Intentional discrimination by an employer to avoid or remedy unintentional disparate impact in employment must be based on strong evidence to believe disparate-impact liability will result if it fails to do so

Intentional discrimination by an employer to avoid or remedy unintentional disparate impact in employment must be based on strong evidence to believe disparate-impact liability will result if it fails to do so

Margerum v City of Buffalo, 2013 NY Slip Op 05104, Appellate Division, Fourth Department

Firefighters employed by City of Buffalo Department of Fire sued the City contending that it had discriminated against them  (Fire Department), commenced this action alleging that defendants discriminated against by allowing promotional eligibility lists created pursuant to the Civil Service Law to expire solely on the ground that these firefighters [plaintiffs] who were next in line for promotion, were Caucasian.

Previously, the Appellate Division had held that [1] the action taken by the City was subject to strict scrutiny and [2] the plaintiffs had failed to establish "the absence of a compelling interest," particularly because " a sufficiently serious claim of discrimination' may constitute a compelling interest to engage in race-conscious remedial action."

A short time later the United States Supreme Court decided Ricci v DeStefano (557 US 557), holding that, "before an employer can engage in intentional discrimination for the asserted purpose of avoiding or remedying an unintentional disparate impact, the employer must have a strong basis in evidence to believe it will be subject to disparate-impact liability if it fails to take the race-conscious discriminatory action."

Following Ricci, the Appellate Division affirmed an order that granted those parts of plaintiffs' motion for partial summary judgment on liability with respect to the Fire Department and the City, determining that defendants "did not have a strong basis in evidence to believe that they would be subject to disparate-impact liability if they failed to take the race-conscious action, i.e., allowing the eligibility lists to expire."

Supreme Court then conducted a nonjury trial on the issue of damages, and the City appeal from an order that awarded a total amount of $2,510,170 in economic damages and a total amount of $255,000 in emotional distress damages to the remaining plaintiffs.

The City appealed and the Appellate Division ruled that Supreme Court's awards for emotional distress were proper, but that the court erred with respect to its awards for economic damages.

The Appellate Division explained that that plaintiffs the established that their damages were proximately caused by the City's failure to promote them from the 2002 eligibility list. Thus, it its view, the plaintiffs met their burden of establishing that they would have been promoted but for the City's action in allowing the promotion eligibility lists to expire and suffered economic damages because they were not promoted.

As to the amounts of damages, the Appellate Division concluded that each amount of damages awarded for emotional distress is reasonable. However, it found that as to the awards for economic damages, Supreme Court “applied the wrong burden of proof and erred in relying on assumptions not supported by the record.”

Supreme Court had placed the burden of proof on the City to establish plaintiffs' economic damages. This was error as a plaintiff seeking, e.g., damages for loss of future earnings must "provide evidence demonstrating the difference between what he [or she] is now able to earn and what he [or she] could have earned" in the absence of discrimination.

Noting that recovery for lost earning capacity may be based on future probabilities and is not limited to actual past earnings and that a plaintiff is not required to establish loss of earnings with absolute certainty, the Appellate Division said that it is a "fundamental premise that loss of earnings or earning capacity must be established with reasonable certainty . . . and will be reduced if based upon mere speculation."

The Appellate Division then considered the evidence and expert testimony offered on the issue of economic damages and modified the Supreme Court’s determinations in whole or in part.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_05104.htm

Discontinuing the performance of a governmental operation

Discontinuing the performance of a governmental operation

Civil Serv. Employees Assn., Inc. Local 1000, AFSCME, AFL-CIO v County of Onondaga, State Supreme Court Judge Donald A. Greenwood [Not selected for publication in the Official Reports]

The Civil Service Employees Association, Inc., Local 1000, AFSCME, AFL-CIO (CSEA) brought an Article 78 petition seeking a determination that Onondaga County acted in violation of law and in an arbitrary and capricious manner by authorizing the sale of the County owned Van Duyn Home and Hospital Facility. CSEA also alleged that the County “acted in bad faith by adopting a budget that zero-funded positions at Van Duyn.”

After considering a number of procedural issued, Judge Donald A. Greenwood addressed the merits of CSEA’s petition.

CSEA’s first claim in its petition alleged that the Department of Long Term Care Services was created by the County Charter and that the elimination of that department, along with the positions employed within it, without passing an amendment to the Charter, was arbitrary, capricious, an abuse of discretion, violative of law and in excess of the County’s jurisdiction in that the County Legislature lacked the authority to adopt a budget striking salary appropriations, thereby eliminating the operations of the department without affecting an amendment to the Charter.

In effect, CSEA contended that the action offended the doctrine of legislative equivalency, also known as the legislative equal dignity rule.* (1995). The Court of Appeals has summarized the principle by stating "to repeal or modify a statute requires a legislative act of equal dignity and import."

Judge Greenwood decided that CSEA’s argument was “both factually and legally flawed.” explaining that the County demonstrated that through the annual budget process established within the County Charter and Administrative Code, the Legislature declared its intent” to be out of the nursing home business, and abolished a number of positions related to provisions of such services at Van Duyn, and determined that the facility should be sold.” This legislative act, said the court, carries with it a strong presumption of constitutionality, including a rebuttable presumption of the existence of necessary factual support for its provisions.

In addition, Judge Greenwood said that the County demonstrated that the facts here justified the legislative decision to sell the facility while retaining operating rights, to enact a local law amending the Administrative Code to reorganize the Long Term Care Services Department and eliminate job titles effective November 30, 2013.

The court also noted that “the County is authorized to enact legislation establishing its form of government … and generally regulating its affairs, provided that such legislation is consistent with state law and [it] is empowered to establish and abolish positions of employment by resolution as part of the budget process.”**

As to CSEA’s contention that the “elimination of union jobs here constitutes a bad faith abolition of the positions,” the court said that “municipal officials are vested with authority to create and abolish positions and to adopt a budget; they also have the power and the prerogative to determine that civil service positions may be abolished in good faith for reasons of efficiency and economy in the absence of fraud, corruption or bad faith.”

As to CSEA’s claim of bad faith on the part of the County, CSEA was required to show that the positions in question were not eliminated for bona fide reasons, that savings were not accomplished or that replacement employees were hired. Judge Greenwood found that CSEA had not met this burden and dismissed its petition seeking a court order invalidating the sale of the facility and nullifying the budgetary elimination of the positions by the County Legislature..

* In Torre v County of Nassau, 86 NY2d 421, the Court of Appeals noted that the Doctrine of Legislative Equivalency requires that a position created by a legislative act can only be abolished by a correlative legislative act.

** The decision notes that the budget resolution, Resolution #160-2012, established the budget for 2013 and declared the County's policy with respect to discontinuing future provision of nursing home services and further provided for the abolition of roster positions, except for two positions established by the County Charter and Administrative Code.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_50813.htm

Employee terminated for failure to comply with the employer’s “residence” requirement

Employee terminated for failure to comply with the employer’s “residence” requirement

2013 NY Slip Op 04148, Appellate Division, Fourth Department

The City of Niagara Falls requires its employees “to reside in the City.” When the City terminated the employment of one of its employees based on her failure to comply with the City’s residence requirement, the individual filed a petition pursuant to CPLR Article 78 challenging the City’s action.

Supreme Court granted the individual’s petition; the Appellate Division reversed the lower court’s ruling on the law.

Addressing the merits of the City’s determination, the Appellate Division said that “"the proper standard for judicial review in these cases is whether the . . . determination was arbitrary and capricious or an abuse of discretion.” Here, said the court, it conclude that City’s determination that individual violated the City's residency requirement was neither arbitrary nor capricious nor an abuse of discretion.

The Local Law relied upon by the City, Local Law No. 7, as amended, defines "residency" as "the actual principal place of residence of an individual, where he or she normally sleeps; normally maintains personal and household effects; the place listed as an address on voter registration; and the place listed as his or her address for driver's license and motor vehicle registration, if any."

The Appellate Division said that it agreed with the City that the phrase "actual principal place of residence is akin to, if not synonymous with, the legal concept of domicile,' i.e., living in [a] locality with intent to make it a fixed and permanent home."**

In this regard the court found that the City had sufficiently established that individual’s "actual principal place of residence" was in the Town of Niagara rather than the City of Niagara by utillizing the services of a surveillance company.

Under these circumstances, the Appellate Division concluded that the City’s determination was neither arbitrary nor capricious because there is substantial evidence, based on the surveillance of the individual demonstrating that she "normally [slept]" at the Town of Niagara address. While the individual did produce documents listing a City residence as her address, the court decided "that evidence was not so overwhelming as to support the [Supreme] court's determination granting the petition."

Relying on the "extremely deferential" standard applied in reviewing administrative determinations, the Appellate Division decided that the City's determination that individual's actual principal place of residence was outside the City is not "without foundation in fact" and the City "rationally concluded that [individual] did not comply with the residency policy."

** See also Alexis v City of Niagara Fallsposted on the Internet at:  http://publicpersonnellaw.blogspot.com/2013/05/an-employees-satisfying-employers.html

The decision in this action is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_04148.htm

In the event it is determined that the arbitrator has exceed his or her powers, the arbitration award must be vacated

In the event it is determined that the arbitrator has exceed his or her powers, the arbitration award must be vacated
Adirondack Beverages Corp. (Bakery, Laundry, Beverage Drivers & Vending Mach. Servicemen & Allied Workers, Local Union No. 669 of Albany, N.Y and Vic.), 2013 NY Slip Op 05031, Appellate Division, Third Department

The genesis of this appeal was the arbitrator’s rejection of Adirondack Beverages’ contention that the grievances at issue were not timely filed under the collective bargaining agreement [CBA].

Ultimately the arbitrator determined that certain of Adirondack Beverages’ employees were entitled to back wages, negotiations with respect to higher wages and a preference with respect to filling certain positions.

Supreme Court concluded that the arbitrator exceeded his powers, granted Adirondack Beverages’ petition to vacate the arbitration award and remitted the matter to a different arbitrator for a rehearing to decide the timeliness of the grievances.* Local Union No. 669 appealed the Supreme Court’s remanding the matter to a new arbitrator.

The Appellate Division affirmed the lower court’s ruling explaining that “[I]t is well established that an arbitrator's award is largely unreviewable but such an award may be vacated upon a showing that it ‘'violates a strong public policy, is irrational, or clearly exceeds a specifically enumerated limitation on the arbitrator's power.'"

In this instance, said the court, Supreme Court properly concluded that the arbitrator exceeded a specifically enumerated limitation on his power by failing to recognize the grievance and arbitration procedures as outlined in the CBA and, more particularly, the time limitation for filing grievances that is contained therein. The Appellate Division cited Article VII, §4 of the CBA which stated that "[t]he [a]rbitrator shall in no way have the right to modify, add to[,] subtract from or [otherwise] alter the provision[s] of [the CBA]."

In his award, said the court, the arbitrator acknowledged the CBA's limitation of his authority, as well as the controlling provisions with respect to filing a timely grievance, but “[n]onetheless, the arbitrator decided that he would ‘not mechanically apply the contractual limitations period in the instant case as to do so would discourage good faith negotiations in the future.’"

Concluding that in refusing to address the issue of the timeliness advanced by Adirondack Beverages that could otherwise preclude the grievances from being arbitrated, the arbitrator ignored a specifically enumerated limitation on his powers and effectively modified, added to or subtracted from the terms of the CBA.

Accordingly the Appellate Division held that Supreme Court properly vacated the arbitrator's award remitted the matter to a different arbitrator for a rehearing to determine whether the grievances were timely submitted under the CBA.

* Supreme Court reserved judgment on Local Union No. 669’s petition to confirm the award pending the arbitrator's decision on the timeliness issue.

The decision is posted on the Internet at:  

http://www.courts.state.ny.us/reporter/3dseries/2013/2013_05031.htm

An employee of a BOCES is a State employee for the purposes Public Officers Law §17 when performing his or her duties under the supervision of the State Education Department

An employee of a BOCES is a State employee for the purposes Public Officers Law §17 when performing his or her duties under the supervision of the State Education Department

Formal Opinions of the Attorney General, 2013-F1

The Attorney General advised Richard J. Trautwein, Esq., State Education Department Counsel & Deputy Commissioner for Legal Affairs, that a member of the staff of a BOCES district superintendent who is serving as an integrity officer under the supervision of State Education Department is eligible for state-provided defense and indemnification in accordance with the provisions of Public Officers Law §17 in the event he or she is sued as the result of an act or an omission flowing from the performance of his or her official duties under such supervision. 

In the opinion of the Attorney General, “… an integrity officer who is a member of the district superintendent's staff also is in the service of the State when performing these duties.” Accordingly, the Attorney General explained, such personnel are eligible for defense and indemnification pursuant to Public Officers Law §17 in the event the individual is sued as the result of his or her investigating test security breaches on behalf of the State.

Subdivision 3 of §17, in pertinent part, provides that: “The state shall indemnify and save harmless its employees in the amount of any judgment obtained against such employees in any state or federal court, or in the amount of any settlement of a claim, or shall pay such judgment or settlement; provided, that the act or omission from which such judgment or settlement arose occurred while the employee was acting within the scope of his public employment or duties; the duty to indemnify and save harmless or pay prescribed by this subdivision shall not arise where the injury or damage resulted from intentional wrongdoing on the part of the employee."

The text of the opinion is posted on the Internet at:

http://www.ag.ny.gov/sites/default/files/opinion/2013-f1_pw.pdf