Court finds procedures followed that resulted in an employee’s unsatisfactory performance rating “undermined the integrity and fairness of the process”

Court finds procedures followed that resulted in an employee’s unsatisfactory performance rating “undermined the integrity and fairness of the process”

St. Vil v Board of Educ. of the City Sch. Dist. of the City of N.Y., 2015 NY Slip Op 08085, Appellate Division, First Department

In this action Jean St. Vil, a school teacher employed by the New York City Department of Education, challenged the unsatisfactory rating [U-rating] he was given for the school year. Supreme Court sustained St. Vil’s U-rating and he appealed.

The Appellate Division unanimously reversed the Supreme Court’s ruling on the law and vacated St. Vil’s U-rating for the school year, explaining that his rating was “not merely technical but undermined the integrity and fairness of the process.”

The court said that record demonstrates the deficiencies in the performance review process resulting in St. Vil’s unsatisfactory rating, which was based primarily on the principal's alleged personal observations as a rating officer. However, St. Vil never received any post-observation reports by the rating officer until the U-rating appeal hearing and the principal did not claim to have spoken with St. Vil following the alleged observations nor were comments critical of St. Vil's performance placed in his file.

Further, said the Appellate Division, there is no evidence that St. Vil was notified before the end of the school year that his work was considered unsatisfactory and the “mere fact that he had the assistance of a guidance counselor and literary coach at some time during the school year did not constitute warning that he was at risk of an unsatisfactory rating since [St. Vil] was never told that he was not improving in the areas of concern despite this assistance.”

The Appellate Division then remanded the matter to the Department of Education for further proceedings.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_08085.htm

Failure of the custodian of a public record sought pursuant to a Freedom of Information Law request to respond to the request within the relevant time limit deemed a denial of the request

Failure of the custodian of a public record sought pursuant to a Freedom of Information Law request to respond to the request within the relevant time limit deemed a denial of the request

Kohler-Hausmann v New York City Police Dept., 2015 NY Slip Op 08084, Appellate Division, First Department

Issa Kohler-Hausmann [Kohler-Hausmann] submitted a Freedom of Information [FOIL] request to the New York City Police Department [NYPD]. Although NYPD extended its deadline to respond to Kohler-Hausmann’s FOIL request pursuant to Public Officers Law §89(3)(a), it failed to respond for months after that deadline.

Subsequently Kohler-Hausmann, representing herself, initiated litigation seeking attorney's fees or litigation costs. Supreme Court denied her application. Kohler-Hausmann appealed, contending that she was entitled to such fees or costs as the prevailing party notwithstanding NYPD's eventual voluntary disclosure of the subject of her FOIL request.

The Appellate Division noted that by failing to respond within the deadline, “NYPD constructively denied Kohler-Hausmann FOIL request” and such a “constructive denial” satisfied the requirement that she exhaust her administrative remedies. Citing NYS Defenders Association v New York State Police, 87 AD3d 193, the court observed that NYPD's voluntary disclosure of the material sought by Kohler-Hausmann notwithstanding, her claim for attorney's fees and other litigation costs was not moot, as "the voluntariness of ... disclosure is irrelevant to the issue of whether [a] petitioner substantially prevailed in [a FOIL] proceeding," since "to allow a respondent to automatically forestall an award of counsel fees simply by releasing the requested documents before asserting a defense would contravene the very purposes of FOIL's fee-shifting provision."

Further, the court said that the “attorney petitioner's self-representation” does not preclude an award of attorneys' fees as other “similarly worded statutes have been interpreted to authorize an award of attorneys' fees to a prevailing litigant who represented himself or herself or had the benefit of free legal services.”

The Appellate Division held that:

[1] Kohler-Hausmann met the statutory requirements for seeking "other litigation costs reasonably incurred" by her in pursuit of her Freedom of Information [FOIL] request;

[2] that she "substantially prevailed;" and 

[3] NYPD "failed to respond to [her request] ... within the statutory time."

Accordingly, the court remanded the matter to Supreme Court for consideration of herrequest for attorneys' fees or litigation costs.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_08084.htm

Workers' Compensation Board’s granting an award for a work-related injury does not, "by operation of collateral estoppel,” automatically entitle the claimant to General Municipal Law §207-c benefits

Workers' Compensation Board’s granting an award for a work-related injury does not, "by operation of collateral estoppel,” automatically entitle the claimant to General Municipal Law §207-c benefits

Jackson v Barber, 2015 NY Slip Op 08025, Appellate Division, Third Department

Lawrence Jackson, diagnosed with plantar fasciitis* in his left foot while working as a correction officer for the Cortland County Sheriff's Department, filed an application for workers' compensation benefits. Jackson’s claim was granted and the Workers' Compensation Board confirmed the award.

Jackson also applied for disability benefits pursuant to General Municipal Law §207-c. Annette Barber, Cortland County’s Personnel Officer denied Jackson’s application on the merits upon her determination that petitioner's condition was idiopathic, i.e., without a specific cause.

Jackson appealed and Barber upheld her initial determination based on the Hearing Officer's recommendation to do so and Jackson initiated an CPLR Article 78 action challenging Barber’s decision.

Jackson argued that a determination by the Workers' Compensation Board that an injury is work-related by operation of collateral estoppel, automatically entitle an injured employee to General Municipal Law §207-c benefits." The Appellate Division disagreed and citing Balcerak v County of Nassau, 94 NY2d 253, explained that the Board's determination did not collaterally estop Barber from denying Jackson's application for General Municipal Law § 207-c benefits.

The Appellate Division also commented that substantial evidence supports the determination denying [Jackson] benefits noting that §207-c entitled correction officers to benefits when they are injured "in the performance of [their] duties" if they can establish the existence of a "'direct causal relationship between job duties and the resulting illness or injury.

An orthopaedic surgeon reviewed Jackson's medical records and conducted an independent medical examination of Jackson. The orthopaedic surgeon opined that, “to a reasonable degree of medical certainty, [Jackson']s plantar fasciitis was idiopathic.” Although Jackson introduced “contrary expert evidence,” the Appellate Division said that  the Hearing Officer "was entitled to weigh the conflicting medical opinions and determine which expert to credit."

The court held that as the orthopaedic surgeon "articulate[d] a rational and fact-based opinion founded upon a physical examination and review of the pertinent medical records," the Hearing Officer's reliance on such evidence was reasonable and, therefore, Jackson's application for §207-c benefits was properly denied.

* Plantar fasciitis, also known as plantar fasciosis or jogger's heel, is a disorder that results in pain in the heel and bottom of the foot.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_08025.htm

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