A judicial finding that a rational jury could find employer failed to provide a reasonable workplace accommodation of employee's disability bars granting employer's motion for summary judgment

Plaintiff was employed by Defendant from 2008 until her employment was terminated in 2015. Alleging Defendant discriminated against her based on her disability and retaliated against her for seeking an accommodation for that disability, Plaintiff initiated litigation alleging Defendant had violated provisions of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101, et seq., the New York State Human Rights Law, N.Y. Exec. Law §296, and 42 U.S.C. §1983.   

Plaintiff claimed the Defendant failed to reasonably accommodate her request not to be assigned archiving tasks provided the Defendant with medical documentation describing her physical limitations.*

Federal District Court granted Defendant's motion for summary judgment on her reasonable accommodation and retaliation claims. Plaintiff appealed the federal district court's ruling. 

The Second Circuit Court of Appeals, finding that "archiving was not an essential function" of Plaintiff's position, opined:

[1] Viewing the evidence most favorably to Plaintiff, a rational jury could find Defendants failed to provide a reasonable workplace accommodation for her disability; and

[2] Disputed "issues of material fact" precluded the federal district court's granting summary judgment to Defendant with respect to Plaintiff's retaliation claim."

Addressing Plaintiff's §1983 claim, the Second Circuit said that because Plaintiff had not presented any arguments on appeal challenging the federal district court’s decision with respect to her §1983 claim, it deemed that Plaintiff had abandoned that claim.

Vacating the federal district court’s decision with respect to the Plaintiff's reasonable accommodation and retaliation allegations, the Circuit Court, Judge Sullivan concurring in part and dissenting in part in a second opinion, remanded the matter to the district court for "further proceedings consistent with this opinion."

* Plaintiff also contended that Defendants retaliated against her for making the accommodation request by forcing her to go on medical leave, which ultimately led to her termination. 

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

 

 

New York State Public Personnel Law e-books

The Discipline Book - Click HERE for information

A Reasonable Disciplinary Penalty - Click HERE for information

The Layoff, Preferred List and Reinstatement Manual - Click HERE for information

Disability Leave for fire, police and other public sector personnel - Click HERE for information

Appeal to the Commissioner of Education challenging a Board of Education suspending school district employee held untimely

Claiming that she witnessed a district staff member abuse a minor child, Petitioner reported the alleged incident to her supervisor and several other district employees.  Noting that the parties’ versions of events vary, the Commissioner of Education said "it appears that an altercation ensued between [Petitioner] and the principal ... resulted in [Petitioner] being placed on paid leave."* 

Ultimately, the Board of Education [Board] suspended Petitioner's employment by the school district.

Petitioner challenged the Board's action and in her appeal asked the Commissioner to direct the Board "impose a fine, request a written apology, and/or impose discipline upon all district employees to whom the alleged abuse was reported." Additionally Plaintiff asks that the Board be directed to notify the family of the minor child of the alleged abuse.

The Board contended that Petitioner's appeal should be dismissed as [1] untimely and [2] for lack of jurisdiction over the district respondents named by Petitioner. 

On the merits, the Board contends, among other things, that Petitioner has failed to state a claim for which relief may be granted.

The Commissioner first addressed a preliminary matter: Petitioner’s reply to the Board's answer to contains new information and claims that were not raised in the petition.  The Commissioner said the purpose of a reply is to respond to new material or affirmative defenses set forth in an answer and is not meant to buttress allegations in the petition or belatedly add assertions that should have been raised in the petition.

Turning to procedural issues, the Commissioner said the Petitioner's appeal must be dismissed as untimely.  An appeal to the Commissioner must be commenced within 30 days from the decision or act complained of, unless any delay is excused by the Commissioner for good cause shown. Further, the Commissioner noted that "[except] in unusual circumstances, ignorance of the appeal process does not afford a sufficient basis to excuse a delay in commencing an appeal."

In addition, Petitioner raised general assertions of alleged neglect on the part of her attorney in processing her appeal to the Commissioner. The Commissioner opined that this claim concerns an issue of professional responsibility that is outside the scope of an appeal to the Commissioner of Education.

* The district contended that Petitioner had put her hands on the principal and submitted photographic evidence in support of this allegation.

Click HERE to access the text of the Commissioner's decision posted on the Internet.

The New York State Department of Civil Service invites attorneys to consider a career in public service with the State of New York

For information describing current employment opportunities click HERE.

A presumption of public access to judicial documents may be outweighed by the importance of maintaining confidentiality under the Federal Arbitration Act

A former employee [Plaintiff] of International Business Machines Corporation ([IBM] had signed a separation agreement requiring confidential arbitration of any claims arising from her termination.* Plaintiff arbitrated an age-discrimination claim against IBM and won. Plaintiff then filed a petition in federal district court under the Federal Arbitration Act [FAA] to confirm the award, attaching it to the petition under seal but simultaneously moving to unseal it.

Shortly after Plaintiff filed the petition, IBM paid the arbitration award in full. The federal district court granted Plaintiff’s petition to confirm the award and her motion to unseal the arbitration award.

IBM appealed the district court's unsealing of the award, contending that (1) the petition to confirm became moot once IBM paid the award, and (2) the district court erred in unsealing the confidential award.

The United States Court of Appeals, Second Circuit, agreeing  with IBM, explaining that Plaintiff's petition to confirm her purely monetary award became moot when IBM paid the award in full because there remained no “concrete” interest in enforcement of the award to maintain a case or controversy.

The Circuit Court also ruled that any presumption of public access to judicial documents was outweighed by the importance of confidentiality under the FAA and the impropriety of Plaintiff’s effort to evade the confidentiality provision in her arbitration agreement. In the words of the court, "In short, the presumption of access to judicial documents is outweighed here by the interest in confidentiality and because [Plaintiff's] apparent purpose in filing the materials publicly is to launder their confidentiality through litigation."

Concluding that the district court should not have granted Plaintiff’s motion to unseal the award," the Circuit Court of Appeals remanded the matter to the federal district court "with instructions to dismiss the petition as moot" and reversed the district court's ruling unsealing the award.

* Plaintiff had signed the separation agreement in exchange for "severance payments and other benefits. The Agreement included a class- and collective-action waiver requiring claims arising from her termination—including claims under the ADEA—to be resolved “by private, confidential, final and binding arbitration.”

Click HERE to access the Circuit Court of Appeals' decision posted on the Internet.

 

Former town court clerk pleads guilty to Jobbery

As noted in previous NYPPL reports of misconduct involving a public employee stealing public funds, such breaches of the public trust are frequently referred to as "jobbery." Mirriam-Webster defines jobbery as "the improper use of public office or conduct of public business for private gain".

On August 17, 2023, State Comptroller Thomas P. DiNapoli, Wayne County District Attorney Michael Calarco and the New York State Police announced that the former court clerk for the Town of Marion, Eileen Steurrys, pleaded guilty to stealing over $50,000 from the town court.

“Ms. Steurrys went to great lengths to try and cover up her theft of public funds. She now faces the consequences of her actions because of my office’s investigation and our partnership with District Attorney Calarco and the State Police,” New York State Comptroller DiNapoli said. “My thanks to the District Attorney and the State Police for their continuing partnership in combating public corruption.”

Following the plea, Prosecutor John J. Ferlicca of the Wayne County DA’s Office said, “The auditors from the State Comptroller did an exceptional and thorough investigation, which made my job of obtaining a conviction that much easier.”

New York State Police Acting Superintendent Steven A. Nigrelli said, “This guilty plea today once again demonstrates the hard work of law enforcement partners focused on the same goal: holding those who break our laws, accountable. Ms. Steurrys manipulated a position she was entrusted in and used it to her own advantage. We will not tolerate such corruption from those who use their position to profit at the expense of the local community. I commend and thank the State Comptroller’s office and the Wayne County District Attorney’s office for their commitment to investigating and prosecuting those who prey on their community.”

Steurrys’ crimes were uncovered during DiNapoli’s audit of the Town of Marion Court Fund, which found that court fees collected were not always being deposited into the court’s account. A resulting investigation, in collaboration with Wayne County District Attorney Calarco and the State Police, determined that, from 2016 to 2021, Steurrys stole over $50,000 and altered court records and created phony receipts to conceal her crimes. She was arrested in March following the joint investigation.

Steurrys’ pleaded guilty to Grand Larceny in the Second Degree, Corrupting the Government in the Second Degree, Tampering with Records in the First Degree and Official Misconduct before Wayne County Court Judge Richard M. Healy. Her sentencing is scheduled for October 18, 2023

 

Georgia woman pleads guilty to stealing her deceased father's NY state pension checks

On August 16, 2023, New York State Comptroller Thomas P. DiNapoli, Albany County District Attorney David Soares and the New York State Police announced that Alayne Bertolino pleaded guilty to stealing more than $240,000 in New York state pension payments made to her deceased father.

“This case should serve as a warning to those who would try to defraud our state’s pension fund — you will be caught,” State Comptroller DiNapoli said. “My thanks to Albany County District Attorney David Soares and the New York State Police for their partnership with my office’s Division of Investigations. Working together we ensured the pension fund was protected, restitution was paid and justice was served.”

“The loss of a loved one is always a difficult emotional period, but it should never be used to profit from the hard work of taxpayers,” said Assistant District Attorney Erin Bates, who is handling the prosecution of this case. “We hope this resolution helps to restore trust in the justice system by sending a clear message: the law will hold anyone accountable for trying to exploit the system for financial gain. When applied properly, justice holds everyone accountable, regardless of their position.”

New York State Police Acting Superintendent Steven A. Nigrelli said, “I commend the diligent work of our State Police members, along with our partners at the State Comptroller’s Office and Albany District Attorney’s Office, for their hard work in putting an end to this fraudulent and dishonest act. Ms. Bertolino deplorably took advantage of her deceased father’s hard-earned pension to support her own selfish needs. Today’s guilty plea is proof that we will not tolerate the actions of those willing to defraud the New York state pension fund.”

The defendant’s father, Joseph Bertolino, was a detective with the Nassau County Police Department who retired in 1991. His pension checks were directly deposited into a joint account he held with his daughter, who lives in Georgia. When he passed away at age 69, on Jan. 24, 2014, his daughter sought to conceal his death from the state retirement system. Alayne Bertolino did not notify the retirement system of her father’s death and sent a change of address form in his name.

A total of 56 monthly deposits, totaling $246,272.32, were made into the jointly held bank account after Joseph Bertolino’s death. Alayne Bertolino used the money to assist in purchasing a $556,000 home and car.

Ms. Bertolino pleaded guilty to Grand Larceny in the Second Degree and was ordered to make restitution in the amount of $242,558.56 by Albany County Court Judge William T. Little.

 

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The Artificial Intelligence Power Paradox: An article posted on the Internet by Foreign Affairs Magazine

An article, Can States Learn to Govern Artificial Intelligence—Before It’s Too late? by Ian Bremmer and Mustafa Suleyman was posted on the Internet by Foreign Affairs Magazine on August 16, 2023, opining:

"As artificial intelligence technology continues to advance at a breakneck pace, it will only become better, cheaper, more ubiquitous, and more dangerous, write Ian Bremmer and Mustafa Suleyman in a new essay for Foreign Affairs. 'Its arrival marks a Big Bang moment, the beginning of a world-changing technological revolution that will remake politics, economies, and societies.'”

"This pace of change also makes AI more difficult to regulate.'Artificial intelligence does not just pose policy challenges; its hyper-evolutionary nature also makes solving those challenges progressively harder,' Bremmer and Suleyman argue. 'That is the AI power paradox.' And with policymakers already behind the curve, they warn, there is no time to waste in developing new regulatory frameworks: 'If governments do not catch up soon, it is possible they never will.'"

 Click HERE to access the article.

New York Governor Kathy Hochul releases first statewide cyber strategy

On August 15, 2023, GOVTECH CYBERSECURITY reported that New York Gov. Kathy Hochul Released First Statewide Cyber Strategy

The state’s plan addresses how current and anticipated initiatives support its larger goals of building resilience, preparedness and unification across cybersecurity efforts. The strategy takes a holistic approach across sectors. READ MORE .

In a defamation action seeking damages, courts distinguish facts from opinions

Plaintiff commenced this defamation action seeking damages for statements made by Defendant in a letter to the New York State Inspector General [IG] about Defendant's concerns that Plaintiff, as a member of the New York State Joint Commission on Public Ethics, and others, were disclosing confidential information to the media.

Defendant answered the complaint and asserted a counterclaim seeking to recover damages under the anti-strategic lawsuits against public participation statutes*. Plaintiff moved to dismiss Defendant's counterclaim, and Defendant moved, inter alia, to dismiss Plaintiff's complaint. Defendant appeals and Plaintiff cross-appeals from an order that denied both motions.

The Appellate Division agreed with Defendant that Supreme Court should have granted her motion insofar as it sought dismissal of the complaint pursuant to CPLR §3211(a), subdivisions (7) and (g) and modified Supreme Court's order accordingly. The court, noting that there "is no dispute that [Defendant] established on her motion that the action involves "public petition and participation", also concluded that Plaintiff, in opposition to the motion, "failed to demonstrate that the action has a substantial basis in law" inasmuch as Defendant's statements in question constitute nonactionable expressions of opinion.

The Appellate Division explained that  "In order for the challenged statements to be susceptible of a defamatory connotation, they must come within the well established categories of actionable communications" and falsity is a necessary element of a defamation cause of action as only "facts" are capable of being proven false. Accordingly, said the court, "it follows that only statements alleging facts can properly be the subject of a defamation action." Citing  Mann v Abel, 10 NY3d 271, [cert denied 555 US 1170], the Appellate Division said "whether a particular statement constitutes an opinion or an objective fact is a question of law".

Defendant's letter, said the court, constitutes "a statement of opinion ... accompanied by a recitation of the facts upon which it is based" and Defendant's allegations used phrases such as "appear to be" and "[t]o the extent that there is evidence," while setting forth the facts upon which such allegations were based.

Further, the Appellate Division noted the letter was addressed to the IG urging the commencement of an investigation and said that in reviewing the full context of the communication, "including its tone and purpose," it concluded that Defendant "set out the basis for [her] personal opinion, leaving it to the [IG] to evaluate it for [herself]", citing Brian v Richardson, 87 NY2d 46.

* See Civil Rights Law §§70-a and 76-a.

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

 

Entering a plea of Nolo Contendere in an administrative disciplinary action

Nolo Contendere is Latin for "I will not contest it."

A decision of the Commissioner of Education involving "student discipline" in which the Commissioner considered a plea of “no contest” is Decisions of the Commissioner 16,385, posted on the Internet at http://www.counsel.nysed.gov/Decisions/volume52/d16385.html. Here the Commissioner noted "no contest” pleas in student disciplinary proceedings ... have been upheld as valid when entered into knowingly and voluntarily."

Other decisions in which the Commissioner considered a plea of “no contest” include: Decision No. 16,101; Decision No. 15,841; Decision No. 15,122; Decision No. 14,529; Decision No. 14,305; and Decision No. 14,217 

With respect to "settling an employee disciplinary action," the decision in Taylor v Cass, 505 NY2d 929, indicates that the terms and conditions of such a settlement authorizing the termination of the employee without notice and hearing are strictly construed.

The stipulation of settlement at issue provided that Taylor would be terminated "without another hearing" if, during his disciplinary probationary period, Taylor's job performance, in the opinion of his supervisor, was "adversely affected" by his "consumption of alcohol".

Served with a "notice of infraction" of the terms of his disciplinary probation, Taylor was summarily terminated from his position for "failing to give a fair day's work" and "sleeping during [the] scheduled working hours" without a disciplinary hearing. 

Significantly, the letter of termination sent to Taylor failed to state that intoxication was the reason for his dismissal. The decision by the Court of Appeals indicated that Taylor was terminated "solely for the reasons set forth in the notice of infraction", i.e., "failing to give a fair day's work" and "sleeping during [his] scheduled working hours".

In the words of the Court of Appeals, "Under the circumstances, [Taylor] should not have been dismissed without a hearing...."

It has been suggested that in the event an employee served with charges in an administrative disciplinary action merely enters a plea of nolo contendere in contrast to entering into a formal agreement of  "settlement" of the disciplinary action, the appointing authority should proceed with the disciplinary action and conduct it as a disciplinary hearing being held in absentia.

Indeed, Section 75.2 of the Civil Service Law, in pertinent part, provides “the burden of proving incompetency, and, or misconduct shall be upon the person alleging the same.”

In other words, it appears the failure of an employee to offer an explanation or a defense does not absolve the employer of its obligation to prove the charges of incompetency, and, or, misconduct served on an employee in an administrative disciplinary proceeding before imposing disciplinary sanctions absent the parties mutually agreeing to "settling the matter".

As  to conducting disciplinary hearings in absentia, in Mujtaba v NYS Dept. of Education, 148 A.D.2d 819, the Appellate Division held “due process does not require that [the charged individual] be present at an administrative hearing, but rather requires notice of the charges and an opportunity to be heard.” What also is required, however, is that the appointing authority made a diligent effort to contact the employee to inform him or her that the disciplinary hearing had been scheduled and would take place even if the individual fails to appear and participate.

In contrast, an accused who had pleaded guilty to a criminal charge, or who had pleaded nolo contentere to the criminal charge, is deemed to "having been found guilty" of that criminal charge. However, although a plea of nolo contendere has the same immediate effect as a guilty plea, it cannot be used against the individual in another cause of action.

Click HERE to access a LawBlog focusing on Nolo Contendere posted on the Internet.