Penalty of termination imposed on a employee found to have been conducting private business activities "on company time"

Penalty of termination imposed on a employee found to have been conducting private business activities "on company time"

Ficken v Suffolk Vocational Education Board, 238 A.D.2d 589

An employee of Suffolk County's Vocational Education and Extension Board [VEEB] was conducting a personal business activity while simultaneously being employed by VEEB. The problem was that the employee was alleged to have been conducting some of her personal business on VEEB property and on VEEB time.

Although warned several times not to conduct her personal business affairs while on VEEB property and that her failure to comply with directive could result in disciplinary action, the employee persisted in conducting some of her personal business while at work. This resulted in the employee being charged with, and found guilty of, misconduct characterized as theft of services. The penalty imposed: termination. 

The employee appealed the disciplinary action taken against her, claiming that there was no substantial evidence to support the appointing authority's determination. 

The Appellate Division disagreed and dismissed the appeal challenging the disciplinary action taken against her. The court explained that the employee's admission that she met with a client to conduct aspects of her business on VEEB property and on "VEEB time," coupled with the testimony of two co-workers that the employee typed documents related to her business activities while "at work," was "sufficient to provide substantial evidence to sustain the findings of misconduct."

As to the penalty imposed, the Appellate Division, citing Pell v Board of Education, 34 NY2d 222, said that under the circumstances, dismissal was not so disproportionate to the offense as to be "shocking to one's sense of fairness."

The decision is posted on the Internet at:
https://www.leagle.com/decision/1997827238ad2d5891242

________________________

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. Now available in two formats - as a large, paperback print edition, and as an e-book. Click here to Read a FREE excerpt. For more information click onhttp://booklocker.com/7401.html

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Improper performance of a judicial function by a legislative body

Improper performance of a judicial function by a legislative body

Porcari v Griffith, 2019 NY Slip Op 00918, Appellate Division, Second Department

In 2016, the individuals [Plaintiffs] initiating this action were appointed to certain local offices by the Mayor of the City of Mount Vernon. Later that same year the Mount Vernon City Council enacted an ordinance declaring that the offices occupied by the Plaintiffs were "vacant" because the Plaintiffs were not residents of the City within the meaning of §50-38* of City's Code.

The ordinance as enacted also required the City's Comptroller to "... immediately cease payment of salary and benefits to Plaintiffs."** The Comptroller ceased paying salary and benefits to Plaintiffs notwithstanding the fact that Plaintiffs continued to perform the duties of their respective offices.

The Plaintiffs thereupon brought an action seeking a declaratory judgment and injunctive relief against the actions of the members of the City Council and the Comptroller, alleging that City Council "exceeded its legislative authority in enacting the ordinance that declared that the offices held by the plaintiffs were vacant." Plaintiffs asked Supreme Court to issue an order enjoining their suspension, termination, any interference with their salary and benefits or preventing them from performing the duties and responsibilities of the positions to which they had been appointed by the Mayor. Supreme Court granted Plaintiffs' motions and Mt. Vernon appealed the court's ruling.

The Appellate Division, noting that the "party seeking a preliminary injunction must demonstrate a probability of success on the merits, danger of irreparable injury in the absence of an injunction and a balance of equities in its favor," explained that "the decision to grant a preliminary injunction is a matter ordinarily committed to the sound discretion of the court hearing the motion" and "[i]n the absence of unusual or compelling circumstances, [the] court[s] [are] reluctant to disturb said determination."

The Appellate Division then opined that Plaintiffs had demonstrated a likelihood of success on the merits on their claim that the City Council "improperly performed a judicial function" by enacting an ordinance  "declaring" that the local offices were vacant within the meaning of §50-38 of the City of Mount Vernon's Code.*** In addition, said the court, Plaintiffs also demonstrated "a danger of irreparable injury in the absence of an injunction, and that the equities balance in their favor."

Accordingly, the Appellate Division sustained the Supreme Court's determination granting Plaintiffs' motion for the preliminary injunction.

* Article III, [Residency Requirements] of Chapter 50 [Personnel Policies] set out in City of Mount Vernon's Code requires certain local officers and employees to be residents of the City of Mount Vernon [See https://ecode360.com/6600350].

** The Appellate Division's decision indicates the City Council overrode the Mayor's veto of the ordinance.

*** §36 of the Public Officer Law sets out the procedures for the removal of a town, village, improvement district or fire district officer other than a justice of the peace.  Typically, such officers may be removed from office for misconduct, maladministration, malfeasance or malversion in office by the filing of an application for such removal with the Appellate Division have jurisdiction.  

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_00918.htm

Proposed amendment to 2 NYCRR 315.5 will permit certain special duty assignments performed by sworn officers to qualify as public safety overtime in determining the individual's retirement allowance

Proposed amendment to 2 NYCRR 315.5 will permit certain special duty assignments performed by sworn officers to qualify as public safety overtime in determining the individual's retirement allowance

Source: New York State Register, February 13, 2019

The Department of Audit and Control has posted a notice of a proposed amendment of 2 NYCRR 315.5 to provide that certain special duty assignments qualify as public safety overtime and qualify as allowable service in determining the Retirement System member's retirement allowance.

The Retirement System explains that it has:

"[L]ong considered certain special duty assignments that consisted primarily of security work performed by public safety professionals at the request of a private entity on a voluntary basis, paid or reimbursed by the private entity, performed under the direction of the private entity, or primarily for the benefit of the private entity not to be creditable because such assignments did not constitute paid public service with a participating employer.

"Courts have upheld the Retirement System’s position that such work, often referred to as 'private entity overtime,' was not allowable service and was not within the realm of the employee’s duties for the participating employer. In recent years, however, the manner in which special duty assignments performed at the request of private entities are assigned, supervised, and compensated has changed.

"Today, special duty assignments are often mandatory and are directed and controlled by the public employer. Compensation to the employee is paid by the public employer, not the private entity.

"In recognition of the changing nature of special duty assignments, the Retirement System has determined that those special duty assignments that meet the criteria established by the Retirement System, qualify as “public safety overtime” and shall be considered allowable service."

The text of the proposed amendment is posted on the Internet at:

https://docs.dos.ny.gov/info/register/2019/feb13/rulemaking.pdf

Reimbursement of retiree Medicare premiums found to be a form of deferred compensation may not be unilaterally discontinued by the employer

Reimbursement of  retiree Medicare premiums found to be a form of deferred compensation may not be unilaterally discontinued by the employer

Holloway v City of Albany, 2019 NY Slip Op 00940, Appellate Division, Third Department

In 2012 the Firefighters' Union [Union] filed a contract grievance and demanded arbitration when the City of Albany [Albany] said that it was ending its longstanding practice of reimbursing retired firefighters for their Medicare Part B premiums with respect to those who enrolled in the program on or after January 1, 2010.  The Union alleged that Albany's action violated §27.1 of the Collective Bargaining Agreement [CBA].* 

An arbitrator ruled that the Medicare Part B premium reimbursement was a component of "the existing health insurance plan" and that it could not be ended absent compliance with the provisions set out in §27.1 of the CBA. Subsequently the same arbitrator conducted an expedited proceedings to determine whether a health insurance plan without the reimbursement of Medicare Part B premiums provided coverage "substantially equivalent" to one with such reimbursements. The arbitrator decided that it did not and directed Albany to make whole "all individuals affected by [the reimbursement's] elimination." The arbitrator's awards were confirmed in an action taken pursuant to CPLR Article 75.

However, the Union determined that firefighters either enrolled in Medicare Part B after January 1, 2010 or will be doing so and, notwithstanding the 2012 arbitration award, had not been and would not be reimbursed by the City for their Medicare Part B premiums. Accordingly, in 2015 the Union initiated the instant action contending that Albany [1] had breached whichever CBA was in effect at each such firefighter's retirement and [2] was collaterally estopped** by the 2012 arbitration award from arguing to the contrary.

Supreme Court, however, determined that the Doctrine of Collateral Estoppel did not apply, found ambiguities in the language of §27.1 of the CBA and denied the Union's motion for summary judgment. The Union appealed. 

Acknowledging that §27.1 of the CBA, as written, is ambiguous, the Union argued that the proceedings culminating in the 2012 arbitration award resolved, with preclusive effect, that ambiguity in its favor. The Appellate Division agreed, explaining that arbitration awards are entitled to collateral estoppel effect and, citing Guard-Life Corp. v Parker Hardware Mfg. Corp., 50 NY2d 183, said such an award "will bar a party from relitigating a material issue or claim resolved in the arbitration proceeding after a full and fair opportunity to litigate."

Observing that it was undisputed that the arbitration proceeding afforded Albany  a "full and fair opportunity to litigate the issues therein," the Appellate Division said that the only question is whether the firefighters in this action, as the parties seeking to invoke collateral estoppel, satisfied their burden of showing the identity of the issues  "between those resolved in the arbitration awards and those in play here."

In the 2010 arbitration award, said the court, the arbitrator observed that Albany had reimbursed retired firefighters for their Medicare Part B premiums since the 1960's and did so for decades after it was no longer required, leading her to conclude that the reimbursement constituted part of the "existing health insurance plan" that could not be discontinued absent compliance with the provision set out in §27.1 of the CBA.

Albany had also contended that §27.1 had no applicability because retired firefighters were not "members of the bargaining unit" protected by that contract provision. The arbitrator also rejected this argument, holding that the reimbursement was a form of deferred compensation and was one of the health insurance benefits afforded to current employees.  In the words of the Appellate Division, although retirees are no longer part of the collective bargaining unit upon their retirement "the arbitrator determined that §27.1 applied because the reimbursement entitlement was earned by the retirees while they were working."

Noting that the 2010 and 2012 arbitration awards were never vacated and are binding and the firefighters  retired during the period that the reimbursement was provided to retirees under CBAs containing §27.1, the Appellate Division held that Albany "is obligated to reimburse retired firefighters for these payments under the CBA"

This, said the Appellate Division, Justice Mulvey dissenting, "is dispositive of the claims raised here" and thus the firefighters have met their burden of showing identity of issue, and their motion for summary judgment should have been granted by Supreme Court.

* §27.1 of the collective bargaining agreements at issue required the City to "present proposals to the [firefighters'] [u]nion for discussion and possible agreement" if it "wishe[d] to change the existing health insurance plan." In the absence of agreement, an arbitrator would be tasked with determining "whether the new . . . proposal grants substantially equivalent coverage to members of the bargaining unit" so as to be permissible.

** The Doctrine of Collateral Estoppel bars an issue that has already been litigated by the  parties from being later relitgated by those same parties..

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2019/2019_00940.htm

A public employee alleging that he or she has been "wrongful terminated" is required to bring a CPLR Article 78 proceeding seeking reinstatement and unpaid salary

A public employee alleging that he or she has been "wrongful terminated" is required to bring a CPLR Article 78 proceeding seeking reinstatement and unpaid salary

Village of Northport v Krumholz, 2019 NY Slip Op 00926, Appellate Division, Second Department

The Defendant in this action was appointed Treasurer of the Village of Northport and served in that capacity until the Village discovered that she had been appropriating Village funds to herself.*

The Village commenced this action against Defendant alleging that she had improperly written checks to herself from Village funds. Defendant filed a counterclaim alleged "wrongful termination and violation of Public Officers Law §36"** and asked the court to direct her reinstatement and payment of back salary.

Supreme Court granted the Village's motions summary judgment on its conversion and  its breach of fiduciary duty causes of actions, and dismissed, as time-barred, Defendant's counterclaim. Defendant appealed, contending that Supreme Court should not have granted Village's motion for summary judgment dismissing her counterclaim.

The Appellate Division sustained the Supreme Court's rulings, explaining that:

1. Defendant was required to bring a proceeding pursuant to CPLR Article 78 in order to pursue her claim of wrongful termination and to seek reinstatement and unpaid salary; and

2. Citing Austin v Board of Higher Educ. of City of N.Y. , 5 NY2d 430, a CPLR Article 78 proceeding is the exclusive remedy for a discharged public employee, who must seek reinstatement prior to seeking unpaid salary.

As the Village established its prima facie entitlement to judgment as a matter of law dismissing the Defendant's counterclaim as time-barred, the claim not having not been filed within the controlling four-month statute of limitations, the Appellate Division noted that Defendant "was effectively terminated" in March, 2009 but did not file her counterclaim until January 4, 2013.

* Earlier Defendant had brought an action United States District Court "seeking overtime pay under the Fair Labor Standards Act" and alleged that her employment with the Village should not have been terminated without notice and hearing. The federal court dismissed Defendant's Fair Labor Standards Act claim and declined to consider the state law questions she presented. The filing of her federal action, however, did not toll the running of the controlling statute of limitations with respect to the litigation of Defendant's state law issues. Similarly, neither the filing an appeal from an administrative decision in accordance with a grievance procedure [Matter of Matter of Hazeltine v City of New York, 89 AD3d 613] nor a request for reconsideration of a final administrative decision [Cappellino v Town of Somers, 83 AD3d 934] toll the running of the statute of limitations for bringing an Article 78 action.

** §36 of the Public Officer Law sets out the procedures for the removal of a town, village, improvement district or fire district officer other than a justice of the peace.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_00926.htm

Applying compensation limitations retroactively

Applying compensation limitations retroactively

People v Edward J. Murphy, 235 A.D.2d 554

In 1993 certain limitations on the amount of compensation that a BOCES Superintendent could receive were enacted into law [Chapter 295, Laws of 1993].

In the Murphy case the Appellate Division concluded that the limitations set out in Chapter 295 did not apply retroactively.

The case arose when the State attempted to recover a portion of what the Appellate Division described as an "overly generous BOCES compensation package (which included extensive sick and vacation leave time and the right to liquidate this leave at full-pay)" granted to its then BOCES Superintendent Edward J. Murphy,

The Court said that "while improvident, BOCES' offer to Murphy, and his acceptance of the overly generous BOCES compensation package ... did not violate any articulated public policy."

Further, the Court ruled that although the law now places a limitation on the amount of compensation that a BOCES superintendent may receive, "at the time Murphy began working at BOCES and continuing throughout his tenure as the BOCES district superintendent, the law provided for no such restrictions. Accordingly, the Court decided, Murphy's employment agreements with BOCES were neither illegal nor unauthorized.

The ruling suggests that all or part of a "compensation package" in place prior to the effective date of the enactment or the amendment of a law limiting the compensation of a public officer or a public employee then in service may survive judicial challenge even if the compensation package is in excess of that authorized by the law as enacted or amended.

The decision is posted on the Internet at:

https://www.leagle.com/decision/1997789235ad2d5541272

An appointing authority may formulate and implement procedures to be used to promote its employees

An appointing authority may formulate and implement procedures to be used to promote its employees

Sinopidis v Port Authority of New York and New Jersey, 2019 NY Slip Op 00830, Appellate Division, First Department

A candidate for promotion from Port Authority of New York and New Jersey Sergeant to Lieutenant  [Petitioner] received a failing grade he received based on his performance at a Qualifications Review Meeting [QRM]. Supreme Court denied his petition seeking a court order directing the Port Authority to effect his  promotion to Lieutenant and to award him back pay and benefits, or, in the alternative, to order the Port Authority "to reconvene [Petitioner's]  interview on a pass-fail basis".  

Petitioner appealed the Supreme Court's ruling. The Appellate Division, however, affirmed the lower court decision, explaining that Petitioner:

1. failed to demonstrate that the Port Authority lacked the discretion to formulate and implement the promotional procedures it had used;

2. failed to show that on its face the procedures were unlawful or arbitrary; and

3. did not demonstrate that the failing grade he received based on his performance at a QRM was arbitrary and capricious.

In the words of the Appellate Division the Port Authority had "broad discretion to select individuals for civil service appointment and promotion."

The Appellate Division said that it would not interfere with Port Authority's  exercise of that discretion "unless there is evidence of arbitrary or unlawful conduct by the appointing officer" and insofar as Petitioner's claim that he was "essentially informed" by his superior officers that he had performed well on the QRM is concerned, this representation "does not raise an issue as to the propriety of the failing grade [Petitioner] actually received."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_00830.htm

Statute of limitations for initiating administrative disciplinary action extended where the act or omission charged may constitute a crime

Statute of limitations for initiating administrative disciplinary action extended where the act or omission charged may constitute a crime

Folborg v Bratton, 227 A.D.2d 108

§75.4 of the Civil Service Law provides that disciplinary proceeding must be initiated "within 18 months of the alleged incompetency or misconduct ... provided, however, that such limitations shall not apply  where the  incompetency  or  misconduct  complained  of  and  described in the charges would,  if  proved  in  a  court  of  appropriate  jurisdiction, constitute a crime."

This exception became after a New York City police officer [Police Officer] was dismissed from his position after being found guilty of misconduct based on events that occurred more than 18 months before §75 disciplinary charges had been filed against him.

Essentially, Police Officer was alleged to have engaged in a scheme to defraud by "falsely representing that he would provide ... diamonds from Africa for manufacture and resale in this country...."

The Appellate Division said that because the allegations would, if proved in court, constitute the crime of larceny by false promise, the disciplinary actions was not time-barred under §75.4.

Making another point, the Court said that the fact that the District Attorney decided not to prosecute the police officer "was not tantamount to an assessment that [Police Officer] had not committed a crime." Accordingly, taking administrative disciplinary action against  Police Officer was not improper.

Assume an employee has been tried and acquitted of criminal charges. Courts have allowed the prosecution of administrative disciplinary action against an employee notwithstanding his or her acquittal of criminal charges involving the same acts or omissions.

Why would a court allow the disciplinary hearing to proceed in such a situation? Because the burden of proof is substantially different. An individual may be acquitted in the criminal action because his or her guilt was not proven beyond a reasonable doubt, but he or she may be found guilty under the less stringent substantial evidence standard usually applied in administrative disciplinary proceedings.

Where, however, an individual has been found guilty of criminal charges by a court, the courts have ruled that such a determination precludes a hearing body finding the individual "not guilty" in an administrative disciplinary action involving the same allegations.

In Kelly v Levin, 81 AD2d 1005, the court ruled that acquitting an employee in an administrative disciplinary action based on the same charges underlying the individual's  criminal conviction was a reversible error because the standard of proof in the criminal action was greater. The court said that an Education Law  §3020-a disciplinary hearing panel could not find an individual not guilty of a crime after he or she had been convicted of criminal charges involving the same allegations.

The Police Officer decision is posted on the Internet at:
https://www.leagle.com/decision/1996335227ad2d1081302

_________

The Discipline Book - A concise guide to disciplinary actions involving public officers and employees in New York State. To order your copy of The Discipline Book, please go to: http://thedisciplinebook.blogspot.com/

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A school district employee's good faith in reporting allegations of child abuse in an educational setting triggers Education Law §1128(4) immunity from liability

A school district employee's good faith in reporting allegations of child abuse in an educational setting triggers Education Law §1128(4) immunity from liability
Bratge v Simons, 167 AD3d 1458

Among the issues raised by Plaintiffs in this appeal was the claim that Supreme Court erred in dismissing the complaint with respect to Plaintiffs' allegations that a school district and certain of its officers  and employees has subjected them to malicious prosecution. The Appellate Division held that Supreme Court properly dismissed this claim.

To obtain recovery for malicious prosecution, said the court, a plaintiff must establish [1] that a criminal proceeding was commenced; [2] that it was terminated in favor of the accused; [3] that it lacked probable cause; and [4] that the proceeding was brought out of actual malice."

In this instance, said the Appellate Division, it is undisputed that there was "a judicial determination of probable cause" in the underlying criminal action which "can be overcome only upon a showing of fraud, perjury or the withholding of evidence" and the Plaintiffs' complaint failed to allege such misconduct.

The Appellate Division also noted that the documentary evidence established that School District merely "furnished information to law enforcement authorities." The law enforcement authority then exercised its own judgment in determining whether criminal charges should be filed. Citing Quigley v City of Auburn, 267 AD2d 978, the court observed that "It is well settled that such actions by a civilian complainant . . . do not render the complainant liable for . . . malicious prosecution."

In addition, the Appellate Division commented that Education Law §1128(4) provides that School District employees named as defendants in such an action with immunity from liability with respect to their good faith compliance with the mandatory reporting requirements of  Education Law §1126.

§1126 sets out the duties of employees specifically enumerated in this section upon receipt of an allegation of child abuse in an educational setting. The Appellate Division said that the documentary evidence submitted by defendants in this action established that they acted reasonably and in good faith in transmitting a report of alleged child abuse in an educational setting consistent with the requirements of §1126.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_08778.htm

Violations of specific safety requirements

 

State ex rel. Angelo Benedetti, Inc. v. Indus. Comm.

Court: Ohio Supreme Court

 

Docket: 20070619

Judge: Per Curiam

Areas of Law: Business Law, Government & Administrative Law, Injury Law, Labor & Employment Law

The Industrial Commission of Ohio found that Angela Benedetti, Inc. (ABI) violated two newly added specific safety requirements that resulted in an injury to an ABI employee. ABI filed a complaint in mandamus in the court of appeals, alleging that the commission abused its discretion in permitting the injured employee to amend his specific safety requirement violations application and in finding violations of the specific safety requirements. The court of appeals upheld the Commission's order and denied the writ. On appeal, the Supreme Court affirmed, agreeing with the reasoning provided by the court of appeals but not given in this opinion.

 

http://j.st/SQE

Penalty of termination imposed on a employee found to have been conducting private business activities "on company time"

Penalty of termination imposed on a employee found to have been conducting private business activities "on company time"

Ficken v Suffolk Vocational Education Board, 238 A.D.2d 589

An employee of Suffolk County's Vocational Education and Extension Board [VEEB] was conducting a personal business activity while employed simultaneously being employed by VEEB. The problem was that the employee was alleged to have conducted some of her personal business on VEEB property and on VEEB time.

Although warned several times not to conduct her personal business affairs while on VEEB property and that her failure to comply with directive could result in disciplinary action, the employee persisted in conducting some of her personal business while at work.

This resulted in the employee being charged with and found guilty of, misconduct, characterized as theft of services. The penalty imposed: termination. 

The employee appealed the disciplinary action taken against her, claiming that there was no substantial evidence to support the appointing authority's determination. 

The Appellate Division disagreed and dismissed the appeal challenging the disciplinary action taken against her. The court explained that the employee's admission that she met with a client to conduct aspects of her business on VEEB property and on "VEEB time," coupled with the testimony of two co-workers that the employee typed documents related to her business activities while "at work," was "sufficient to provide substantial evidence to sustain the findings of misconduct."

As to the penalty imposed, the Appellate Division, citing Pell v Board of Education, 34 NY2d 222, said that under the circumstances, dismissal was not so disproportionate to the offense as to be "shocking to one's sense of fairness."

________________________

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. Now available in two formats - as a large, paperback print edition, and as an e-book. Click here to Read a FREE excerpt. For more information click onhttp://booklocker.com/7401.html

________________________

Employer's "legitimate, independent, and nondiscriminatory reasons" for its personnel actions trumps employee's complaint of discrimination and retaliation

Employer's "legitimate, independent, and nondiscriminatory reasons" for its personnel actions trumps employee's complaint of discrimination and retaliation

Cubelo v City of New York, 2019 NY Slip Op 00689, Appellate Division, First Department

The Plaintiff in this action, who was born in Spain, contended that he was passed over for several promotions by the New York City Department of Transportation [DOT] as a result of DOT's giving persons of South Asian descent preference in promotions. He also claimed that DOT retaliated against him after he had filed complaints alleging unlawful discrimination and a union grievance by "transferring* him to a lesser position" in violation of the State** and City Human Rights Laws.***

The Appellate Division said that DOT had established, prima facie, "legitimate, independent, and nondiscriminatory reasons" for the personnel actions underlying Plaintiff's complaints. The court explained that the record supports DOT's explanation that the candidates selected for promotion over Plaintiff were chosen because the individuals appointed "were better qualified for the job, having advanced degrees and directly relevant experience that [Plaintiff] did not possess."

Although Plaintiff contended that these candidates were actually promoted as a result of preferential treatment toward employees of South Asian descent, the Appellate Division noted that Plaintiff failed to submit evidence that in making these decisions his supervisors took into account the fact that he was not of South Asian descent. Further, said the court, Plaintiff's contention that the real reason for the decisions constituted unlawful discrimination was undermined by the fact that a woman of Polish descent was ultimately hired to occupy one of the four positions for which he applied and that Plaintiff failed to raise an issue of fact whether DOT's proffered reasons concerning the promotions were false and a pretext for, or motivated at least in part by, discrimination.

Addressing Plaintiff's allegations of retaliation after he had filed discrimination complaints and grievances, the court said that DOT had also established prima facie that Plaintiff's departmental transfer was not made in retaliation for his complaints of discrimination because it did not constitute an "adverse employment action" or an "action that disadvantaged him."

As to Plaintiff's filing a grievance with his union, his grievance alleged that he was performing out-of-title work in his former position. The Appellate Division pointed out that Plaintiff's reassignment was initiated as a remedy for the grievance and Plaintiff continued to earn the same salary and benefits while serving in the same title in his new position.

The Appellate Division unanimously affirmed Supreme Court's granting DOT's motion for summary judgment dismissing Petitioner's complaint.  

* The movement of an individual from one position to a second position subject to the jurisdiction of the same appointing authority is typically described as a "reassignment." In contrast, the movement of an employee from one position to a second position under the jurisdiction of a different appointing authority is typically characterized as a "transfer."  Although the term "transfer" is used in this decision to describe the personnel action Plaintiff experienced, the term "reassignment" is, in opinion of NYPPL's editor, the appropriate term to describe the relevant "personnel action" in this instance. Contrast, for example, 4 NYCRR 1.2(b)(1) with 4 NYCRR 1.2(b)(2).

** See Executive Law §296.

*** See Administrative Code of City of NY §8-107.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_00689.htm