Establishing affirmative defenses to alleged pay-discrimination claims brought pursuant to Federal and New York State laws

In ANITA EISENHAUER v. CULINARY INSTITUTE OF AMERICA, [21-2919-cv], decided October 17, 2023, United States Circuit Court [Second Circuit] Judge JOSÉ A. CABRANES introduced the court's majority decision* as follows:

"This case presents the questions of what a defendant must prove to establish affirmative defenses to pay-discrimination claims under federal and state laws: the Equal Pay Act, 29 U.S.C. §206(d), and New York Labor Law §194(1). 

"Plaintiff Anita Eisenhauer alleges that defendant Culinary Institute of America violated these equal-pay laws by compensating her less than a male colleague. 

"The Culinary Institute responds that a 'factor other than sex' — its sex-neutral compensation plan, which incorporates a collective bargaining agreement — justifies the pay disparity. 

"Eisenhauer argues that the compensation plan cannot qualify as a 'factor other than sex' because it creates a pay disparity unconnected to differences between her job and her colleague’s job."

* CHIEF JUDGE DEBRA ANN LIVINGSTON concurred in the judgment in part and filed a separate opinion.

Click HERE to read more.

 

 

Determinations by certain other entities not binding on a retirement system's medical board if the medical board's decision is supported by substantial evidence

Supreme Court denied Plaintiff's petition to annul Medical Board's determination rejecting Petitioner's application for accidental disability retirement [ADR] benefits and dismissed the proceeding Petitioner brought pursuant to CPLR Article 78. The Appellate Division unanimously affirmed the lower court's ruling, without costs.

The Appellate Division opined "Petitioner has not shown that [the Medical Board's] determination to deny her application for ADR benefits was arbitrary and capricious or made in violation of lawful procedure", citing Matter of Meyer v Board of Trustees of N.Y. City Fire Dept., Art. 1-B Pension Fund, 90 NY2d 139.

The court explained the evidence submitted at the hearing included the Medical Board's physical examination of Petitioner and its exhaustive review of the conflicting medical evidence from examining physicians, as well as Petitioner's acknowledgment that she could, without assistance, "perform daily life activities such as bathing, dressing, and walking." The Appellate Division's decision also noted "the Medical Board concluded that [Petitioner] did not complain of pain in her back, neck, and extremities when she went to the emergency room immediately after the accident underlying her request for ADR benefits, and that her various orthopedic problems were part of a normal degenerative process in a middle-aged person."

The Appellate Division's opinion noted that the Medical Board's determination conflicted with the finding of the Social Security Administration that awarded Petitioner disability benefits and Petitioner acknowledged "the finding of the Social Security Administration is not binding on the Medical Board [see Matter of Fusco, 136 AD3d at 451]".

Similarly, public safety officers and firefighters who have been deemed as suffering an occupational injury or disease within the meaning of the Worker's Compensation Law are sometimes disappointed to find that decisions of the Workers' Compensation Board have no bearing on their eligibility for other benefits such as accidental retirement benefits or General Municipal Law §207-a or §207-c benefits. For example, in Balcerak v County of Nassau, 94 NY2d 253, the Court of Appeals ruled that entitlement to benefits under the Workers' Compensation Law and General Municipal Law §207-c are discrete and entirely independent of one another. 

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

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Disability benefits for New York State and municipal employees

A 1098 page e-book focusing on administering the Retirement and Social Security Law, General Municipal Law Sections 207-a/207-c and similar laws providing disability benefits to employees of the State of New York and its political subdivisions. 

For more information and access to a free excerpt of the material presented in this NYPPL e-book, click on http://booklocker.com/books/3916.html.

 

The "Pell doctrine" applied in judicial review of the penalty imposed on a public employee found guilty of disciplinary charges

The determination of appointing authority [Employer] terminating Petitioner's employment based on the report and recommendation of an Administrative Law Judge following a disciplinary hearing was unanimously confirmed by the Appellate Division.

The court noted that "Substantial evidence supports [the Employer's] determination that Petitioner violated Department directives and procedures concerning the retrieval of inmate property, engaged in undue familiarity with an inmate, failed to submit a required unusual incident report, used excessive force against an inmate, and made false and misleading statements."

Under the circumstances, the Appellate Division opined that "The penalty of termination of petitioner's employment does not shock one's sense of fairness", citing Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, among other decisions.

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

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A Reasonable Disciplinary Penalty - for information and access to a free excerpt of the material presented in this 442 page NYPPL e-book, click HERE.

 

From the Blogs for the week ending October 13, 2023

How Can Local Governments Safely Use Generative AI?
A new task force formed by MetroLab is seeking to explore this question, doing so by including more than 45 local governments, alongside other public, academic and private-sector members. READ MORE

 

Are We Witnessing the Death of the Password?
Long the front line of digital security, the humble password may be on its way out. Or maybe not. In a landscape packed with alternatives — and increasingly destructive cyberattacks — it’s complicated. READ MORE

 

What Cyber Response Can Learn from Traditional Disasters
Government has battle-tested playbooks for dealing with hurricanes, tornadoes and wildfires. As cyber emergencies become both more common and more devastating, what can cyber responders learn from physical emergency response? READ MORE

 

Boulder Disaster Management Social Account Hacked, Disabled
The official Twitter/X account for the Boulder, Colo., Office of Disaster Management was deactivated to prevent “suspicious activity” after it was apparently hacked over the weekend. READ MORE

 

Climate Vulnerability Index Shows Weather Impacts Neighborhoods
The new map analyzes more than 70,000 tracts across the nation and illustrates what conditions shape a person’s level of vulnerability, including factors such as health, socioeconomic impact, environment, weather events, infrastructure and more. READ MORE

 

 

 

 

 

Judicial review of a determination denying a petitioner's application for performance of duty disability retirement benefits

Petitioner, a police officer, filed an application for performance of duty disability retirement benefits, alleging that he was permanently incapacitated therefrom due to injuries sustained to his neck and back after falling down a set of stairs. The application was denied, and Petitioner requested a hearing and redetermination. At the conclusion of the hearing that followed, during the course of which Petitioner, his treating physician and the physician who evaluated Petitioner at the request of the New York State and Local Retirement System [ERS] appeared and testified, the Hearing Officer upheld the denial, finding that Petitioner failed to demonstrate that he was permanently incapacitated from the performance of his duties. The State  Comptroller adopted the Hearing Officer's findings and conclusions, and Petitioner initiated a CPLR Article 78 proceeding to challenge the Comptroller's determination.

The Appellate Division affirmed the Comptroller's determination, explaining:

1. Petitioner, as the applicant, bore the burden of establishing that he was permanently incapacitated from the performance of his duties as a police officer "as the natural and proximate result of a disability . . . sustained in such service";

2. The State Comptroller "is vested with the exclusive authority to determine all applications for retirement benefits";

3. The Comptroller's determination in this regard, if supported by substantial evidence in the record as a whole, will not be disturbed; and

4. Conflicting medical testimony presented a credibility issue for the Comptroller to resolve and the opinion rendered by Petitioner's treating physician was not entitled to greater weight over that of the physician who evaluated Petitioner at the request of the ERS and the Comptroller was free to credit ERS' expert's opinion over that of Petitioner's, despite the treating physician familiarity with the Petitioner.

Thus, the Appellate Division opined that the Comptroller's determination was supported by substantial evidence.

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

 

Paid Family Leave for employees of the State in Managerial or Confidential positions

This addition to 4 NYCRR 28-1.19 provides for a grant of up to twelve weeks of paid family leave for a "qualifying event" to eligible employees of the State as the employer serving in positions designated managerial or confidential within the meaning of Article 14 of the Civil Service Law [the so-called Taylor Law].

The text of rule and any statements and analyses may be obtained from: Jennifer Paul, NYS Department of Civil Service, Empire State Plaza, Agency Building 1, Albany, NY 12239, (518) 473-6598, email: commops@cs.ny.gov.

Elements considered by courts in actions seeking to vacate an arbitration award

In a proceeding pursuant to CPLR Article 75 to vacate an arbitration award, the Petitioner appealed from a judgment of the Supreme Court denying his petition and dismissing the proceeding. The Appellate Division affirmed the Supreme Court's judgment, with costs.

Noting that judicial review of an arbitration award "is extremely limited", the Appellate Division, citing Hackett v Milbank, Tweed, Hadley & McCloy, 86 NY2d 146, explained that under CPLR 7511, "an [arbitration] award may be vacated only if (1) the rights of a party were prejudiced by corruption, fraud or misconduct in procuring the award, or by the partiality of the arbitrator; (2) the arbitrator exceeded his or her power or failed to make a final and definite award; or (3) the arbitration suffered from an unwaived procedural defect".

"An arbitrator 'exceed[s] [his or her] power within the meaning of the CPLR only when [he or she] issue[s] an award that violates a strong public policy, is irrational or clearly exceeds a specifically enumerated limitation on the arbitrator's power'", citing American Intl. Specialty Lines Ins. Co. v Allied Capital Corp., 35 NY3d 64.

Further, a party seeking to overturn an arbitration award "bears a heavy burden and must establish a ground for vacatur by clear and convincing evidence" (See Matter of Board of Educ. of the Yonkers City Sch. Dist. v Yonkers Fedn. of Teachers, 185 AD3d 811).

The Appellate Division opined that in this action Petitioner "failed to show, by clear and convincing evidence, a basis for vacating the arbitration award pursuant to CPLR 7511."

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

 

An invitation to join the New York State Comptroller's team

The New York State Comptroller's office employs over 2,700 public servants statewide who are dedicated to ensuring taxpayer dollars are used effectively and for public good. The team consists of auditors, financial, business and policy analysts; information technology specialists, contract managers, investigators, and more.

New York State Comptroller Thomas P. DiNapoli invites interested individuals to learn more about his office which includes:

• Managing the New York State Pension Fund, one of the best-funded and best-managed public pension plans in the nation.
• Administering the New York State and Local Retirement System for more than one million members, retirees and beneficiaries and employers.
• Protecting taxpayer funds by uncovering waste, fraud and abuse at all levels of government.
• Fighting public corruption and pension fraud.
• Returning millions in unclaimed funds to rightful owners.
• Providing independent fiscal oversight on State, New York City and local finances.
• Providing technical assistance and training to local government officials and school districts.
• Reviewing State contracts and auditing payments, maintaining the State's accounting system and administering the State payroll.
• An much, much more.
  

To get started:

Click HERE for more information about employment opportunities or guidance on the civil service process.

View all open positions with the Comptroller's office in Albany and across the State.

Find Civil Service exam information, including continuous recruitment exams, those open to the public and promotional exams for State employees.

Meet with representatives at a career fair in your area. View calendar of events.

Follow the New York State Comptroller's office on LinkedIn to learn more about its work, culture and latest opportunities.

Appeal to the Commissioner of Education pursuant to §306 of the Education Law dismissed as untimely, for lack of proper service and for lack of jurisdiction

The Petitioner in this action asked the Commissioner of Education to remove the President of the school district's Board of Education pursuant to §306 of the Education Law, alleging the President defamed him at a board meeting and that the President’s comments "have had a negative personal and professional impact on him."

In rebuttal, the school district contended that Petitioner's application was untimely, must be dismissed for improper service, and the Petitioner's allegations of defamation and slander are outside the jurisdiction of the Commissioner.*

The Commissioner held that the Petitioner's application must be denied as untimely, noting "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". The Commissioner rejected Petitioner's argument that such lateness should be excused "due to his lack of knowledge concerning the appeal process." In the words of the Commissioner this was "not a sufficient basis to excuse a delay in commencing an appeal or removal application", citing a number of Decisions of the Commissioner of Education including Application of S.D., 60 Ed Dept Rep, Decision No. 18,009.

The Commissioner also noted Petitioner's application must also be denied for lack of personal service as §275.8(a) of the Commissioner’s Regulations requires that a petition be personally served upon each named respondent. In this instance Petitioner's affidavit of service indicates that service was made upon the district clerk.  Petitioner, however, was required to serve the President, the individual whose removal he sought, personally.

Addressing the President's request for a certificate of good faith pursuant to Education Law §3811(1) the Commissioner explained that "[such] certification is solely for the purpose of authorizing 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 section 3811(1)". As Petitioner's appeal was dismissed on procedural grounds without any findings on the merits, the Commissioner certified that the President was entitled to the requested certification [see Appeal and Application of Petrocelli, 62 Ed Dept Rep, Decision No. 18,223].

* The Commissioner noted that she "lacked jurisdiction to adjudicate Petitioner’s claims of defamation or slander", citing Appeal of Zwanka, 56 Ed Dept Rep, Decision No. 17,051 and Appeal of Murray, 56 id., Decision No. 17,002.

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

 

Cyber attacks on State, local government and school district cyber security systems

In a report issued in October 2023, New York's State Comptroller Thomas P. DiNapoli indicated that:

"Cyberattacks are a serious threat to America’s critical infrastructure and have the potential to severely impact our day-to-day lives. These incidents often result in data breaches for companies and institutions that collect large amounts of personally identifiable data. Data breaches expose New Yorkers to invasions of privacy, the possibility of identity theft and other types of fraud. Even more troubling are incidents such as ransomware or distributed denial of service attacks that have the potential to shut down systems that we rely on for water, power, health care and other necessities."

The report highlights the recent proliferation of cyberattacks, details the most common types; discusses recent efforts to respond to and prevent such attacks; and recommends a policy framework intended to help New York stay ahead of the threat presented by cyberattacks. 

The Office of the State Comptroller [OSC] noted that it is working to help avoid cyber attacks by auditing and uncovering weaknesses in State, local government and school district cyber security systems. Audits by OSC's Divisions of State Government Accountability and Local Government and School Accountability revealed dozens of ransom ware attacks and other data breach incidents that compromised New York State agencies, counties, cities, towns and villages, hospitals and public-school systems, and have identified gaps in cyber security. OSC said "Understanding and addressing these weaknesses can help New York State remain vigilant."

OCS noted that it "will continue to dedicate attention and resources to protecting New York residents and institutions from these attacks."

Click HERE to access the State Comptroller's October 2023 report.

 

Substantial evidence

The determination of appointing authority [Employer] which terminated Petitioner's employment based on the report and recommendation of an Administrative Law Judge was unanimously confirmed by the Appellate Division. 

The court noted that "Substantial evidence supports [the Employer's] determination that Petitioner violated Department directives and procedures concerning the retrieval of inmate property, engaged in undue familiarity with an inmate, failed to submit a required unusual incident report, used excessive force against an inmate, and made false and misleading statements.] 

Under the circumstances the Appellate Division opined that "The penalty of termination of petitioner's employment does not shock one's sense of fairness", citing Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, among other decisions.

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

 

Employee's application seeking a religious exemption from the COVID-19 vaccination requirement for agency employees denied

The Appellate Division sustained Supreme Court's decision rejecting Plaintiff's petition seeking a court order annulling the determination of the City of New York Reasonable Accommodation Appeals Panel [Citywide Panel] denying Plaintiff's request for a religious exemption from the COVID-19 vaccination requirement for employees of the New York City Department of Education [DOE].

The Citywide Panel denied Plaintiff's administrative appeal challenging the denial of his application for a religious exemption from the vaccination requirement, finding that:

[1] "Plaintiff failed to establish that his objection to receiving any of the COVID-19 vaccines was based on a sincerely held religious belief; and 

[2] "granting the accommodation would impose an undue hardship on DOE."

Citing Matter of Marsteller v City of New York, 217 AD3d 543, the Appellate Division noted that Plaintiff:

[1] "had no demonstrated history of refusing medications or vaccines;

[2] "he admitted to receiving a certain vaccination required for him to attend college;  and 

[3] "he refused to answer a question about whether he had avoided any other vaccines or medications based on the same objection he raised to the COVID-19 vaccines."

The court also rejected Plaintiff's argument that DOE's "Position Statement" was unsigned and undated hearsay, noting "Generally, administrative proceedings need not conform to all of the ... evidentiary rules adhered to in judicial tribunals", citing Matter of Church of Scientology of N.Y. v Tax Commn. of City of N.Y., 120 AD2 376, nor need an agency "state with specificity its detailed analysis," or "point to any contemporaneously created record that demonstrates that it considered all relevant factors" or "or engage in a cooperative dialogue".

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