A complainant alleging unlawful discrimination must set out a prima facie case of discrimination, shifting the burden of going forward to the employer to demonstrate a nondiscriminatory reason for its action

A complainant alleging unlawful discrimination must set out a prima facie case of discrimination, shifting the burden of going forward to the employer to demonstrate a nondiscriminatory reason for its action

This Article 78 proceeding challenged a determination by the Commissioner of the New York State Division of Human Rights [DHR] in which the Commissioner adopted the recommendations and findings of an Administrative Law Judge that the employer had violated Executive Law §296(1)(a) by discriminating against the complainant on the basis of her military status. The complainant was awarded compensatory damages in the amount of $15,000 and $10,880 in back pay.

The Appellate Division granted the employer’s appeal and annulled the Commissioner’s decision and dismissed the administrative complaint.

The court explained that judicial review of a determination of the DHR made after a hearing is limited to whether the determination is supported by substantial evidence. Here, said the court, the DHR's determination was not supported by substantial evidence.

To establish liability under Executive Law §296(1)(a) arising from the termination of employment, a complainant must establish, before the DHR, a prima facie case of discrimination by a preponderance of the evidence by showing that the complainant is

1. A member of a class protected by the statute;

2. Was actively or constructively discharged;

3. Was qualified to hold the position from which he or she was terminated; and

4. Was terminated under circumstances which give rise to an inference of discrimination.

The burden of establishing a prima facie showing has been described as "de minimus" and once such a showing has been made, the burden shifts to the employer to rebut the individual's prima faciecase by providing a legitimate, nondiscriminatory reason for the individual's termination.

In response to such a rebuttal, the complainant must show by a preponderance of the evidence that the employer's reasons for the challenged termination were pretextual and the complainant having the burden of persuasion on the ultimate issue of discrimination.

The Appellate Division founds that the complainant had met her burden of demonstrating a prima facie case of discrimination based on her military status by demonstrating that the employer terminated her for being late on days which included days she served on military duty and that the employer had remarked that he was tired of dealing with issues relating to her military status, which gave rise to an inference of discrimination.

However, said the court, in response to the complainant's prima facie showing, the employer demonstrated that he terminated her for a legitimate, nondiscriminatory reason which was not based on her military status.

The Appellate Division said that the complainant's time cards support the employer’s contention that he terminated the complainant's employment because she continued to be late after being placed on probation for lateness, including the day her employment was terminated, for reasons having nothing to do with her military status.

The court also ruled that the employer’s argument that he did not discharge the complainant because of her military status was further supported by the fact that “he hired the complainant after a single interview, with full knowledge of her regularly scheduled reserve obligations, which he accommodated by not scheduling her to work on the first weekend of any month.”

Concluding that the employer had met his burden before the DHR of demonstrating that he terminated the complainant's employment for a legitimate, nondiscriminatory reason and that the complainant failed to show that this reason was pretextual, the Appellate Division found that “DHR's determination was not supported by substantial evidence in the record and must, thus, be annulled.”

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_03841.htm

Employee terminated for cause entitled to back pay for the period she was suspended without pay in excess of 30 days

Employee terminated for cause entitled to back pay for the period she was suspended without pay in excess of 30 days

The Westchester County Health Care Corporation adopted the recommendation of a hearing officer, made after a hearing pursuant to Civil Service Law §75, finding the employee guilty of certain charges of misconduct and insubordination. It then terminated the individual from its employ.

Te Appellate Division sustained Supreme Court’s dismissal of an Article 78 petition challenging the disciplinary termination of an employee with respect to the merits of the appeal. The court held that contrary to the individual’s contention, Westchester’s determination that the individual was guilty of certain charges of misconduct and insubordination was supported by substantial evidence in the record.

The court also rejected the individual’s claim that she was denied a fair hearing due to the alleged bias of the hearing officer as being without merit, finding that there was no evidence in the record to support her contention that the hearing officer was biased.

As to the penalty imposed, dismissal, the court ruled that termination was “not so disproportionate to the offenses committed by the petitioner as to be shocking to one's sense of fairness, thus constituting an abuse of discretion as a matter of law.”

Although the Appellate Division sustained Supreme Court’s dismissal of an Article 78 petition challenging the disciplinary action, the court remanded the matter to the lower court for its determination regarding any back pay due the dismissed individual.

Here, said the court, the individual “correctly contends that she is entitled to back pay for the period she was suspended without pay in excess of 30 days, excluding delay, if any, occasioned by her, and less unemployment insurance benefits received for that period, if any,” citing Civil Service Law §75[3].

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_03839.htm

Voluntary separation to avoid discipline disqualifies employee for unemployment insurance benefits

Voluntary separation to avoid discipline disqualifies employee for unemployment insurance benefits

Source: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/

Reproduced with permission. Copyright © 2012, Mitchell H. Rubinstein, Esq., Adjunct Professor of Law, St. Johns Law School and New York Law School, All rights reserved.

Matter of Kean v. Commissioner of Labor, ___A.D.3d___(3d Dep't. March 15, 2012), is an interesting case as it discusses voluntary separations in relation to entitlement to unemployment. As the court explains:

 "Voluntarily separating from one's employment to accept a severance or early retirement package when continuing work remains available has been held not to constitute good cause for leaving employment" (Matter of Lucht [Commissioner of Labor], 49 AD3d 1048, 1049 [2008]; see Matter of Cammisa [Commissioner of Labor], 38 AD3d 1146 [2007]). Here, claimant testified that she was capable of working, had not been threatened by her employer and had not been advised by a physician to leave her job.

Even if claimant quit because she assumed that she might be terminated in the future, leaving a job in anticipation of discharge is not considered to be a departure for good cause under these circumstances (see Matter of Carcaterra [Association for Computing Machinery, Inc.—Commissioner of Labor], 90 AD3d 1389, 1390 [2011]).

Inasmuch as there is substantial evidence supporting the Board's ruling, it will not be disturbed (see Matter of Cammisa [Commissioner of Labor], 38 AD3d at 1146).

NYPPL comments:

N.B. Submitting a resignation in anticipation of, or in lieu or settlement of, a disciplinary action may have other unintended consequences. For example, typically applications for competitive examination for  employment with the State or a political subdivision of the State include the following questions:

Yes [ ] No [ ]  Were you ever discharged from any employment except for lack of work for funds, disability or medical condition?

Yes [ ] No [ ]  Did you ever resign from any employment rather than face discharge?

If you answered YES to any of these questions, provide details under REMARKS on Page 3. Your failure to answer any of these questions or to provide details will significantly delay any determination concerning your qualifications and may deprive you of potential employment opportunities.

The State Department of Civil Service or a local civil service commission may disqualify an individual seeking an appointment to a position in competitive class of the classified service pursuant to Civil Service Law §50.4 subdivisions (e), (f) or (g), which subdivisions are set out below:

(e) who has been dismissed from a permanent position in the public service upon stated written charges of incompetency or misconduct, after an opportunity to answer such charges in writing, or who has resigned from, or whose service has otherwise been terminated in, a permanent or temporary position in the public service, where it is found after appropriate investigation or inquiry that such resignation or termination resulted from his incompetency or misconduct, provided, that in cases of dismissal, resignation or termination after written charges of incompetency, the examination or certification in question be for a position that requires the performance of a duty or duties which are the same as or similar to the duty or duties of the position from which the applicant has been dismissed, resigned or terminated on account of incompetency; [emphasis supplied] or

(f)  who has intentionally made a false statement of any material fact in his application; or

(g) who has practiced, or attempted to practice, any deception or fraud in his application, in his examination, or in securing his eligibility or appointment.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2012/2012_01845.htm