Initiating litigation in federal court under a pseudonym

An employee of the Port Authority of New York and New Jersey filed the complaint under the pseudonym "Female Port Authority Officer 47708" v Port Authority of New York and New Jersey.

In this appeal to the United States Circuit Court of Appeals, Second Circuit the court initially noted the case was captioned: “Female Port Authority Officer 47708,” until now notwithstanding the fact that the employee did not object to the use of her name in court.

With respect to filing a complaint under a pseudonym, the Second Circuit, citing Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, explained that "[g]iven the presumption in favor of open records, a district court may permit a plaintiff to use a pseudonym only in the unusual circumstances in which 'the plaintiff’s interest in anonymity' outweighs both the public interest in disclosure and any prejudice to the defendant.”

However, the district court never made such a determination, nor, said the Second Circuit, did it "discern any basis for permitting to proceed under a pseudonym,"* and directed the Clerk of Court is directed to amend the caption to read as follows:

Kathleen Howard, Plaintiff-Appellant, v. Port Authority of New York and New Jersey, Port Authority Police Department of New York and New Jersey, John Degnan, Chairman, Michael Fedorko, Superintendent, Police Officer, 18-2423-CV

Howard's Discrimination Complaint

The federal district court dismissed Howard's complaint that (1) she suffered sexual harassment and (2) was terminated from her position as a Port Authority probationary police officer  on the basis of her sex, both in violation of 42 U.S.C. §2000e et seq. and 42 U.S.C. §1983. On appeal, however, Howard argued only that she was discriminated against "because she is a woman."

Turning to the merits of this aspect Howard's complaint, the Second Circuit said that Howard primarily substantiates her sex discrimination claim by arguing that [1] although she informed police investigators that she could not recall answers to their questions and was fired, her similarly situated male colleagues lied to police investigators and were not fired and [2] that the Port Authority’s proffered reason for her termination is false.

Apply the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 , the court explained that a plaintiff must [1] establish a prima facie case of discrimination, which [2] shifts the burden to the employer to come forward with a legitimate, nondiscriminatory reason for the adverse employment action. At the summary judgment stage, once the employer comes forward with a permissible reason for the adverse employment action, the plaintiff must present evidence from which a reasonable jury could find that the employer’s justification is a pretext for intentional discrimination.

Here the Circuit Court rejected the Port Authority argument that Howard did not possess the minimal qualifications to be a police officer because she is not a truthful person because the Port Authority did not raise this argument with the district court and it "decline[d] to consider this waived argument."

Assuming, but not deciding, that Howard has satisfied her “minimal” burden to establish that she was “similarly situated in all material respects” to fellow probationary police officers who were not terminated despite engaging in conduct materially similar to Howard’s conduct, the Circuit Court addressed the question of whether Howard has presented evidence from which a reasonable jury could find that she was the victim of intentional sex discrimination by applying the "Reeves" test.**

Reeves requires the court “to examine the entire record” and “make [a] case-specific assessment as to whether a finding of discrimination may reasonably be made.” "After thoroughly reviewing the record," the Circuit Court concluded that a reasonable jury could not find by a preponderance of the evidence that Howard’s termination was motivated by her sex. In the words of the court, "[a]ssuming that Howard has presented sufficient evidence to carry her de minimis burden of establishing a prima facie case, on the record here, such evidence—even combined with some evidence of pretext—is insufficient as a matter of law to carry her ultimate burden at trial."

* The Court also noted that "until now even though the employee did not object to the use of her name in court."

** Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133. In Reeves the United States Supreme Court rejected the view of those circuits that had granted summary judgment for the employer on the ground that the terminated employee had failed to prove more than employer pretext (the ‘pretext plus’ cases). “Pretext plus” is the phrase used when referring to the requirement that a plaintiff both prove that an employer’s proffered reason is untrue (the “pretext” evidence) and offer “additional evidence” (the “plus”) of discrimination.

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/5c339c32-be73-4320-9359-51a40765b950/2/doc/18-2423_so.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/5c339c32-be73-4320-9359-51a40765b950/2/hilite/

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

The appropriate statute of limitations for commencing litigation of an issue depends of the nature of the redress being sought

In this action the Appellate Division affirmed Supreme Court dismissal of the Plaintiff's CPLR Article 78  petition seeking to annul the appointing authority's termination of Plaintiff's on the grounds that it was untimely, explaining that CPLR §217(1) requires that an Article 78 proceeding challenging an individual's termination from government employment must be brought within four months from the date on which the appointing authority's decision to terminate the employee became final and binding.*

The court rejected Plaintiff's claim that he was entitled to the longer period for commencing his action available under the Family Medical Leave Act because, said the court, "the crux of [Plaintiff's] proceeding was to challenge and seek redress for the administrative decision to fire him, and not to make a claim under the FMLA.

* N.B. Submitting request to the appointing authority to reconsider its decision does not serve to toll the running of the controlling statute of limitations.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_04648.htm

Disciplinary charges filed against an Emergency Medical Technician alleging failure to render appropriate patient care dismissed

An Emergency Medical Technician [“EMT”] was charged with failure to render appropriate patient care by accepting a refusal of medical aid from a patient with unclear decisional capacity, making false statements and walking the patient home. The EMT responded to a restaurant based on a report that a woman had fallen backwards off a stool and hit her head. 

Office of Administrative Trials and Hearings Administrative Law Judge Susan J. Pogoda found the Fire Department failed to prove the charges and credited the EMT’s testimony that the patient had the decisional capacity to refuse medical attention, that a full trauma assessment of the patient was conducted not once but twice; the patient showed no signs of any injury from a fall; she was not intoxicated or impaired; her vital signs were normal and she understood her options and knowingly refused medical attention.

ALJ Pogoda also found the EMT’s decision to walk the patient home did not rise to the level of misconduct and recommended that all the charges be dismissed. 

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/17_cases/17-1090.pdf

Bargaining away an appointing authority's right to eliminate positions or terminate or lay off workers for budgetary, economic or other reasons

The City and the Association entered into a collective bargaining agreement [CBA] for a term running from January 1, 2004 to December 31, 2007*. The CBA included provisions that, among other things, prohibited layoffs, required minimum staffing levels of 36 firefighters and obligated the City to fill vacancies to maintain the agreed-upon minimum staffing levels. The CBA also provided for resolution of disputes concerning the interpretation, application or claimed violation of any provision of the CBA pursuant to a series of steps, culminating in arbitration before the Public Employment Relations Board if the parties were to reach a stalemate.

In 2010, a firefighter resigned, reducing the total number of firefighters employed by the City  to 35. When the City  did not immediately fill the vacant position, the Association filed a grievance. In June 2011, after the parties completed the specified grievance procedure, they negotiated a resolution prior to arbitration by entering into a memorandum of agreement (hereinafter the MOA), which provided that, where "separation of an employee results in [the City  employing] less than 36 firefighters, [the City ] shall have 45 days to hire a replacement." The MOA further provided that, if the City  failed to timely fill any such vacancy, it would replace the position utilizing the non-emergency call-in procedure.

In June 2017, a firefighter retired, again reducing the number of firefighters employed by the City  to 35. The City  refused to fill the vacant position, citing significant financial and budgetary constraints. As relevant here, after the grievances it filed with the City  were denied, the Association served a demand for arbitration.

The City  commenced this CPLR Article 75 proceeding seeking a court order to permanently stay arbitration. The Association answered and sought an order to compel arbitration. Supreme Court denied the City 's application and granted the Association's motion to compel. The City  appealed.

Referring to Matter of City of Plattsburgh [Plattsburgh Permanent Firemen's Assn.], ___ AD3d ___ [appeal No. 527791, decided herewith**], the Appellate Division said as it had noted in appeal No. 527791, the parties had entered into a MOA that supplements the provisions of the CBA that it had determined constitute a job security clause.

Accordingly, the court opined that the MOA is not arbitrable for the reasons it set forth in its decision in appeal No. 527791, observing that the MOA considered in its entirety, does not meet the "stringent test" necessary to establish that the City  "bargain[ed] away its right to eliminate positions or terminate or lay off workers for budgetary, economic or other reasons," citing Matter of Johnson City Professional Firefighters Local 921 [Village of Johnson City], 18 NY3d at 37.

Accordingly, the Appellate Division held that dispute is not arbitrable for reasons of public policy and [1] reversed Supreme Court's ruling, [2] granted the City's application to permanently stay arbitration and [3] denied the Association's motion to compel arbitration.

* The terms of the CBA continue in effect following the expiration of its term because the parties have not yet entered into a successor agreement (see Civil Service Law § 209-a [1] [e]).

** In a separate proceeding, Supreme Court granted Association's motion to compel arbitration of a dispute arising from the CBA regarding the City 's obligations to fill vacant firefighter positions. The City  has appealed from that order (see Matter of City of Plattsburgh [Plattsburgh Permanent Firemen's Assn.], ___ AD3d ___ [appeal No. 527791, which decision is set out in its entirety below. 

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_05368.htm

Matter of City of Plattsburgh (Plattsburgh Permanent Firemen's Assn.)

2019 NY Slip Op 05367

Decided on July 3, 2019

Appellate Division, Third Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: July 3, 2019

527791 

In the Matter of the Arbitration between CITY OF PLATTSBURGH, Appellant, and PLATTSBURGHPERMANENT FIREMEN'S ASSOCIATION, Respondent.

Calendar Date: March 19, 2019 
Before: Lynch, J.P., Clark, Mulvey, Aarons and Rumsey, JJ. 

Coughlin & Gerhart, LLP, Binghamton(Robert H. McKertich of counsel), for appellant.

Satter Law Firm, Syracuse(Sarah E. Ruhlen of counsel), for respondent.

MEMORANDUM AND ORDER

Rumsey, J.

Appeal from an order of the Supreme Court (Powers, J.), entered June 7, 2018 in Clinton County, which, among other things, denied the City 's application pursuant to CPLR 7503 to permanently stay arbitration between the parties.

The City  and respondent, the local firefighters' union, entered into a collective bargaining agreement (hereinafter CBA) for a term running from January 1, 2004 to December 31, 2007 ^[FN1]. The CBA included provisions that, among other things, prohibited layoffs, required minimum staffing levels of 36 firefighters and obligated the City  to fill vacancies to maintain the agreed-upon minimum staffing levels. The CBA also provided for resolution of disputes concerning the interpretation, application or claimed violation of any provision of the CBA pursuant to a series of steps, culminating in arbitration before the Public Employment Relations Board if the parties were to reach a stalemate.

In June 2017, a firefighter retired, reducing the total number of firefighters employed by the City  to 35. The City  refused to fill the vacant position, citing significant financial and budgetary constraints. After the grievances it filed with the City  were denied, respondent served a demand for arbitration. The City  commenced this proceeding pursuant to CPLR article 75 to permanently stay arbitration and respondent answered and sought to compel arbitration. Supreme Court denied the City 's application, but granted respondent's motion to compel ^[FN2]. The City  appeals.

The City  contends that the provision of the CBA that requires it to employ at least 36 firefighters is a job security clause that violates public policy because it is not sufficiently explicit and, therefore, it may not be enforced through arbitration. Respondent counters that the clause is not a job security clause but, rather, a safety provision that may be enforced through arbitration. "The threshold determination of whether a dispute is arbitrable is well settled. Proceeding with a two-part test, we first ask whether the parties may arbitrate the dispute by inquiring if there is any statutory, constitutional or public policy prohibition against arbitration of the grievance" (Matter of County of Chautauqua v Civil Serv. Empls. Assn., Local 1000, AFSCME, AFL-CIO, County of Chautauqua Unit 6300, Chautauqua County Local 807, 8 NY3d 513, 519 [2007] [internal quotation marks and citations omitted]). Arbitration must be stayed where the granting of any relief would violate public policy (see id.).

In that regard, "a purported 'job security clause' that is not explicit in its terms is violative of public policy, rendering it invalid and unenforceable" (Matter of Johnson City Professional Firefighters Local 921 [Village of Johnson City], 18 NY3d 32, 37 [2011]). The Court of Appeals has explained that the "requirement that 'job security' clauses meet this stringent test derives from the notion that before a municipality bargains away its right to eliminate positions or terminate or lay off workers for budgetary, economic or other reasons, the parties must explicitly agree that the municipality is doing so and the scope of the provision must evidence that intent. Absent compliance with these requirements, a municipality's budgetary decisions will be routinely challenged by employees, and its ability to abolish positions or terminate workers will be subject to the whim of arbitrators" (id. at 37-38). In light of the potentially drastic effects that a waiver of the right to adjust future staffing levels entails, a clause that addresses both job security and safety concerns is considered a job security clause that must meet this stringent test to be enforceable (see e.g. Matter of Burke v Bowen, 40 NY2d 264, 266-267 [1976]; cf. Matter of City of Watertown [Watertown Professional Firefighters Assn., Local 191], 169 AD3d 1396, 1397 [2019], lv denied 33 NY3d 904 [2019]; Matter of City of Lockport [Lockport Professional Firefighters Assn., Inc.], 141 AD3d 1085, 1087-1088 [2016]).

Article I, section 11 of the CBA governs scheduling and staffing levels. Subsection 1 requires a minimum staffing level of 36 firefighters, organized into four platoons of nine persons each. Notably, it further provides that "[n]o member of the bargaining unit will be laid off[, p]resent staffing levels above the minimum thirty-six (36) will only be reduced by attrition [and n]o member shall be laid off or fired unless it is the result of disciplinary action." Subsection 3 requires the City  to fill vacancies "as soon as possible" when staffing levels fall below the agreed-upon minimum. Although these provisions may relate to safety concerns, they also specifically address the issue of job security by mandating a minimum total staffing level and prohibiting layoffs. Thus, we agree with the City  that the disputed terms constitute a job security clause. However, our inquiry does not end there. We must also consider whether the disputed clause explicitly evinces an intent by the City  to bargain away its right to reduce the number of firefighters it employs for budgetary, economic or other reasons.

The clause at issue most closely resembles the clause considered by the Court of Appeals in Matter of Burke v Bowen (40 NY2d 264 [1976], supra), in which the parties agreed that the best interests of public safety regarding fire protection required that a minimum of 34 firefighters be employed and, further, that, upon any reconsideration of that issue, "in no event shall the presently agreed upon minimum be readjusted downward" (id. at 266)^[FN3]. The clause at issue requires the City  to fill vacancies as soon as possible to maintain "agreed upon" staffing levels, which, at the effective date of the contract, was 36 firefighters. However, the operative clause does not contain the explicit term precluding downward readjustment of that agreed-upon minimum level that was present in Matter of Burke v Bowen (supra). Rather, the clause at issue authorizes the City  to unilaterally eliminate equipment or close a station on 30 days' notice and requires that the parties bargain the impact of any such change. We conclude that this clause, considered in its entirety, does not meet the "stringent test" necessary to establish that the City  "bargain[ed] away its right to eliminate positions or terminate or lay off workers for budgetary, economic or other reasons" (Matter of Johnson City Professional Firefighters Local 921 [Village of Johnson City], 18 NY3d at 37). Accordingly, the dispute is not arbitrable for reasons of public policy. As such, Supreme Court's order is reversed.

Mulvey and Aarons, JJ., concur.

Clark, J. (concurring).

We agree with the majority that, although it may have also served to address work place safety concerns, the provision at issue in this case is a job security clause. Indeed, by setting a minimum staffing level and prohibiting layoffs and employment terminations for reasons other than disciplinary action, the provision ensured that, so long as the collective bargaining agreement was in effect, the municipal firefighters "need not fear being put out of a job" (Matter of Board of Educ. of Yonkers City School Dist. v Yonkers Fedn. of Teachers, 40 NY2d 268, 275 [1976]; accord Matter of Johnson City Professional Firefighters Local 921 [Village of Johnson City], 18 NY3d 32, 39 [2011])^[FN4]. We write separately, however, because we believe that the majority has unnecessarily created a bright line rule — not borne out by the relevant case law — by stating that "a clause that addresses both job security and safety concerns is considered a job security clause." By making such a broad pronouncement, the majority has fashioned a blanket rule in which any clause that addresses job security, even tangentially, must automatically be subjected to the Court of Appeals' "stringent" test — that is, to be enforceable, it must be explicit in its terms, extend for "a 'reasonable period of time'" and not be "'negotiated in a period of a legislatively declared financial emergency between parties of unequal bargaining power'" (Matter of Johnson City Professional Firefighters Local 921 [Village of Johnson City], 18 NY3d at 36-37, quoting Matter of Burke v Bowen, 40 NY2d 264, 266 [1976]). In our view, each clause should be evaluated independently to determine whether it is in fact a job security clause.

We agree with the majority in all other respects, including the determination that the job security clause violates public policy because it is not sufficiently explicit in its terms. Although not addressed by the majority, we note that the provision further violates public policy because, having been in effect since at least 2005, it has been extended for an unreasonable period of time (compare Matter of Burke v Bowen, 40 NY2d at 266-267; Matter of Board of Educ. of Yonkers City School Dist. v Yonkers Fedn. of Teachers, 40 NY2d at 275-276). Thus, for the foregoing reasons, we concur with the majority that the parties' dispute is not arbitrable.

Lynch, J.P., concurs.

ORDERED that the order is reversed, without costs, the City 's application to permanently stay arbitration granted and respondent's motion to compel arbitration denied.

Footnotes

Footnote 1: The terms of the CBA continue in effect following the expiration of its term because the parties have not yet entered into a successor agreement (see Civil Service Law § 209-a [1] [e]).

Footnote 2: In a separate proceeding, Supreme Court granted respondent's motion to compel arbitration of a dispute arising from a memorandum of agreement, which also addresses the City 's obligations to fill vacant firefighter positions. The City  has appealed from that order (Matter of City of Plattsburgh[PlattsburghPermanent Firemen's Assn.], ___ AD3d ___ [appeal No. 527793, decided herewith]).

Footnote 3: On three other occasions the Court of Appeals considered whether a municipality had explicitly waived its right to discharge employees for budgetary reasons, concluding that a mere prohibition against layoffs was insufficient (see Matter of Johnson City Professional Firefighters Local 921 [Village of Johnson City], 18 NY3d at 38; Yonkers School Crossing Guard Union of Westchester Ch., CSEA v City of Yonkers, 39 NY2d 964, 965 [1976]) and finding sufficient language that specifically prohibited termination of an employee for budgetary reasons (see Matter of Board of Educ. of Yonkers City School Dist. v Yonkers Fedn. of Teachers, 40 NY2d 268, 272 [1976]).

Footnote 4: In addition, the minimum number of firefighters required to operate the equipment per shift is less than the minimum staffing level set forth in the collective bargaining agreement.

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