Discrimination complaint dismissed by court in the absence of facts inferring that the employee's disability was a consideration in terminating her employment

In this CPLR Article 78* action the petitioner [Plaintiff] alleged that the City of New York[Defendants] had discriminated against her on the basis of her disability when it terminated her employment shortly after she told her supervisor that she was being treated for depression.

Plaintiff's complaint, however, also indicated that before she revealed her disability to her supervisor Plaintiff had been investigated for violating certain of the Defendants' policies and procedures and that she was aware of this investigation.

Supreme Court granted the Defendants' motion to dismiss the complaint and Plaintiff appealed. The Appellate Division unanimously affirmed the Supreme Court's ruling, explaining that:

1. "The complaint fails to state a cause of action under the State and City Human Rights Laws because it alleges no facts from which it can be inferred that [Plaintiff's] disability was a factor in the termination of her employment";

2. "The complaint does not allege that anyone other than [Plaintiff's] immediate supervisor was aware of her disability or that the supervisor was consulted about the termination"; and

3. To the extent Plaintiff relies on the "temporal proximity between her revelation to her supervisor of her disability and her termination from employment," her complaint did not recite any allegations suggesting a causal connection between the two events.

* N.B. §297.9 of the Executive Law, in pertinent part, currently provides for an election of remedies whereby "Any person claiming to be aggrieved by an unlawful discriminatory practice shall have a cause of action in any court of appropriate jurisdiction unless such person had filed a complaint ... with any local commission on human rights, or with the superintendent ... or where the division has dismissed such complaint on the grounds of administrative convenience, on the grounds of untimeliness, or on the grounds that the election of remedies is annulled" or "At any time prior to a hearing before a hearing examiner...." An amended Executive Law §297.9 will take effect January 5, 2021 and provides as follows:

9. Any person claiming to be aggrieved by an unlawful discriminatory practice shall have a cause of action in any court of appropriate jurisdiction for damages, including, in cases of employment discrimination related to private employers and housing discrimination only, punitive damages, and such other remedies as may be appropriate, including any civil fines and penalties provided in subdivision four of this section, unless such person had filed a complaint hereunder or with any local commission on human rights, or with the superintendent pursuant to the provisions of section two hundred ninety-six-a of this chapter, provided that, where the division has dismissed such complaint on the grounds of administrative convenience, on the grounds of untimeliness, or on the grounds that the election of remedies is annulled, such person shall maintain all rights to bring suit as if no complaint had been filed with the division. At any time prior to a hearing before a hearing examiner, a person who has a complaint pending at the division may request that the division dismiss the complaint and annul his or her election of remedies so that the human rights law claim may be pursued in court, and the division may, upon such request, dismiss the complaint on the grounds that such person's election of an administrative remedy is annulled. Notwithstanding subdivision (a) of section two hundred four of the civil practice law and rules, if a complaint is so annulled by the division, upon the request of the party bringing such complaint before the division, such party's rights to bring such cause of action before a court of appropriate jurisdiction shall be limited by the statute of limitations in effect in such court at the time the complaint was initially filed with the division. Any party to a housing discrimination complaint shall have the right within twenty days following a determination of probable cause pursuant to subdivision two of this section to elect to have an action commenced in a civil court, and an attorney representing the division of human rights will be appointed to present the complaint in court, or, with the consent of the division, the case may be presented by complainant's attorney. A complaint filed by the equal employment opportunity commission to comply with the requirements of 42 USC 2000e-5(c) and 42 USC 12117(a) and 29 USC 633(b) shall not constitute the filing of a complaint within the meaning of this subdivision. No person who has initiated any action in a court of competent jurisdiction or who has an action pending before any administrative agency under any other law of the state based upon an act which would be an unlawful discriminatory practice under this article, may file a complaint with respect to the same grievance under this section or under section two hundred ninety-six-a of this article. In cases of housing discrimination only, a person whose complaint has been dismissed by the division after investigation for lack of jurisdiction or lack of probable cause may file the same cause of action in a court of appropriate jurisdiction pursuant to this section, unless judicial review of such dismissal has been sought pursuant to section two hundred ninety-eight of this article.

The decision of the Appellate Division is posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2020/2020_06383.htm

 

Requesting reconsideration of a final administrative decision does not serve to toll or extend the running of the controlling statute of limitations

The Petitioner [Plaintiff] in this CPLR Article 78 sought judicial review of the determination of the Fire District [District] denying the Plaintiff retiree health insurance benefits. The District opposed the petition, asserting, among other things, the affirmative defense of the statute of limitations.* The Supreme Court denied the petition as time-barred and dismissed the proceeding. Plaintiff appealed the court's ruling.

The Appellate Division affirmed the Supreme Court's ruling, explaining:

1. A proceeding pursuant to CPLR Article 78 must be commenced within four months after the administrative determination sought to be reviewed becomes final and binding upon the petitioner.

2. An administrative determination becomes final and binding when "the agency... reache[s] a definitive position on the issue that inflicts actual, concrete injury and ...  [the]  administrative action [becomes] available to the complaining party."**

3. A request for reconsideration of an administrative determination typically does not extend or toll the running of the statute of limitations or render the otherwise final determination non-final unless the agency's rules mandate reconsideration.***

Here, opined the Appellate Division, the District's determination denying the Plaintiff retiree health insurance became final and binding when Plaintiff's counsel received notice from the District's counsel via email.

Contrary to the Plaintiff's argument, the court ruled that the statute of limitations was not extended or tolled by the subsequent email from the District's counsel to the Plaintiff's counsel as the plain language of the email shows that the District's counsel's response was to Plaintiff's counsel's "request for reconsideration of a prior determination" and as such it did not serve to extend or toll the statute of limitations.

Accordingly, the Appellate Division agreed with the Supreme Court's decision to deny Plaintiff's petition as time-barred and dismiss Plaintiff's petition and affirmed the Supreme Court's judgment, with costs.

* A party seeking to assert the statute of limitations as a defense has the burden of establishing that the petitioner was notified of the determination more than four months before the Article 78 proceeding was commenced.

**See Matter of Zherka v Ramos, 173 AD3d 746.

***See Matter of Lubin v Board of Educ. of City of N.Y., 60 NY2d 974.

The decision is posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2020/2020_06268.htm

 

There are limits to the Commissioner of Education's jurisdiction to adjudicate administrative appeals submitted pursuant to Education Law §310

In this Education Law §310 appeal submitted to Interim Commissioner of Education Rosa the Petitioner challenged determinations of the New York State Department of Educations' Deputy Commissioner of Cultural Education [DCCE] and individual members of the Board of Regents of the University of the State of New York [BOR] concerning  a proposed deaccession* of certain items by the Town of Salem [Town]. In brief, Petitioner alleged that the DCCE and the BOR improperly approved the proposed deaccession of “selected furniture pieces” by the Georgi Museum, which is owned and operated by the Town.

Petitioner contended that the DCCE's and the BOE's approval of the deaccession "violated 8 NYCRR §3.27, the public trust doctrine and the State Administrative Procedure Act” and asked that Commissioner to declare such actions “void” and provide other relief in addition.

Commissioner Rosa dismissed Petitioner's appeal "for lack of jurisdiction." The Commissioner explained that court decisions indicated that Education Law §310 "deals throughout with the common schools and, inferentially ... does not invest the Commissioner with carte blanche appellate jurisdiction in all controversies involving the Education Law.”**

The Commissioner also noted that "[i]t is well settled that Education Law §310 does not authorize an appeal to the Commissioner from actions taken by employees or officers*** of the State Education Department" and that such actions "can only be challenged in a proceeding brought in a court of competent jurisdiction pursuant to Article 78 of the Civil Practice Law and Rules."

Similarly, said the Commissioner, a petitioner may not challenge an action of the BOR or its members in an appeal pursuant to Education Law §310, pointing out that the relevant portion of Education Law §310 provides that any party conceiving himself aggrieved "[b]y any ... official act or decision of any officer, school authorities, or meetings concerning any other matter under this chapter, or any other act pertaining to common schools may appeal by petition to the commissioner of education who is hereby authorized and required to examine and decide the same."

The Commissioner opined that although the language of Education Law §310(7) “could literally, and if it stood alone, embrace much more than the common school classifications of the first six subdivisions, the words ... do not stand alone, and ... are circumscribed and modified by the contextual words which precede and follow them”, citing Matterof Bowen v. Allen, 17 AD2d 12.

The bottom line: The Commissioner held that Education Law §310 provides no basis to review an alleged act or omission by the DCCE or by the BOR or its members.

* Deaccession is the official removing of an item from a public library, museum, or art gallery in order to sell it or otherwise dispose of it.

** See Matter of Board of Educ. of City School Dist. of City of Rome v. Ambach, 118 AD2d 932.

*** Although all public officers of the State are public employees, not all public employees of the State are public officers.

The decision is posted on the Internet at http://www.counsel.nysed.gov/Decisions/volume60/d17935

 

School district audits release by the New York State Comptroller during the week ending November 6, 2020

On November 6, 2020 New York State Comptroller Thomas P. DiNapoli announced the following school district audits have been issued.

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

SusquehannaValley Central School District – Information Technology (Broome County)- School district officials did not establish adequate information technology (IT) controls to protect against unauthorized use, access and loss. District officials did not properly manage user accounts including periodically reviewing and disabling unneeded network user accounts. Auditors also determined district officials did not maintain accurate, complete and up-to-date hardware and software inventory. Officials did not ensure that computers were free from malicious software. In fact, two malicious software applications were installed on district computers. Sensitive IT control weaknesses were communicated confidentially to officials.

White Plains City School District – Financial Management (Westchester County) - The school board and district officials did not adopt realistic budgets or maintain reasonable levels of fund balance. However, reserves were generally funded at reasonable levels and within legal limits. The district’s fund balance over the past five years grew to $97.9 million, the equivalent of 43 percent of the district’s annual budget. Some appropriations were overestimated in previous budgets and continued to be overestimated. District officials made year-end transfers totaling about $29 million to reserves. The transfers were made to stay within the statutory surplus fund balance limit and resulted in a lack of transparency because the taxpayers were not informed of the amounts that would be added to the reserves during the fiscal year.

 

 

Penalty imposed following a disciplinary arbitration challenged

The petitioner [Teacher] in this action brought pursuant to CPLR Article 75 challenged the penalty imposed by the arbitrator - termination - following a disciplinary hearing. Supreme Court vacated the penalty portion of the disciplinary arbitration award and remanded the matter to the Board of Education [Board] for the imposition of a lesser penalty. The Board appealed the court's order.

The Appellate Division unanimously reversed the Supreme Court's ruling, on the law, reinstated the penalty imposed by the arbitrator and dismissed the Article 75 proceeding.

Citing Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale and Mamaroneck, Westchester County, 34 NY2d 222, and other decisions, the Appellate Division opined that it did not find the penalty of termination of Teacher's employment shocking to one's sense of fairness "given the evidence of [Teacher's] pedagogical shortcomings, documented by supervisors and a peer evaluator, and his lack of improvement during two school years."

In particular, the court noted Matter of Russo v New York City Dept. of Educ., 25 NY3d 946, cert. denied 577 US 957, in which the termination of an Educator was sustained after three years of unsatisfactory performance ratings "notwithstanding [the educator's] 18 years of satisfactory teaching."

The decision is posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2020/2020_06349.htm.

 _______________

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Judicial review of arbitration awards is extremely limited

A detective [Plaintiff] applied for General Municipal Law §207-c line of duty disability  benefits. The Employer's claims manager denied Plaintiff's application as untimely. Ultimately the Plaintiff's Union [PBA] demanded that the matter be submitted to arbitration pursuant to the relevant provision set out in the controlling collective bargaining agreement [CBA] between the Employer and the PBA 

The arbitrator interpreted the disputed provisions of the CBA and found that the claims manager's denial of the application as untimely was not reasonable.

Employer then filed a CPLR Article 75 petition seeking a Supreme Court order vacating the arbitration award. PBA then cross-petitioned the court to confirm the award. The Supreme Court denied the Employer's petition and granted the PBA's cross petition. The Employer appealed the court's ruling.

Citing Wien & Malkin LLP v Helmsley-Spear, Inc., 6 NY3d 471and other decisions, the Appellate Division observed that "A court may vacate an arbitration award on the ground that the arbitrator exceeded his [or her] powers within the meaning of CPLR 7511(b)(1)(iii) only where the arbitrator's award violates a strong public policy, is irrational, or clearly exceeds a specifically enumerated limitation on the arbitrator's power."

The court then explained that for the purposes of Article 75 an arbitrator "exceeds his or her powers ... if the award gives a completely irrational construction to the provisions in dispute and, in effect, makes a new contract for the parties."

The Appellate Division then opined that, contrary to the City's contention, "the arbitrator's interpretation of the CBA was not irrational, and did not effectively rewrite the agreement." Further, said the court, "the arbitrator did not exceed a specifically enumerated limitation on his authority by construing the CBA's terms in light of testimony as to the past practices of the [Employer] and the [PBA].

Agreeing with the Supreme Court's determination denying the Employer's petition to vacate the arbitration award and granting the PBA's cross petition to confirm the arbitration award, the Appellate Division affirmed the lower court's ruling and awarded the PBA "one bill of costs."

The decision is posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2020/2020_06254.htm

 

AELE case notes, publications, and seminars alert for November 2020

Gender Discrimination in Correctional Policies. New November AELE Law Journal article, https://www.aele.org/law/2020all11/2020-11MLJ301.pdf

Jail & Prisoner Legal Issues Seminar---Attend Live or Virtually On Demand.  A 3.5-day updated seminar on "Jail & Prisoner Legal Issues." A first: You can attend the seminar live or virtually on demand! The seminar will become available on Monday, January 25, 2021 and will remain open for 60 days. Another first is online registration and payment.  https://aele.org/jail-law-seminar.html 

November Law Enforcement Liability Reporter: This issue has cases on assault and battery: handcuffs, dogs, false arrest/imprisonment: warrant, false arrest/imprisonment: unlawful detention, firearms related: intentional use, malicious prosecution, and public protection: hostages. http://www.aele.org/law/2020all11/LR2020NOV.pdf

November Fire, Police & Corrections Personnel Reporter:This issue has cases on arbitration procedures, collective bargaining: in general, disciplinary punishment, First Amendment, F.L.S.A.: administrative & executive exemption, handicap/abilities discrimination: reasonable accommodation, pay disputes, retaliatory personnel actions, workers’ compensation.  http://www.aele.org/law/2020all11/FP2020NOV.pdf

November Jail and Prisoner Law Bulletin: This issue has cases on COVID-19, First Amendment, medical care, Prison Litigation Reform Act: exhaustion of remedies, prison and jail conditions: radon, prisoner discipline, prisoner suicide, religion, sex discrimination, and sexual assault. http://www.aele.org/law/2020all11/JB2020NOV.pdf

 

AELE also offers more than 36,000 case summaries, divided into 700+ topics:

1. Law enforcement civil liability at http://www.aele.org/law/Digests/civilmenu.html

2. Employment law and discipline at http://www.aele.org/law/Digests/emplmenu.html

3. Jail and prisoner legal issues at http://www.aele.org/law/Digests/jailmenu.html

4. Electronic control weapons at http://www.aele.org/law/Digests/ECWcases.html

New York State's Productivity Enhancement Program for certain State officers and employees in the Executive Branch of government

New York State's Productivity Enhancement Program (PEP) allows eligible officers and employees of the State of New York as the employer represented by the Civil Service Employees Association, representedby District Council 37 and Managerial/Confidential employees in the Executive branch of State government to exchange previously accrued annual leave (vacation) and, or, personal leave for a credit to be applied to their employee contribution for NYSHIP health insurance premiums on a biweekly basis. The PEP program for 2021 is set out in the "Program Description" posted on the Internet at  https://www.cs.ny.gov/attendance_leave/pb20-06.pdf.

The enrollment period for 2021runs from Monday, November 2, 2020 through Monday, November 30, 2020.

 

Application for accidental disability retirement benefits rejected on finding that the alleged disability was not suffered in the performance of the applicant's duties.

Plaintiff in CPLR Article 78 action appealed Supreme Court's dismissal of her petition seeking to have the court annul the New York City Employees' Retirement System's [NYCERS] determination denying Plaintiff's application for accidental disability retirement [ADR]. Plaintiff appealed.

Citing Borenstein v New York City Employees' Retirement System, 88 NY2d 756, the Appellate Division sustained Supreme Court's ruling, concluding that the denial of Plaintiff's application for ADR was "not arbitrary and capricious, but [was] based on credible evidence in the record."

The court noted NYCERS' findings that:

[1] Plaintiff was neither physically nor mentally incapacitated based on her medical and mental health records, an independent psychiatric examination, and her interview before NYCERS' Medical Board;

[2] There was no contemporaneous evidence showing the circumstances of a physical assault on Plaintiff by her coworker as described by the Plaintiff during the administrative proceeding on the date she set out in her application for ADR; and

[3] The alleged physical and psychological injuries caused by the alleged physical assault did not result from an accident or arise in the course of Plaintiff's performance of her duties.

As to Plaintiff's claim that she was deprived of due process, the Appellate Division said that allegation "is belied by the record showing that she was given an adequate opportunity to present her case before [the NYCERS]."

The decision is posted on the Internet at

http://www.nycourts.gov/reporter/3dseries/2020/2020_06229.htm.

 

Governor Cuomo releases guidelines on testing protocol for schools to reopen in red or orange micro-cluster zones

On October 31, 2020, Governor Andrew M. Cuomo released guidelines for schools to reopen in red and orange micro-cluster zones in order to help keep schools in focus areas open to in-person instruction. The guidelines require mass testing in schools before they reopen followed by vigilant symptom and exposure screening conducted daily. Impacted schools can reopen as early as Monday. However students and faculty must be able to provide a negative COVID-19 test result prior to going back to the classroom.  

New York State will provide rapid test kits for schools wishing to participate.

"In the micro-cluster zones, we've been working with schools in the red and the orange zones. The schools, private schools, Catholic schools, yeshivas, want to be open in the red and orange zones, and we've been working with them to try to find ways to keep people safe but allow children to go to school," Governor Cuomo said. "We have agreed with them on a protocol that keeps people safe and allows children to be educated."

In order for a school to reopen in a red or orange micro-cluster zones, schools must:

Remain closed for at least 4 calendar days after the zone designation is announced (48 hours to ensure lack of infectious contact in the school, and additional time for testing), and may re-open as early as the 5th calendar day.

Ensure that no person may attend in-person on the campus without first receiving a negative test result, this applies to faculty/staff as well as students.

Schools may reopen after these steps are taken, with students and faculty/staff who are positive or close contacts of positive cases appropriately excluded from school grounds. Additionally, the test result must be no more 7 days past the date of specimen collection on the day in-person learning reopens and date of specimen collection must be after date the zone was established.

After a school reopens in a red or orange micro-cluster zone, vigilant symptom and exposure screening must be conducted daily and must follow the below guidelines:

25% of the in-person learning school community (both students and faculty/staff) must be tested per week.

The school should ensure that it provides opportunities to test on school grounds, or otherwise facilitates testing and accepts test results from healthcare providers.

If the school does not hold a testing event or provide testing on school grounds, test results provided to the school as part of the 25% testing of the population must be received within 7 days from the date of specimen collection and specimen collection must be after the school reopens.

Each week the 25% of the school population tested must be composed of unique individuals who have not previously been tested for the surveillance screening, as part of the weekly 25% testing until the fifth week of weekly testing at which point the individuals who participated in the first week of testing should be tested again.

Members of the school community who test positive must isolate according to established guidelines.

Contact tracing must be performed to ensure that contacts to newly identified positive individuals are quarantined according to established guidelines.

New York State will provide schools with rapid test kits if requested. The schools must provide certified personnel (with necessary laboratory permits) to do the tests, and all results must be entered into ECLRS and reported on the school survey to the NYS COVID-19 Report Card.

Schools that cannot meet the reopening requirements must remain in remote learning for the duration of the zone designation. If the 25% of the school population random sampling generates a minimum of 9 cases, or if for a sample size of more than 300 weekly tests, achieves a positivity rate of 2% (6 cases or more depending on size) in New York City, or 3% (9 or more cases) outside of the city, then the school will be required to close. Reopened schools that fail to comply with these requirements could be subject to Section 16 orders, or other fines and penalties.

Qualified privilege in an action seeking damages for alleged defamation

 In this action to recover damages for alleged defamation, the several defendants [jointly "Respondents"] separately appealed from an order of Supreme Court denying their separate motions to dismiss the complaint insofar as asserted against each of them.

The president [Plaintiff] of a local branch of a labor union representing the workers of the Respondent private sector employer [Company] commenced this action to recover damages for defamation, alleging that the Company, together with the Company's owner [Owner]  and the Company's attorney [Attorney] made certain defamatory statements about Plaintiff, which were then widely distributed to the Company's employees in an effort to influence the outcome of an affiliation contest between the Plaintiff's union and a rival union.

Plaintiff further alleged, among other things, that the several Respondents made the defamatory statements with knowledge of their falsity and for the purpose of damaging the Plaintiff's reputation among the Company's employees and impugning his ability to continue acting as president of the union's local branch. The Plaintiff also alleged that, as a result of the conduct of the several Respondents he suffered actual, compensable damage to his reputation.

Affirming the decision of the Supreme Court, the Appellate Division explained that where, as here, either party to a labor dispute is alleged to have circulated false and defamatory statements during the course of labor negotiations, "a qualified privilege attaches," which renders the action preempted by federal law. In order to overcome this qualified privilege and retain state court jurisdiction over the matter, the court said that the plaintiff's pleadings must allege both that the statements were made with malice and that they injured the plaintiff. *

Holding that contrary to their contention, and with respect to "the appellants appearing separately and filing separate briefs," the court opined that Plaintiff's pre-answer motions must be assumed to be true and are sufficient to overcome the qualified privilege relied upon by these appellants.

Accordingly, the Appellate Division affirmed the Supreme Court's determination denying the separate motions of the appellants appearing separately to dismiss the complaint insofar as asserted against each of them, with one bill of costs payable by the appellants appearing separately and filing separate briefs.

* See O'Neil v Peekskill Faculty Assn., 120 AD2d 36 at 42

The decision is posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2020/2020_06090.htm

Employee's failure to the give employer give due notice of the accident and other factors defeats employee's claim for a benefit arising from the collective bargaining agreement

Petitioner [Plaintiff] filed a petition pursuant to CPLR Article asking the Supreme Court  to annul the New York City Transit Authority's [NYCTA] decision to deny her differential pay for an injury she allegedly sustained while flying to Nevada for a training course. Plaintiff had traveled to Nevada on September 25 and attended the training course through September 28. On the evening of September 28, she sought treatment for bilateral calf pain and was diagnosed with deep vein thrombosis [DVT], which was allegedly caused by the long flight. Plaintiff notified her supervisor of the diagnosis on September 29, and ultimately received Worker's Compensation benefits for her injury.

On the following January 9, Plaintiff submitted a request for "differential pay," a benefit available to NYCTA employees under the collective bargaining agreement between Plaintiff's union and NYCTA. NYCTA denied Plaintiff's request contending [1] Plaintiff had reported the injury late and [2] Plaintiff was not engaged in a workplace activity when she sustained the injury.

The Appellate Division affirmed Supreme Court's determination that NYCTA's decision denying Plaintiff's request for the "differential pay" benefit was supported by a rational basis noting that "[t]he rules for receiving differential pay state that the employee must have sustained an accidental injury while engaged in the performance of his/her assigned duty for NYCTA, and such accidental injury was the direct cause of the employee's incapacity for work." Further, said the court, the rules require, among other things, "that the employee give due notice of the accident" and NYCTA reasonably found that Plaintiff "failed to provide timely notice of her injury, as she reported it four days after her flight." Nor did she specify that her injury was work-related but stated only that her  medical condition required time off from work.

In addition, the Appellate Division opined that Plaintiff failed to meet the other requirements for the "differential pay" benefit as there was "uncertainty regarding whether she was engaged in an assigned work activity when the injury occurred, since traveling to work is not considered a workplace activity," citing Greene v City of New York Dept. of Social Servs., 44 NY2d 322, and Plaintiff's "medical records showed that she had a personal history of DVT and other comorbidities."

The decision is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2020/2020_05131.htm