Reverse discrimination

Reverse discrimination
Hayden v Nassau County, CA2, 180 F.3d 42

The Hayden decision sets out some of the major considerations that are relevant in attempting to demonstrate “reverse discrimination” in civil service examinations.

After an exam was administered to 25,000 police department applicants in Nassau County in 1994, experts evaluated the 25 test sections administered to determine if any had an adverse impact on minority test-takers as well as whether the test questions were sufficiently job-related. The county only counted nine of the 25 test sections in computing the exam score. William Hayden and 67 other white, Latino and female applicants to the Nassau County Police Department brought a lawsuit in federal district court alleging that “a police officers’ entrance exam designed to minimize the discriminatory impact on minority candidates necessarily discriminated against them.”

The Second Circuit U.S. Court of Appeals in New York affirmed a U.S. district judge’s dismissal of the action. It called the exam a “race-neutral entrance examination with the purpose of eliminating or reducing the differential effects suffered by minority candidates.” Although Nassau County was “conscious of race” in redesigning its entrance exam, “it treated all persons equally in the administration of the exam,” the court said. Everyone took the same test and all tests were scored in the same manner, and no differential cutoffs or race norming was used, the court said.

The Court of Appeals rejected all of the arguments presented by Hayden, holding that he had failed to allege facts that, if proven true, would entitle the class to relief. Reviewing each of Hayden’s theories justifying relief, the court said that:

1. Equal protection: To state a claim for an equal protection violation, appellants must allege that a government actor intentionally discriminated against them on the basis of race, national origin or gender. Here is undisputed that the exam was administered and scored in an identical fashion for all applicants. The exam was not scored differently on the basis of a candidate’s ethnicity or gender, nor were differential cut-off points used for applicants of different races or sexes. In contrast to affirmative action tools, such as quota systems, set-aside programs, and differential scoring cutoffs, which utilize express racial classifications and which prevent non-minorities from competing for specific slots or contracts, the Circuit Court said that Nassau’s efforts were not unlawful.

2. Facially neutral policy applied in discriminatory manner: Also rejected was Hayden’s arguments concerning facially neutral ordinance was discriminatorily applied.

3. Discriminatory intent and effect: Although Hayden claimed “an equal protection violation”, the court said it agreed with the district court’s conclusion that in order to prevail it must be alleged that Nassau County harbored a discriminatory intent against the class and that the entrance examination disproportionately impacted them. No such claims which would demonstrate either discriminatory intent or discriminatory impact were put forth.

The court’s conclusion: “Nassau County sought to design a police officers’ entrance examination which would reduce the discriminatory impact of its hiring practices on minority candidates. Although the decision to redesign the exam certainly took race into account, the exam was administered and scored in a wholly race-neutral fashion. We conclude that race-neutral efforts to address and rectify the racially disproportionate effects of an entrance examination do not discriminate against non-minorities.”

Accordingly, the Circuit Court ruled that “the 68 white and Latino appellants, male and female, in this case fail to state a claim under the Equal Protection Clause, Section 703 of Title VII, and Sections 106 and 107 of the Civil Rights Act of 1991.”
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An interim award by an arbitrator does not constitute a "final determination” for the purposes of an Article 75 appeal challenging the award

An interim award by an arbitrator does not constitute a "final determination” for the purposes of an Article 75 appeal challenging the award
Matter of Geneva City School Dist. v Anonymous, 2010 NY Slip Op 06915, Decided on October 1, 2010, Appellate Division, Fourth Department

The Geneva City School District filed 16 disciplinary charges pursuant to Education Law §3020-a against a tenured teacher [Anonymous] employed by the district.

Anonymous asked for a hearing, and the parties selected, "by mutual agreement," an arbitrator to serve as the Hearing Officer pursuant to §3020-a[3][b][ii] of the Education Law. At the commencement of the hearing, Anonymous moved for summary judgment dismissing 11 of the 16 charges. The Hearing Officer made an "interim award" granting the motion. Before the hearing reconvened to consider the remaining 5 charges filed against Anonymous, Geneva filed an Article 75 action seeking to vacate the interim award, contending that it was irrational and violated an important public policy.

Supreme Court rejected Geneva’s arguments and denied the petition. The Appellate Division affirmed the Supreme Court’s ruling, explaining that “The interim award was not ‘a final and definite award’ resolving the matter submitted for arbitration” within the meaning of CPLR §7511[b][1][iii].

In the words of the Appellate Division, “Inasmuch as the interim award does not constitute a ‘final determination made at the conclusion of the arbitration proceedings’ there is no authority for judicial intervention at this juncture.”

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_06915.htm
NYPPL

Termination for inability to produce proof of possession of a required license or certificate is not a dismissal in the nature of discipline

Termination for inability to produce proof of possession of a required license or certificate is not a dismissal in the nature of discipline
Matter of Cravatta v New York State Dept. of Transp., 2010 NY Slip Op 06952, decided on October 1, 2010, Appellate Division, Fourth Department

Michael J. Cravatta, a Highway Maintenance Worker with the NYS Department of Transportation, was required to possess a valid New York State Class B Commercial Drivers License [CDL] as a condition of his employment by the Department.

When Cravatta’s CDL was suspended, the Department terminated his employment without his being given a pre-termination hearing.

Cravatta sued and Supreme Court granted his petition seeking to annul the determination terminating him from his position. Transportation appealed the lower court’s ruling.

The Appellate Division, stating that “Supreme Court erred …,” reversed the lower court “on the law” and dismissed Cravatta’s petition in its entirety.

The court said that as Cravatta was “required to maintain” a CDL, he was properly terminated after his CDL was suspended because he lacked one of the credentials required for his position.

Further, said the court, “Cravatta's termination was not disciplinary in nature and thus was subject to neither the arbitration clause in the collective bargaining agreement nor the provisions of Civil Service Law §75,” citing Matter of New York State Off. of Children & Family Servs. v Lanterman, 14 NY3d 275.

NYPPL Comment: Courts have viewed employees who lack licenses as being “unqualified,” in contrast to being “incompetent,” to perform the duties of the position. Indeed, it could be argued that the employer has no alternative, as it could be considered unlawful to permit an unlicensed individual to perform the duties for which a license is required.

Although the loss of a required drivers license if frequently the basis for an employee being summarily terminated, the loss of an attorney’s license to practice law or the expiration of a temporary permit to teach would also result such action.

All that appears to be necessary in such cases is for the appointing authority to make some reasonable inquiry to determine if the employee may lawfully perform the duties of the position and provide the individual a reasonable opportunity to produce a valid license or certificate.

Essentially, the courts have held that where an individual is required to hold a valid license in order to perform the duties of the position and the employee losses the required license or it expires, the individual cannot be allowed to perform the duties of the position.

This proposition was explored by the Appellate Division in Martin ex rel Lekkas, 86 AD2d 712.

Lekkas, an Assistant Clinical Physician had been permanently appointed to a position in the Office of Mental Retardation and Developmental Disabilities,. He was subsequently terminated from his position without notice or hearing because he did not obtain the required license to practice medicine in New York State issued by the Education Department (Education Law Section 8522).*

The Appellate Division affirmed a lower court ruling that Lekkas’ termination was unlawful.

The court explained that although it was lawful to summarily discharge an employee without notice and hearing if the worker is unable to produce his or her required license, this could be done only if the duties being performed required the possession of the license.

According to the record, Lekkas was performing administrative duties rather than “practicing medicine.” As he was not engaged in the practice of medicine, Lekkas was not “unqualified” with respect to performing his administrative duties without the license that would have been otherwise required had he been engaged in the practice of medicine.

* The issue arose after the Education Law was amended to require persons previously appointed as physicians to obtain a license to practice medicine. Lekkas had been appointed to the position Assistant Clinical Physician prior to the amendment but had not obtained a New York State license to practice medicine within the prescribed time period.

The Cravatta decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_06952.htm
NYPPL

If a court finds that an administrative penalty is shocking to one's sense of fairness” it must remand the matter for a new penalty determination

If a court finds that an administrative penalty is shocking to one's sense of fairness” it must remand the matter for a new penalty determination
Matter of Liguori v Beloten, 2010 NY Slip Op 06739, Decided on September 30, 2010, Appellate Division, Third Department

Dr. James M. Liguori pleaded guilty to one specification of professional misconduct based upon his failure to maintain adequate records and agreed to a penalty consisting of “a censure and reprimand,” being on probation for three years under the supervision of a practice monitor, to pay a $25,000 fine and to perform “100 hours of nonmedical community service.”

Subsequently the Chair of the Workers' Compensation Board, Robert E. Beloten, removed Dr. Liguori’s name from the Board’s list of eligible providers.*

When Liguori’s request for reconsideration and, or, administrative review of the removal of his name from the list of “WCB providers” was denied, he commenced a CPLR article 78 proceeding seeking to annul the Chair’s determination.

Supreme Court granted Liguori’s petition, finding that the Chairman Beloten had “failed to adequately explain the basis for [Liguori’s] removal from the list of authorized providers and remitted the matter for further proceedings”.

In response to the Board’s issuing a new determination that, again, removed his name from the list of authorized providers that set out its basis for Liguori’s removal, Liguori again filed an Article 78 petition contending that the Board’s second determination was arbitrary and capricious and violated his right to due process.

Supreme Court granted Liguori’s petition. Although the court found that the explanation for Liguori’s removal was adequate, it ruled that “the Chair's determination nonetheless was arbitrary and capricious” and ordered the Board to restore Liguori to its list of eligible providers. The Board appealed.

The Appellate Division reversed the lower court’s ruling, explaining that "Judicial review of an administrative penalty is limited to whether the measure or mode of penalty or discipline imposed constitutes an abuse of discretion as a matter of law," citing the Pell Doctrine, Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222 – the so-called Pell Doctrine.

The Pell Doctrine stands for the proposition that courts must uphold the penalty imposed by an administrative body unless it is "so disproportionate to the offense, in the light of all the circumstances, as to be shocking to one's sense of fairness."

The Appellate Division said that in determining if a penalty meets the Pell standard, “the reviewing court may neither second-guess the administrative agency nor substitute its own judgment for the action taken.” Further, said the Appellate Division, should the court determine “that the penalty imposed cannot stand, the court may not fashion a reduced penalty” but must remit the matter to the agency for a redetermination of the penalty to be imposed.

As to its basis for vacating the Supreme Court’s determination, the Appellate Division said that it had concluded that based on its review of the record “we cannot say that the penalty imposed constitutes an abuse of discretion as a matter of law.”

* WCB providers are authorized to render care and treatment to individuals who had suffered work-related injuries.

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_06739.htm
NYPPL

Prima facie case of unlawful discrimination may be rebutted by a presentation of a non-discriminatory reason for the employment decision

Prima facie case of unlawful discrimination may be rebutted by a presentation of a non-discriminatory reason for the employment decision
Matter of Monsay v New York State Div. of Human Rights, 2010 NY Slip Op 06928, Decided on October 1, 2010, Appellate Division, Fourth Department

Evelyn H. Monsay filed charges against the State University College at Oswego with the New York State Division of Human Rights alleging unlawful discrimination based on age and gender.

The Division found that Oswego had not unlawfully discriminate against Monsay on the basis of gender or age and dismissed her complaint.

Monsay appealed but the Appellate Division sustained the Division’s determination, hold that it was supported by substantial evidence.

The court then observed that “Even assuming, arguendo, that [Monsay] established a prima facie case of gender or age discrimination, we conclude that the College rebutted the presumption of discrimination created by [Monsay’s] by presenting the requisite "legitimate, independent, and nondiscriminatory reasons to support its employment decision[s."

It should be noted that once a prima facie case of alleged unlawful discrimination is rebutted by the employer with “legitimate, independent and nondiscriminatory reasons” for its decision, the burden of going forward shifted to Monsay to demonstrate that the explanation offered by Oswego was mere subterfuge for its unlawful discriminatory actions. Apparently Monsay was unable to do so to the satisfaction of the Division of Human Rights.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_06928.htm
NYPPL