Failure to establish a prima facie case of unlawful discrimination or retaliation within the meaning of Executive Law §296 requires the dismissal of the complaint

Failure to establish a prima facie case of unlawful discrimination or retaliation within the meaning of Executive Law §296 requires the dismissal of the complaint
Adeniran v State of New York, 2013 NY Slip Op 03441, Appellate Division, Second Department

Caroline Adeniran brought an action in the State's Court of Claims seeking to recover damages for her allegedly suffering a “retaliatory discharge” in violation of Executive Law §296. Court of Claims Judge Lupez-Summa dismissed Adeniran’s complaint and she appealed.

The Appellate Division sustained Judge Lupez-Summa’s determination, explaining that Adeniran failed to make a prima facieshowing of retaliation under Executive Law §296.

In order to make a prima facie showing of retaliation, a claimant is required to ldemonstrate the following four elements:

a. That he or she was engaged in protected activity;

b. That his or her employer was aware that he or she participated in such activity;

c. That he or she suffered an adverse employment action based upon his or her activity; and

d. That there was a causal connection between the protected activity and the adverse action alleged.

Once such a prima facie case is made, the burden shifts to the employer to present legitimate, independent, and nondiscriminatory reasons to support its action or decision.

Assuming that the employer meets this burden, the claimant would then have the obligation of showing that the reasons advanced by the employer “were merely a pretext” in an effort to excuse its unlawful action or activity.

Adeniran was employed as a registered nurse at the Pilgrim State Psychiatric Center. She alleged that she was harassed and intimidated by the staff of Pilgrim's mental health department and that her employment was terminated in retaliation because she complained to her supervisors.

The Appellate Division said that the employer had rebutted Adeniran prima facie case alleging retaliation by showing that the complaints made by Adeniran to her supervisors did not relate to statutorily forbidden discriminatory practices. Thus, said the court, Adeniran had not demonstrated "the fourth element" required to establish her prima facie case-- that she had engaged in protected activity within the meaning of Executive Law §296 and had suffered an adverse personnel action as a result.

As the employer had rebutted Adeniran’s prima faciecase and Adeniran had failed to show that the employer's rebuttal was “mere pretext,” the Appellate Division said that the State was entitled to summary judgment dismissing Adeniran’s complaint alleging unlawful harassment, explaining that “New York does not recognize a common-law cause of action to recover damages for harassment."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_03441.htm

The allocation of positions in the public service to salary grades is a permissive rather than a mandatory subject of collective bargaining

The allocation of positions in the public service to salary grades is a permissive rather than a mandatory subject of collective bargaining

County of Tompkins v. Tompkins County Unit of CSEA (PERB U-5676)

Is the classification and allocation of positions a mandatory subject of negotiations under the Taylor Law? In County of Tompkins v. Tompkins County Unit of CSEA PERB ruled that classification and allocation matters were permissive rather than mandatory subjects of collective bargaining for the purposes of the Taylor Law.

The Tompkins County case arose when the County refused to negotiate the allocation of newly established positions that were in a negotiating unit represented by CSEA.

The Union filed an improper practice charge and the PERB hearing officer ruled that the allocation of positions in an employer’s workforce was a mandatory subject of negotiations. He then dismissed the case upon his finding that the County had reserved to itself the authority to allocate positions in the “Management’s Rights” clause of the contract, which he said precluded negotiations on the subject during the life of the Agreement.

However, the hearing officer had rejected the County’s argument that State and case law, including Evans v. Newman, 49 NY2d 904. Tompkins County contended that the Evan’s decision’s holding that the classification and allocation of positions were not terms and conditions of employment with respect to positions with the State as the employer* was equally applicable to municipal positions.

On appeal, PERB said that it had reconsidered its earlier decisions on the subject and now concluded that the holding in Evans was a general statement of the law “whose applicability was not restricted to the parties in that case.” PERB said that in reconsidering its earlier decisions regarding local employers, “we [now] conclude as to them, as the Court did with respect to the State employees, that allocation and reallocation are an essential aspect of the level and quality of service to be provided by a public employer.”

PERB decided that a public employer should not be compelled to negotiate over such decisions and held that allocations of positions to salary grades are not mandatory subjects of negotiations.

* Evans was employed by the State’s Office of Court Administration.

Positions in the public service may not be abolished in bad faith

Matter of Weimer, 74 AD2d 574

Although the consultant recommended the creation of a new position of “business manager.” to report to the Assistant Superintendent for Business Affairs, the School Board abolished the Assistant Superintendent position in favor of the creation of two new positions: an “Administrator of Operations” and a “Business Manager”. The incumbent of the Assistant Superintendent position, George C. Weimer, Jr., was terminated from his position and two other individuals were appointed to the newly created positions.

The Court held that the duties of the Assistant Superintendent position were merely transferred to two new positions and therefore the abolishment of the Assistant Superintendent position was not made in good faith as the grounds. The decision indicates that Weimer’s tenure rights could not be summarily. The Court also noted that the School Superintendent had earlier suggested to the School Board that “the duties of the (Assistant) position be gradually reduced until the (Assistant) would leave of his own accord.”

The Appellate Division ruled that Weimer had discharged duties substantially similar in nature to the duties assigned to the new positions. He was thus entitled to be granted relief under the provisions of §2510 of the Education Law.*

Weimer, however, indicated in his brief that he has obtained other employment in another school district. Accordingly, the Appellate Division remitted the matter to Supreme Court “for the sole purpose of determining the amount of salary due [Weimer], less the amount of the earnings from other employment and any unemployment [Weimer] may have received.”

* In the words of the court: ”Just as under the provisions of the Civil Service Law, a municipality may not abolish a position by subterfuge (Switzer v Sanitary Dist. No. 7, Town of Hempstead, 59 A.D.2d 889, app dsmd 43 N.Y.2d 845; Matter of Wipfler v Klebes, 284 NY 248; Wood v City of New York, 274 NY 155; Ann., 87 ALR3d 1165, 1184), a school board under the provisions of the Education Law may not abolish a position by subterfuge (Matter of Amos v Board of Educ., 54 A.D.2d 297, 301, affd 43 N.Y.2d 706; cf. Matter of Abramovich v Board of Educ., 46 N.Y.2d 450, 454; Education Law, §2510.“

The decision is posted on the Internet at:

http://ny.findacase.com/research/wfrmDocViewer.aspx/xq/fac.19800204_0040515.NY.htm/qx

At least one part of an examination for a position in the competitive class must be competitive

At least one part of an examination for a position in the competitive class must be competitive

Informal Opinions of the Attorney General, January 8, l980

A selection procedure for employment in the competitive class consisting of a qualifying written test and a ranked (competitive) physical agility test complies with the constitutional and statutory requirements for a competitive examination of merit and fitness for the position “where practicable.”

Further the Civil Service Commission has the discretion to determine the appropriate selection devices. 

When it has been determined that a competitive examination is practicable, that test may be a written tests, an oral test or a performance test, or any combination thereof, so long as some part of the test can be scored and the candidates ranked on the basis of their scores.

The Opinion also observed that “All that is necessary is that the test selected be objective in nature and the scoring procedures reviewable.

Retirement and Social Security Law excludes “large raises having the effect of inflating the members final average salary” in determining the member’s retirement allowance

The Retirement and Social Security Law excludes “large raises having the effect of inflating the members final average salary” in determining the member’s retirement allowance
Chichester v DiNapoli, 2013 NY Slip Op 05283, Appellate Division, Third Department

Gilbert L. Chichester was employed as the Executive Director of the Montgomery-Otsego-Schoharie Solid Waste Management Authority (MOSA) from December 1, 1993 through December 2004 pursuant to a series of employment contracts.

In December 2004, Chichester's then-current employment contract expired without a new agreement in place. MOSA's Board and Chichester entered into an oral agreement providing for Chichester’s continued employment and compensation pending further contract negotiations.

No agreement had been reached as of January 2006 and MOSA's Board adopted a resolution imposing retroactive salary increases for Chichester for 2004, 2005 and 2006. Negotiations, however, continued and, on August 20, 2009, Chichester and MOSA entered into a written employment contract covering the period from January 1, 2005 to August 31, 2009. That contract “retroactively increased Chichester's annual base salary and resulted  in certain lump-sum payments being made to Chichester.* The same day Chichester and MOSA entered into a separate agreement indicating Chichester's intention to resign from his position effective August 31, 2009 and to thereafter retire.

When Chichester submitted his application for service retirement effective September 23, 2009 to the New York State and Local Employees' Retirement System, the System advised him that the retroactive lump-sum payments he received in August 2009 (covering the period from September 1, 2006 to August 31, 2009) would not be included in the calculation of his final average salary for purposes of determining the pension portion of his retirement allowance.

The Retirement System explained that “such payments were not annual compensation but, rather, represented either a form of termination pay or additional compensation paid in anticipation of [Chichester’s] retirement.”

Chichester challenged that administrative decision and following a hearing, the Hearing Officer concluded that the "lump-sum" payments should be included in Chichester’s final average salary. The Comptroller disagreed and excluded such payments from Chichester’s retirement benefit calculation and Chichester filed a petition pursuant to CPLR article 78 challenging the Comptroller’s determination.

The Appellate Division said that its case law makes clear that "the Comptroller is vested with exclusive authority to determine applications for retirement benefits and such determination, if supported by substantial evidence, must be upheld" even if other evidence in the record could support a contrary result.

The Retirement and Social Security Law [RSSL] provides that a member's pension benefit is based upon his or her final average salary, i.e., "the average salary earned by such . . . member during any three consecutive years which provide the highest average salary." However, RSSL §431further provides that to avoid the artificial inflation of that such calculation must exclude "any form of termination pay" or "any additional compensation paid in anticipation of retirement."

The Appellate Division then observed that "In determining what constitutes termination pay or compensation paid in anticipation of retirement, [it] must look to the substance of the transaction and not to what the parties may label it."

Although, noted the court, the arguments advanced by Chichester “arguably militates in favor of a finding that the lump-sum payments at issue indeed were regular salary payments,” the Appellate Division said that it could not overlook the fact that “the underlying employment agreement expired by its own terms as of August 31, 2009 — a mere 11 days after it was signed by [Chichester] and MOSA's chair — and, more to the point, was executed the same day that [Chichester] and MOSA entered into an agreement relative to Chichester's resignation (effective August 31, 2009) and retirement” and, the retroactive salary increases were disproportionate to the salary increases previously enjoyed by Chichester.

Here, said the court, "the timing of [Chichester’s] large raise[s] … had the effect of inflating [Chichester’s] final average salary." Accordingly the Appellate Division ruled that the Comptroller's exclusion of such sums from Chichester‘s final average salary and corresponding retirement benefit calculation was supported by substantial evidence.

* Chichester‘s base salary was increased incrementally from $73,254 as of August 31, 2006 to $115,000 as of August 31, 2009.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_05283.htm