert that Defendant violated local ordinances by failing to obtain permits when certain work was performed inside the house, the Appellate Division noted that record does not indicate that any of those alleged violations caused or contributed to the firefighter's injuries.

Accordingly, the Appellate Division ruled that Supreme Court had properly determined that Defendant was entitled to summary judgment dismissing the complaint.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_02604.htm

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