Appealing an administrative determination

In Matter of Saratoga Economic Development Corporation [Corporation] v State of New York Authorities Budget Office [NYABO], Corporation challenged NYABO's administrative determination requiring Corporation to comply with the Public Authorities Accountability Act of 2005.

In Matter of Smith v City of Norwich, 205 AD3d 140 the Appellate Division held that in the event an administrative determination is made where an evidentiary hearing is not required by law, court review is limited to whether the administrative determination had a rational basis and was not arbitrary and capricious.* 

Further, in Matter of Froehlich v New York State Dept. of Corr. & Community Supervision, 179 AD3d 1408, the court said "So long as [the administrative determination] has a rational basis, [courts] will sustain the [administrative] determination, even if it would have also been rational for the administrative agency to have reached a different result."

In contrast, observed the Appellate Division, in the event an agency is engaged in pure statutory interpretation, a court "need not pay deference to the agency's interpretation and may instead undertake that analysis anew." Where, however, "the interpretation of a statute or its application involves knowledge and understanding of underlying operational practices or entails an evaluation of factual data and inferences to be drawn therefrom", the Appellate Division, citing Matter of Peyton v New York City Bd. of Stds. & Appeals, 36 NY3d 271, noted courts "regularly defer to the governmental agency charged with the responsibility for administration of the statute".

The Appellate Division then opined the courts defer to an agency's statutory interpretation "where the general statutory language and legislative history indicate that the Legislature intended to adopt a broad policy approach to the subject matter of the statute, delegating to the administrative agency comprehensive, interpretive and subordinate policy-making authority, interstitially to 'fill in the blanks' consistently with the over-all policy of the statute, either by administrative rule making or case-by-case decisions."

Finding that NYABO rationally concluded that Corporation is a local authority in that there is a "close relationship between Corporation and local governments" and Corporation "is the type of entity that the Legislature intended to subject to the provisions of the [Public Authorities Reform Act, Laws of 2009, Chapter 506]", the Appellate Division ruled that NYABO's determination was rational and therefore entitled to deference, rejecting Corporation's reliance on Matter of Farms First v Saratoga Economic Dev. Corp., 222 AD2d 861.**

Reversing the judgment of Supreme Court "on the law" and without costs, the Appellate Division dismissed Corporation's petition, and "... declared that [Corporation] is a local authority subject to the Public Authorities Law".

* In a footnote the Appellate Division explained that where no administrative hearing is held, "the agency may submit an employee's or official's affidavit to explain the information that was before the agency and the rationale for its decision, and courts may consider such an affidavit even though it was not submitted during the administrative process," citing Matter of Hammonds v New York State Educ. Dept., 206 AD3d 1334.

** The Appellate Division noted that in support of the proposition that it is not a local authority, Corporation cited Matter of Farms First, contending it was an independent entity formed by private businessmen to further their own interests, has never been furnished offices at County expense, has never had a County employee serve on its board and receives some of its funding from private individuals and corporations.

Click HERE to access the Appellate Division's decision posted on the Internet.

 

Plaintiff's claims of unlawful discrimination on the basis of race, gender, and national origin evaluated by the 2nd Court of Appeals and held to be without merit

Plaintiff, proceeding pro se, sued the New York State Division of Human Rights [Division] alleging violations of Title VII of the Civil Rights Act of 1964 for discriminating against him on the basis of race, sex, and national origin; creating a hostile work environment; and retaliating against him when he complained about unfair treatment. In addition, Plaintiff also brought a variety of state-law claims against the Division, his supervisors, and certain coworkers.

The United Stated District Court granted summary judgment to Division on all of Plaintiff’s federal claims. The court then determined that the Eleventh Amendment barred his state-law claims brought against individual named Defendants in their both their official capacity and in their personal capacities, explaining "individual supervisors and coworkers (other than the Plaintiff’s actual employers) are not subject to liability under Title VII."

The U.S. Circuit Court of Appeals, Second Circuit, said Plaintiff’s claims of discrimination and retaliation under Title VII are evaluated "under the familiar McDonnell Douglas burden-shifting framework, citing Vega v Hempstead Union Free Sch. Dist., 801 F.3d 72, (discrimination) and Gorzynski v. JetBlue Airways Corp., 596 F.3d 93 (retaliation). The Circuit Court said that under this framework, "a plaintiff must demonstrate a prima facie case of discrimination or retaliation, after which the employer must point to a legitimate, nondiscriminatory reason for the challenged conduct; if the employer does so, the burden shifts back to the plaintiff to prove that “discrimination was the real reason for the employment action.”

Agreeing with the district court that Plaintiff failed to make a prima facie showing of discrimination, i.e. as relevant here, “circumstances [that] give rise to an inference of discrimination.” As relevant here, “similarly situated” coworkers of a different race, sex, or national origin Plaintiff contended were subject to more favorable treatment, the court noted that such comparators must be similarly situated “in all material respects”—they must be “subject to the same performance evaluation and discipline standards” as Plaintiff and must have engaged in “comparable conduct.” The Circuit Court opined that while Plaintiff "identifies a handful of coworkers who, he claims, completed fewer than 108 cases a year while on probation, that similarity alone is insufficient, as there is no evidence by which a reasonable jury could find that those coworkers shared [Plaintiff] issues with work quality and insubordination. Lacking a similarly situated comparator, the court explained Plaintiff "cannot show circumstances that give rise to an inference of discrimination and so cannot prove his prima facie case.

As to Plaintiff's reliance "on comparisons to nonprobationary employees," the court said they are not subject to the same performance evaluation and discipline standards and thus are not similarly situated.

Further, agreeing with the district court, the Circuit Court said "even assuming [Plaintiff] proved his prima facie case, he failed to demonstrate that the nondiscriminatory reasons proffered by the Division for extending his probation and then terminating his employment were a pretext for unlawful discrimination.

Plaintiff contended that the Division’s assertions that he was fired due to poor work performance and insubordination were pretextual because those charges were false. In particular, Plaintiff pointed to perceived irregularities in his performance evaluations, which he argues contained false information and unexpectedly turned overly critical at the time his supervisors extended his probation and terminated him. 

Significantly, the Circuit Court said that "Even if [Plaintiff] could refute the charges of inadequate performance, that would not demonstrate that his supervisors did not believe what they asserted, let alone that the actual reason for extending his probation or terminating his employment was animus based on a protected characteristic."

Accordingly, the court concluded that Plaintiff was "unable to demonstrate pretext for discrimination."

Addressing Plaintiff's retaliation claim, the Circuit Court concluded "[on] this record, no reasonable jury could find that Plaintiff engaged in protected activity." Although Plaintiff "complained to his supervisors about unfair treatment generally, there is no indication that those complaints were premised on or related to discrimination based on his protected status."

The Circuit Court then indicated that summary judgment was also warranted on Plaintiff’s hostile work environment claim as he failed to establish the alleged harassment was “sufficiently continuous and concerted” to create an objectively hostile work environment “so severely permeated with discriminatory intimidation, ridicule, and insult that the terms and conditions” of [Plaintiff's] employment were altered.

Considering Plaintiff's "State-Law Claims", the court held that Plaintiff had abandoned any challenge to the dismissal of his official-capacity claims by failing to raise the issue in his brief. The Circuit Court noted that it has consistently held that, “[i]n general, where the federal claims are dismissed before trial, the state claims should be dismissed as well,” citing N.Y. Mercantile Exch., Inc. v. Intercontinental Exch., Inc., 497 F.3d 109.

After considering Plaintiff's remaining arguments, the Circuit Court said it found them "to be without merit" and affirmed the judgment of the district court.

Click HERE to access the Circuit Court's decision posted on the Internet.

 

Conducting an administrative hearing remotely via WebEx teleconferencing during the COVID pandemic

In this CPLR Article 78 action plaintiff [Petitioner] sought a judicial annulment of a decision by the New York State Department of Motor Vehicles Administrative Appeals Board affirming an adverse determination of an Administrative Law Judge.

The Appellate Division explained that "In order to annul an administrative determination made after a hearing, a court must conclude that the record lacks substantial evidence* to support the determination", citing Matter of Khan v New York State Dept. of Motor Vehs., 215 AD3d 844, and Matter of Lau v NYC DOB, 209 AD3d 858.

Addressing Petitioner's challenge to the administrative hearing having been conducted remotely via a WebEx teleconference during the recent COVID pandemic, the Appellate Division opined that, contrary to the Petitioner's contention:

1. "The Administrative Law Judge did not abuse her discretion by denying Petitioner's untimely request for an adjournment made during the course of the scheduled hearing; and

2. "There is no merit to Petitioner's contention that any purported procedural errors made by the ALJ in conducting the hearing, 'including holding the hearing which took place during the COVID pandemic via WebEx teleconference,' violated certain of his rights, nor has he demonstrated any prejudice that resulted therefrom, that 'so permeate[d] the underlying hearing ... to render it unfair'".

* The Appellate Division note substantial evidence is such relevant proof as "a reasonable mind may accept as adequate to support a conclusion or ultimate fact" and substantial evidence is a minimal standard that requires "less than a preponderance of the evidence" and "demands only that a given inference is reasonable and plausible, not necessarily the most probable".

Click HERE to access the Appellate Division's decision posted on the Internet.