Selected summaries
of decisions alleging unlawful discrimination in violation of state
and, or, federal civil rights laws posted by New York Public Personnel Law.
Click on text to access the summary.
Summaries of, and commentaries on, selected court and administrative decisions and related matters affecting public employers and employees in New York State in particular and possibly in other jurisdictions in general.
ARTIFICIAL INTELLIGENCE [AI] IS NOT USED, IN WHOLE OR IN PART, IN PREPARING NYPPL SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS
May 26, 2023
Links to NYPPL summaries of selected decisions alleging unlawful discrimination in violation of state and federal civil rights laws
May 25, 2023
Seeking credit for non-police service toward eligibility for Police Pension Fund retirement benefits
At issue here is whether Tier 3 police officers in the New York City Police Pension Fund (PPF) who otherwise might be eligible for retirement credit under the statutory provisions discussed in the decision may use those provisions to apply prior non-police service toward their eligibility for retirement.
The Court of Appeals held that they may not. The court noted that plain language of Retirement and Social Security Law §513(c)(2) limits eligible prior service for those officers to police service.
Accordingly the Court of Appeals concluded the proceeding should be dismissed.
Click HERE to access the Court of Appeals' decision posted on the Internet.
Negotiating "for cause" termination protection for officers and employees serving in positions in the Exempt Class
Certain civil service positions in the classified service are placed in the "exempt" class reflecting the duties of the position are of a confidential nature and requires personal qualities that cannot practicably be tested by an examination. Subject to certain exceptions set out in §75.1(b) of the Civil Service Law, incumbents of positions in the Exempt Class are terminable at will.
The issue before the court: A challenge to a provision in the relevant
collective bargaining agreement that, in the words of the Court of Appeals, "purports to provide for-cause termination
protection to certain exempt class employees."*
The Court held that provision in the agreement unenforceable to the extent it granted such protections to officers and employees in the Exempt Class except as otherwise provided by §75.1(b) of the Civil Service Law.
*Although not all exempt class employees are officers of the entity, all exempt class officers of the entity are employees of the entity.
Click HERE to access the decision of the Court of Appeals posted on the Internet.
Accidental Disability Retirement application rejected
Supreme Court denied Plaintiff's petition to vacate a determination of Respondents, which denied Plaintiff's application for World Trade Center Accidental Disability Retirement (WTC ADR) benefits, and dismissing the proceeding brought pursuant to CPLR article 78. The Court of Appeals unanimously affirmed the lower court's ruling, without costs.
The Court of Appeals noted this was the third CPLR Article 78 proceeding brought by Plaintiff' seeking to vacate the denial of her application for WTC ADR benefits, based on her failure to demonstrate that she engaged in rescue, recovery and cleanup operations at the statutorily defined WTC site during the statutory period. The Court of Appeals had affirmed the denial of those benefits by Respondents in connection with the evidence submitted on her first two applications, Matter of Salerno v Kelly, 139 AD3d 516.
In support of her third attempt, Plaintiff submitted the affidavit of a retired colleague, stating that at the time of the terrorist attack, he was stationed with Plaintiff at the offices of the Internal Affairs Bureau. However, the location so identified "was outside the qualifying area."
Accordingly, said the Court, Respondents had a rational basis for denying Plaintiff's application, and for concluding that the colleague's affidavit was not persuasive, in light of the other contrary evidence, including overtime slips signed by Plaintiff indicating that she worked at IAB and/or command and control during the relevant period.
Click HERE to access the decision of the Court of Appeals posted on the Internet.
May 24, 2023
Applying the ""inherent risk" principle in evaluating an employee's application for accidental disability retirement benefits
The Comptroller denied a State Trooper's [Petitioner] application for accidental disability retirement benefits. Petitioner had filed an application for accidental disability retirement alleging that he was permanently disabled due to, among other things, posttraumatic stress disorder resulting from an incident in which Petitioner shot a suspect who was driving a car at a high rate of speed towards the Petitioner.
Citing Matter of McGoey v DiNapoli, 194 AD3d 1296, the Appellate Division noted that the applicant, here the Petitioner, bore the burden of establishing that his disability was the result of an accident within the meaning of the Retirement and Social Security Law, and the Comptroller's determination on that point will be sustained "if supported by substantial evidence in the record as a whole substantial evidence."
In this instance, said the court, substantial evidence supports the Comptroller's determination that Petitioner's use of deadly force to protect himself from imminent danger, "although not typical, and certainly a traumatic experience, was inherent in his duties and training."
Applying the "inherent risk" principles set out by the Court of Appeals in Kelly v DiNapoli, 30 NY3d 674 and applied in Matter of Kowal v DiNapoli, 145 AD3d 1152, the Appellate Division opined that the Comptroller's determination that the incident at issue "did not constitute an accident within the meaning of Retirement and Social Security Law §63-bb will not be disturbed."
Click HERE to access the Appellate Division's decision posted on the Internet.
May 23, 2023
Selected bills introduced in the New York State Senate addressing certain public personnel situations on or before May 19, 2023
S23 by Daniel G. Stec 45th Senate District : Concerning the villages of Malone, Saranac Lake and Tupper Lake, in the county of Franklin, employing retired former members of the division of state police as part-time village police officers
S4087 by Pamela Helming 54th Senate District : Authorizes Michael Telesca to take the competitive civil service examination and be placed on the eligible civil service list for employment as a full-time police officer for the county of Livingston
S4811B by Andrew Gounardes 26th Senate District : Relates to increasing certain special accidental death benefits
S5015 by Andrew Gounardes 26th Senate District : Addresses the appointment and promotion of certain personnel of the sanitation department of the city of New York
S5361 by John W. Mannion 50th Senate District : Grants retroactive membership with Tier IV status in the New York state teachers' retirement system to Peter Guarino
S5494 by Robert Jackson 31st Senate District : Provides for crediting of probationary service
S5605 by Lea Webb 52nd Senate District : Authorizes the city of Binghamton to offer an optional twenty-five year retirement plan to firefighter Scott Pavlick
S6054 by Robert Jackson 31st Senate District : Relates to retirement benefits for certain employees
S6188 by Steven D. Rhoads 5th Senate District :Would provided for retroactive Tier V membership in the NY State and Local Employees' Retirement System to Daniel Miller
S6343 by Andrew Gounardes 26th Senate District : Relates to the limitation of overtime compensation in final average salary calculations
S6477 by Robert Jackson 31st Senate District : Provides home addresses of certain employees to employee organizations
S6482A by John W. Mannion 50th Senate District : Allows an individual with disabilities or a disabled veteran to hold full-time or part-time positions for purposes of eligibility for recruitment for state employment
S6861
by Robert Jackson
31st Senate District : Would provides for
the automatic enrollment of employees of the City of New
York eligible to join the New
York City Board of Education Retirement System other than individuals provisional appointed
S6862 by Robert Jackson 31st Senate District : Provides
for a line of duty presumption for disabilities of fire alarm dispatchers in
certain cities
S6976 by Robert Jackson 31st Senate District : Would grant eligibility of certain participants in the New York City Employees Retirement System to opt into the twenty-five year retirement program for EMT members
May 22, 2023
Imposing a reasonable disciplinary penalty under the circumstances
Petitioner was served with a notice of discipline setting out six charges of misconduct alleging violations of the agency's rules, regulations and code of conduct. Petitioner denied the charges and demanded a hearing pursuant to Civil Service Law §75. The Employer withdrew one of the six charges after the §75 disciplinary hearing. The Hearing Officer subsequently found Petitioner guilty of the five remaining charges and recommended that the Petitioner be terminated from his position. The Appointing Authority reviewed the record and Hearing Officer's recommendation, found Petitioner guilty of the five remaining charges of misconduct and terminated his employment. Petitioner appealed the Appointing Authority's decision.
The Appellate Division, opining that the five charges were supported by substantial evidence, explained:
1. New York State's Civil Service Law §75(1) provides an employee in the classified service of a public employer covered by the statute "shall not be removed or otherwise subjected to any disciplinary penalty except for incompetency or misconduct shown after a hearing upon stated charges"; and
2. "The standard of review of such a determination made after a disciplinary hearing is whether it is supported by substantial evidence."
Turning to Petitioner's challenging the penalty imposed, of termination of his employment, as "excessive", the Appellate Division said in determining whether an imposed disciplinary penalty is excessive, "this Court must consider whether, in light of all the relevant circumstances, the penalty is so disproportionate to the charged offenses as to shock one's sense of fairness",* citing Matter of Scuderi-Hunter v County of Delaware, 202 AD3d at 1317.
The court, recognizing that Petitioner had been employed by the Appointing Authority "for nearly 25 years with no prior disciplinary issues and that he submitted 15 letters by individuals acclaiming their belief in his good character," said "sexual harassment in the work place is among the most offensive and demeaning torments an employee can undergo.'"
Noting that the record "establishes numerous incidents of sexual harassment" by Petitioner, the Appellate Division said: it "cannot conclude that the penalty of termination was so disproportionate to the offense, in the light of all the circumstances, as to be shocking to one's sense of fairness".
* A Reasonable Disciplinary Penalty Under the Circumstances. The text of this NYPPL e-book focuses on court decisions addressing disciplinary penalties imposed on employees in the public service in instances where the individual has been found guilty of misconduct and, or, incompetence. For more information click HERE.
Click HERE to access the full text of the Appellate Division's ruling summarized above.
May 21, 2023
Administrative appeal hearing decisions issued by New York State Commissioner of Education Dr. Betty A. Rosa
Decision of the Commissioner No. 18,263
Concerning an appeal of a school district election and an application seeking the removal of certain members of the school board and the school district's clerk.
Click HERE to access the Commissioner's decision posted on the Internet.
Decision of the Commissioner No. 18,264
Addressing an appeal of an action taken by the board of trustees of a public library with respect to an election.
Click HERE to access the Commissioner's decision posted on the Internet.
Decision of the Commissioner No. 18,266
With respect to an appeal challenging the actions of the board of education in a school district election.
Click HERE to access the Commissioner's decision posted on the Internet.
May 20, 2023
City official alleged to have abused his position by stealing from relief donations and festival funds
On May 19, 2023, New York State Comptroller Thomas P. DiNapoli and Chautauqua County District Attorney Jason Schmidt announced the indictment of former City of Dunkirk Festivals Coordinator Hector Rosas for using his public position to pilfer more than $50,000 through several schemes.*
"Rosas allegedly used his position to steal donations meant to help Hurricane Maria victims and divert funds meant to benefit his community into his own pockets," State Comptroller DiNapoli said. "Public service is a privilege and a duty that he is charged with betraying. Thanks to our partnership with District Attorney Schmidt, we have exposed these schemes.”
“These types of crimes are not victimless,” said District Attorney Schmidt. “Dunkirk City, like many of our local municipalities here in Chautauqua County, is engaged in an every-day battle to service its residents with precious little money. City residents, themselves, and most of us here in Chautauqua County, live paycheck to paycheck. Every dollar stolen is a dollar not spent servicing our community. No one should use their public office for personal gain.”**
"Hector Rosas was employed since 1984 with the City of Dunkirk as a Water Meter Reader and then Laborer. In 2016, Rosas was promoted to the newly created position of Festivals Coordinator. In that capacity, Rosas ran the city’s summer festival programs through the city’s local development corporation.
"In 2017, in his role with the city, Rosas oversaw fundraising efforts to aid the people of Puerto Rico in recovering from the devastation wrought by Hurricane Maria. Rosas collected nearly $15,000 in donations from citizens, schools and civic groups. The investigation revealed that all of these funds were transferred by Rosas from the city’s festivals bank account, which he controlled, to his personal bank account. Although Rosas visited his mother’s home in Puerto Rico and spent some of the funds, he could produce no receipts, nor could he account for the money collected.
"As Festivals Coordinator, from the summer of 2016 to the summer of 2019, Rosas was responsible for collecting and depositing cash generated from beer sales at the annual summer festivals. The investigation revealed that over $42,000 in cash sales were collected by Rosas but never reported or deposited in the festivals account.
"Rosas was arraigned in Chautauqua County Court before Judge Stephen Cass and is due back in court on June 13, 2023."
* N.B. The charges against Mr. Rosas are merely accusations and Mr. Rosas is presumed to be innocent of such charges until and unless proven guilty in a court of law.
** Using one's public office for personal gain is sometimes referred to as "jobbery". The Mirriam-Webster dictionary defines "jobbery" as "the improper use of public office or conduct of public business for private gain".
###
Since taking office in 2007, Comptroller DiNapoli has committed to fighting public corruption and encourages the public to help fight fraud and abuse. allegations of fraud involving New York State taxpayer funds may reported by filing a complaint online at https://www.osc.state.ny.us/investigations, or by calling the toll-free Fraud Hotline at 1-888-672-4555, or by mailing a complaint to: Office of the State Comptroller, Division of Investigations, 8th Floor, 110 State St., Albany, NY 12236.
May 19, 2023
State Comptroller DiNapoli releases state and related agency audits
New York State Comptroller Thomas P. DiNapoli announced the audits and reports listed below were issued during the week ending May 19, 2023
Links to material posted on the Internet are highlighted in COLOR.
Department of Health – Medicaid Program – Excessive Payments for Durable Medical Equipment Rentals (2021-S-36) Medicaid recipients receive necessary durable medical equipment (DME) – wheelchairs, for example – as a benefit of the program. Some DME items are available on a monthly rental basis, subject to caps; when the cap is reached, the item is generally considered purchased and no additional rental payments are made. However, certain other DME, such as oxygen equipment, is available for continuous (i.e., uncapped) rental only. Auditors identified Medicaid overpayments totaling nearly $1.5 million for DME rentals that exceeded established monthly caps. In addition, noting that Medicare imposes a 36-month cap on oxygen equipment rental payments, auditors determined that Medicaid could achieve significant cost savings – including an estimated $8.6 million for the audit scope – if the Department of Health adopted a similar policy rather than allowing continuous uncapped rentals of DME.
Metropolitan Transportation Authority – Long Island Rail Road – Non-Revenue Service Vehicles and On-Rail Equipment (2020-S-29) The Long Island Rail Road (LIRR) has an inventory of 1,034 fleet vehicles – cars, SUVs, trailers, trucks, and vans – used by 26 departments in their day-to-day operations. It also maintains 43 pieces of on-rail equipment, with an estimated cost of almost $57 million, and a parts inventory consisting of 9,373 different part numbers/types valued at over $10.2 million. Auditors determined that LIRR did not ensure that its responsible departments were maintaining accurate inventories of these valuable assets, following procurement best practices, and/or providing the necessary preventive maintenance.
Department of Health – Medicaid Program – Improper Fee-for-Service Pharmacy Payments for Recipients With Third-Party Health Insurance (2021-S-20) Where Medicaid recipients have other third-party health insurance (TPHI), such as Medicare or commercial health insurance, TPHI is the primary payer and Medicaid is the payer of last resort. The Office of the Medicaid Inspector General (OMIG) contracts with Gainwell Technologies (Gainwell) to identify claims where Medicaid was incorrectly identified as the primary payer and to recover payments. Auditors found that the Department of Health and OMIG did not ensure that Gainwell properly identified and recovered all Medicaid payments for fee-for-service pharmacy claims where TPHI was liable instead, identifying more $37.4 million in improper Medicaid payments that had not been pursued for recovery. Much of this amount may be unrecoverable due to New York State’s 3-year statute of limitations.
Department of Corrections and Community Supervision – Controls Over Tablet and Kiosk Usage by Incarcerated Individuals (2022-S-8) The Department of Corrections and Community Supervision’s (DOCCS) tablet program provides incarcerated individuals with access to digital content (e.g., e-books, music) and messaging/ communication functionality. Tablet program assets included about 26,500 active tablets and 1,100 active kiosks across 44 facilities. Although DOCCS established Directives that govern the tablet program and address the secure use of devices, auditors found that DOCCS exerts little control over the tablet program to ensure that the Directives are enforced. Thus, there is limited assurance that tablets are being used appropriately and only by the individuals to whom they are assigned; that tablets and kiosks are secure and functioning as intended; and that incoming and outgoing communications with the outside community as well as within and across facilities are appropriately restricted. DOCCS also is not adequately overseeing the security and configuration of certain assets, and does not ensure systems are maintained at vendor-supported levels required to preserve the accuracy and integrity of its data.
Department of Health – Medicaid Program Claims Processing Activity April 1, 2022 Through September 30, 2022 (2022-S-12) During the 6-month period ended September 30, 2022, eMedNY processed over 224 million claims, resulting in payments to providers of nearly $38 billion. OSC’s audit of Medicaid claims processing activity identified over $16.7 million in improper Medicaid payments for claims that were not processed in accordance with Medicaid requirements. The audit also identified 11 providers in the Medicaid program who were charged with or found guilty of crimes that violated laws or regulations governing certain health care programs. The Department of Health removed three of the providers from the Medicaid program and referred two to the New York State Office of the Attorney General’s Medicaid Fraud Control Unit; the remaining six providers were under the Office of the Medicaid Inspector General’s review.
Department of Health – Medicaid Program – Improper Payments of Medicare Buy-in Premiums for Ineligible Recipients (Follow-Up) (2022-F-37) Medicaid pays premiums for individuals enrolled in the Medicare Buy-in Program. A prior audit report, issued in November 2021, identified $31.7 million in improper premium payments made on behalf of individuals who were not eligible for the Buy-in Program, an additional $23.6 million in payments made on behalf of individuals with coverage that exceeded Medicaid’s 2-year premium liability, and $372,716 in premium payments made on behalf of 282 individuals who were deceased but not disenrolled. The follow-up found that the Department of Health made some progress in addressing the problems identified; however, additional actions are needed. Of the initial report’s five audit recommendations, two were implemented, two were partially implemented, and one was not yet implemented.
Department of Transportation – Controls Over Vehicle Use and Transportation-Related Expenses (Follow-Up) (2022-F-38) The Department of Transportation (DOT) maintains a fleet of 4,086 registered State-owned and 668 leased vehicles. In addition to its 10 regional repair shops responsible for vehicle maintenance, DOT also uses a centralized procurement contract (Contract), negotiated and entered into on behalf of the State by the Office of General Services, for fleet management and repair services. The initial audit, issued in July 2021, found that DOT performed limited to no monitoring of procurements made through the Contractor to ensure costs were reasonable, despite concerns raised by central office and regional office personnel. DOT also did little to hold the Contractor accountable for its responsibility to ensure costs complied with Contract terms. The audit also identified deficiencies in DOT’s controls over recalls and warranties and its oversight of fuel and mileage, which increased the likelihood that State funds were not being used efficiently and effectively and, in the case of open recalls, posed safety risks. The follow-up found that DOT made progress in addressing the issues previously identified. Of the initial report’s five recommendations, four were implemented and one was not implemented.
Port Authority of New York and New Jersey – Selected Aspects of Accommodations for Passengers With Disabilities (Follow-Up) (2022-F-24) The Port Authority of New York and New Jersey (PANYNJ) is required to make its facilities accessible to passengers with disabilities, pursuant to the Americans with Disabilities Act of 1990 and the Rehabilitation Act of 1973. The initial report, issued in July 2021, identified deficiencies and non-compliance with the regulations in areas of the Port Authority Bus Terminal – the nation’s busiest bus terminal, serving an estimated 260,000 passenger trips per day. For example, some of the gates were inaccessible to customers using a mobility device both at the lower and upper levels, and no signage was evident to direct customers where to seek assistance. The follow-up found that PANYNJ made progress in addressing the issues identified. Of the initial seven recommendations, five were implemented and two were partially implemented.
May 18, 2023
Disciplinary action initiated alleging discourteous and threatening conduct toward a supervisor
New York City Office of Administrative Trials and Hearings Administrative Law Judge Tiffany Hamilton recommended a 3-day suspension for a caseworker charged with engaging in discourteous and threatening conduct toward her supervisor.
The ALJ found that the caseworker’s comments, “you’re a liar,” “you
don’t know me” and “you will see,” to her supervisor during a work performance
meeting, did not amount to a threat but they were demeaning and provocative,
constituting discourteous conduct.
Judge Hamilton's decision and recommendation is set out below:
NEW YORK CITY OFFICE OF
ADMINISTRATIVE TRIALS AND HEARINGS
In the Matter of
DEP’T OF SOCIAL SERVICES
(DEP’T OF HOMELESS SERVICES)
Petitioner
- against -
VICTORIA MCCAIN
Respondent
REPORT AND RECOMMENDATION
TIFFANY HAMILTON, Administrative Law Judge
Petitioner, the Department of Homeless Services within the Department of Social
Services (“DHS”), brought this employee disciplinary proceeding against
respondent, Victoria McCain, under section 75 of the Civil Service Law.
Petitioner alleges that respondent, a caseworker, engaged in discourteous and
threatening conduct toward her supervisor on March 24, 2021 (ALJ Ex. 1).
A trial was held before me on February
8, 2023, via videoconference. Petitioner relied on
documentary evidence and the testimony of two witnesses. Respondent presented
documentary evidence, testified on her own behalf, and offered the testimony of
one other witness.
For the reasons set forth below, I find that respondent engaged in discourteous
conduct
toward her supervisor on March 24,
2021. I also find that petitioner failed to prove that
respondent’s conduct was threatening. For the proven charge, I recommend that rspondent
be suspended for three days without pay.
ANALYSIS
The charges against respondent stem from a March 24, 2021 incident at the
Barbara
Kleinman Shelter in Brooklyn. Petitioner alleges that
respondent engaged in discourteous and threatening conduct toward her
supervisor, Eric Hall, in violation of Sections 1.1, 1.2, 1.3, and 4.1 of the
DHS Code of Conduct. Petitioner has the burden of proving the charges by a
preponderance of the evidence. See Dep’t of Correction v. Hall, OATH Index No.
400/08 at 2 (Oct. 18, 2007),
aff’d, NYC Civ. Serv. Comm’n Item No. CD 08-33-SA (May 30, 2008). Preponderance has been defined as “the
burden of persuading the trier[] of fact that the existence of the fact is more
probable than its non-existence.” Prince, Richardson on Evidence § 3-206 (Lexis
2008). “If the evidence is equally balanced, or if it leaves the [trier of
fact] in such doubt as to be unable to decide the controversy either way, judgment must be given against the party upon whom the
burden of proof rests.” Id.; see Rinaldi & Sons, Inc. v. Wells Fargo Alarm
Service, Inc., 39 N.Y.2d 191, 196 (1976).
In support of the charges, petitioner relied on the testimony of Mr. Hall and
respondent’s
immediate supervisor, Lawanda Brown. Mr. Hall is the Director of Programs for
the Barbara Kleinman Shelter in Brooklyn. He joined DHS
in 2006 and has been in his current title since December 2017 (Tr. 13-14). He
has worked with respondent since July 2018, and was her direct supervisor
during her first two years with the agency (Tr. 14).
Mr. Hall testified that respondent’s work performance in March 2021 was subpar.
She
consistently failed to perform her duties, which included working closely with
clients to develop a plan to move out of the shelter and secure appropriate
housing (Tr. 15). She routinely provided inaccurate information regarding her
clients and their housing assignments, needed constant reminders, and was
ill-prepared for meetings (Tr. 18).
Respondent’s lack of preparedness was evident at a case review meeting held on March 24, 2021, which took place in a small conference room on the second floor of the shelter (Tr. 19, 71). Mr. Hall asked respondent to stay behind to discuss her performance (Tr. 22). Ms. Brown was present at this second meeting with respondent (Tr. 24).
Respondent requested that her union representative also be present, and he arrived shortly thereafter (Tr. 22).
There was conflicting testimony among the witnesses about what took place next. Mr. Hall testified that he began the meeting by providing feedback about respondent’s poor work performance (Tr. 24). He addressed her failure to prepare for meetings and reminded her of the responsibilities associated with her caseload (Tr. 23). According to Mr. Hall, respondent became “very loud, aggressive, and confrontational” (Tr. 28). She called him a liar, got up and walked to the exit, turned around and yelled, “you really don’t know me, but you will see” (Tr. 28-29). Mr. Hall then asked her if she was threatening him, and she repeated “you really don’t know me, Eric, but you will see” and walked out of the room (Tr. 29).
Mr. Hall felt “uneasy and very upset” about respondent’s behavior (Tr. 29). He
e-mailed
respondent later that afternoon and addressed her lack of preparedness for the
case review meeting (Pet. Ex. 2). He also wrote a conference memorandum on March 25, 2021, describing
respondent’s “loud, aggressive, and confrontational” behavior at the
performance review meeting, and noting that she stated, “You don’t know me but
you will see. You really don’t know me Eric. You will see” (Pet. Ex. 3).
Finally, he referred the incident to DHS’s Office of Disciplinary Affairs in a memorandum
also dated March 25, 2021
(Pet. Ex. 6; Tr. 30-31).
Ms. Brown, a social services supervisor, testified that respondent called Mr.
Hall a liar
several times, and screamed “you don’t know me” and “you’re not going to
disrespect me” (Tr. 42). She described respondent’s overall manner as
“aggressive and a little intimidating” (Tr. 43).
Ms. Brown wrote an e-mail to Mr. Hall on the afternoon of March 24, 2021, summarizing what took place at both the case review meeting and the subsequent performance review meeting. In the e-mail, she stated that respondent called Mr. Hall a liar, said “you really don’t know me” several times, and in response to the question, “are you threatening me?” replied, “you really don’t know me, Eric” (Pet. Ex. 7).
Respondent testified that Mr. Hall was condescending toward her at the case
review
meeting, and yelled at her in front of others (Tr. 71-72). He then asked the
other caseworkers to leave the meeting
and told her to stay behind (Tr. 72). He spoke about her work performance but denied
her the opportunity to respond (Tr. 73). Respondent then rose from her seat and
stated, “please don’t speak to me that way, because you don’t know my
personality.” She proceeded to leave the conference room “because [she]
couldn’t take him yelling” (Tr. 73). She denied calling Mr. Hall a liar,
claiming she had no reason to because “it was his opinion on how he felt about [her]
work” (Tr. 73). She also denied making any verbal threats. Respondent noted
that she has a “heavy” voice but that she did not yell during the meeting (Tr.
75).
Gary Hawkins, a community coordinator at the Barbara Klein Shelter and a union elegate, testified on respondent’s behalf. He did not observe respondent threaten Mr. Hall at any point during the performance review meeting (Tr. 62-63). He did not hear her state, “you don’t know me, but you will see,” but noted that people were talking and moving their chairs, preventing him from being able to hear clearly (Tr. 63). He acknowledged that respondent called Mr. Hall a liar, though not in a “threatening” or “boisterous” way (Tr. 55, 64). Mr. Hawkins did not recall respondent yelling during the meeting. He knows respondent “as a colleague and almost...as a friend” and explained that “she speaks loud on a regular basis...that’s how she speaks” (Tr. 64).
He did not consider her tone to be threatening (Tr. 64). After the meeting, Mr. Hawkins sent a note to the union delegate, describing what took place. In the note, he indicated that respondent was upset but that she did not “use any threatening connotation” toward Mr. Hall (Resp. Ex. B).
Petitioner’s Code of Conduct prohibits “threatening or intimidating a
supervisor,” and
requires employees to be “courteous and professional in their contact with
department clients, fellow employees and the public at all times” (Pet. Ex. 5).
“Not every disagreement with a supervisor or expression of dissatisfaction has
been deemed misconduct by this tribunal, even when voices are raised and
emotions are vented.” Human Resources Admin., v. Wong, OATH Index No. 316/15 at
11 (Dec. 1, 2014), aff’d, NYC Civ. Serv. Comm’n Case No. 2015-0836 (Nov. 4,
2015). Consideration is given to the context, substance, tone, and duration of
the remarks or behavior at issue. Compare Dep’t of Transportation v. Khan, OATH
Index No. 1093/06 at 4 (Apr. 27, 2006), aff’d, NYC Civ. Serv. Comm’n Item No. CD 07-15-SA (Feb. 12, 2007) (misconduct found
where employee called supervisor a “liar”) and Human Resources Admin. v.
Levitant, OATH Index No. 397/04 at 18 (Sept.
7, 2004), aff’d, NYC Civ. Serv. Comm’n Item No. CD 06-59 (May 2, 2006) (misconduct found where
employee approached supervisor and said, “You don’t know who you are messing
with. I will hurt you”), with Human Resources Admin. v. Bichai, OATH Index No.
211/90 (Nov. 21, 1989), aff’d, NYC Civ. Serv. Comm’n Item No. CD 90-54 (June 15, 1990) (employee’s loud
arguing and refusal to accept a transfer did not rise to the level of
misconduct).
Here, the resolution of the charges rests, in part, on the credibility of the
witnesses. In
assessing credibility, this tribunal has considered “witness demeanor,
consistency of a witness’ testimony, supporting or corroborating evidence,
witness motivation, bias or prejudice, and the degree to which a witness’
testimony comports with common sense and human experience.” Dep’t of Sanitation
v. Menzies, OATH Index No. 678/98 at 2-3 (Feb. 5, 1998), aff’d, NYC Civ. Serv. Comm’n Item No. CD
98-101-A (Sept. 9, 1998).
I found petitioner’s witnesses to be credible. Both Mr. Hall and Ms. Brown
testified in a
clear and straightforward manner, without any apparent motive to lie. Their
testimony was consistent with one another and was supported by contemporaneous
reports that they each wrote after the meeting, summarizing what took place
(Pet. Exs. 2, 3, 6). Both witnesses recorded that respondent called Mr. Hall a
liar and spoke in a loud, aggressive manner (Pet. Exs. 2, 3, 6).
I also found respondent’s witness, Mr. Hawkins, to be credible.
Aspects of respondent’s
testimony, on the other hand, lacked credibility. Although she denied calling
Mr. Hall a liar, her own witness, Mr. Hawkins, testified that she did. Also,
her claim that she stated, “you don’t know my personality,” as opposed to “you
don’t know me,” is at odds with the overall context of the meeting, and an
unlikely turn of phrase. Moreover, respondent’s supposed reference to her “personality”
was not corroborated by any witness or contemporaneous documents.
Despite my doubts about parts of respondent’s testimony, petitioner failed to
prove by a
preponderance of credible evidence that respondent’s comments, “you don’t know
me” and “you will see,” amount to a threat. Respondent’s remarks, even if
spoken in a loud or aggressive tone, were ambiguous. See Dep’t of Sanitation v.
Bonafede, OATH Index No. 2124/11 (Nov.
1, 2011), adopted, Comm’r Dec. (Dec. 8, 2011), modified on penalty, NYC Civ. Serv.
Comm’n Item No. CD 12-38-M (July 27,
2012) (the comment, “[y]ou live in Staten Island
right ... I will catch up with you out there,” even if accompanied by pointing
a finger, was ambiguous and did not constitute a threat). Although Mr. Hall
stated that he felt “uneasy and very upset” at respondent’s behavior, he did
not testify that he felt threatened or concerned for his physical safety (Tr.
29).
No one called security or asked respondent to leave the building (Tr. 45). There is no evidence that Mr. Hall reported the incident to his supervisor. Mr. Hall did not e-mail respondent about her behavior on the day of the incident; instead, he focused his post-meeting e-mail on her lack of preparedness. The remarks, even in response to the direct question, “are you threatening me?” were sufficiently vague that they fail to constitute an expressed or implied threat under the circumstances. See Dep’t of Social Services (Human Resources Admin.) v. Miles, OATH Index No. 1432/20 (Dec. 10, 2020), aff’d, NYC Civ. Serv. Comm’n Case No. 2021-0126 (Aug. 19, 2021) (no misconduct where the comment, “what would happen if I wild out on someone?” was “nothing more than an ill-advised expression of frustration” and thus failed to constitute a threat). Accordingly, this charge is not sustained.
With respect to the charge of discourtesy, I find that petitioner has met its burden of proving the allegation by a preponderance of the evidence. Three witnesses, including respondent’s own witness, testified that respondent called Mr. Hall a liar in a loud tone of voice in front of others, before walking out of the performance review meeting. Even crediting respondent’s assertion that she has a “heavy voice,” the content and context of the statement amount to discourtesy.
Respondent’s remarks were demeaning and provocative, and there are surely more professional ways of expressing disagreement. Indeed, this tribunal has found misconduct under similar circumstances. See Dep’t of Social Services (Human Resources Admin.) v. Y. M., OATH Index No. 571/22 (Jan. 11, 2023) (discourteous conduct found where respondent demeaned her supervisor by calling her a liar and referring to her as juvenile); Health & Hospitals Corp. (Coler-Goldwater Specialty Hospital & Nursing Facility) v. Mathias, OATH Index No. 509/14 at 7 (Dec. 20, 2013), adopted, Exec. Dir. Dec. (Jan. 6, 2014) (finding that respondent was insolent and disrespectful when she demeaned her supervisor by calling her a liar); Dep't of Transportation v. Khan, OATH Index No. 1093/06 (Apr. 27, 2006), aff’d, NYC Civ. Serv. Comm’n Item No. CD07-15-SA (Feb. 12, 2007) (same). Accordingly, the charge of discourteous conduct is sustained.
FINDINGS AND CONCLUSIONS
1. Petitioner proved that respondent engaged in discourteous conduct toward her supervisor on March 24, 2021.
2. Petitioner failed to establish that respondent used threatening language toward her supervisor on March 24, 2021.
RECOMMENDATION
Upon making these findings, I requested and received respondent’s personnel
abstract.
Respondent has been employed by DHS since July 2018, and although her
performance evaluation rating was “marginal,” she has no prior disciplinary
record. Petitioner sought a 15-day suspension without pay as a penalty for
respondent’s misconduct (Tr. 10).
However, petitioner failed to prove one of the charges, and the proven misconduct was not so egregious as to warrant such a significant penalty.
This tribunal has generally recommended a penalty of three to ten days’
suspension for
instances of discourteous conduct toward a supervisor or co-worker by an
employee with a minor or no disciplinary history. See Dep’t of Health and
Mental Hygiene v. Pepple, OATH Index No. 1505/20 at 11-12 (June 22, 2021)
(three-day suspension for long-term employee with no disciplinary history who
sent discourteous and unprofessional e-mails to a supervisor); Dep’t of Transportation
v. Dhar, OATH Index No. 2024/14 at 8 (July 3, 2014), aff’d, NYC Civ. Serv. Comm’n
Item No. 2014-0757 (Nov. 25, 2014) (three-day suspension for long-term employee
with minor disciplinary history who used discourteous and unprofessional
language during an argument with a co-worker); Human Resources Admin. v.
Germaine, OATH Index No. 758/01 at 6-7 (Jan. 31, 2001) (four-day suspension for
employee with no prior discipline who engaged in a loud and disruptive argument
with a co-worker); Dep’t of Environmental Protection v. Berlyavsky, OATH Index No. 1011/06 at 6-7 (Apr. 19, 2006) (five-day suspension for employee with
no prior discipline who shouted angry, unprovoked accusations at his supervisor
in front of others, disrupting operations); Dep’t of Social Services (Human
Resources Admin.) v. Hamzat, OATH Index No. 2248/19 at 6-7 (Sept. 11, 2019)
(ten-day suspension for long-term employee with no prior discipline who behaved
in a discourteous and disruptive manner).
Respondent is obligated by the agency’s Code of Conduct to maintain courtesy
and
professionalism, even when she disagrees with a supervisor’s feedback or
directive. Respondent’s discourteous behavior understandably caused her
supervisor to feel uneasy and upset. However, the sole discourteous incident
was brief in duration, confined to a conference room, and did not involve any
use of profanity. Accordingly, I recommend a penalty of three days’ suspension without
pay.
Tiffany Hamilton
Administrative Law Judge
March 21, 2023
SUBMITTED TO:
MOLLY WASOW
PARK
Acting Commissioner
APPEARANCES:
EMILY TONE-HILL, ESQ.
Attorney for Petitioner
JILL MENDELBERG, ESQ.
Attorney for Respondent
OATH Index No. 1141/23
May 17, 2023
Recent administrative hearing decisions issued by New York State's Commission of Education Dr. Betty A. Rosa
Termination of a teacher during her serving an extension of her probation period pursuant to written agreements.
The teacher claimed the discontinuance of her probation was unconstitutional or unreasonable. In addition, the teacher contended that she had attained "tenure by estoppel". She sought, among other relief, an order directing New York City Board of Education “to either grant tenure to [her] or to declare that she has received tenure by estoppel.”
The Commissioner opined that the appointing authority may "discontinue the services of a probationary teacher 'at any time and for any reason, unless the teacher establishes that the termination was for a constitutionally impermissible purpose, violative of a statute, or done in bad faith'”. The Commissioner's noted "bad faith” has been defined as “[d]ishonesty of belief, purpose, or motive”, citing Appeals of Prisinzano, 62 Ed Dept Rep, Decision No. 18,195, citing Black’s Law Dictionary [11th ed. 2019].
Noting that the petitioner has the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which he or she seeks relief, the Commissioner concluded "Petitioner has not proven that [appointing authority] discontinued her probation in bad faith" and dismissed the teacher's appeal.
Click HERE to access Commissioner Rosa's decision posted on the Internet.
Challenges to actions of a Board of Education related to school district expenditures and petitions seeking the removal of the superintendent, assistant superintendent, and the president of the school board.
The Commissioner dismissed one of the Petitioner's two appeals,* explaining the Petitioner failed to join a necessary party. A necessary party, said the Commissioner, is a person or entity "whose rights would be adversely affected by a determination in favor of a petitioner and must be joined as such."
The Commissioner also denied the Petitioner’s second appeal in which he sought the removal of certain named school district officials.
Noting that "The Commissioner of Education may remove a school officer or member of a board of education from office when it is proven to the satisfaction of the Commissioner that the officer or board member has engaged in a willful violation or neglect of duty under the Education Law or has willfully disobeyed a decision, order, rule, or regulation of the Board of Regents or the Commissioner," the Commissioner opined that "Petitioner alleges, without proof" that named school district personnel engaged in a “concerted effort to cover up [their] many transgressions” related to the fundraiser."
As an example, the Commissioner's decision notes Petitioner admitted that he “do[es] not know for certain” that the board president acted improperly, but complains that she “was absolutely no aid in seeking the truth ....” This speculation, said the Commissioner, "does not constitute proof that any respondent violated the Education Law" and denied the Petitioner's application for removal.
In addition, the Commissioner issued individuals named in the removal application certifications pursuant to Education Law §3811(1). Such s certification authorizes a board of education to indemnify "a respondent for costs incurred in defending against a proceeding arising out of the exercise of the respondent’s powers or the performance of the respondent’s duties as a board member or other official listed in §3811 (1)".
* Because the appeals present similar issues of fact and law, they were consolidated for decision [See 8 NYCRR 275.18]
Click HERE to access Commissioner Rosa's decision posted on the Internet.
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NYPPL Publisher Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard.
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