A school district’s decision to abolish a position and have a BOCES assume performing the duties of the abolished position constitutes a “transfer of a function” within the meaning of Civil Service Law §70(2).

A school district’s decision to abolish a position in the classified service and have a BOCES assume performing  the duties of the abolished position constitutes a “transfer of a function” within the meaning of Civil Service Law §70(2).

However, said the Appellate Division, petitioner’s “data management services” job duties in the position abolished by the school district were assumed by existing staff members of BOCES. Thus, said the court, petitioner failed to establish a clear right to the relief sought because she was not a "necessary employee" within the meaning of §70.2.

The court noted §70(2) provides, in relevant part that "Upon the transfer of a function . . . from one department or agency of the state to another department or agency of the state, . . . provision shall be made for the transfer of necessary officers and employees who are substantially engaged in the performance of the function to be transferred."Accordingly, said the Appellate Division, "[a]n employee is eligible for a a transfer pursuant to Civil Service Law §70(2) only if he or she is a 'necessary ... employee' - i.e., if the agency or the department to which his or her duties are being transferred does not have sufficient staff at the time of the transfer to perform the duties being transferred.

N.B. Had the "transfer of function" involved duties performed by an employee in the unclassified service, the provisions of Education Law §3014-a would control. §3014-a addresses the rights of educators in the event a BOCES takes over a program formerly operated by a school district or by a county vocational education and extension board.

Decision cited as 2016 NY Slip Op 08139, Appellate Division, Third Department

Substantiated, nonpretextual complaints of petitioner's subordinates comprise a legitimate, nondiscriminatory, nonretaliatory reason for terminating supervisor

Substantiated, nonpretextual complaints of petitioner's subordinates comprise a legitimate, nondiscriminatory, nonretaliatory reason for terminating supervisor

The termination of petitioner's employment did not violate a constitutional or statutory provision or a policy established by decisional law where employer's investigation reveled that the petitioner “favored employees of his own national origin, including his brother-in-law, giving them more favorable schedules and faster promotions, and discriminated against women and persons not of his own national origin.”

Reported as 2016 NY Slip Op 08010, Appellate Division, First Department

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Evaluating claims seeking to recover damages for alleged defamation and maintaining a hostile work environment

Evaluating claims seeking to recover damages for alleged defamation and maintaining a hostile work environment

In this action to recover damages for defamation and a hostile work environment in violation of Executive Law §296, the plaintiff, Pall, appealed an order of the Supreme Court granting the Roosevelt Union Free School District’s motion to dismiss her complaint.

The Appellate Division affirmed the Supreme Court’s ruling, explaining:

1. "To state a cause of action to recover damages for defamation, a plaintiff must allege that the defendant published a false statement, without privilege or authorization, to a third party, constituting fault as judged by, at a minimum, a negligence standard, and it must either cause special harm or constitute defamation per se."

2. "Since falsity is a necessary element of a defamation cause of action and only facts' are capable of being proven false, it follows that only statements alleging facts can properly be the subject of a defamation action.'" and

3. "The dispositive inquiry . . . is whether a reasonable [reader] could have concluded that [the statement was] conveying facts about the [Pall]."

The Appellate Division ruled that “accepting the allegations in the complaint as true, affording [Pall] the benefit of every favorable inference, and considering the evidentiary material submitted by the parties,” Pall did not have a cause of action to recover damages for defamation as the context of the alleged statement was such that a reasonable reader would have concluded that he or she was reading an opinion, and not a fact, about Pall.

Addressing Pall’s claims of the existence of “a hostile work environment in violation of Executive Law §296,” the court held that her allegations “fell short of alleging that the workplace was " permeated with discriminatory intimidation, ridicule, and insult . . . that [was] sufficiently severe or pervasive to alter the conditions of . . . employment and create an abusive working environment.'"

Pall v Roosevelt Union Free Sch. Dist., 2016 NY Slip Op 07937, Appellate Division, Second Department