Applying the doctrines of res judicata and collateral estoppel in administrative disciplinary actions

An Office of Mental Health [OMH] employee [Petitioner] was served with a notice of discipline [NOD] charging Petitioner with misconduct and, or, incompetency alleging that he struck and kicked a service recipient.*

Pursuant to the collective bargaining agreement between Petitioner's Collective Bargaining Organization and OMH, a disciplinary hearing was held before an arbitrator, during which hearing videos of the incident were shown. After the hearing, the arbitrator found that OMH failed to establish that Petitioner "either kicked or punched" the service recipient and concluded that the service recipient "was the sole aggressor during the ...  incident."

After the disciplinary hearing, Petitioner's requested New York StateJustice Center for the Protection of People With Special Need [Respondent] to amend report that was the basis for the disciplinary charges subsequently being filed against him to "unfounded and/or unsubstantiated" citing Social Services Law §494[1][a].** §494[1][a] provides for "Amendments to and appeals of substantiated reports of abuse or neglect.

Respondent denied Petitioner's request and untimely the matter was considered at a hearing before an Administrative Law Judge [ALJ].  The ALJ issued a recommended decision finding that Respondent had met its burden of establishing by a preponderance of the evidence that Petitioner  had committed the alleged physical abuse, finding that Petitioner had "pushed the service recipient, causing her to fall to the floor, and then he kicked her."

Respondent adopted the findings of the ALJ and denied Petitioner's request to amend the substantiated report. Petitioner then  commenced a CPLR Article 78 proceeding in Supreme Court seeking a court order annulling Respondent's  decision. Petitioner contended that [1] the ALJ erred in failing to apply the doctrines of res judicata and collateral estoppel with respect to the arbitrator's determination in adjudicating the matter and [2] Respondent's determination was not supported by substantial evidence. Supreme Court transferred the matter to the Appellate Division.

The Appellate Division commenced its review of Petitioner's appeal by noting that the parties concur that "the doctrines of res judicata and collateral estoppel apply to arbitration awards and preclude subsequent litigation of a claim or issue decided in a prior arbitration against a party or those in privity."

In this Article 78 action the Appellate Division said that the dispute between Petitioner and Respondent "centers on whether there was an identical claim or issue decided in the arbitration decisive of the administrative proceeding before the ALJ." Petitioner contended that the arbitrator addressed whether his conduct throughout the underlying incident amounted to physical abuse of the service recipient while Respondent argued that the arbitrator only resolved whether Petitioner struck and/or kicked the service recipient after she fell on the floor, but not whether he pushed her to the floor in the first instance.

In support of its argument, Respondent contended that [1] the NOD did not specify that Petitioner pushed the service recipient; [2] the arbitrator never decided that aspect of the underlying incident, which [3] left the issue open for resolution at the hearing before the ALJ.

The Appellate Division rejected Respondent's "factual parsing of the incident" and concluded that the doctrines of res judicata and collateral estoppel precluded the ALJ from deciding again whether Petitioner's conduct amounted to physical abuse of the service recipient.

Citing D'Arata v New York Cent. Mut. Fire Ins. Co., 76 NY2d 659, the court explained that the  underlying purpose of the doctrines of res judicata and collateral estoppel is to "prevent[] repetitious litigation of disputes which are essentially the same." The Appellate Division said that it found it significant that Respondent  issued its "Report of Substantiated Finding" — which included findings that Petitioner pushed, hit and/or kicked the service recipient — a week before OMH issued the NOD, which document referenced the case number from Respondent's report. Although there was no transcript of the arbitration, the court said that "certainly counsel for [Respondent], who [also had] represented OMH, was privy to the report."

The Appellate Division then opined that "[b]oth the report and the NOD specified that Petitioner's conduct amounted to 'physical abuse' pursuant to Social Services Law §493(4)(b), i.e., the claim was the same in the arbitration and in the administrative proceeding before the ALJ" conducted pursuant to §494[1][a] of the Social Services Law.

Indicating that the arbitrator reviewed the underlying event and determined that the service recipient fell to the floor and was the sole aggressor, the Appellate Division said it concluded that Respondent was precluded under principles of res judicata and collateral estoppel from relitigating the question of whether Petitioner physically abused the service recipient by pushing her to the floor in the course of the subsequent administrative hearing.

Thus, said the court "[i]t follows that [the] petition to annul Respondent's determination should be granted and the Respondent's determination annulled. Accordingly, the matter was remitted to Respondent for amendment of the findings to state that the report was unsubstantiated and for compliance with the requirements of Social Services Law §494.

* This conduct was also characterized as category three physical abuse within the meaning of Social Services Law §493(4)(c).

** Social Services Law §494[1][a] provides a means to process "Amendments to and appeals of substantiated reports of abuse or neglect.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_05364.htm

Employee’s guilty "plea bargain" does not preclude the appointing authority from citing the criminal charges originally filed against the employee in an administrative disciplinary action

A firefighter [Respondent] was charged with violating the Fire Department’s substance policy after he was arrested for criminal possession and sale of a controlled substance. The Respondent requested that the disciplinary charge regarding sale of a controlled substance be dismissed because the criminal charges were resolved with a reduced plea of criminal possession.

Office of Administrative Trials and Hearings Administrative Law Judge Kara J. Miller found that Respondent’s guilty plea to a reduced criminal charge does not preclude the Department from charging Respondent and presenting evidence of the underlying criminal conduct that led to the arrest.

Judge Miller recommended that Respondent be terminated from his position as a firefighter after finding him guilty of both criminal possession and sale of a controlled substance. 

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/19_cases/19-569.pdf

Litigating allegations of same-sex sexual harassment

In this action to recover damages for alleged employment discrimination on the basis of sex and unlawful retaliation in violation of Administrative Code of the City of New York §8-107, Plaintiff, a civilian employee of the New York City Police Department [NYPD], alleged that a same-sex fellow civilian employee [Co-worker] of NYPD sexually harassed her by making comments about her appearance and by touching her inappropriately.

Plaintiff further alleged, among other things, that her supervisors aided and abetted the alleged harassment and, or, retaliated against her for her complaints regarding Co-worker's conduct.

The New York City Human Rights Law prohibits discrimination in employment based upon gender, and prohibits aiding and abetting discrimination or retaliation for an employee's protected activity in response to discrimination. These protections include "prohibitions on harassment between members of the same sex," as alleged here by Plaintiff.

The Appellate Division explained that demonstrations of same-sex harassment include showing that:

(1) "the harasser was homosexual and motivated by sexual desire;"

(2) "the harassment was framed in such sex-specific and derogatory terms ... as to make it clear that the harasser [was] motivated by general hostility to the presence of a particular gender in the workplace;" or

(3) "direct comparative evidence about how the alleged harasser treated members of both sexes in a mixed-sex workplace."

Addressing a motion for summary judgment on behalf of NYPD and certain of its named staff members [City Defendants], the Appellate Division said that an action brought under the NYCHRL must be analyzed under both the framework of McDonnell Douglas Corp. v Green, 411 US 792, and under the newer mixed motive framework, which imposes a lesser burden on a plaintiff opposing such a motion," citing Persaud v Walgreens Co., 161 AD3d 1019.

The court also noted that a defendant's motion for summary judgment dismissing a claim under the NYCHRL "should be granted only if no jury could find [the] defendant liable under any of the evidentiary routes—McDonnell Douglas, mixed motive, direct evidence, or some combination thereof."

Here City Defendants demonstrated, prima facie, that "there was no evidentiary route" that could allow a jury to find that Co-worker was motivated by sexual desire or by general hostility to the presence of women in the workplace, or that City Defendants treated male and female coworkers differently. Further, observed the Appellate Division, evidence established that, in response to the Plaintiff's complaint, City Defendants took prompt remedial action and Plaintiff failed to raise a triable issue of fact.

Accordingly, said the court, it agree with the Supreme Court's granting certain branches of City Defendants' motions for summary judgment dismissing those causes of actions alleging harassment by City Defendants and that City Defendants abetted  harassment in violation of the NYCHRL insofar as asserted against each of the named City Defendants.

Addressing Plaintiff's claims of retaliation under the NYCHR, the Appellate Division indicated that "[T]o make out an unlawful retaliation claim under the NYCHRL, a plaintiff must show that (1) he or she engaged in a protected activity as that term is defined under the NYCHRL, (2) his or her employer was aware that he or she participated in such activity, (3) his or her employer engaged in conduct which was reasonably likely to deter a person from engaging in that protected activity, and (4) there is a causal connection between the protected activity and the alleged retaliatory conduct."

In this instance the Appellate Division said that "even assuming that the Plaintiff had engaged in a protected activity under the NYCHRL, City Defendants demonstrated, prima facie, ... that the Plaintiff could not establish that City Defendants were aware of such activity, or that there was a causal connection between that activity and the alleged acts of retaliation and Plaintiff failed to raise a triable issue of fact.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_05173.htm

Individuals seeking General Municipal Law §207-c disability benefits must prove a direct causal relationship between job duties and the resulting illness or injury

A deputy sheriff [Plaintiff] severed a nerve and tendon of a finger when, during his shift he used his pocket knife to release the blade of his partner's jammed pocket knife. These injuries required surgical repair and rendered him unable to return to work for a period of time. Petitioner applied for benefits available pursuant to General Municipal Law §207-c, but that application was denied. Ultimately a Hearing Officer recommended the denial of GML §207-c be sustained, finding Petitioner's injuries did not occur in the performance of his duties.*

The Respondent's Director of Risk Management [Respondent] issued a determination adopting the Hearing Officer's findings and recommendation in its entirety whereupon Petitioner commenced a CPLR Article 78 proceeding challenging the Respondent's determination. Supreme Court annulled the determination and Respondent appealed.

The Appellate Division, noting that the administrative determination was made after a hearing at which evidence was taken "pursuant to direction by law," said that the appropriate standard of review is whether the administrative  determination was "supported by substantial evidence."**

Explaining that the individual seeking §207-c benefits must prove a "direct causal relationship between job duties and the resulting illness or injury," the Appellate Division said that the unrebutted hearing evidence established that, although the pocket knives were personally owned by Petitioner and his partner and were not official equipment issued by the Sheriff's Office, "the officers were strongly encouraged to carry personal knives with them while they were on duty".

Further, said the court, the hearing testimony demonstrated that officers "were instructed during field training to obtain and carry a knife to assist them with various tasks, such as cutting seatbelts or cutting down people who attempted suicide by hanging" and that the officers were trained to use their personal knives "as a last-line of defense should they be stripped of their firearms or other weapons."

Noting that "most, if not all, officers" in the Respondent's Sheriff's Office regularly carried a personal knife, the Appellate Division said that the evidence "clearly established the utility of carrying a functioning knife while on duty and the necessity of fixing the jammed knife so that Petitioner and his partner could safely respond to their next call."

Under these circumstances, the Appellate Division found "a direct causal relationship" between Petitioner's job duties and the injuries he had suffered and that the Hearing Officer's findings to the contrary were not supported by the record.

Accordingly, the court granted Petitioner's application for General Municipal Law §207-c disability benefits.

* General Municipal Law §207-c provides law enforcement personnel with certain disability and other benefits, including full wages, while the officer is  temporarily unable to perform the duties of the position as the result of an injury suffered "in the line of duty."

** The Appellate Division said as matter of proper procedure Supreme Court should have transferred the matter to the Appellate Division and although it did not do so it would treat the matter as having been properly transferred and consider the substantial evidence issue de novo.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_05046.htm

Employee found guilty of violating time and leave policy terminated from the position

A New York City eligibility specialist [Respondent] was found guilty of violating time and leave policy when she left work 5-7 minutes early on 215 occasions over the course of one year. At trial, it was shown that the Respondent had been ordered to cease and desist from the practice of leaving early, but had failed to comply with supervisor warnings on multiple occasions.

Office of Administrative Trials and Hearings Administrative Law Judge Ingrid M. Addison recommended termination of Respondent’s employment, since respondent had previously been disciplined for similar misconduct. 

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/19_cases/19-1620.pdf

Exception to having to exhausting administrative remedies as a condition precedent to an employee initiating litigation against his employer

The Plaintiff in this action, a school teacher employed by the defendant City of New York Department of Education [DOE], sued DOE to recover damages for personal injuries she alleges she sustained at the high school where she worked. The Plaintiff claimed that she had been trapped inside a school elevator until she was extracted from it, "which required her to jump from the elevator to the third floor," and suffered an injury to her back as a result.

Prior to commencing this action, the Plaintiff applied to the DOE for "line of duty injury" paid medical leave pursuant to the terms of a collective bargaining agreement [CBA]. The DOE denied the application without providing the Plaintiff with a reason for its determination. Plaintiff decided not to challenge the DOE determination through a medical arbitration proceeding pursuant to the terms of the CBA, and commenced this action.

The DOE and the defendant City of New York [Defendants] moved to dismiss the complaint insofar as asserted against them on the basis that Plaintiff failed to exhaust her administrative remedies under the CBA. In the alternative, Defendants contended that dismissal was warranted under collateral estoppel and, or, res judicata. Supreme Court granted that branch of the motion seeking to have the court dismiss the complaint insofar as asserted against the Defendants, explaining that Plaintiff failed to exhaust her administrative remedies under the CBA. Plaintiff appealed the Supreme Court's decision and the Appellate Division reversed the lower court's ruling.

Although it is "black letter law" that an employee covered by a collective bargaining agreement which provides for a grievance procedure must exhaust administrative remedies prior to seeking judicial remedies or face dismissal of the action, in this instance the Appellate Division said that Plaintiff was seeking to recover damages against the Defendants for pain and suffering based upon a negligence theory of liability which is outside the scope of, and is not governed by, the CBA's "line of duty injury" paid leave grievance provisions.

Accordingly, opined the court, "[t]here is no need to exhaust administrative remedies when the cause of action by the plaintiff is not governed by the CBA," citing Bregman v East Ramapo Cent. Sch. Dist., 122 AD3d at 657; Matter of Van Tassel v County of Orange, 204 AD2d at 561.

With respect to the Defendants' argument that dismissal is also warranted on the basis of collateral estoppel and res judicata, the Appellate Division opined that the dismissal of the case by reason of the doctrine of collateral estoppel was without merit, explaining that the issue that Plaintiff seeks to pursue here was not shown to have decided by the DOE when it denied the plaintiff's "line of duty injury" paid leave application.  

Addressing the application of the doctrine of res judicata, or claim preclusion, in this action, the court ruled that this, also, is inapplicable to the Plaintiff's complaint "because the relief she seeks could not have been awarded within the context of the prior administrative proceeding," citing Lasky v City of New York, 281 AD2d at 599.

Thus, ruled the Appellate Division, Supreme Court should have denied that branch of the Defendants' motion to dismiss the complaint insofar as asserted against them.

The decision is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2019/2019_04745.htm

Justifications for a court to vacate an arbitration award are limited

As the result of unilateral changes in bus schedules that affected bus operators' ability to select their work hours and days off, the employee organization [Respondent] representing the bus operators filed a grievance on their behalf alleging that the employer [Petitioner] had violated the CBA by improperly altering the scheduling process without prior negotiation and agreement and requesting reinstatement of the prior scheduling procedure. After failing to reach a resolution during the three-step grievance process specified in the collective bargaining agreement [CBA], Respondent submitted the grievance to arbitration.

Following a hearing, the arbitrator issued an opinion and award finding that the new scheduling procedure adopted by Petitioners violated certain articles set out in the CBA and directed petitioners to resume use of the prior scheduling procedure that and, further, to negotiate with Respondent before implementing any changes to that procedure.

Petitioners commenced filed a petition pursuant to CPLR §7511 seeking to vacate the arbitration award on the basis that the arbitrator exceeded the scope of his authority under the CBA. Respondent answered and filed a cross petition seeking to confirm the arbitration award.

Finding that the CBA was reasonably susceptible to the construction applied by the arbitrator, Supreme Court denied Petitioners' application to vacate the arbitration award and granted Respondent's cross petition to confirm the award. Petitioners appeal.

The Appellate Division affirm the Supreme Court's ruling, explaining that " Judicial review of arbitral awards is extremely limited [and] a court may vacate an award when it violates a strong public policy, is irrational or clearly exceeds a specifically enumerated limitation on an arbitrator's power." In contrast, a court may not vacate an award based on its disagreement with the reasoning or outcome, even if the arbitrator made errors of law or fact.

Essentially an arbitrator's interpretation of contract language is generally beyond the scope of judicial review. The Appellate Division then opined that where a benefit not recognized under the governing CBA is granted, the arbitrator will be deemed to have exceeded his or her authority. On the other hand, if the contract is reasonably susceptible to different conclusions, including the one given by the arbitrator, courts will not disturb the award. Further, in the event the arbitrator imposes requirements not supported by any reasonable construction of the CBA, then the arbitrator's construction, in effect, made a new contract for the parties, which is a basis for vacating the award.

Essentially the arbitrator found that the work selection procedure that had existed for over 40 years was a well-established past practice that could not be unilaterally altered by petitioners but must be continued unless changed by mutual agreement.

Finding that the CBA was "reasonably susceptible of the interpretation given to it by the arbitrator," the Appellate Division held that Supreme Court properly dismissed Petitioners' application to vacate the arbitration award and properly granted Respondent's application to confirm the award.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_05045.htm

Challenging the discontinuation of benefits being received pursuant General Municipal Law §207-c disability benefits following a work-related accident

A deputy sheriff [Deputy] was injured in a work-related motor vehicle accident and while on leave for his injuries, began receiving pay and benefits pursuant to General Municipal Law §207-c. Deputy was subsequently notified by the County that his benefits were being terminated because a form provided by one of the Deputy's physicians indicated that Deputy was able to return to a modified work position and was simultaneously offered a light-duty assignment by the Sheriff's Office. Deputy was also advised that his declining the light duty assignment "may affect continuation of his General Municipal Law §207-c benefits."

Deputy declined the light duty assignment offer, citing his injuries, and requested a hearing as provided for in the applicable collective bargaining agreement. The Hearing Officer issued a report finding, among other things, that Deputy's benefits had been improperly terminated and recommended that they be reinstated retroactively. The Sheriff [Respondent] rejected the Hearing Officer's findings and recommendation, without providing any explanation or findings in support of the determination.

Deputy filed an action pursuant to CPLR Article 78 seeking, among other things, a court order annulling the Sheriff's determination. As the petition raised a question of substantial evidence, Supreme Court transferred the matter to the Appellate Division for further consideration.

Noting that the Hearing Officer had made findings of fact and concluded that Respondent had committed multiple procedural errors in terminating Deputy's benefits and that the Sheriff, in rejecting the Hearing Officer's recommendation, had not provided any explanation or factual findings, the Appellate Division commented that "Administrative findings of fact must be made in such a manner that the parties may be assured that the decision is based on the evidence in the record, uninfluenced by extralegal considerations, so as to permit intelligent challenge by an aggrieved party and adequate judicial review."

Explaining that it could not conduct a meaningful judicial review in view of  the Sheriff's failure to make any findings or otherwise specify any basis for the apparent continued termination of Deputy's General Municipal Law §207-c benefits, the Appellate Division annulled the Sheriff's determination and returned the matter to the Sheriff "to address the procedural issues and develop appropriate factual findings."

Citing Simpson v Wolansky, 38 NY2d 391, the court opined that "the issue is not whether the Hearing Officer's report and recommendation is supported by substantial evidence; rather, the issue is whether the Sheriff's determination is supported by substantial evidence."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_04805.htm

__________________

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http://booklocker.com/books/3916.html

Some of the elements consider by the courts when an educator challenges his dismissal during his probationary period

The Appellate Division affirmed Supreme Court's denying a probationary employee's [Petitioner] CPLR Article 78 petition seeking a court order annulling a city school district's terminating Petitioner's* employment.

The court opined that:

1. It perceived no basis for finding that Petitioner's termination "was for a constitutionally impermissible purpose, violative of a statute, or done in bad faith," citing Matter of Mendez v New York City Dept. of Educ., 28 NY3d 993;

2.  Evidence in the record indicated that Petitioner received both "ineffective" and "developing" ratings on more than one occasion, supporting the conclusion that the determination to terminate him prior to the completion of his maximum  probationary period was not made in bad faith;

3. Petitioner was given timely notice of the possibility that his probationary employment would be terminated as mandated by Education Law §2573[1]*;

4. Petitioner was provided with support and any alleged deviations from internal procedures did not deprive him of a substantial right or undermine the fairness and integrity of the rating process followed by the school district; and

5. The record contained evidence of Petitioner's persistent and unresolved issues despite ongoing efforts by school administrators to help him improve his instructional methods.

* §2573[1] of the Education Law addresses the appointment and removal of probationary assistant, district or other superintendents,  teachers and other employees employed by a city school district having 125,000 or more inhabitants.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_05090.htm

Courts impose stricter standards than required by CPLR Article 75 when considering a petition seeking to vacate an arbitration award promulgated pursuant to compulsory arbitration

The educator [Petitioner] in this CPLR Article 75 action appealed the Supreme Court's granting the appointing authority's motion to confirm an arbitration award terminating Petitioner's employment as a teacher, denied her petition seeking to vacate the award and dismissed the proceeding. Petitioner appealed but the Appellate Division unanimously affirmed the lower court's rulings.

Education Law §3020-a(5) provides that judicial review of a hearing officer's findings is limited to the grounds set forth in CPLR 7511(b), which provides that the court may vacate the award in the event it finds that the rights of the party challenging the award were prejudiced by:

(i) corruption, fraud or misconduct in procuring the award; or

(ii) partiality of an arbitrator appointed as a neutral, except  where  the award was by confession; or

(iii) an arbitrator, or agency or person making the award exceeded his power or so  imperfectly executed it that a final and definite award upon  the subject matter submitted was not made; or

(iv) failure to follow the CPLR Article 75 procedures, unless the party applying  to vacate the award continued with the arbitration with notice of the defect or defects and without objection.

Where, however, the parties have submitted to compulsory arbitration, as was here the case, judicial scrutiny is stricter in that the determination must be in accord with due process, supported by adequate evidence, be rational, and not arbitrary and capricious, the criteria required to be met in adjudicating final administrative disciplinary determinations in CPLR Article 78 proceedings.

The Appellate Division held that arbitrator's decision here being challenged was based on sufficient evidence, was rational, and was not arbitrary or capricious. Further, said the court, Petitioner did not dispute the absences and lateness noted in Specifications 1 through 6, which "the arbitrator properly found were excessive," and as to which the arbitrator noted that Petitioner failed to seek a medical accommodation until shortly before the charges were filed against her.

Further, noted the Appellate Division, Petitioner did not provide medical documentation supporting her claim that the absences and lateness were causally related to her medical condition.

Turning to the charges and specification alleging Petitioner had subjected a student to corporal punishment, the Appellate Division acknowledged the fact that the arbitrator had credited the student's testimony with respect to this element in the disciplinary action taken against Petitioner, and, citing Paul v NYC Department of Education, 146 AD3d 705, opined that a "hearing officer's determination of credibility is largely unreviewable."

Applying the Pell Doctrine set out in Matter of Pell v. Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale and Mamaroneck, 34 NY2d 22, the Appellate Division said that termination of Petitioner's employment does not shock the conscience given her repeated and prolonged attendance issues, which were the subject of two prior disciplinary proceedings, and her other substantial misconduct.

Citing Bolt v NYC Department of Education, 30 NY3d 1065, the court observed that although " .... reasonable minds might disagree over what the proper penalty should have been does not provide a basis for vacating the arbitral award or refashioning the penalty."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_05088.htm

Court remands appeal to the employer "only for the development of appropriate written factual findings," not for a new evidentiary disciplinary hearing

In this somewhat convoluted litigation, the county's personnel officer [Petitioner] was suspended by the County Board of Supervisors [Respondent] with pay and thereafter Respondent served Petitioner with charges seeking to remove her the position for cause pursuant to §24.1 of the Civil Service Law.  §24.1 essentially provides that the officer or body having the power of appointment of the members of a municipal civil service commission or a personnel officer may at any time remove any such member or personnel officer for cause, after a public hearing, and appoint his successor for the unexpired term.*

Ultimately Respondent, following a hearing, determined that cause for Petitioner's removal existed and terminate her. Petitioner then initiated a CPLR Article 78 proceeding seeking to annul Respondent's determination.

Supreme Court transferred the matter to the Appellate Division. The Appellate Division concluded that it could not conduct a meaningful review of Respondent's determination because Respondent "did not make any findings of fact, despite having heard testimony from multiple witnesses and considering the admitted documentary evidence." The Appellate Division then "withheld decision" and remitted the matter for Respondent to develop appropriate factual findings.

Contending that this action by the Appellate Division had "essentially nullified" Respondent's determination with respect to her termination from her position, Petitioner demanded that Respondent reinstate her to her former position with back pay and benefits. When Respondent refused, Petitioner commenced a second CPLR Article 78 proceeding seeking reinstatement and back pay.

Supreme Court treated this second petition as one in the nature of mandamus ** and dismissed the petition, observing that Petitioner had failed to establish that she had a clear legal right to the relief sought. Petitioner then appealed this ruling as well but the Appellate Division sustained the Supreme Court's ruling.

The court then explained that Petitioner's demanded that she be reinstated to her position of personnel officer was based on an incorrect interpretation of its prior decision as that decision did not remit the matter to Respondent for a new evidentiary hearing, but, rather, "only for the development of appropriate written factual findings." This ruling by the Appellate Division is posted on the Internet, and its URL is set out at Footnote [3] below.

Respondent subsequently issued findings of fact and conclusions of law in support of its determination to remove petitioner from her position. Petitioner commenced another proceeding challenging the Respondent's response to the court's directive to make findings of fact. The Appellate Division's ruling is this regard is also posted on the Internet, and its URL is set out at Footnote [4] below.

Picking up at the point where Respondent issued findings of fact and conclusions of law in support of its determination, finding that Petitioner withheld relevant information and material from the County's labor attorney and submitted them to the Appellate Division, addressing the status of the several Article 78 actions initiated by Petitioner, explained that "Because we withheld decision, the [initial] matter was still pending before this Court and it was unnecessary for any party to commence a new proceeding. Nevertheless, as Petitioner has commenced this proceeding and moved to withdraw her petition in the 2015 proceeding, we now address the merits of Respondent's determination.

The Appellate Division concluded that Respondent's determination to remove Petitioner from office is supported by substantial evidence. Citing Civil Service Law §24.1 provides that "[t]he officer or body having the power of appointment of . . . a personnel officer may at any time remove any such . . . personnel officer for cause, after a public hearing."

Citing Matter of Haug v State Univ. of N.Y. at Potsdam, 32 NY3d 1044, the court opined that when reviewing an administrative determination rendered after a hearing that is required by law, the court's standard is whether the determination "is, on the entire record, supported by substantial evidence" which is a "minimal standard ... demand[ing] only that a given inference is reasonable and plausible, not necessarily the most probable." Thus the court may not substitute its judgment for that of the panel nor weigh the evidence presented, beyond assuring that there is substantial evidence.

The record establishes that two former employees commenced proceedings against the Respondent alleging that they were improperly terminated. An issue raised in each of those proceedings was whether Petitioner was interim or acting director of the County health department or held herself out as such. When defending the County in those proceedings, the Respondent and Petitioner denied these allegations.

According to the attorney representing the Respondent, Petitioner had affirmed that she had not been appointed to the position either officially or unofficially, that she had never held herself out as such and that she was not in any way acting or interim director of the health department. The attorney also indicated that she expected Petitioner to provide any documents in the Respondent's possession that were relevant to any issues in the proceedings.

The Appellate Division noted that the record contains numerous documents indicating that Petitioner held herself out as interim director of the health department and that Petitioner admitted in her testimony that at times she had done so. Although Petitioner provided reasons for her actions and asserted that the attorney was aware of this information during the prior proceedings, Respondent specifically discounted Petitioner's credibility and truthfulness as a witness. Moreover, even if the attorney obtained these documents at some point from other sources, the record indicated that Petitioner had not provided them to the attorney.

Accordingly, said the court, substantial evidence supports Respondent's determination to remove Petitioner for cause because she withheld relevant information and materials from the attorney, which the attorney should have been able to review to determine whether they were necessary or important to the defense of matters being litigated matters.

The Appellate Division also reject Petitioner's argument that Respondent's factual findings are defective due to not being signed by all members of the hearing panel. No statute or regulation requires a unanimous vote of a hearing panel to remove a public official pursuant to Civil Service Law §24.1 nor that all of the participating panel members sign a determination said the court, concluding that the signatures of five of the eight original participating panel members constituted sufficient approval of the factual findings.

As to the penalty imposed, termination, the Appellate Division indicated that "A penalty must be upheld unless it is so disproportionate to the offense as to be shocking to one's sense of fairness, thus constituting an abuse of discretion as a matter of law," citing O'Connor v Cutting, 166 AD3d 1099. Further, said the court, the record reflects that the attorney relied primarily on Petitioner for correct information and evidence in defending the Respondent in the two proceedings, as she typically did in all labor proceedings, due to Petitioner's position as personnel officer. Notwithstanding the favorable decisions that the Respondent obtained in those two matters, the Appellate Division pointed out that Petitioner signed and submitted affidavits that contained false information, primarily because she failed to provide the attorney with relevant documents and accurate information.

Finally, the court pointed out that Civil Service Law §24 does not provide any disciplinary remedy other than removal of the incumbent from the position in contrast to Civil Service Law §75.3 which provides a range of penalties running from "a reprimand" to dismissal from the position. However, said the Appellate Division, even were imposing a lesser penalty possible, "it is not proper to substitute our judgment for that of [Respondent]" absent its finding that the  penalty of termination was shocking or disproportionate under the circumstances, i.e., the penalty imposed violated so-called "Pell Doctrine," Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale and Mamaroneck, 34 NY2d 222.

* §24.2, in pertinent part, provides that "A municipal civil service commissioner or personnel officer may be removed by the state civil service commission for incompetency, inefficiency, neglect of duty, misconduct or violation of the provisions of this chapter or of the rules established thereunder ...."

** The writ of mandamus is one of number of the ancient “common law” writs and is granted by a court to compel an official to perform "acts that officials are duty-bound to perform." Other writs include the writ of prohibition – a writ issued by a higher tribunal to a lower tribunal to "prohibit" the adjudication of a matter then pending before the lower tribunal on the grounds that the lower tribunal "lacked jurisdiction;" the writ of injunction - a judicial order preventing a public official from performing an act; the writ of "certiorari," compelling a lower court to send its record of a case to the higher tribunal for review by the higher tribunal; and the writ of “quo warranto” [by what authority], requiring the target of the writ to explain the authority for the action challenged. The Civil Practice Law and Rules sets out the modern equivalents of the surviving ancient writs.

The decisions are posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_05031.htm 

and

http://www.nycourts.gov/reporter/3dseries/2019/2019_05035.htm 

The traditional common-law elements of negligence are "substantially relaxed" in cases where an employee of an interstate railroad seeks compensation for on-the-job injuries resulting from the railroad's alleged negligence

The Plaintiff in this action was working as an assistant conductor on MTA Metro-North's New Haven Line, [MTA] when she was physically attacked by a passenger while seeking to collect the passenger's fare. MTA Metro-North Railroad made a motion for summary judgment dismissing Plaintiff's sole claim under the Federal Employee Liability Act [FELA]. Supreme Court denied MTA's motion and MTA appealed. The Appellate Division unanimously affirmed the Supreme Court's ruling.

The Appellate Division explained:

1. The  FELA, 45 USC §51 et seq., provides that operators of interstate railroads shall be liable to their employees for on-the-job injuries resulting from the railroad's negligence.

2. In an action under FELA, "the plaintiff must prove the traditional common-law elements of negligence: duty, breach, damages, causation and foreseeability" but these elements are "substantially relaxed" and "negligence is liberally construed to effectuate the statute's broadly remedial intended function."

3. A claim under FELA "must be determined by the jury if there is any question as to whether employer negligence played a part, however small, in producing a plaintiff's injury" but, citing Pidgeon v Metro-North Commuter R.R., 248 AD2d 318, the court noted that "A case is deemed unworthy of submission to a jury only if evidence of negligence is so thin that on a judicial appraisal, the only conclusion that could be drawn is that negligence by the employer could have played no part in an employee's injury."

4. To establish the element of foreseeability, a plaintiff must show that the employer had either actual or constructive notice of the defective condition but notice generally presents an issue of fact for the jury to determine.

Thus, under the "relaxed standard," the court found that Plaintiff had submitted sufficient evidence to raise an issue of fact concerning MTA's actual or constructive notice of a risk of assault to conductors on the New Haven Line sufficient to be submitted to a jury based on Plaintiff testimony that:

[a] she was previously assaulted by a passenger;

[b] there was an ongoing problem of physical intimidation by large groups of adolescents refusing to pay their fares;

[c] Plaintiff had testified that she has called the MTA's rail traffic controllers for police assistance at least 250 times to deal with abusive passengers;

[d] another conductor was punched in the face and knocked out; and

[e] a passenger attempted to stab and rob another conductor on the Harlem Line.

Considering this testimony, the Appellate Division held that Supreme Court's summary judgment rejecting MTA's motion to dismiss Plaintiff's complaint was properly denied.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_05004.htm