Applying the Doctrine of Laches barring a party from seeking judicial or quasi-judicial relief because such action is determined to be untimely

If a petitioner fails to demand for relief within a reasonable time after the right to make it occurs, or knows or should know of facts indicating a clear right to relief, the petitioner's claim can be barred by the Doctrine of Laches. This was the situation in the instant CPLR Article 78 action in which Petitioner commenced a CPLR Article 78 proceeding seeking reinstatement of her employment with the Manchester-Shortsville Central School District [District].

During the 2019-2020 school year, Petitioner was employed by the District as a full-time English Language Arts (ELA) teacher. However, in June 2020, Petitioner's position was changed from full to part time. Petitioner's name was placed on a "preferred eligible list of candidates for appointment to a vacancy" pursuant to Education Law §3013(3)(a).* Subsequently the District posted an opening for a full-time ELA teacher. Petitioner applied for the opening and went through the formal application process, but when she was offered the position, she rejected the offer.

After the District hired an individual to fill the vacancy, Petitioner submitted a demand that she be recalled to her prior position pursuant to Education Law §3013(3)(a). The District refused Petitioner's demand and Petitioner commenced the instant CPLR Article 78 proceeding by filing a petition on November 10, 2021. Supreme Court effectively granted the District motion to dismiss Plaintiff's petition and Plaintiff appealed.

The Appellate Division, however, sustained Supreme Court's dismissal of Plaintiff's petition as untimely. The Appellate Division opined that, where, as here, a proceeding is in "the nature of mandamus to compel, it [is] required to have been commenced within four months after the refusal by [the] respondent, upon the demand of [the] petitioner, to perform its duty", citing Matter of Speis v Penfield Cent. Schs., 114 AD3d 1181.

The Appellate Division explained that;

1. "The term laches, as used in connection with the requirement of the making of a prompt demand in mandamus proceedings, refers solely to the unexcused lapse of time and does not refer to the equitable doctrine of laches", citing Granto, 148 AD3d at 1695"; and

2. "[T]he four-month limitations period of CPLR Article 78 proceedings has been treat[ed] ... as a measure of permissible delay in the making of the demand", citing Matter of Norton v City of Hornell, 115 AD3d 1232, lv denied 23 NY3d 907.

The Appellate Division conclude that under the circumstances, Petitioner knew or should have known of facts that gave her a clear right to relief as of April 19, 2021, when the District posted the opening for the full-time ELA teacher position. Petitioner, however, did not demand that she be recalled to her prior position until August 31, 2021, beyond the relevant four-month limitations period and thus "the proceeding is barred by the doctrine of laches."

* Petitioner was offered, and accepted, the position of a part-time ELA teacher, from which position Petitioner subsequently resigned for financial reasons.

Click HERE to access the Appellate Division's decision posted on the Internet.

 

Applicant for accidental disability retirement must show the disability resulted from an accident within the meaning of the Retirement and Social Security Law

Petitioner filed an application for accidental disability retirement benefits alleging that he was permanently disabled due to posttraumatic stress disorder and injuries to his back and left knee as the result of the suspect's discharge of a firearm in Petitioner's direction and Petitioner's injury as a result of his attempting to scale a fence in the process of apprehending the suspect.

The New York State and Local Police and Fire Retirement System denied Petitioner's application, finding that the incidens giving rise to his application for accidental disability retirement benefits did not constitute an accident within the meaning of Retirement and Social Security Law [RSSL] §363. Following a hearing, the Comptroller adopted the Hearing Officer's decision, and this CPLR Article 78 proceeding ensued.

The Appellate Division, citing Matter of Kelly v DiNapoli, 30 NY3d 674, sustained the Comptroller's decision, noting, as is relevant here, it is well established that an injury which occurs in the course of an activity undertaken in the performance of the ordinary employment duties of a police officer is not an accidental injury within the meaning of RSSL §363.

The court opined that the neither the suspect's discharge of a firearm in Petitioner's direction nor Petitioner's injury resulting from his attempt to scale a fence in the process of apprehending a suspect were the result of an accident within the meaning of RSSL §363. Rather, said the Appellate Division, Comptroller's determination is supported by substantial evidence the injuries suffered by Petitioner resulted from an inherent risk in Petitioner performing his duties as a police officer.

* See Matter of Grall v DiNapoli, 196 AD3d 962.

Click HERE to access the decision of the Appellate Division posted on the Internet.

 

Seeking documents or information pursuant to New York State's Freedom of Information Law

In the Matter of Law Offices of Cory H. Morris [Plaintiff] v Suffolk County [Respondent], Plaintiff appealed the judgment of Supreme Court [1] denying Plaintiff's petition seeking the disclosure of certain records pursuant to New York State's Freedom of Information Law [FOIL];* [2] denying an award of attorney's fees and litigation costs; and [3] dismissing the proceeding.

The Appellate Division modified and reinstated, on the law, those branches of the petition which sought to compel disclosure of certain records pursuant to FOIL and for an award of attorney's fees and litigation costs. 

The Appellate Division then remanded the matter to Supreme Court for further proceedings, explaining a number of FOIL essentials, including the follows:

1. "In order to promote open government and public accountability, FOIL imposes a broad duty on government to make its records available to the public (Matter of Tuckahoe Common Sch. Dist. v Town of Southampton, 179 AD3d 929;**

2. "The statutory time to respond to a FOIL request for records is 'within five business days of the receipt of a written request,' and the agency should respond by 'mak[ing] such record available to the person requesting it, deny[ing] such request in writing or furnish[ing] a written acknowledgment of the receipt of such request and a statement of the approximate date ... when such request will be granted or denied'" ... that "[d]enial of access shall be in writing stating the reason therefor and advising the person denied access of his or her right to appeal to the person or body designated to determine appeals, and that person or body shall be identified by name, title, business address[,] and business telephone number;

3. "21 NYCRR 1401.7(c) provides that a FOIL request is deemed denied if there is no response to the request within five business days (Matter of Madden v Village of Tuxedo Park, 192 AD3d 802);

4. "[A]ny administrative appeal of a denial [must] be undertaken within 30 days of the denial (Matter of Snyder v Nassau County, 199 AD3d at 924);

5. "A petitioner who does not 'appeal[ ] the denial in writing' will generally be deemed to have 'failed to exhaust its administrative remedies and, thus, [may] not resort to a judicial forum to gain relief' (Matter of Bradhurst Site Constr. Corp. v Zoning Bd. of Appeals, Town of Mount Pleasant, 128 AD3d 817, citing Doe v Lake Grove Sch., 107 AD3d 841;

6. However, where, as here, the agency "fails to inform the person [or entity] making the FOIL request that further administrative review of the determination is available, the requirement of exhaustion [of administrative remedies] is excused (Matter of Lepper v Village of Babylon, 190 AD3d 738, Matter of Barrett v Morgenthau, 74 NY2d 907; [see Matter of Rivette v District Attorney of Rensselaer County, 272 AD2d 648];

7. Plaintiff's alleged "aware[ness] ... of the availability of administrative review ... did not relieve the agency of its responsibility to advise the [Plaintiff] that such review was available, and of the procedures for securing it (Matter of Orange County Publs. v Kiryas Joel Union Free School Dist., 282 AD2d 604);

8. "Contrary to the [Respondents'] contention, the proceeding was not rendered academic by its post-commencement disclosure of records in response to some of the [Plaintiff] requests, since an actual controversy between the parties still exists concerning whether the [Plaintiff's] remaining requests are exempt from disclosure (see Matter of Barry v O'Neill, 185 AD3d 503, 505; cf. Matter of McDevitt v Suffolk County, 183 AD3d 826; Matter of Convers v County of Orange, 139 AD3d 1060;

9. The Plaintiff's "request for attorney's fees and other costs is ... not academic, nor would it have been rendered academic even if the [Respondent] had eventually provided all of the materials sought (see Matter of Acme Bus Corp. v County of Suffolk, 136 AD3d 896; and

10. "Since that branch of petition which was to compel disclosure of certain records remains undetermined in light of [the Appellate Division's] determination," the Appellate Division held that "the [Plaintiff's] request for an award of attorney's fees and litigation costs is premature (Matter of Jewish Press, Inc. v New York City Dept. of Educ., 183 AD3d 731; see Matter of McDevitt v Suffolk County, 183 AD3d at 828)."

Accordingly, as noted earlier, the Appellate Division reinstated those branches of the petition which were to compel disclosure of certain records and for an award of attorney's fees and litigation costs, and remitted the matter to Supreme Court, Suffolk County, "for further proceedings consistent herewith and a new determination of those branches of the petition."

* Public Officers Law, Article 6.

** N.B.: Typically submitting a "formal FOIL request" pursuant to administrative procedures established by the agency is required to obtain the documents or information sought. However, the release of certain public records may be prohibited by statute such as Education Law §1127 and §33.13 of the Mental Hygiene Law. Further, the agency may decline to provide documents or information sought pursuant to a FOIL request, or otherwise, that fall within the ambit of one or more of the "FOIL exceptions" that the agency could rely upon in denying a FOIL request, in whole or in part, absent a prohibition in law.

Click HERE to access the Appellate Divisions decision posted on the Internet.

 

NYC Health + Hospitals Struggles With Temporary Staffing Costs

 Click on text in COLOR to access the full report

A new report released on May 4, 2023, by State Comptroller Thomas P. DiNapoli found the COVID-19 pandemic exacerbated pre-existing staffing pressures, particularly a shortage of staff nurses, in NYC Health + Hospitals (H+H) facilities, leading to an increased reliance on temporary nurses and higher staffing costs.

Between February 2020 and September 2022, temporary staffing at H+H grew by 83% to offset the loss of staff nurses while managing demand for its services. It resulted in unexpected costs of $125 million in Fiscal Year (FY) 2023, which the State Comptroller’s office anticipates will remain elevated through at least FY 2024.

“For many NYC residents, NYC Health + Hospitals is a lifeline to quality health care, but it is a public health system struggling to get fully back on its feet after the stress of the pandemic,” DiNapoli said. “Hospitals and their staff were pushed to the brink during the pandemic. H+H lost hundreds of nurses, forcing them to hire temporary staff to manage demand due to the pandemic and its fallout, which increased salary costs and created training and other challenges.”

This report is an update to DiNapoli’s 2021 report, NYC Health + Hospitals Check-Up: The Impact of COVID-19. DiNapoli’s office routinely examines the finances and issues impacting the fiscal health of H+H.

The number of registered nurses (RNs) and licensed practical nurses at H+H facilities declined by 6% and 31%, respectively, from February 2020 to September 2022. As the pandemic persisted, RN staffing levels in H+H facilities declined at a greater rate than they did in the city overall and statewide. RN employment also declined in New York City and the rest of the state between 2019 and 2022 by 1.1% and 5.3%, respectively. Currently, H+H’s vacancy rate for nurses is 15%.

Hiring temporary staff to deal with the pandemic and its fallout on hospital staff is driving up hospital costs across New York City, including at H+H. It is estimated that in New York, contract labor costs across health care systems and hospitals have increased by more than 110% of pre-pandemic levels, with average temporary nurse salaries increasing from about $1,800 per week pre-pandemic to about $3,300 per week in March 2022.

New York City has historically provided financial support to H+H. It funds the non-federal share of supplemental Medicaid payments, among other costs, since H+H provides care to a large share of the city’s uninsured and Medicaid patients.

The city recently announced a new collective bargaining agreement with District Council 37 (DC 37) that it assumes will set a wage pattern for other unions, including for employees at H+H. A review of the city’s recently released budget update suggests collective bargaining costs at H+H are assumed to be fully annualized at $680 million, with nurses to make up about 29% of the total.

Related Reports 

NYC Health + Hospitals: Nurse Staffing Trends, May 2023

Issues Facing New York City's Agencies: New York City Health + Hospitals, February 2022

NYC Health + Hospitals Check-Up: The Impact of COVID-19, September 2021

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Track state and local government spending at Open Book New York. Under State Comptroller DiNapoli’s open data initiative, search millions of state and local government financial records, track state contracts, and find commonly requested data.

Arbitrating disputes involving health insurance benefits for retired employees

Citing Granite Rock Co. v. Int'l Bhd. of Teamsters, 561 U.S. 287, the U.S. Circuit Court of Appeals, Second Circuit noted "It is well settled in both commercial and labor cases that whether parties have agreed to submit a particular dispute to arbitration is typically an issue for judicial determination" and "a court may order arbitration of a particular dispute only where the court is satisfied that the parties agreed to arbitrate that dispute." Further, said the court, "ordinary principles of contract law guide the inquiry into whether an arbitration agreement was validly formed and whether the parties consented to arbitrate a particular dispute."

That said, the Circuit Court opined that this case required it to decide whether "the grievance-and-arbitration provision of the parties' collective bargaining agreement" covers a dispute concerning the medical insurance benefits that, according to Local Union 97, International Brotherhood of Electrical Workers, AFL-CIO [Union], the Union and the employer, Niagara Mohawk Power Corporation, agreed to provide to certain retired employees, former members of the Union.

The Circuit Court concluded that the Union bargained both for health insurance benefits for retired employees and for a grievance procedure that included, where necessary, access to arbitration. Expressing no view regarding the merits of the Union's grievance as "that is a question for the arbitrator," the Circuit Court held that "it is clear that the parties intended to arbitrate this dispute" and affirmed the judgment of the federal district court granting the Union's motion to compel arbitration.

Click HERE to access the decision of the U.S. Circuit Court of Appeals, Second Circuit.

 

 

Employer's rejecting hearing officer's recommendation to approve employee's GML §207-c application for benefits held arbitrary and capricious under the circumstances

A Correction Officer [Plaintiff] discovered three laundry bags in the middle of a hallway on the housing unit floor. Believing the bags blocking the hallway was a safety concern to persons walking the hallway, Plaintiff attempted to move the bags close to the wall and  sustained a shoulder injury while attempting to move one of the bags. Plaintiff's Employer [Respondent] contended Plaintiff's injury did not occur as a result of the performance of duties and rejected Plaintiff's application for General Municipal Law §207-c disability benefits. Pursuant to a memorandum of agreement between, among others, Plaintiff's union and the Respondent, a hearing was held on the issue whether Petitioner's injury occurred as the result of the performance of duties.

The Hearing Officer found that the laundry bags in the hallway posed a safety hazard and that Plaintiff had a duty to remedy the situation immediately. Although the Hearing Officer recommended that Plaintiff receive GML §207-c disability benefits, Respondent issued a final determination rejecting the Hearing Officer's recommendation and denied Plaintiff's application for §207-c disability benefits. Plaintiff then commenced the instant proceeding before the Appellate Division. *

The Appellate Division explained that its review of this administrative determination was limited, and subject to the following considerations:

1. Was the determination affected by an error of law or was it arbitrary and capricious or an abuse of discretion and a determination "is arbitrary and capricious when it is taken without sound basis in reason or regard to the facts".

Passing these tests:

2. An agency's determination is entitled to great deference; and

3. A court must sustain the determination even if the court concludes that it would have reached a different result than the one reached by the agency." 

However, in this instance the Appellate Division, citing Matter of Casselman v Village of Lowville, 2 AD3d 1281, concluded that [Petitioner] established "... a direct causal relationship and thus demonstrated ... entitlement to benefits under General Municipal Law §207-c",

Accordingly, the Appellate Division held that the Respondent's decision to deny Plaintiff's application for §207-c benefits was arbitrary and capricious and unanimously annulled the Respondent's decision "on the law without costs" and granted Plaintiff's petition.

* The Appellate Division, citing Erie County Sheriff's Police Benevolent Assn., Inc., 159 AD3d at 1561-1562, consider the merits of Plaintiff's petition notwithstanding the fact the decision at issue was not made as a result of a hearing held, and at which evidence was taken pursuant to direction by law "in the interest of judicial economy."

Click HERE to access the Appellate Division's decision posted on the Internet.

 

The Continuing Violation Doctrine does not apply in situations involving different discrete events of alleged unlawful discrimination by different actors

New York State Supreme Court granted the New York City Department of Education's motion for summary judgment dismissing Plaintiff's claims alleging she has suffered unlawful discrimination because of her disability within the meaning of the New York State and New York City Human Rights Laws. The Appellate Division unanimously affirmed Supreme Court's judgment, without costs.

Plaintiff's claims, said the Appellate Division, were time-barred, as they arose from alleged conduct occurring more than one year before the commencement of this action, citing Campbell v New York City Dept. of Educ., 200 AD3d 488.

Although Plaintiff had contended that the acts of unlawful discrimination she had alleged were in the nature of a continuing violation and thus were not "time-barred", the Appellate Division opined that the Continuing Violation Doctrine did not apply here because Plaintiff's complaint did not allege facts comprising "a single continuing pattern of unlawful conduct" but, rather, alleged "discrete events, involving different actors." 

The U.S. Supreme Court addressed the continuing violation doctrine with respect to alleged acts unlawful discrimination in a workplace situation in National Railroad Passenger Corp. v. Morgan, 122 S. Ct. 206.   

In Morgan, the court, by a 5 to 4 vote, concluded that "a Title VII plaintiff raising claims of discrete discriminatory or retaliatory acts must file his charge within the appropriate time period — 180 or 300 days — set forth in 42 U. S. C. §2000e-5(e)(l). A charge alleging a hostile work environment claim, however, will not be time barred so long as all acts which constitute the claim are part of the same unlawful employment practice and at least one act falls within the time period. Neither holding, however, precludes a court from applying equitable doctrines that may toll or limit the time period."

Click HERE to access the Appellate Division's decision posted on the Internet.

A self-insured city fire department not entitled to reimbursement for certain workers' compensation benefits it had paid to the claimant firefighter

The Workers' Compensation Board [Board] found a city fire department [Employer] was not entitled to an offset or reduction of workers' compensation benefits in a manner that would reduce the workers' compensation benefits due a firefighter [Claimant]. 

Although the Employer had contended that as a result of then receiving both workers' compensation benefits and accidental disability retirement benefits the claimant was being unjustly enriched, the Board held that the accidental disability retirement benefit payments that the Employer was making under General Municipal Law §207-a (2) to Claimant did not constitute wages within the meaning of Workers' Compensation Law §25(4)(a) and, therefore, there was no double recovery or unjust enrichment by Claimant. Employer appealed the Board's determination.

The Appellate Division rejected Employer's argument that either Workers' Compensation Law §25(4)(a) or §30(2) gave Employer the right to a credit, reimbursement and, or, reduction of workers' compensation benefits it had paid to Claimant.

Citing Matter of Harzinski v Village of Endicott, 126 AD2d at 58, the Appellate Division opined that the benefit payments the Employer made to Claimant pursuant to General Municipal Law §207-a(2) do not constitute wages within the meaning of Workers' Compensation Law §25(4)(a) or §30(2) because Claimant was not rendering any services to the Employer while accidental disability retirement benefits were being paid to Claimant.

In this instance Claimant had been awarded, and was then receiving, accidental disability retirement benefits. In addition, the firefighter received benefits pursuant to General Municipal Law §207-a (2), which, in pertinent part, provides as follows:

"... such firefighter shall continue to receive from the municipality or fire district by which he or she is employed, until such time as he or she shall have attained the mandatory service retirement age applicable to him or her or shall have attained the age or performed the period of service specified by applicable law for the termination of his or her service, the difference between the amounts received under such allowance or pension and the amount of his or her regular salary or wages."

Click HERE to access the decision of the Appellate Division posted on the Internet.

 

 

Unlawful termination in violation of the federal Family and Medical Leave Act alleged by former employee

An employee [Complainant] was appointed by the Power Authority of the State of New York [Authority] and some ten years later the Authority terminated him from his position. 

Complainant, contending that he was fired from his position because of an underlying medical condition which required him to take time off under color of the federal Family and Medical Leave Act [FMLA], 29 U.S.C. §2601, initiated the instant litigation in federal district court challenging his dismissal by the Authority.

The federal district court, however, concluded that the Authority provided legitimate reasons for terminating the Complainant from his position:

[1] poor performance; 

[2] failure to adequately communicate his absences; and

[3] misuse of an Authority credit card.

Further, said the district court, Complainant failed to show the reasons advanced by the Authority in support of its decision to dismiss the Complainant were pretextual.

The United States Circuit Court of Appeals, Second Circuit, affirmed the judgment of the district court.

Click HERE to access the full text of the Circuit Court's ruling.

 

 

NYPPL's public personnel law handbooks, listed below, are available for purchase from BookLocker.com, Inc.

The Discipline Book - A concise guide to disciplinary actions involving public officers and employees in New York State set out as an e-book. For more about this electronic handbook, click HERE. 

A Reasonable Disciplinary Penalty Under the Circumstances- The text of this publication focuses on determining an appropriate disciplinary penalty to be imposed on an employee in the public service in instances where the employee has been found guilty of misconduct or incompetence. For more information click HERE. 

Disability Benefits: payable to firefighters, police officers and other public sector personnel - an e-book focusing on retirement for disability under the NYS Employees' Retirement System, the NYS Teachers' Retirement System, General Municipal Law Sections 207-a/207-c and similar statutes providing benefits to employees injured both "on-the-job" and "off-the-job." For more information about this e-book click HERE. 

The Layoff, Preferred List and Reinstatement Manual -This e-book reviews the relevant laws, rules and regulations, and selected court and administrative decisions. Click HERE for more information.

 

Judicial review of a determination and awards by the New York State Commissioner of Human Rights

The New York State Division of Human Rights [Division], after a hearing, found that the Town [Employer] had unlawfully discriminated against the Complainant on the basis of her disability. 

Employer appealed the Divisions determinations and awards pursuant to Executive Law §298 and Article 78 of the CPLR. 

The Division cross-petitioned to enforce its determinations and the amounts it had awarded Complainant for back pay, compensatory damages for mental anguish and the civil penalty it had assessed on Employer.

The Appellate Division, "on the law and as a matter of discretion," reduced the amounts awarded Complainant by the Division for [1] back pay, [2] compensatory damages for mental anguish, [3] the civil penalty the Division had assessed on Employer and [4] otherwise confirmed the Division's determinations.

The Appellate Division's decision is set out below:

 

Matter of Town of Hempstead v New York State Div. of Human Rights

2023 NY Slip Op 02129

Decided on April 26, 2023

Appellate Division, Second Department

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

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

Decided on April 26, 2023 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
MARK C. DILLON, J.P.
CHERYL E. CHAMBERS
WILLIAM G. FORD
LILLIAN WAN, JJ.

2019-14251
(Index No. 608005/19)

[*1]In the Matter of Town of Hempstead, petitioner,

v

New York State Division of Human Rights, et al., respondents.

Berkman, Henoch, Peterson & Peddy, P.C., Garden City, NY (Donna A. Napolitano and Nicholas Tuffarelli of counsel), for petitioner.

Caroline J. Downey, General Counsel, Bronx, NY (Toni Ann Hollifield of counsel), for respondent New York State Division of Human Rights.

Lisa Whitaker, Roosevelt, NY, respondent pro se.

 

DECISION & JUDGMENT

Proceeding pursuant to Executive Law §298 and CPLR article 78 to review a determination of the Commissioner of the New York State Division of Human Rights dated April 16, 2019, and cross-petition by the New York State Division of Human Rights pursuant to Executive Law §298 to enforce the determination. The determination, after a hearing, found that the petitioner unlawfully discriminated against the complainant on the basis of her disability, awarded her back pay in the principal sum of $69,865.64, for the period from November 8, 2012, until the date of her retirement on June 8, 2014, plus interest at the rate of 9% per year from August 21, 2013, not offset by Workers' Compensation benefits received, and compensatory damages for mental anguish in the principal sum of $40,000, and assessed a civil penalty in the principal sum of $35,000.

ADJUDGED that the petition is granted, on the law and as a matter of discretion, without costs or disbursements, to the extent that the award of back pay is reduced from the principal sum of $69,865.64 to the principal sum of $17,779.91, plus interest at the rate of 9% per year from November 8, 2013, the award of compensatory damages for mental anguish is reduced from the principal sum of $40,000 to the principal sum of $10,000, plus interest at the rate of 9% per year from April 16, 2019, and the civil penalty assessed is reduced from the principal sum of $35,000 to the principal sum of $10,000, plus interest at the rate of 9% per year from April 16, 2019, the petition is otherwise denied, the determination is otherwise confirmed, and the proceeding is otherwise dismissed on the merits, and the cross-petition is granted to the extent that the determination, as amended, is enforced, and is otherwise denied.

In March 2000, the respondent Lisa Whitaker (hereinafter the complainant) was hired by the Town of Hempstead Department of Occupational Resources (hereinafter DOOR) as a life skills counselor. The complainant's duties included meeting with program participants who had experienced severe difficulties finding employment, counseling them on how to become gainfully employed, and entering information on a computer.

In or about September 2010, the complainant suffered a work-related injury. She submitted to DOOR a note from a doctor which stated that she was "totally disabled" and unable to work. She began receiving Workers' Compensation benefits in or about September 2011. In March 2012, the complainant filed a complaint with the respondent New York State Division of Human Rights (hereinafter the DHR), claiming discrimination in the conditions of her employment.

In October 2012, the complainant asked to return to work, noting that her doctor had advised her that she could work on a reduced schedule two to three days per week, but that she would be unable to type or to lift and carry objects. DOOR advised her in writing that she could not return to work with a reduced schedule and restricted duties. She could either return to work full time, five days per week, with full duties, or she could request a return from Workers' Compensation to full time work, and then upon her return request a partial leave of absence with a reduced schedule of three days per week. She was further advised that she would have to close her Workers' Compensation case before she could be considered for a reduced schedule. The complainant did not reply.

In March 2013, the complainant was diagnosed with major depressive disorder, which was related at least in part to her medical condition. In May 2013, the attorney handling the complainant's proceedings before the DHR requested an adjournment of an upcoming hearing until September 2013 because the complainant was undergoing several surgeries, and was classified as "totally disabled" under the Workers' Compensation law. In July 2013, the attorney submitted an additional adjournment request, and annexed a physician's report dated July 3, 2013, which stated that, because of her back pain, the complainant could not tolerate sitting through even a short hearing.

On July 15, 2013, the Town advised the complainant that, because she had been on a leave of absence for an occupational injury for in excess of one year, her employment was terminated pursuant to the Civil Service Law, but that she could be reinstated if she were found fit to return to work after a medical examination. In response, the complainant submitted to DOOR a report from another physician which stated that the complainant was able to return to work on full duties as of July 30, 2013. The complainant also requested a pre-termination hearing in accordance with the collective bargaining agreement between the Town and her union. In response to her request for a pre-termination hearing, the Town advised the complainant that in order to return to work she would have to submit a report clearing her to return from the doctor who found her unfit to attend the hearing before the DHR. The complainant then submitted a report from the doctor who found her unfit to attend the hearing before the DHR, which stated that the complainant could return to work "full duty as tolerated." The Town responded that the report was conditional, and that it would not accept the report as proof that the complainant could return to work on full duties.

The Town and the complainant attempted to negotiate a settlement of the proceedings before the DHR that would allow the complainant to return to work, but in December 2013, the complainant's position as life skills counselor was eliminated when DOOR's budget was adjusted. Further negotiations were halted in March 2014, when the complainant reopened her Workers' Compensation claim following an additional surgery on her shoulder. On June 8, 2014, the complainant retired from DOOR. On June 27, 2014, the complainant filed another complaint with the DHR, claiming that she had been forced to retire because she had not been afforded an accommodation for her disability.

After a hearing, an Administrative Law Judge (hereinafter ALJ) concluded that the Town discriminated against the complainant with respect to her disability when it refused to accept her medical documentation that she was fit to return to work full time, failed to inform her of the specific language that it would accept in her medical documentation, and eliminated her position when DOOR's budget was adjusted. The ALJ further determined that the Town's actions had been taken in retaliation for the complainant's litigation before the DHR. The ALJ recommended that the complainant be awarded back pay in the principal sum of $27,477.64, for the 10-month period from August 2013 through June 2014. The ALJ also recommended an award in the principal sum of $40,000 for mental anguish, and the imposition of a civil penalty in the principal sum of $35,000.

In a determination dated April 16, 2019, the Commissioner of the DHR concluded that the petitioner unlawfully discriminated against the complainant when it "refused to permit her to return to work in October of 2012," and failed to provide her with a reasonable accommodation for her disability. The Commissioner acknowledged that the Town informed the complainant that a reduced schedule was possible, but determined that the Town failed to establish that it was unduly burdensome to provide the complainant with typing assistance such as dictation equipment and/or another employee to assist her. The Commissioner increased the award of back pay to the principal sum of $69,865.64, for the period from November 8, 2012, until the date of the complainant's retirement on June 8, 2014, plus interest at the rate of 9% per year from August 21, 2013, not offset by Workers' Compensation benefits received. The complainant's retaliation claim was dismissed. In accordance with the recommendation of the ALJ, the Commissioner awarded the complainant the principal sum of $40,000 for mental anguish, and imposed a civil penalty in the principal sum of $35,000. Thereafter, the Town commenced this proceeding to review the determination, and the DHR cross-petitioned to enforce the determination. By order dated October 10, 2019, the Supreme Court transferred the proceeding to this Court pursuant to CPLR 7804(g).

"The scope of judicial review under the Human Rights Law is extremely narrow and is confined to the consideration of whether the determination . . . is supported by substantial evidence in the record" (Matter of New York State Div. of Human Rights v Roadtec, Inc., 167 AD3d 898, 899; see Rainer N. Mittl, Ophthalmologist, P.C. v New York State Div. of Human Rights, 100 NY2d 326, 331). "Substantial evidence 'means such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact'" (Rainer N. Mittl, Ophthalmologist, P.C. v New York State Div. of Human Rights, 100 NY2d at 331, quoting 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, 180).

The determination that the complainant was entitled to back pay from November 2012, was not supported by substantial evidence in the record. Although a reasonable accommodation may include "job restructuring" (9 NYCRR 466.11[a][2]), "[t]he disabled individual must be able, with or without accommodation, to attain reasonable performance. Reasonable performance is not perfect performance or performance unaffected by the disability, but reasonable job performance, reasonably meeting the employer's needs to achieve its business goals" (9 NYCRR 466.11[d][1][ii]). Here, the complainant testified at the hearing that her position as a life skills counselor required knowledge of computer programs and writing skills, and that her duties included entering information on a computer. Thus, typing on a computer was an essential aspect of her position.

"[I]f an employee has a physical impairment that prevents the employee from performing the core duties of his or her job even with a reasonable accommodation, the employee does not have a disability covered by the statute, and consequently, the employer is free to take adverse employment action against the employee based on that impairment" (Jacobsen v New York City Health & Hosps. Corp., 22 NY3d 824, 834; see Executive Law § 292[21]). The employee bears the burden of proof on whether he or she is able to perform the core duties of his or her job even with a reasonable accommodation, and in this case the complainant failed to satisfy that burden (see Jacobsen v New York City Health and Hosps. Corp., 22 NY3d at 834). Further, requiring DOOR to reassign the complainant's work to coworkers would have been an unreasonable accommodation (see Pembroke v New York State Off. of Ct. Admin., 306 AD2d 185).

The complainant's employment was purportedly terminated pursuant to Civil Service Law § 71, which provides, in pertinent part, that "[w]here an employee has been separated from the service by reason of a disability resulting from occupational injury or disease as defined in the workmen's compensation law, he or she shall be entitled to a leave of absence for at least one year." However, that provision gives the employee the opportunity to seek reinstatement based upon medical certification "that such person is physically and mentally fit to perform the duties of his or her former position."

Here, in August 2013, the complainant sought reinstatement and submitted medical documentation of her fitness for duty. Yet she was not permitted to return to work and her position [*2]was eliminated when DOOR's budget was adjusted.

To make a prima facie showing of a violation of Executive Law § 296(1)(a), which prohibits discrimination in employment based upon a disability, the complainant "must show that (1) he or she is a member of a protected class; (2) he or she was qualified to hold the position; (3) he or she was terminated from employment or suffered another adverse employment action; and (4) the discharge or other adverse action occurred under circumstances giving rise to an inference of discrimination" (Matter of New York State Div. of Human Rights v Roadtec, Inc., 167 AD3d at 900 [internal quotation marks omitted]; see Rainer N. Mittl, Ophthalmologist, P.C. v New York State Div. of Human Rights, 100 NY2d at 330). "Once a prima facie case is made, the burden of production shifts to the employer to rebut the presumption with evidence that the complainant was discharged for a legitimate, nondiscriminatory reason" (Rainer N. Mittl, Ophthalmologist, P.C. v New York State Div. of Human Rights, 100 NY2d at 330). Here, the complainant established she was a member of a protected class, i.e., a person with a disability, her medical evidence indicated that she was capable of assuming full duty, but she suffered an adverse employment action, i.e., the denial of reinstatement, under circumstances giving rise to the inference of discrimination based upon her disability. The Town failed to rebut that presumption. Accordingly, the complainant was entitled to an award of back pay for the 10-month period from August 2013, when the complainant sought reinstatement, through June 2014, when she retired from DOOR. However, the Workers' Compensation benefits she received for that period should have been offset against an award of back pay to prevent a double recovery (see Matter of Grand Union Co. v Mercado, 263 AD2d 923; Matter of Allender v Mercado, 233 AD2d 153). The petitioner is self-insured with respect to Workers' Compensation benefits, therefore there is no risk that an insurance carrier will impose a lien on the award of back pay, resulting in the complainant suffering a double debit (cf. Matter of Rensselaer County Sheriff's Dept. v New York State Div. of Human Rights, 131 AD3d 777).

The ALJ recommended the imposition of a civil penalty in the principal sum of $35,000 based upon her finding of retaliation as well as discrimination in responding to the complainant's efforts for reinstatement in August 2013. Since the Commissioner dismissed the retaliation claim, the civil penalty imposed is disproportionate to the offense (see Matter of Kelly v Safir, 96 NY2d 32, 36; Matter of County of Erie v New York State Div. of Human Rights, 121 AD3d 1564, 1566), and must be reduced to the principal sum of $10,000 (see Matter of Mukattash v Human Rights Commn. of Westchester County, 97 AD3d 584, 586).

Similarly a court will intervene when an award for mental anguish is not reasonably related to the wrongdoing, is not supported by substantial evidence, or does not compare with awards for similar injuries (see Matter of Mutual Apts., Inc. v New York City Commn. on Human Rights, 203 AD3d 1154, 1158). Since the complainant's diagnosis of major depressive disorder occurred in March 2013, before the discriminatory conduct in August 2013, and was initially related at least in part to the complainant's medical condition, the award of the principal sum of $40,000 was not reasonably related to the discriminatory conduct (see Matter of Freudenthal v County of Nassau, 99 NY2d 285, 291; Matter of New York City Tr. Auth. v State Div. of Human Rights, 78 NY2d 217, 219), and must be reduced to the principal sum of $10,000 (see Matter of MTA Trading, Inc. v Kirkland, 84 AD3d 811; Matter of Woehrling v New York State Div. of Human Rights, 56 AD3d 1304, 1306).

Accordingly, the petition must be granted to the extent that the award of back pay is reduced from the principal sum of $69,865.64 to the principal sum of $17,779.91, plus interest at the rate of 9% per year from November 8, 2013, the award of compensatory damages for mental anguish is reduced from the principal sum of $40,000 to the principal sum of $10,000, plus interest at the rate of 9% per year from April 16, 2019, and the civil penalty imposed is reduced from the principal sum of $35,000 to the principal sum of $10,000, plus interest at the rate of 9% per year from April 16, 2019, the petition is otherwise denied, the determination is otherwise confirmed, and the proceeding is otherwise dismissed on the merits, and the cross-petition is granted to the extent that the determination, as amended, is enforced, and is otherwise denied.

DILLON, J.P., CHAMBERS, FORD and WAN, JJ., concur.

ENTER:

Maria T. Fasulo

Clerk of the Court

 

 

The litigation of a CPLR Article 78 petition determined to be barred by the doctrine of res judicata

The Doctrine of Res Judicata prevents a party from bringing a claim once that particular claim has been subjected to a final judgment in earlier litigation where:

(1) the parties are the same; 

(2) the subject matter of the claim is the same; 

(3) the issues are the same and relate to the same subject matter; and 

(4) the capacities of the parties are the same with respect to the subject matter and the issues presented.

The Appellate Division held that the instant CPLR Article 78 proceeding was barred pursuant to the doctrine of res judicata.

Citing Matter of Police Benevolent Assoc. of The City of New York, Inc. v de Blasio, Supreme Court, Richmond County, Feb. 16, 2022, the Appellate Division held that the matters raised in the instant Article 78 petition were the subject of a prior Article 78 proceeding in Richmond County in which Supreme Court issued a valid final judgment on the merits, denying the petition and dismissing the proceeding.

Furthermore, opined the Appellate Division, "the claims in this proceeding are substantially similar to claims that the court in the Richmond County proceeding declined to address on the grounds that they were raised for the first time in reply" which petitioners could have raised by including them in the petition or by seeking leave to amend the petition.

Click HERE to access the Appellate Division's decision posted on the Internet.