Isolated remarks or occasional episodes of harassment found judicially insufficient to support employee's hostile or abusive work environment complaint

The New York State Division of Human Rights [DHR] adopted the recommended order of an Administrative Law Judge to dismiss Petitioner's familial status discrimination and retaliation complaint. Petitioner appealed DHR's dismissal of Petitioner's complaint.

The Appellate Division, however, unanimously confirmed DHR's determination, opining that DHR's determination that Petitioner did not experience a hostile work environment was supported by substantial evidence. 

Noting that the record contained evidence that Petitioner's supervisor made negative comments about Petitioner's prioritization of childcare responsibilities over work, the Appellate Division said that isolated remarks or occasional episodes of harassment do  not support a finding of a hostile or abusive work environment under the pre-2019 standard, citing Ferrer v New York State Div. of Human Rights, 82 AD3d 431 and other New York State court decisions.

Concluding that DHR's dismissal of Petitioner's retaliation claim was rational and noting that Petitioner's employer did not take any adverse employment action against Petitioner following his submitting a discrimination complaint to the Bronx Borough President's Office, the Appellate Division also observed that "...  in the nine months after [Plaintiff] filed his discrimination complaint, he received better evaluations than he had previously and received two raises".

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

New York State's Commissioner of Education lacks jurisdiction to adjudicate a decision issued by the Department's Chief Privacy Officer alleged to be arbitrary and capricious

New York State's Commissioner of Education Dr. Betty A. Rosa dismissed the Petitioner's appeal challenging a decision by the Chief Privacy Officer of the New York State Education Department explaining that she lacked jurisdiction to consider the matter. 

Citing a number of earlier rulings by New York State Commissioners of Education, Commissioner Rosa explained that "[it] is well settled that Education Law §310 does not authorize an appeal to the Commissioner from actions taken by employees or officers of the New York State Department of Education.

Dr. Rosa noted that such actions may be challenged in a proceeding brought in a court of competent jurisdiction pursuant to Article 78 of New York State's Civil Practice Law and Rules. Accordingly, Commissioner Rosa opined that she lacked jurisdiction to consider the Petitioner’s request for a declaratory judgment that NYSED’s Chief Privacy Officer’s decision was arbitrary and capricious.

The Commissioner also observed that the Petitioner’s request for declaratory relief with respect to Chief Privacy Officer decision was likewise outside the scope of an appeal pursuant to Education Law §310, citing Appeal of M.C. and T.H., 64 Ed Dept Rep, Decision No. 18,550; Appeal of M.E., 62 id., Decision No. 18,245; Appeal of He, 57 id., Decision No. 17,299.

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

Employee's terminated after being found guilty of "time theft" and "time fraud"

Supreme Court denied the Plaintiff's petition to seeking to annul a determination of  the New York City Department of Education [DOE] terminating Plaintiff's employment with DOE and granted DOE's cross-motion to dismiss the Plaintiff's petition. Supreme Court granted DOE's motion and dismissed Plaintiff's petition filed pursuant to CPLR Article 78. Plaintiff appealed.

Citing Matter of Royal Realty Co. v New York State Division of Housing & Community Renewal, 161 AD2d 404, the Appellate Division's decision noted that DOE terminated Plaintiff following an investigation by DOE's Office of Special Investigations that substantiated allegations that Plaintiff had committed "time theft and time fraud" over a period of nearly two years. The Appellate Division opined that DOE's determination was "rationally based on the record" and was not arbitrary and capricious.

The Appellate Division, citing Matter of 333 E. 49th Partnership, LP v New York State Division of Housing & Community Renewal, 165 AD3d 93, leave to appeal denied, 33 NY3d 908, pointed out that Plaintiff's submissions, including affidavits from her former colleagues and New York Post newspaper articles about the investigation, were not properly before the Court and a Court's review is limited to consideration of evidence and arguments raised by a party before the employer's administrative determination was rendered.

As to the penalty imposed on Plaintiff by DOE, termination, the Appellate Division found that "Plaintiff's contention that the penalty of termination shocks the conscience" was unpreserved, as it was not raised in the Plaintiff petition.

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