An employer may take an adverse employment action against an employee barred by law so long the employer has demonstrated an independent basis for the action

A probationary teacher [Plaintiff] observed a teacher providing unauthorized assistance to a student. Plaintiff contended that she immediately reported the incident, and it is undisputed that she "first put her allegations in writing in a letter dated April 19, 2013."

Plaintiff subsequently received four unsatisfactory lesson observation reports, two letters of misconduct and then received an unsatisfactory rating (U-rating) for the school year. The New York City Department of Education [DOE] did not give Plaintiff a certificate of satisfactory completion of probation and terminated her employment. Her administrative appeal was denied by a divided panel.

Plaintiff initiate a hybrid CPLR Article 78/plenary action challenging DOE's decision in Supreme Court. Ultimately the Appellate Division dismissed Plaintiff's action in its entirety "on the law."

The Appellate Division explained that DOE's decision to discontinue Plaintiff's probation and terminate her employment was based on the annual U-rating, which in turn was based on four unsatisfactory observation reports and two misconduct letters. These, said the court, provide ample evidence to support the conclusion that Plaintiff's performance was unsatisfactory, and thereby establish, for purposes of reviewing Plaintiff's Article 78 action, that Plaintiff's termination was done in good faith.

Turning to Plaintiff's seeking a court order annulling the U-rating and unsatisfactory observation reports as pretexts for a retaliatory discharge, the Appellate Division opined that this effort was unavailing as the U-rating was supported by the observation reports and misconduct letters, each of which recited first-hand observations made by the Assistant Principal and Principal and the unsatisfactory reports were "rationally based in the record."

Addressing Plaintiff's second cause of action under Civil Service Law, §75-b the Appellate Division found that Plaintiff had made a prima facie case by showing that:

1. She received numerous adverse employment actions in the form of unsatisfactory reports and ultimately loss of license and termination;

2. She disclosed what appeared to be an illegal action by a fellow teacher; and

3. The temporal connection between Plaintiff's reporting "the January 23, 2013 incident  and the negative employment actions she suffered beginning in early March, suffices to establish her prima facie case on causation."

That said, the Appellate Division pointed out that an appointing authority may nonetheless initiate an adverse employment action against an employee so long the employer has an "independent basis for the action."

In the words of the Appellate Division, "Here, as discussed, [DOE] had ample independent bases for their actions against [Plaintiff], in the form of the well-documented unsatisfactory reports and a corresponding U-rating for the year. Nor is there any evidence that [DOE's] actions were pretexts for retaliation, or that [DOE] would not have taken the same actions against [Plaintiff] had she not reported the alleged teacher misconduct" and dismissed Plaintiff's second cause of action alleging the DOE had violated Civil Service Law §75-b.

Click HEREto access the text of the Appellate Division's decision. 

 

 

Court holds plaintiff's failure to adequately allege race or national origin a motivating factor in the employer's employment decision a fatal omission

A federal district court dismissed Plaintiff's claims alleging unlawful discrimination, a hostile work environment, and retaliation as underlying her removal from her position at a component unit of the City University of New York [CUNY]. The court held that Plaintiff's allegations did not raise a plausible inference of discrimination or rise to the level of pervasive and severe conduct that altered the conditions of her employment. The district court then granted CUNY summary judgment on Plaintiff's retaliation claim, holding CUNY had articulated a legitimate reason for Plaintiff's removal, and that Plaintiff had failed to show that CUNY’s proffered reason was a pretext for retaliation. Plaintiff appealed. 

The Circuit Court of Appeals, Second Circuit, reviewed the lower court's rulings de novo, indicating that it “accept[ed] all factual claims in the complaint as true and draw[ing] all reasonable inferences in the plaintiff’s favor.” Noting that in reviewing a grant of summary judgment, the court it must “construe the evidence in the light most favorable to the non-moving party” and find that “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”

Affirming the district court’s dismissal of Plaintiff’s discrimination and hostile work environment claims, the Circuit Court explained that Plaintiff's discrimination claim fails because Plaintiff did not adequately allege that her race or national origin was a motivating factor in CUNY’s decision to remove her from her positions with the facility.

In the words of the court, Plaintiff's "complaint does not identify the 'bits and pieces of information necessary 'to support an inference of discrimination, i.e., a mosaic of intentional discrimination' in relation to the adverse employment action at issue."

Similarly, said the court, Plaintiff's "hostile work environment claim fails because the alleged incidents are too mild and 'episodic' to support her claim," noting that many of the alleged incidents lack any racial overtone and, in general, the alleged incidents “were too few, too separate in time, and too mild . . . to create an abusive working environment.”

Affirming the district court’s decision granting CUNY summary judgment on Plaintiff’s retaliation claim, the court explained that under McDonnell Douglas Corp. v. Green, 411 U.S. 792 , "a plaintiff must first establish a prima faciecase of retaliation; then the defendant must offer a non-retaliatory reason for the employment action; and then the plaintiff must show that the retaliatory reason is a “but-for cause of [the] adverse employment action,” which may be done by "for example [by] demonstrating that the non-retaliatory reason is pretextual."

The Circuit Court concluded by stating that Plaintiff "has not met her burden of producing 'sufficient evidence to demonstrate that' [she] would not have been removed [from her positions] from the graduate advisor and fellowship coordinator positions 'in the absence of the retaliatory motive.”

Click HERE to access the Circuit Court's decision.

 

Permanent New York State Commissioner of Education designated

On February 8, 2021, the New York State Board of Regents announced that it had unanimously elected Dr. Betty A. Rosa to serve as New York State's Commissioner of Education.

Dr. Rosa, a nationally recognized education leader, received an Ed. M. and Ed. D. in Administration, Planning and Social Policy from Harvard University. She also holds two other Master of Science in Education degrees, one in Administration and Supervision and the other in Bilingual Education from the City College of New York and Lehman College respectively and a B.A. in psychology from the City College of New York. She has more than 30 years of instructional and administrative experience with an expertise in inclusive education, cooperative teaching models, student achievement and policy implementation.

Regent Judith Chen, a member of the search committee, said, "We set our goal to find an individual with exceptional qualities of leadership, statesmanship and unquestionable integrity … During our extended search process, my colleagues and I determined that Dr. Rosa stood above all others."

 

 

A two-year gap between the employee's alleged protected activity and the alleged adverse action by the employer held "too remote to warrant an inference of causal connection."

The Appellate Division affirmed Supreme Court's determination that Petitioner [Plaintiff]  failed to demonstrate that the New York City Department of Education's [DOE] determination to discontinue her probationary position as assistant principal "'was for a constitutionally impermissible purpose, violative of a statute, or done in bad faith."

Plaintiff' had alleged that the discontinuance was in retaliation for her purported refusal to negatively evaluate two teachers. Supreme Court found that Plaintiff's  "unsupported allegation failed to evidence bad faith". 

The Appellate Division's decision indicates that there was a two-year gap between the alleged protected activity and thus any adverse action by DOE was "too remote to warrant an inference of causal connection."

In addition, the Appellate Division said that the record "includes evidence of disciplinary letters showing dissatisfaction with [Plaintiff's] work performance that predate the alleged protected activity, demonstrating DOE's good faith and its refuting the allegation of retaliation.

The Appellate Division also opined that Plaintiff's claim that her annual work performance ratings are unfair and inaccurate, even if true, did not establish bad faith on the part of DOE in view of the fact that Plaintiff failed to show that the issuance of the unsatisfactory rating which preceded her discontinuance was arbitrary and capricious.

Click HEREto access the Appellate Division's decision.

 

New York Employment Law: The Essential Guide

New York Employment Law: The Essential Guide Editors Louis P. DiLorenzo and Jeffrey Kehl have called upon the collective experience of dozens of contributors to compile this new reference book on New York employment law. Covering a wide range of state substantive and regulatory employment issues, New York Employment Law: The Essential Guide is formatted in an easily accessible, Question-and-Answer format and offers clear and succinct responses to more than 450 employment law questions.

Topics addressed include hiring and interviewing employees, employee and employer rights and obligations, the worker’s compensation framework and regulatory schemes for maintaining a safe workplace, disability issues, unemployment insurance, unfair competition, discrimination in the workplace, and disciplinary policies and procedures.

For more information click HERE

Municipal and school district audits issued during the week ending February 5, 2021

New York State Comptroller Thomas P. DiNapoli announced the following municipal and school district audits were issued during the week ending February 5, 2021.

Click on the text highlighted in color to access the complete audit report

 MUNICIPAL AUDITS

Town of Owasco – Real Property Tax Exemptions Administration (Cayuga County)  

The assessor did not properly administer select real property tax exemptions. Granted property exemptions were not always properly applied for or supported. Of the 99 property tax exemptions that auditors reviewed, 75 of the exemptions totaling over $4.1 million were not properly applied for or supported. Property owners received $4,014 in 2019 town tax reductions for these unsupported exemptions.

 

Stamford-Harpersfield-Kortright Fire District – Financial Activities (Delaware County)  

The board did not establish adequate controls or provide adequate fiscal oversight of the treasurer. As a result, district assets were not safeguarded. The board did not adequately monitor fiscal operations and properly document disbursement approvals. The board also did not conduct required audits or adopt a procurement policy, investment policy or code of ethics, as required. Although the treasurer’s financial records and reports that auditors reviewed were accurate, and financial transactions were appropriate and properly accounted for, the treasurer performed all financial duties, including receiving and disbursing cash, signing district checks and maintaining the accounting records, with no oversight.

 

SCHOOL DISTRICT AUDITS

Groton Central School District – Cash Management (Cayuga County, Cortland County and Tompkins County)

School district officials did not maximize interest earnings. During the audit period, the district’s interest earnings totaled $72,555, but the district could have earned another $367,963 if officials invested available funds in a financial institution that offered higher interest rates. Business officials did not develop and manage a comprehensive investment program or comply with the district’s board of education’s investment policy. District officials should solicit interest rate quotes to maximize interest earnings and prepare monthly cash flow forecasts.

 

The Workers' Compensation Law provides the exclusive remedy if an employee is injured by a coworker while both are performing the duties of their positions

In an action to recover damages for personal injuries, the petitioners* appealed the Supreme Court granting the respondents, a Police District and a coworker, respective motions to dismiss the complaint insofar as they were named as a defendants.

The genesis of this action was an accident involving a police officer [Plaintiff] operating a Police District police motorcycle in his official capacity colliding with a Police District vehicle operated by another Police District police officer. Supreme Court granted the Police District's motion to dismiss Plaintiffs' complaint based on the Police District's argument that Plaintiffs' action was barred by the exclusivity provisions of the Workers' Compensation Law. Plaintiffs appealed the court's ruling.

The Appellate Division held that Supreme Court "properly granted" the Police District's motion explaining that in considering a motion to dismiss a complaint pursuant to CPLR 3211(a)(1), "the documentary evidence must utterly refute the plaintiff's factual allegations, conclusively establishing a defense as a matter of law."

Citing Gould v Decolator, 121 AD3d 845, the Appellate Division observed that the Police District had submitted documentary evidence conclusively establishing that the Petitioners' causes of action insofar as asserted against it were barred by the exclusivity provisions of the Workers' Compensation Law.

In addition, the Appellate Division opined that Supreme Court properly awarded summary judgment to Plaintiff''s coworker as the Workers' Compensation Law was "designed to ensure that an employee injured in the course of his or her employment will be made whole and to protect a co-employee who, acting within the scope of his or her employment, caused the injury." Further, the court observed that Workers' compensation qualifies as an exclusive remedy when both the plaintiff and the defendant are acting within the scope of their employment, as co-employees, at the time of injury," citing Macchirole v Giamboi, 97 NY2d 147. 

The Appellate Division also noted that §29[6] of the Workers' Compensation Law provides that the right to compensation or benefits under this chapter, "shall be the exclusive remedy to an employee ... when such employee is injured or killed by the negligence or wrong of another in the same employ" and a coworker has the protection of this exclusivity provision if he "was acting within the scope of his employment and was not engaged in a willful or intentional tort."

The Appellate Division held that, in this instance, the defendant police officer had established his prima facieentitlement to judgment as a matter of law dismissing the complaint insofar as asserted against him by establishing that both he and the Plaintiff were co-employees acting within the scope of their employment when the Plaintiff was injured.

* A police officer and his spouse suing derivatively were the petitioners in this action.

Click HERE to access the Appellate Division's decision.

 

New York State Comptroller appoints senior budget and policy staff

On February 3, 2021 New York State Comptroller Thomas P. DiNapoli announced the appointment of Maria Doulis as deputy comptroller and Todd Scheuermann as assistant comptroller in the Division of Budget and Policy Analysis. These appointments are to fill currently vacant positions.

Ms. Doulis is a recognized expert on New York’s budget and fiscal issues and has broad experience in leading policy and research development. She has written extensively on government budgeting, labor relations, public workforce and infrastructure issues, and is well-respected for her ability to distill complex research into understandable and actionable reports. She was most recently the vice president for Strategy, Operations and Communications at the Citizens Budget Commission (CBC), where she oversaw the organization’s research, operations, communications and other critical functions. Ms. Doulis was also the director of NYC studies and held several research positions at CBC. She has served as an adjunct lecturer and taught a capstone course for graduate students.

She has a bachelor’s degree in Political Science from Queens College, a master’s degree in Public Administration from George Washington University, and completed her doctoral coursework in public policy and quantitative research methods at the Robert F. Wagner Graduate School of Public Service at New York University.

Mr. Scheuermann has held high-level positions in the New York State Senate and the state Division of the Budget over his 25-year career in state government.

Prior to joining the Comptroller’s office, Mr. Scheuermann was the secretary to Senate Finance Committee. He oversaw a team of budget and revenue analysts and was the lead budget negotiator for the Senate Majority Conference. He spent the greater part of his professional career in different positions within the state Division of the Budget, developing budget and policy recommendations for major programs and state agencies.

He has a bachelor’s degree in Political Science from the University of Illinois Urbana Champaign and a master’s degree in Public Administration from Ohio State University.

 

An administrative penalty or sanction must be sustained by a judicial tribunal absent a showing that the penalty is shocking to one's sense of fairness

The petitioner [Plaintiff] in this CPLR Article 78 proceeding was found to have violated 48 RCNY 6-25[a][9], a provision prohibiting a representative of a party appearing in a proceeding before Office of Administrative Trials and Hearings [OATH] from submitting any documents "which he or she knows, or reasonably should have known, to be false, fraudulent or misleading."

OATH found Plaintiff had violated 48 RCNY 6-25[a][9] by submitting "fraudulent receipts on behalf of two separate clients in support of their claims" and permanently barred Plaintiff from appearing before it as a nonattorney representative. Plaintiff appealed

Supreme Court overturned OATH's decision and remanded the matter to it "for an in-person hearing on the issue of whether [Plaintiff] had violated OATH's rules." OATH, in turn, appealed the Supreme Court's ruling.

The Appellate Division, citing Matter of Kelly v Safir, 96 NY2d 32, reversed the Supreme Court's decision on the law, explaining that an administrative penalty or sanction must be upheld unless it is "so disproportionate to the offense as to be shocking to one's sense of fairness."

OATH had determined the Plaintiff had submitted fraudulent receipts on behalf of two separate clients in support of their claims that they had missed their hearing dates because their cars broke down on their way to their separate hearings. The Appellate Division held that "[u]nder the circumstances, the penalty here is not shocking to one's conscience."

In addition, the Appellate Division noted that the record indicated that Plaintiff was given the opportunity to submit a written rebuttal to the charges after he was informed of the claims made against him and that OATH reviewed his submission before rendering its final determination.

The Appellate Division, observing that Plaintiff had the opportunity to submit a written rebuttal, opined that this opportunity sufficed "as a remote method of appearing before the Chief Administrative Law Judge, and is allowed for by OATH's own rules," citing  Matter of Thornton v New York City Dept. of Educ., 167 AD3d 444.

Click HEREto access the text of the Appellate Division's opinion.

Determining if a private entity is required to pay its employees assigned to provide services to a public entity "prevailing wages and supplements"

Executive Cleaning Services Corporation [Cleaning] employed six individuals to perform cleaning services at the Ossining Public Library [Library] pursuant to a agreement between the parties. Library, however, "did not represent that it was a public agency or that the prevailing wage law applied" until a Cleaning employee told Library that "Cleaning had failed to provide compensation for the work performed under the contract."*  

Library then notified Cleaning that it, as a public employer subject to Article 9 of the New York State Labor Law, would withhold final payment under the agreement until the prevailing wage issue was resolved. Library also advised the Department of Labor [Department] of the employee's complaint. This resulted in the Department's Bureau of Public Work investigating the matter and concluding that the service Cleaning was providing Library was subject to the prevailing wage provisions of Article 9.

Ultimately the Commissioner of Labor affirmed, in full, its hearing officer's findings and recommendations that:

1. Assessed Cleaning for an underpayment of $16,671.57 in wages and supplements;

2. Determined that Cleaning's underpayment was non-willful "[g]iven [Cleaning's] inexperience, and [Library's] failure to provide a written contract and prevailing wage-rate schedules;" and

3. Cleaning be assessed interest at the rate of 6% per year on its underpayment, as well as a civil penalty in the amount of 5% of the underpayment and interest.

Cleaning filed a CPLR Article 78 challenging the Commissioner's decision coupled with a petition for declaratory judgment seeking, among other things, a court determination that its employees were not subject to the prevailing wage provisions of Labor Law Article 9 for services provided Library because [1] Library was not a public agency within the meaning of Labor Law §230(3) and [2] the work performed was not "construction-like" labor.

The Appellate Division agreed with Cleaning that the work performed for Library by its employees was not subject to the prevailing wage provisions of Labor Law Article 9, explaining that:

1. §17 of Article I, of the New York State Constitution provides, in pertinent part, that "[n]o laborer, worker or mechanic, in the employ of a contractor or sub-contractor engaged in the performance of any public work ... shall ... be paid less than the rate of wages prevailing in the same trade or occupation in the locality within the state where such public work is to be situated, erected or used;"

2. This constitutional mandate is implemented by Labor Law Article 8, which, in pertinent part, requires the payment of prevailing wages to "laborers, work[ers] or mechanics" performing construction-like labor in connection with certain public work contracts, citing Labor Law §220[3][a]; and

3. Article 9 of the Labor Law extended such prevailing wage protections to certain types of service contracts and, in particular, Labor Law §231[1] provides that "[e]very contractor shall pay a service employee under a contract for building service work a wage of not less than the prevailing wage in the locality for the craft, trade or occupation of the service employee" and  Labor Law §230[2] provides that "any person performing work in connection with the care or maintenance of an existing building ... for a contractor under a contract with a public agency** which is in excess of [$1,500]" and expressly encompasses "building cleaner[s]."

The Appellate Division, citing Matter of M.G.M. Insulation, Inc. v Gardner, 20 NY3d at 475, opined that the Court of Appeals rejected the proposition that "an entity may be considered the 'functional equivalent' of a public agency for prevailing wage purposes"***and held that "Executive Cleaning's contract with [Library] is not subject to the prevailing wage provisions of Labor Law Article 9," and annulled the Commissioner's determination.****

In the words of the court as Cleaning's agreement with Library was "not subject to the prevailing wage provisions of Labor Law Article 9, the Commissioner's determination must be annulled" and "in light of our determination, [Cleaning's] remaining contentions are academic." 

However, citing  Matter of Paladino v Board of Educ. for the City of Buffalo Pub. Sch. Dist., 183 AD3d 1043, the Appellate Division, noting that Cleaning's request for declaratory relief is not authorized in a proceeding transferred to it pursuant to CPLR 7804 (g), severed that part of its action and remitted the issue to Supreme Court "for entry of an appropriate judgment."

* The Appellate Division noted that "a payroll issue delayed the employee's payment, but the employee was eventually compensated."

** Labor Law §230 [3] defines a public agency as "the state, any of its political subdivisions, a public benefit corporation, a public authority or commission or special purpose district board appointed pursuant to law, and a board of education."

*** The Appellate Division, in a footnote in its opinion, confirmed "the existence of authority holding that, as education corporations, public libraries are generally considered to be "separate and distinct from the municipalit[ies] that created [them]."

**** Citing  Matter of Paladino v Board of Educ. for the City of Buffalo Pub. Sch. Dist., 183 AD3d 1043, the Appellate Division noted that as Cleaning's request for declaratory relief is not authorized in a proceeding transferred pursuant to CPLR 7804(g), it severed  that part of this action and remitted it to Supreme Court for entry of an appropriate judgment.

Click HERE to access the Appellate Division's decision.

 

Forfeiture of entitlement to vested retirement benefits by operation of law

Supreme Court denied the CPLR Article 78 petition filed by a former New York City police officer [Plaintiff] seeking a court order annulling the determination of the New York City Police Pension Fund [Fund] denying Plaintiff's application for vested retirement benefits. Plaintiff appealed the Supreme Court's decision, which decision was sustained by the Appellate Division. 

Plaintiff had been earlier terminated by operation of law pursuant to Public Officer Law §30(1)(e) upon his felony conviction of perjury in the first-degree. Although Plaintiff's conviction was subsequently vacated,* his application seeking reinstatement to the New York City Police Department [Department] following the vacation of his conviction was denied. 

Citing Matter of Durudogan v City of New York, 134 AD3d 452, the Appellate Division ruled that Supreme Court had correctly determined that although  Plaintiff had slightly more than 10 years of service with the Department, he forfeited any entitlement to vested retirement benefits upon his dismissal by operation of law pursuant to Public Officers Law §30(1)(e).

The court explained that notwithstanding the vacation of Plaintiff's conviction, the Department, following a hearing, determined that Plaintiff had "committed misconduct unrelated to his perjury conviction that raised serious questions regarding his fitness to serve" and denied his application for reinstatement. The Appellate Division ruled that as Plaintiff failed to appeal the Department's denial of his application for reinstatement, he "remained ineligible for any vested benefits."

Further, the Appellate Division noted that Plaintiff:

1. Failed to comply with the requirement under Administrative Code of City of NY §13-256(a)(4) that he file an application for benefits at least 30 days before "discontinuance of service;" and

2. Did not qualify under Administrative Code §13-256.1(a) to receive benefits "aside from his dismissal, since he lacked at least 20 years of service [in the New York City Police Pension Fund].

The Appellate Division also rejected Plaintiff''s contention that the forfeiture of his pension benefits was "a harsh penalty that shocks one's sense of fairness,"** because this argument was asserted for the first time on appeal and thus "is unpreserved ...  and would not be considered."

* See People v Hadid, 121 AD3d 811

** See Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale and Mamaroneck, Westchester County, 34 NY2d 222.

Click HEREto access the Appellate Division's decision in the instant appeal.

 

Audits and reports issued by the New York State Comptroller during the week ending January 29, 2021

New York State Comptroller Thomas P. DiNapoli announced the following audits were issued during the week ending January 29, 2021.

Click on the text highlighted in color to access the complete audit report.

SCHOOL DISTRICT AUDITS

New York State Comptroller Thomas P. DiNapoli today announced the following school district audits were issued.

Clyde-Savannah Central School District – Network Access Controls (Seneca County and Wayne County) District officials did not ensure that the district’s network access controls were secure. Officials did not regularly review network user accounts and permissions to determine whether they were appropriate or needed to be disabled. Sensitive information technology (IT) control weaknesses were communicated confidentially to officials. Protecting IT assets becomes more critical as the district moves to increased reliance on a remote learning environment and administrative operations due to the COVID-19 pandemic.

Van Hornesville-Owen J. Young Central School District – Financial Management (Herkimer County and Otsego County) The board and district officials did not effectively manage financial condition. The practice of over-estimating appropriations each year and annually appropriating fund balance that was not needed to finance operations contributed to the district maintaining a surplus fund balance that exceeded the statutory limit by $1.5 million and resulted in higher tax levies than necessary.

Fiscal Stress Monitoring System Report

Comptroller Thomas P. DiNapoli’s Fiscal Stress Monitoring System indicates that 31 school districts are susceptible to some level of fiscal stress for the school year ending on June 30, 2020. DiNapoli said “This is a time of unprecedented uncertainty as the COVID-19 pandemic continues to disrupt school district operations and finances” and urged school district leaders to closely monitor their financial conditions, "even if their fiscal stress scores were low in the early days of the crisis.”

Click HEREto access the Comptroller's report.

###

Find out how your government money is spent at Open Book New York. Track municipal spending, the state's 180,000 contracts, billions in state payments and public authority data. Visit the Reading Room for contract FOIL requests, bid protest decisions and commonly requested data.