Court dismissed employee's petition seeking reinstatement to her former employment in the absence of her showing "irreparable harm"

A former New York State Police officer [Plaintiff] sued her former employer, the Division of State Police [DSP] and certain named DSP employees, alleging employment discrimination and retaliation, contending that "she was sexually harassed and fired based on falsified disciplinary charges when she complained about the harassment, and that the NYSP failed to properly follow its procedures for disciplinary hearings."

In 2019, four months after learning that DSP had failed to follow its procedures, Plaintiff moved, pro se,* for a preliminary injunction seeking reinstatement to her former position. The District Court denied the injunction because Plaintiff had not shown irreparable harm and her delay in filing her motion undermined any argument that she would suffer irreparable harm. Plaintiff the appealed the District Court's ruling.

The United States Circuit Court of Appeals, Second Circuit, citing Rodriguez ex rel. Rodriguez v. DeBuono, 175 F.3d 227, affirmed the lower court's ruling, explaining that to show irreparable harm, “[t]he movant must demonstrate an injury that is neither remote nor speculative, but actual and imminent and that cannot be remedied by an award of monetary damages.” Further, opined the court, irreparable harm exists “where, but for the grant of equitable relief, there is a substantial chance that upon final resolution of the action the parties cannot be returned to the positions they previously occupied.”

The Second Circuit explained that the District Court had applied the correct legal standard, noting that “... because monetary injury can be estimated and compensated, the likelihood of such injury usually does not constitute irreparable harm." However, opined the Circuit Court, the irreparable-harm requirement might be satisfied "if a monetary award would cause the movant to go bankrupt absent interim relief."**

Further, said the court, “irreparable harm is not [generally] established in employee discharge cases by financial distress or inability to find other employment, unless truly extraordinary circumstances are shown"  citing Holt v. Continental Grp., Inc., 708 F.2d 87.

* The term used to describe an individual representing himself in judical or quasi judicial proceeding.

** See Miss America Organization v. Mattel, Inc., 945 F.2d 536.

The decision is posted on the Internet at:

https://casetext.com/case/oliver-v-ny-state-police-6

Processing Freedom of Information Law requests where the materials sought are exempt from disclosure pursuant to state statute

An individual [Plaintiff] submitted a Freedom of Information Law* request  seeking photographs and a copy of medical records held by the District Attorney in connection with Plaintiff's earlier conviction of a crime after a jury trial. 

The District Attorney denied the request and Plaintiff commenced this CPLR Article 78 proceeding seeking a court order compelling the District Attorney to provide the records Plaintiff demanded. Supreme Court denied Plaintiff's petition and Plaintiff appealed.

Citing Karlin v McMahon, 96 NY2d 842, and Public Officers Law §87[2], the Appellate Division affirmed the Supreme Court's ruling, noting that "All government records are presumptively open for public inspection unless specifically exempt from disclosure" by state or federal statute.

In this instance, explained the court, and contrary to Plaintiff's contention, the materials Plaintiff requested are exempt from disclosure pursuant to Civil Rights Law §50-b (1), which provides, in pertinent part, that "[n]o report, paper, picture, photograph, court file or other documents, in the custody or possession of any public officer or employee, which identifies ... a victim [of a sex offense defined by Penal Law Article 130] shall be made available for public inspection."

As such medical records are exempt from disclosure pursuant to state statute, the court concluded that the District Attorney was not obligated to provide the records, even in redacted form, even if such redaction might remove all details which tend to identify the victim.

The Appellate Division then opined that this exemption applies notwithstanding  Plaintiff's argument that he requires this material to support his application for "postconviction relief." 

* Public Officers Law Article 6.

The decision is posted on the Internet at: 
http://www.nycourts.gov/reporter/3dseries/2020/2020_04078.htm

New York State Governor Andrew M. Cuomo announces recent administration appointments

On August 7, 2020, Governor Andrew M. Cuomo today announced the following new appointments to his administration:

 
Peter Ajemian has been promoted to Communications Director. He previously held the role of Senior Deputy Communications Director since November 2018, and prior to that was Deputy Communications Director for Transportation. Prior to joining the Governor's Office, he served as Chief of Staff to State Senator Brad Hoylman. He has also served as spokesman on a successful state attorney general campaign and as Senior Vice President at the consulting firm Marathon Strategies, where he worked on four successful state ballot initiatives legalizing same-sex marriage in Washington, Maine, Maryland and Minnesota. He is a graduate of Boston University and The New School. 

Mr. Ajemian succeeds Dani Lever, who joined the Governor's administration in 2014 as First Deputy Press Secretary. She subsequently served as Press Secretary before being promoted to Communications Director. Ms. Lever is joining Facebook's Strategic Response Communications team. The Governor acknowledged Ms. Lever's service on "Team Cuomo", thanking her "for her extraordinary work on behalf of the people of New York State", stating that "Her dedication to public service and expertise were invaluable and her work has left a lasting impact on millions of New Yorkers. She will be greatly missed and all of Team Cuomo wishes her the best on this new, exciting chapter."

 
Stephen B. Silverman has been appointed Senior Communications Advisor. Most recently, as an independent consultant, Steve advised the Clinton Foundation on communicating the record of President Clinton and his administration and helped create a successful alumni engagement platform. He has worked with the Afya Foundation to raise public awareness for its humanitarian relief work by executing effective external outreach to key stakeholders. He served as a strategic advisor on the Political team of Bloomberg 2020, focused on optimizing the campaign's national co-chairs policy engagement and public advocacy. Previously, Mr. Silverman served as Vice President and Change Management Executive and before that as Vice President and Chief of Staff to the CIO at the Federal Reserve Bank. Mr. Silverman led corporate communications globally for Citigroup's consumer businesses from 1993-1998, Mr. Silverman served as the Deputy Assistant to the President and Deputy Cabinet Secretary in the White House under President Clinton where he developed and executed communications programs to amplify the President's core messages through Cabinet and Sub-Cabinet public engagement. He also was a leader of the administration's disaster response efforts and played key roles in organizing public events, including the 1996 Atlanta Olympic Games, the President's Summit for America's Future, official United States participation in the funeral of President Yitzhak Rabin and a flood summit of the President and mid-western governors in response to the flooding of the Mississippi River. Mr. Silverman holds a Juris Doctorate from Northwestern University and a Bachelor's degree from Cornell University.

 
Marquita Sanders has been appointed Assistant Secretary for Scheduling and Operations. Much of her work was within the Obama-Biden Administration working on the Affordable Care Act as an Associate Director in External Affairs in the Office of Intergovernmental Affairs and Senior Advisor for Health Programs at the U.S. Department of Housing and Urban Development. She comes to New York after her role as National Director of Scheduling and Advance for Senator Cory Booker's Presidential Campaign. Sanders has a decade of experience working on political races across the country, as well as the 2013 Inaugural Committee, the 2012 Democratic Convention.  Sanders holds a Bachelor of Science in Criminology and Criminal justice from Florida State University.

 
Richard Becker MD, has been appointed Deputy Secretary for Health and Human Services. Dr. Becker was previously a Senior Managing Director at ToneyKorf Partners, a strategic advisory and interim management firm with a focus on complex or distressed healthcare situations. Prior to joining ToneyKorf Partners, Richard led the clinical, operational and financial turnaround of The Brooklyn Hospital Center, a 464-bed safety net teaching hospital in Brooklyn, New York, where, as President and CEO, he re-established the medical center's commitment to clinical and academic excellence, as well as its reputation in the New York region, while developing a strong healthcare network involving physicians and community-based institutions. Richard previously served as CEO and Medical Director of the George Washington University Hospital in Washington, DC, where he is also credited with leading a comprehensive clinical and financial turnaround. During his tenure at the George Washington University Medical Center, Richard was an Associate Professor of Anesthesiology and Critical Care Medicine with active roles in patient care, research and education. His recent experience involves providing strategic advisory and diligence services to assist mission-based healthcare organizations with sustainable transformation through a variety of partnership structures. Richard holds a BA from the University of Virginia College of Arts and Sciences, an MD from the University of Virginia School of Medicine, and an MBA from The George Washington University School of Business.

 
Jennifer Rentas has been appointed Assistant Secretary for Health and Human Services. She previously served in multiple roles since 2012 at Hospital for Special Surgery (HSS), most recently as Senior Vice President and Chief of Staff. Following the height of the COVID-19 crisis she led HSS' "Return to new Normal" efforts including evaluation of clinical practices and policies, modifications to patient care operations, organization-wide communications, and preparations for potential resurgence, to ensure the safety of patients, staff and the community. Prior to HSS, she was a Senior Policy Analyst for the Henry J. Kaiser Family Foundation, and worked at NewYork-Presbyterian Hospital and Saint Barnabas Medical Center. Ms. Rentas received a Bachelor's degree, Masters of Public Policy and Masters of Business Administration from Harvard University.

 
Julissa Gutierrez has been appointed Chief Diversity Officer. Previously, Ms. Gutierrez held the role of Deputy Director of Constituency Affairs for the Governor. Prior to that, Ms. Gutierrez had served in a number of roles at the National Association of Latino Elected and Appointed Officials (NALEO) Educational Fund, including as Director of National Programs and Community Relations and Northeast Director for Civic Engagement. She was Special Assistant to the Commissioner of the New York City Department of Youth and Community Development and has had a long relationship with the Anti-Defamation League, having held various positions and participated in programs there since she was in high school. Ms. Gutierrez is Board Chair of New Immigrants Community Empowerment and a Board of Trustees for the Queens Public Library. Ms. Gutierrez has a B.A. from the University of Delaware and a M.A. from University of Chicago.

 
Laura Montross has been appointed Deputy Communications Director for Policy and Issue Advocacy. Ms. Montross most recently served as Director of Women's Outreach on Mike Bloomberg's 2020 presidential campaign and previously as a Principal at Kivvit, a New York public affairs and communications firm. Prior to that, Ms. Montross was a twice-awarded post-graduate grant recipient of the Spanish Ministry of Education in Madrid. Ms. Montross holds a Bachelor's degree in Metropolitan Studies from New York University.

School district and local government audits issued by New York State Comptroller Thomas P. DiNapoli

On August 8, 2020 New York State Comptroller Thomas P. DiNapoli announced the following school district and local government audits were issued.

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

School Districts

East Ramapo Central School District – Textbooks Loaned to Nonpublic School Students (Rockland County) 

The district did not have adequate systems in place to verify that textbooks purchased for and loaned to nonpublic schools were only provided to eligible students. Auditors reviewed 300 nonpublic school student records and found that 114 students were provided with textbooks even though the district's records did not support the students' eligibility to receive textbooks.  In addition, the district did not have systems in place to account for textbooks purchased for and loaned to nonpublic school students and cannot account for all textbooks purchased and loaned to those students.

Genesee Community Charter School – Non-Payroll Disbursements (Monroe County) 

The board did not adopt or enforce adequate disbursement policies. Of 1,317 disbursements reviewed by auditors, 207 check disbursements (totaling $176,847) and 274 debit and credit card transactions (totaling $84,672) did not have adequate supporting documentation. The school did not have written agreements with six service providers that were paid $43,144. The school had inadequate agreements with nine providers that were paid $267,432 and they did not monitor for contract compliance, which resulted in apparent overpayments of $2,180.

Local Governments

Town of Knox – Town Clerk (Albany County) 

The Clerk did not record, deposit or disburse all money timely and accurately. Auditors determined, the clerk did not deposit 367 collections totaling $22,586 (46 percent) within the required time frames.

The clerk also did not report and remit collections timely and accurately. Collections were reported and remitted late to the supervisor for 21 months of the 24 months auditors examined. In addition, the clerk did not prepare accountability analyses. As of December 31, 2019 the clerk's bank account held an unremitted cash balance of $3,161.

Town of North Collins – Recreation Department Cash Receipts (Erie County) 

The Department’s cash receipts were not always collected, recorded or deposited timely. The Board did not adopt written cash receipts policies and officials did not properly segregate cash receipts duties or oversee the cash receipts function. Auditors found eight summer recreation registrants did not pay program fees that ranged from $80 to $130 per person totaling $640 to $1,040. In addition, the co-director’s child attended the after-school, soccer and summer recreation programs for free, without full board consent. Sufficient program documentation was not maintained which precludes the Department and auditors from confirming all funds collected were recorded and deposited in a timely and accurate manner.

City of North Tonawanda - Financial Condition (Niagara County)

The Mayor and Council did not adopt structurally balanced budgets, properly monitor the city’s financial operations or take appropriate actions to maintain the city’s fiscal stability. The general and sewer funds experienced operating deficits from 2017 through 2019. Despite the city’s deteriorating financial condition, officials did not establish a fund balance policy, multiyear financial plan or capital plan. The Mayor’s and City Council’s budgeting practices and poor financial management have left the city in a vulnerable financial position.

Addressing claims to a benefit set out in a collective bargaining agreement based on a scrivener's error corrected by the parties to a collective bargaining agreement

The individuals [Plaintiffs] in this action were formerly employed by the School District [District]. Plaintiffs were in a collective bargaining unit. Their Taylor Law representative [Association] had entered into a collective bargaining agreement [CBA] with the District that provided, among other things, that employees in the collective bargaining unit with 10 or more years of service upon retirement would be provided a "terminal leave allowance" calculated at the employee per diem salary at the time of separation "x ½ the number of accrued sick leave days" [emphasis supplied].

A successive CBA contained this same provision. A still later successor CBA, negotiated for the period July 1, 2006 through and including June 30, 2009, however, stated that "terminal leave allowance" would be calculated at "x 2 the number of accrued sick leave days" [emphasis supplied]." This same language, "x 2 the number of accrued sick leave days" [emphasis supplied], was used in the 2009-2013 CBA negotiated by the parties.

By letter dated February 29, 2012, the District advised the then president of the Association  that the then operative CBA contained a "misprint" in its "terminal leave allowance" provision and that the "terminal leave allowance" was to be calculated at "x ½ the number of accrued sick leave days." The President agreed and signed a copy of the letter in her capacity as President of the Association and a copy of the letter was provided to the Plaintiffs before they retired, respectively, in April and June 2012.

Plaintiffs commenced this action to recover damages from the District for breach of contract based upon the District's determination that the Plaintiffs' "terminal leave allowance" would be calculated at "x ½" the number" of their accrued sick leave days rather than "x 2" the number of their accumulated sick leave credits.

In support of its motion for summary judgment the District submitted the affidavits of two former presidents of the Association averring that the Association never negotiated for the "x 2" provision and that no Association members who retired under either the 2006-2009 CBA or the 2009-2013 CBA, including one of the former presidents herself, received payout for sick leave at a rate of "x 2" their accrued sick leave credits.

Plaintiffs submitted a cross-motion seeking summary judgment on the issue of liability on their breach of contract cause of action against the District.

Supreme Court denied the District's motion and granted that Plaintiffs' cross-motion. A judgment was entered that provided for damages in the principal sum of $243,158.27 for the alleged breach of contract. District appealed the Supreme Court's judgment.

The Appellate Division reversed the Supreme Court's decision, "on the law," with respect to Plaintiffs' cross motion for summary judgment on the issue of liability on their cause of action to recover damages for breach of contract asserted against Defendant and modified Supreme Court's order accordingly.

The court explained that contrary to the Supreme Court's determination, Plaintiffs were not entitled to judgment as a matter of law on their breach of contract cause of action insofar as asserted against the District, as Plaintiffs failed to eliminate triable issues of fact regarding whether the provision for calculating the "terminal leave allowance" at "x 2 the number of accrued sick leave days" was a scrivener's error* that was corrected by the parties to the CBA prior to the Plaintiffs' effective dates of retirement in April and June 2012..

Further, said the Appellate Division, "[i]n light of these triable issues of fact," neither was the District entitled to summary judgment dismissing the cause of action for breach of contract claim asserted against it by Plaintiffs.

The Appellate Division's decision also addressed two procedural issues, holding

[1] The District had waived its contention that Plaintiffs lacked standing to maintain this action by failing to assert that defense in its answer or in a pre-answer motion to dismiss the action; and

[2] The District's contention the Plaintiffs failed to exhaust their administrative remedies, raised for the first time on appeal, was not properly before this Court.

* Courts may correct drafting mistakes or errors, typically referred to as “scrivener's errors,” if the error is clear. In contrast to challenging a provision in a collective bargaining agreement alleging a scrivener's error or an engrossing error, Matter of the Arbitration between City of Plattsburgh and Plattsburgh Police Officers Union AFSCME Local 82, 250 AD2d 327, addresses a situation in which the employer drafted the collective bargaining agreement and later contended it had erroneously included a particular employee benefit advanced by the employee organization in the course of collective negotiations in the collective bargaining agreement but to which it had not agreed to provide after a member of the collective bargaining unit applied for that benefit and grieved its being denied by the employer. Ultimately submitted to arbitration, the arbitrator ruled in favor of the employee. For NYPPL's summary of Plattsburgh go to: https://publicpersonnellaw.blogspot.com/2010/11/claim-of-mistake-does-not-permit-party.html

The decision in the instant appeal is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2020/2020_04388.htm

Preparing for the 2020-2021 School Year

Harris Beach attorneys recently led webinars on two important and timely topics for K-12 school districts: “Special Education Update: Preparing for the 2020-2021 School Year During These Uncertain Times” and “Maintaining Title IX Compliance in Your K-12 School District." 

• Special Education Update: Preparing for the 2020-2021 School Year During These Uncertain Times” touched on critical issues and key developments related to COVID-19 and special education, including strategies for returning to in-person instruction and updates from the New York State Education Department regarding the upcoming school year. Click here to download the replay.  

• “Maintaining Title IX Compliance in Your K-12 School District” covered the state Education Department's long-awaited Title IX regulations, which go into effect August 14. Harris Beach attorneys provided guidance on what districts need to do to amend their policies and procedures to maintain compliance. Click here to download the replay.

The court, rather than the arbitrator, is to determine if the grievance at issue was timely served and if all procedural steps were timely satisfied

The genesis of this action was a grievance filed by the Union on behalf of a Village firefighter who was denied General Municipal Law §207-a disability benefits after allegedly sustaining an injury while on duty.

When the Union demanded that the matter be submitted to arbitration, the Village commenced a proceeding pursuant to CPLR Article 75 seeking a permanent stay of arbitration of the grievance, contending it was untimely. Supreme Court dismissed Village's petition to stay arbitration and the Village appealed.

The Village further argued that the dispute with respect to the firefighter's entitlement to §207-a benefits was not arbitrable as the CBA does not govern such disputes and thus, the CPLR, and not the CBA, applies in determining the timeliness of the dispute.

The Appellate Division rejected the Village's argument, opining that "It is well settled that, in deciding an application to stay or compel arbitration under CPLR 7503, the court is concerned only with the threshold determination of arbitrability, and not with the merits of the underlying claim."

In making that threshold determination, the court must conduct a two-part analysis. First, citing City of Johnstown [Johnstown Police Benevolent Assn.], 99 NY2d 273, the Appellate Division said that the court must determine whether "there is any statutory, constitutional or public policy prohibition against arbitration of the grievance."

In the event the court determines that no such prohibition exists, as the Court of Appeals held in (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, "the court must then determine whether the parties in fact agreed to arbitrate the particular dispute by examining their collective bargaining agreement."

The Appellate Division said that with respect to the first test, there was no statutory, constitutional or public policy prohibition against the parties agreeing to a procedure ending in arbitration to resolve grievances concerning an appointing authority's §207-a benefits determination.

Addressing the second test, the Appellate Division concluded that Supreme Court "properly determined that the CBA contains a broad arbitration clause and that there is a reasonable relationship between the subject matter of the dispute and the general subject matter of the CBA."

However, the Appellate Division said it agreed the Village's argument that the CBA contains conditions precedent to arbitration in the CBA's grievance procedure and that Supreme Court should have decided whether such conditions precedent had been met.

Noting that "Questions concerning compliance with a contractual step-by-step grievance process have been recognized as matters of procedural arbitrability to be resolved by the arbitrators," except in cases involving "a very narrow arbitration clause or a provision expressly making compliance with the time limitations a condition precedent to arbitration."

In this instance, said the court, compliance with the requirements of steps one and two of the grievance procedure and the time limitations for serving a grievance were conditions precedent to arbitration.

Under the circumstances, the Appellate Division concluded that it was for the court, and not the arbitrator, to decide [1] whether the grievance had been timely served and[2] whether "steps one and two of the grievance procedure" set out in the CBA had been satisfied.

Accordingly, the Appellate Division reversed the order and judgment of Supreme Court, reinstated the petition, and remitted the matter to Supreme Court for a hearing on the issue whether the conditions precedent to arbitration were met and thereafter for a new determination with respect to the Village's petition to stay arbitration.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2020/2020_04251.htm

New York State's Governor Andrew M. Cuomo to chair the virtual summer meeting of the National Governors Association

On August 5, 2020 Governor Andrew M. Cuomo was selected to serve as Chair of the National Governors Association during its virtual 2020 Summer Meeting by unanimous voted.

Governor Cuomo, who will become the longest-serving governor in the country in 2021, is also the first governor from New York to become NGA's chair and he is the first "big state" governor to preside at such a meeting in nearly 50 years.

Charging a fee for the cost of reviewing and redacting requested video footage sought pursuant to New York State's Freedom of Information Law

An individual [Plaintiff] initiated a CPLR Article 78 proceeding seeking to compel a municipality [Respondents] to comply with his request pursuant to the Freedom of Information Law ([FOIL] for certain video footage recorded by certain of Respondent's police officers as part of its Body-Worn Camera (BWC) program.

Ultimately the Appellate Division considered the two appeals that were filed as the result of rulings by Supreme Court.

In one appeal, Appeal 1, Supreme Court concluded that Public Officers Law §87:

[1] Did not permit Respondents to meet their FOIL obligations by providing a "blanket-blurred" video to Petitioner;

[2] Determined that Respondents could charge a fee "directly related to the redaction of electronic records," provided the fee was not onerous; and

[3] Remitted the matter to Respondents for reconsideration, directing Respondents to provide a privilege log to Petitioner detailing which sections of the video must be redacted and the reason for such redaction.

Also with respect to appeal No. 1 the Appellate Division said it agreed with Plaintiff that Respondents may not charge Plaintiff a fee for the costs associated with Respondent's review or redaction of the BWC footage requested by Plaintiff, noting that the Committee on Open Government has specifically opined that "if the document exists in electronic format and the agency has the authority and the ability to redact electronically, we believe it would be reasonable for the agency to provide the requested redacted copy at no charge."*

The court said that although "the advisory opinions issued by the Committee on Open Government are not binding on the courts ..., an agency's interpretation of the statutes it administers generally should be upheld if not unreasonable or irrational," citing Matter of Weslowski v Vanderhoef, 98 AD3d 1123, leave to appeal dismissed, 20 NY3d 995.

The Appellate Division then modified Supreme Court's ruling with respect to Appeal 1 by vacating that part of the judgment permitting Respondents to charge Plaintiff a fee for the cost of reviewing and redacting the requested video footage.

Addressing yet another aspect of Appeal 1, the Appellate Division, citing Konigsberg v Coughlin, 68 NY2d 245, opined that "Contrary to [Plaintiff's] further contention in appeal No. 1, [Supreme Court] did not err in remitting the matter to [Respondents] to reconsider [Plaintiff's] request, provide a privilege log, and ultimately comply with its statutory obligations and thus any decision concerning Plaintiff's entitlement to attorney's fees are premature at this juncture."

Appeal 2 concerned Plaintiff's appeal from an order denying his application, the Appellate Division rejected Plaintiff's Appeal No. 2 challenging Supreme Court's denying that part of Plaintiff's application seeking a finding of contempt based on Respondents' failure to comply with the judgment in appeal No. 1. 

The court explained that "In order to prevail on a motion to punish a party for civil contempt, the movant must demonstrate that the party charged with contempt violated a clear and unequivocal mandate of the court, thereby prejudicing the movant's rights [and the] movant has the burden of proving contempt by clear and convincing evidence." 

In this instance the Appellate Division determined that Plaintiff failed to establish that the judgment in Appeal No. 1 expressed an unequivocal mandate "inasmuch as no deadline was contained therein."

* Commission on Open Government FOIL Advisory Opinion 18904.

The decision is posted on the Internet at:  

http://www.nycourts.gov/reporter/3dseries/2020/2020_04250.htm

Providing a negative employment reference to a prospective employer in retaliation for engaging in a protected activity held to be in violation of New York State's Human Rights Law

In this action the Appellate Division observed that New York State Human Rights Law provides that it is unlawful to retaliate against an employee opposing discriminatory practices.* To establish an unlawful retaliation claim, said the court, an employee [Complainant] must show that "(1) Complainant had engaged in protected activity, (2) Complainant's employer was aware that Complainant participated in such activity, (3) Complainant suffered an adverse employment action because of Complainant's protected activity, and (4) there is a causal connection between the protected activity and the adverse action." Once this initial burden has been met, "the burden then shifts to [the employer] to present legitimate, independent and nondiscriminatory reasons to support [its] actions."

The New York State Division of Human Rights [NYSDHR] found that the employer had unlawfully discriminated against the Complainant by providing a negative employment reference to a prospective employer in retaliation for Complainant's engagement in a protected activity in violation of Executive Law §296, awarding the Complainant "compensatory damages in the principal sum of $5,000 for mental anguish, plus interest at the rate of nine percent per year from June 29, 2017, and assessing a civil fine and penalty against the [Employer] in the principal sum of $10,000, plus interest at the rate of nine percent per year from June 29, 2017." Employer appealed the NYSDHR's decision.

The Appellate Division confirmed NYSDHR's ruling and denied Employer's petition and dismissed the appeal on the merits. The court explained that "The scope of judicial review under the Human Rights Law is extremely narrow and is confined to the consideration of whether the determination of the SDHR is supported by substantial evidence** in the record," citing Matter of New York State Div. of Human Rights v Roadtec, Inc., 167 AD3d 898. Further, opined the court, "Under a substantial evidence review, courts may not weigh the evidence or reject [the Commissioner's] choice where the evidence is conflicting and room for a choice exists" citing Matter of CUNY-Hostos Community Coll. v State Human Rights Appeal Bd., 59 NY2d 69.*** 

Finding that Complainant had made a prima faciecase of unlawful discrimination within the meaning of the State's Human Rights Law, the Appellate Division ruled that "the burden [of going forward] shifted to the Employer to present evidence of a legitimate, independent, and nondiscriminatory reason to support [its agent's] action, and the [employer] failed to do so."

Accordingly, the Appellate Division confirm NYSDHR's determination, finding that the award of compensatory damages for mental anguish was reasonably related to the wrongdoing, supported by substantial evidence, and comparable to other awards for similar injuries. Noting that "A court may set aside an administrative penalty only if it is so disproportionate to the offense as to be shocking to one's sense of fairness," the Appellate Division said it "perceive no basis for disturbing the civil fine and penalty assessed against the [Employer]." 

* Executive Law §296[1][e]; [7]. 

** "Substantial evidence means such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact" [See 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176]. 

*** This case was decided with another case involving the same parties and is posted at http://www.nycourts.gov/reporter/3dseries/2020/2020_04302.htm.

The decision in this appeal is posted on the Internet at: 
http://www.nycourts.gov/reporter/3dseries/2020/2020_04303.htm 

Determining the fitness of candidates for appointment to positions in the public service

An appointing authority has wide discretion in determining the fitness of candidates, and this discretion is particularly broad in the hiring of law enforcement officers, to whom high standards may be applied.* As long as the administrative determination is not irrational or arbitrary and capricious, courts typically will not disturb it. ** 

Plaintiff commenced this proceeding pursuant to CPLR Article 78 seeking judicial review of a Civil Service Commission's decision disqualifying him for a position as a police officer. Supreme Court denied Plaintiff's petition and dismissed the proceeding and Plaintiff appealed the court's ruling to the Appellate Division.

Addressing Plaintiff's complaint that the Commission had wrongfully denied his request for disclosure of information pertaining to his disqualification, the Appellate Division opined that the Commission's denial of Plaintiff's request was proper, citing Grossman v McMahon, 261 AD2d 54. In his appeal Grossman had contended that his request certain the background information should have been approved. The Grossman court disagreed, explaining that in a proceeding "of this nature, where disclosure is available only by leave of court pursuant to CPLR 408," Supreme Court has broad discretion in granting or denying disclosure "... although it must balance the needs of the party seeking discovery against such opposing interests as expedition and confidentiality."*** 

In the instant case the Appellate Division held that the Commission's determination disqualifying the Plaintiff from eligibility for appointment to the position of police officer was neither irrational nor arbitrary and capricious.

Addressing another argument raised by Plaintiff, the Appellate Division said that the Commission's disqualification determination violated neither §296[15] of the Human Rights Law nor §§750[5] or 752 of the Correction Law, citing Little v County of Westchester, 36 AD3d at 617.

Accordingly, the Appellate Division said it agreed with the Supreme Court's determination to deny the Plaintiff's petition and dismissal of the proceeding. 

* See Matter of Rogan v Nassau County Civ. Serv. Commn., 91 AD3d 658. 

** Matter of Verme v Suffolk County Dept. of Civ. Serv., 5 AD3d 498 

*** In Grossman the Appellate Division concluded that "Supreme Court did not abused its considerable discretion in denying disclosure of the background investigation file" Grossman had sought.

The decision is posted on the Internet at: 
http://www.nycourts.gov/reporter/3dseries/2020/2020_04304.htm

AELE announces its online Educational Center

The Americans for Effective Law Enforcement (AELE) has announced the availability of its "Online Educational Center (OEC)." 

Through its OEC, the AELE said it will expand its dedication to providing objective, timely, accurate, legal, scientific, and evidence-based information and operational guidance for the enhancement of the criminal justice community and to reduce potential criminal and civil liability of criminal justice professionals and municipalities. 

This is the location for registering for future AELE webinars, virtual seminars, and virtual and ON-DEMAND programs. 

Educational programs will be added as they are completed. AELE invites checking the site a regular part of your organization's week's activities. 

Check out the AELEOEC at www.aeleoec.org