An employer is not liable for an employee's discriminatory acts targeting a co-worker unless the employer encouraged, condoned or approved such misconduct

An employer is not liable for an employee's discriminatory acts targeting a co-worker unless the employer encouraged, condoned or approved such misconduct

Figueroa v New York State Div. of Human Rights and Buffalo City School Dist., 2016 NY Slip Op 06319, Appellate Division, Fourth Department

Schwallie v New York State Div. of Human Rights and Buffalo City School Dist., 2016 NY Slip Op 06322, Appellate Division, Fourth Department
 

At the time of the alleged unlawful acts of employment discrimination both Rachel Figueroa and Ashleigh Schwallie were employed by the Buffalo City School District [District] and both worked at the same school.

They both alleged that they had been victims sexual harassment by a coworker. They subsequently filed separate complaints against the District alleging sexual harassment and retaliation with the New York State Division of Human Rights [Division]. The Division dismissed their respective complaints.

Then both Figueroa and Schwallie commenced separate proceedings pursuant to Executive Law §298* seeking court orders annulling the relevant decisions of the Division dismissing their complaints of sexual harassment and retaliation. The Appellate Division dismissed both appeals “on the merits.”

The court said it agreed with the District that substantial evidence supported the determinations of the Division that the District was not liable for the coworker's discriminatory conduct. The Appellate Division explained that "[u]nder [New York State’s] Human Rights Law, an employer cannot be held liable for an employee's discriminatory act[s] unless the employer became a party to [them] by encouraging, condoning, or approving [them]."

Neither Figueroa nor Schwallie had established that the District became a party to the alleged sexual harassment by a co-worker. Indeed, said the court, “the record establishes that [the District] reasonably investigated complaints of discriminatory conduct and took corrective action.”

The Appellate Division also found that substantial evidence supported the Division’s determinations that neither Figueroa nor Schwallie were subjected to retaliation by the District for complaining about alleged acts of unlawful discrimination by the co-worker. While both had established  prima facie cases of retaliation, the court found that the District "came forward with legitimate, independent, and nondiscriminatory reasons to support its employment decision[s]" and neither Figueroa not Schwallie had shown that that those reasons were pretextual,

With respect to alleged acts of alleged retaliation for filing a human rights complaint, where the employer has presented a lawful reason or explanation to rebut a charging party's prima facie evidence of retaliation, the burden shifts to the charging party to present facts to rebut each reason or explanation advanced by the employer in it defense against the charge of retaliation.

The Appellate Division unanimously confirmed the Division’s decisions and dismissed both petitions.

* §298 of the Executive Law provides for judicial review and enforcement of determinations by the New York State Division of Human Rights and provides, in pertinent part that “Any complainant, respondent or other person aggrieved by an order of the commissioner which is an order after public hearing … dismissing a complaint, … may obtain judicial review thereof ….”

The Figueroa decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_06319.htm.

The Schwallie decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_06322.htm.

Reducing health insurance prescription co-pay benefits for an employer’s retirees to the same level as the employer’s active employees' prescription co-pay benefit

Reducing health insurance prescription co-pay benefits for an employer’s retirees to the same level as the employer’s active employees' prescription co-pay benefit

Altic v Board of Educ., 2016 NY Slip Op 06315, Appellate Division, Fourth Department

As relevant to this action, §14 of Part B of Chapter 504 of the Laws of 2009  amended Chapter 729 of the Laws of 1994 and made permanent temporary legislation prohibiting a school district, a BOCES, or a vocational education and extension board providing health insurance benefits and employer contributions on behalf  retirees and their dependents that were less than the health insurance benefits and employer contributions it provide on behalf a corresponding group of active employees.*

In this action there was no question that the prescription co-pay benefits for retirees and active employees were identical from June 30, 1994, the effective date of this so-called Moratorium Statute through June 30, 2007. Effective July 1, 2007, pursuant to a collective bargaining agreement [CBA], the prescription co-pay benefit for active employees was reduced. The prescription co-pay benefit for active employees was again reduced pursuant to the terms and conditions of a subsequent CBA, effective September 1, 2013. 

Accordingly, Onondaga-Cortland-Madison Board of Cooperative Educational Services [OCM] reduced its prescription co-pay benefits for its active employees’ as the result of collective bargaining effective September 1, 2013. OCM subsequently reduced its prescription co-pay benefits for its retirees to the same level it paid on behalf of the active employees' for the prescription co-pay benefit effective April 1, 2014.

Nancy Altic, on behalf of herself and other OCM retirees, filed an Article 78 petition challenging OCM’s reduction of its prescription co-payment benefits it made on behalf of its retirees. Supreme Court granted Altic’s petition and annulled OCM’s decision to reduce the OCM’s prescription co-pay benefit for its retired employees to the then same level of its prescription co-pay benefit it made on behalf of its active employees as set out in the collective bargaining agreement. Supreme Court held that OCM had violated certain provisions of Chapter 504 of the Laws of 200.

OCM appealed and the Appellate Division unanimously reversed the Supreme Court’s ruling “on the law” and dismissed Altic’s petition.

The Appellate Division explained that the Moratorium Statute, first enacted in 1994 "sets a minimum baseline or floor for retiree health insurance benefits.” That floor was measured by the health insurance benefits received by active employees.” In other words, said the court, the Moratorium Statute “does not permit an employer to whom the statute applies to provide retirees with lesser health insurance benefits than active employees."

In view of this, the Appellate Division concluded that, “inasmuch as there was a corresponding diminution of  [prescription co-pay] benefits . . . effected [with respect to retired employees] . . . from the present level  … on or after June 30, 1994” to the level of the prescription co-pay benefits being made on behalf of active OCM employees, OCM did not violate the Moratorium Statute.

* §14 of Part B of Chapter 504 of the Laws of 2009 amended §1 of Chapter 729 of the laws of 1994, making permanent temporary legislation addressing the health insurance benefits and contributions to be made on behalf of retired employees of school districts, BOCES and certain other educational entities, to read as follows: “Section 1. From on and after June 30, 1994 [until May 15, 2010,]a school district, board of cooperative educational services, vocational education and extension board or a school district as enumerated in section 1 of chapter 566 of the laws of 1967, as amended, shall be prohibited from diminishing the health insurance benefits provided to retirees and their dependents or the contributions such board or district makes for such health insurance coverage below the level of such benefits or contributions made on behalf of such retirees and their dependents by such district or board unless a corresponding diminution of benefits or contributions is effected from the present level during this period by such district or board from the corresponding group of active employees for such retirees.” 

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_06315.htm

AELE posts items of special interest to those involved in public safety, law enforcement and firefighting on its LawBlog

Americans for Effective Law Enforcement, Inc. posts items of special interest to those involved in public safety, law enforcement and firefighting on its LawBlog

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Americans for Effective Law Enforcement, Inc. [AELE] offers free access to certain publications. In addition, it has a searchable library of more than 35,000 case digests organized into 700 + indexed topics. Users do not have to preregister and there is no time limit on research sessions. Except for commercial purposes the contents of its online law library may be copied and pasted, saved or printed.

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Some of the items listed on AELE’s October 2016 LawBlog are: 

AELE Monthly Law Journal article - Overtime Pay Entitlement for Public Safety Employees Under the Fair Labor Standards Act (FLSA) – Part 2.View here.

Law Enforcement Liability Reporter - This issue has cases on assault and battery: flashbangs, dogs, false arrest/imprisonment with and without warrants, firearms related: Second Amendment, public protection: 911 systems, and search and seizure of persons and vehicles. View here.  

Fire, Police & Corrections Personnel Reporter - This issue has cases on First Amendment, Fair Labor Standards Act: donning and doffing uniforms and equipment, pay disputes, political activity/patronage employment, race/national origin discrimination, retaliatory personnel actions, sex discrimination, sexual harassment, and whistleblower protection. View here.

Jail and Prisoner Law Bulletin - This issue has cases on disability discrimination: prisoners, medical care, dental care, the "three strikes" rule of the Prison Litigation Reform Act, prisoner assault by inmates, prisoner discipline, religion, search of prisoners, and sexual assault. View here.

Discipline and Internal Investigations Seminar - AELE's 2016 seminar on Discipline and Internal Investigations for public safety agencies -police, corrections and the fire services - will be held in Las Vegas on October 24-26. This is a comprehensive 2 and a half day program will address all major aspects of discipline. The program covers both substantive and procedural issues as well as rules and regulations. The program includes the latest hot topics such as cell phones, social media, and constitutional issues. More information is available at http://www.aele.org/menu-disc.html

AELE’s annual seminar on Jail and Prisoner Legal Issues will be held in Las Vegas on January 9-12, 2017. More info at http://www.aele.org/menu-jail.html