Some reasons why motions to dismiss an Article 78 action relying on the doctrines of res judicata, collateral estoppel or an alleged "failure to exhaust administrative remedies" may be rejected by a court

Among the issues addressed by the Appellate Division in its review of an appeal from an Article 78 decision by Supreme Court was the authority of a school superintendent to suspend a high school principal.

Noting that Education Law §2566(6) grants a superintendent limited authority "to suspend a ... principal ... until the next regular meeting of the board, when all facts relating to the case shall be submitted to the board for its consideration and action,"  the Principal alleged that the City School District's Board of Education [Board] never ratified or approved her suspension at "the next regular meeting of the board," and therefore there was no authority for her continued suspension.

In rebuttal, the Board contended that the issue was considered in the course of an earlier arbitration* and thus judicial review of the Principal's claim was barred by the doctrines of res judicata and collateral estoppel.** 

The Appellate Division disagreed with the Board's argument, explaining that the issues raised in this litigation by the Principal were not identical to those raised during the prior arbitration. Accordingly, the court ruled that neither doctrine served as a bar to judicial review of the issue under the circumstances.

Another argument advanced by the Board was that Principal had failed to exhaust her administrative remedies prior to commencing this Article 78 action. Principal, however, argued that "exhaustion of administrative remedies" was not a condition precedent to initiating litigation in this instance.

Noting that the Principal had, in fact, filed a "contract grievance" based on an alleged violation of the relevant collective bargaining agreement, the Appellate Division opined that this was of no moment because "[t]he issues presented and the remedies sought in each forum were separate and distinct." Thus, explained the court, exhaustion of administrative remedies provided by a collective bargaining agreement is not necessary "where, as here, the [Principal] alleges violations of the Education Law, not violations of the agreement."

Further, said the court, although Education Law §310 provides, in relevant part, that any party aggrieved by an official act or decision of school authorities "may appeal by petition to the [C]ommissioner of [E]ducation," the Commissioner exercises primary jurisdiction only where the matter involves an issue requiring his or her specialized knowledge and expertise. Here, however, the Appellate Division concluded that Principal's contention with respect to §2566 of the Education Law "requires no more than the interpretation and application of the plain language of that statute for which no deference to the [Commissioner of Education] is required."

Finally, the Appellate Division found that the Article 78 petition had not been rendered moot as the result of a subsequent investigation into additional alleged improprieties by the Principal as the Board had neither alleged nor submitted evidence that the Board, in contrast to the Superintendent, had suspended the Principal in compliance with Education Law §2566(6) in connection with such new allegations.

The Appellate Division reversed the Supreme Court's judgment [1] "insofar as appealed from," [2] reinstated Principals' petition, and [3] gave the Board "20 days from service of the order of this Court with notice of entry to serve and file an answer" to Principal's Article 78 action.

* The arbitration resolved whether the placement of an employee on paid administrative leave pending an investigation into allegations of misconduct constituted a violation of Article 4A of the controlling collective bargaining agreement. Article 4A provided that "no administrator shall be disciplined, reprimanded, reduced in rank or compensation or deprived of any professional advantage without cause."

** The doctrines of res judicata and collateral estoppel, sometimes referred to as "issue preclusion,"  bar the relitigation of a "cause of action" once there has been judicial or quasi-judicial decision concerning the issue on its merits.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_05895.htm

New York State Governor Andrew M. Cuomo signs legislation enacting sweeping new workplace harassment protections

On August 12, 2019Governor Andrew M. Cuomo signed legislation (S.6577/A.8421) to enact sweeping new workplace harassment protections, fulfilling a key component of Governor Cuomo's 2019 Women's Justice Agenda by:

1. Eliminating restriction that harassment be "severe or pervasive" in order for it to be legally actionable;

2. Mandates that all employment contract non-disclosure agreements [NDAs] include language allowing employees to file a complaint of harassment or discrimination; and

3. Extends statute of limitations for employment sexual harassment claims filed from one year to three years.

To further protect workers and hold abusers accountable, this legislation:

Lowers the high bar set for employees to hold employers accountable for sexual harassment by amending under the New York Human Rights Law to make clear that conduct need not be  "severe or pervasive" to constitute actionable conduct;

Protects employees' rights to pursue complaints by mandating that all non-disclosure agreements in employment contracts include language stating that employees may still file a complaint of harassment or discrimination with a state or local agency and testify or participate in a government investigation;

Extends the statute of limitations for employment sexual harassment claims filed with the Division of Human Rights from one year to three years;

Requires employers to provide their employees with notice about the employer's sexual harassment prevention policy in English as well as the employee's primary language;

Expands the coverage of the Human Rights Law to all employers in the state;

Extends protections against all forms of discrimination in the workplace to all contractors, subcontractors, vendors, consultants, or others providing services; and against all forms of discriminatory harassment to domestic workers;

Requires courts to interpret the Human Rights Law liberally regardless of the federal rollback of rights;

Prohibits mandatory arbitration to resolve cases of discrimination and harassment in the workplace;

Updates the power of the Attorney General to enforce the Human Rights Law; and

Requires a study on how best to build on recent sexual harassment prevention laws to combat all types of discrimination in the workplace and a review of sexual harassment policies every four years.

A copy of the text of this measure is available from NYPPL as an attachment to an e-mail. Send your request to publications@nycap.rr.com with "workplace harassment protections" as the subject.

Imposing different penalties on employees involved in a physical confrontation alleged to constitute discriminatory disciplinary action

If two workers get involved in a physical confrontation, must the employer mete out the same disciplinary penalty to each?

A technician [Technician] and her superior, a Team Leader, [Leader] were pointing their fingers at each other, presumably to emphasize points that they were making. When Leader grabbed Technician 's finger, Technician responded by slapping Leader.

The Employer dismissed the Technician. Technician sued, complaining that her termination constituted "discriminatory disciplinary action" because Leader had not been terminated as well.

The Circuit Court rejected Technician 's theory, commenting that Employer was not required to treat each "escalation" of the confrontation - finger pointing to finger grabbing to slapping - the same. In addition, the Court said another factor was that the two employees did not hold positions of similar rank. The decision by the Eighth Circuit U.S. Court of Appeals also indicates that while Leader "had a spotless disciplinary record, Technician had a record of disciplinary problems."

The court upheld Technician's dismissal, commenting that the respective actions by Leader and Technician "are clearly differentiated because the incident involved two separate levels of escalation" ranging from the mutual pointing of fingers to a slap in retaliation for the grabbing of the finger.

The decision is posted on the Internet at:

https://www.leagle.com/decision/19961042920fsupp12211007

New York State's Human Rights Law amended to prohibit employment discrimination because of religious attire or facial hair

On August 9, 2019 New York State's Governor Andrew M. Cuomo signed legislation* prohibiting employment discrimination based on religious attire, clothing or facial hair. The new law amends the New York State Human Rights Law to make clear that employers cannot refuse to hire, attain, promote, or take other discriminatory action against an individual for wearing attire or facial hair in accordance with tenets of their religion. 

 

The legislation makes clear the protections of the New York State Human Rights Law, which also prohibits employers from treating applicants or employees differently because of that person's religious beliefs, and it requires employers to reasonably accommodate an employee's religious practices. The new law reaffirms the Governor's longstanding commitment to religious inclusion and equality.

The Act amends §296.10(a) of the Executive Law, New York State's Human Rights Law, to read as follows:**

                                                                  

(a) It shall be an unlawful discriminatory practice for any employer,  or an employee or agent thereof, to impose upon a person as a condition of obtaining or retaining employment, including opportunities for promotion, advancement or transfers, any terms or conditions that would require such person to violate or forego a sincerely held practice of his or her religion, including but not limited to the observance of any particular day or days or any portion thereof as a sabbath or other holy day in accordance with the requirements of his or her religion or the wearing of any attire, clothing, or facial hair in accordance with the requirements of his or her religion, unless, after engaging in a bona fide effort, the employer demonstrates that it is unable to reasonably accommodate the employee's or prospective employee's sincerely held  religious observance or practice without undue hardship on the conduct of the employer's business. Notwithstanding any other provision of law to the contrary, an employee shall not be entitled to premium wages or premium benefits for work performed during hours to which such premium wages or premium benefits would ordinarily be applicable, if the employee is working during such hours only as an accommodation to his or her sincerely held religious requirements. Nothing in this paragraph or paragraph (b) of this subdivision shall alter or abridge the rights granted to an employee concerning the payment of wages or privileges of seniority accruing to that employee.

The amendment takes effect "on the sixtieth day after it shall have become a law."

* Senate 4037, Assembly 4204

** The text set out in blue and underscored is new.