Showing a non-retaliatory purpose for its actions and the absence of evidence that the employer’s explanation was “mere pretext” defeats employees’ Title VII complaint

Showing a non-retaliatory purpose for its actions and the absence of evidence that the employer’s explanation was “mere pretext” defeats employees’ Title VII complaint

USCA, 2^nd Circuit, Docket 12-1526

A complaint filed against the Onondaga County Sheriff’s Department pursuant to Title VII of the Civil Rights Act [42 U.S.C. 2000e-3] alleged the plaintiffs had suffered retaliation as the result of their filing a complaint with EEOC.

The Department had earlier initiated an investigation of claims of racial harassment based on complaints allegedly made by prisoners at the Department’s facility that targeted the plaintiffs as engaging in discriminatory actions. Plaintiffs contend that they were then threatened with disciplinary action because of their filing “false reports” with the EEOC.

The Circuit Court of Appeals held that under the circumstances, the Department’s investigation of the complaints made by prisoners did not constitute adverse employment actions.

While the court said that threats by the Department to initiate disciplinary action charging the plaintiffs with making a false report to the EEOC established a prima facie case of unlawful retaliation, the Circuit Court ruled that the Department had shown a non-retaliatory purpose for conducting the investigation and plaintiffs presented no evidence that the Department’s explanation constituted “mere pretext.”

The Circuit Court then affirmed the district court's dismissal of plaintiffs' retaliation claims.

The decision is posted on the Internet at: http://www.ca2.uscourts.gov/decisions/isysquery/819a2023-998c-439f-ac31-d9f065e3285b/4/doc/12-1526_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/819a2023-998c-439f-ac31-d9f065e3285b/4/hilite/
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Threatening and harassing co-workers

Threatening and harassing co-workers

OATH Index No. 1404/14

An emergency medical technician [EMT] was charged with committing five incidents of misconduct over a two-year period.

OATH Administrative Law Judge John B. Spooner sustained the charges, finding EMT  threatened and harassed co-workers.

ALJ Spooner recommended that EMT's employment should be terminated due to the severity of his behavior. Fire Dep't v. Holdip, 

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A Reasonable Disciplinary Penalty Under the Circumstances - a 442-page volume focusing on determining an appropriate disciplinary penalty to be imposed on an employee in the public service in instances where the employee has been found guilty of misconduct or incompetence. Now available in two formats - as a large, paperback print edition, and as an e-book. For more information click on http://booklocker.com/books/7401.html

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Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending August 2, 2014

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending August 2, 2014

Click on text highlighted in color  to access the full report 

Fire Department treasurer arrested for stealing public funds

New York State Comptroller Thomas P. DiNapoli announced the arrest of Dennis Snow, the treasurer of the LeRoy Fire Department in Genesee County. Snow was charged with two counts of grand larceny in the third degree (class D felony), 42 counts of forgery in the first degree (class C felony) and two counts of falsifying business records in the first degree (class E felony) for allegedly stealing nearly $50,000 in public funds.

DiNapoli’s office found that Snow allegedly made unauthorized transfers, withdrawals and deposits from the department’s account, as well as from the firemen's benevolent association. Snow used the money to pay his personal bills and admitted that he forged the required co-signers signatures in order to complete his theft. The audit is expected to be finalized in the next month. Snow is due back in court on August 13.

DiNapoli encourages the public to help fight fraud and abuse. New Yorkers can report allegations of fraud involving taxpayer money by calling the toll-free Fraud Hotline at 1-888-672-4555, by filing a complaint online at investigations@osc.state.ny.us, or by mailing a complaint to: Office of the State Comptroller, Division of Investigations, 14th floor, 110 State St., Albany, NY 12236.

Schuyler Heights Fire District – Controls Over Claims Processing (Albany County)
Except for some minor exceptions, the claims reviewed were adequately supported and were for proper district purposes. However, the board’s failure to adequately audit claims and approve the abstract prior to the treasurer making payment on the claims creates a deficiency in the district’s internal controls over claims processing.

Village of Voorheesville – Claims Processing (Albany County)
Generally, the village’s internal controls over claims processing were adequate to ensure claims were for appropriate purposes, adequately supported and properly audited and approved.

Willsboro Fire District – Controls Over Financial Activities (Essex County)
The treasurer does not maintain running cash balances in the check book registers, maintain accounting records with cash accounts and subsidiary revenue and expenditure accounts or reconcile bank balances to book balances. The last annual financial report that was filed with the Office of the State Comptroller was for the 2010 fiscal year, which was filed in October 2013, more than two years late.

Town of Wilson – Purchasing (Niagara County)
The board did not ensure that the highway superintendent complied with competitive bidding requirements or the town’s procurement policy when making purchases. The superintendent did not consistently solicit written quotes or competitive bids as required, or attach appropriate supporting documentation to claims.

Argyle Central School District – Internal Controls Over Payroll (Washington County)
The board’s lack of comprehensive written policies and procedures resulted in the bookkeeper performing incompatible duties related to payroll processing and maintaining all leave accrual balances. The business manager’s and treasurer’s limited roles related to processing payroll did not provide sufficient oversight or monitoring of the bookkeeper’s work.

Forestville Central School District – Transportation Operations and Cafeteria Financial Condition (Chautauqua County)
District officials have not identified opportunities to reduce student transportation cost by performing appropriate analyses, such as an annual review of bus routes. By improving transportation efficiency, auditors estimate that the district could save approximately $36,500 annually and more than $460,000 by maximizing bus capacity for in-district runs, thereby reducing routes and eliminating the need to replace three buses over the next two years. In addition, the cafeteria fund’s financial condition has declined over the past five years as it experienced operating deficits, resulting in a $215,678 deficit fund balance as of June 30, 2013.

Northern Adirondack Central School District – Internal Controls Over Extra-Classroom Activity Funds (Clinton County)
The district’s controls over extra-classroom activity funds were not operating effectively. The board did not ensure that district officials implemented and enforced its policy governing the operations of the activity funds. Auditors found that 30 cash receipts totaling $19,322 had no supporting documentation and four student treasurers did not maintain ledgers during the 2012-13 fiscal year.

Schenevus Central School District – Budgeting (Otsego County)
District officials have accumulated excessive fund balances and not adequately reported the district’s financial condition to the taxpayers. As a result, they have withheld significant funds from productive use and prevented taxpayers from making informed decisions during the budget voting process. 

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County awarded attorney fees and costs as the prevailing party in a civil rights action

County awarded attorney fees and costs as the prevailing party in a civil rights action

Carter v Village of Ocean Beach, USCA, 2^nd Circuit, #13,815

Plaintiffs, former seasonal and part-time police officers of the Village of Ocean Beach, sued the Village and County and various officers and employees of those entities alleging multiple wrongful termination and defamation. They subsequently withdrew all claims except for their allegation contending that their First Amendment rights had been violated by the Village and the other named defendants.

As to Plaintiffs’ First Amendment claims, the District Court granted summary judgment in favor of all of the defendants, explaining that Plaintiffs’ First Amendment claims were barred as they were made only pursuant to the defendants’ performing official duties and thus Plaintiffs’ allegations were “constitutionally unprotected,” citing Weintraub v Board of Education, 593 F3d at 196.

As to the dismissal of Plaintiffs’ procedural due process claims, the Court of Appeals explained that their [1] breaks in employment defeated any claim to property rights under New York Civil Service Law and [2] the availability of a meaningful post deprivation state law remedy defeated any liberty based “stigma plus” claims with respect to their allegations of defamation.

Rejecting Plaintiffs’ argument that (1) their claims were not frivolous; (2) they should not be liable for fees and costs associated with their voluntarily withdrawal of their State law claims and claims not set out in 42 USC §1988, the Second Circuit Court of Appeals sustained the District Court’s order granting attorney's fee and costs to the only County defendants* in the amount of $63,990.00 as the prevailing party.  

In the words of the court, “Plaintiffs’ claims were frivolous from the outset and required the County Defendants to litigate continuously (at taxpayer expense) since March 2007,” explaining that the County Defendants did not employ, or supervise, the Plaintiffs and had no meaningful role in any alleged wrongs advanced by the Plaintiffs.

* Plaintiffs brought their state law claims in state court, which dismissed all claims against the county at the pleading stage of the action.
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Law enforcement officers may be held to higher standards of conduct than other civil service employees

Law enforcement officers may be held to higher standards of conduct than other civil service employees

2014 NY Slip Op 04297, Appellate Division, Fourth Department

A County Correction Officer [Petitioner] was alleged to have violated departmental rules and regulations and, after an advisory arbitration hearing, was suspended from his position without pay for 45 days.

Petitioner initiated an Article 78 proceeding seeking a court order annulling the appointing authority’s determination. Supreme Court confirmed the determination with respect to two of the three charges. The third charge, which alleged misconduct with respect to Petitioner's voluntary, off-duty attendance at a social event hosted and, or, sponsored by the Hells Angels Motorcycle Club was annulled and the matter remitted to the appointing authority "to determine whether the penalty should be adjusted as a result" of the annulling of the finding of guilt with respect to the third charge.

The Appellate Division thought differently, concluding that the determination should be confirmed in its entirety; that the petition should be dismissed and the judgment of the Supreme Court modified accordingly.

The court said that the proper standard of review is whether there is a rational basis for the determination or whether it is arbitrary and capricious, and not whether the determination is supported by substantial evidence.

The Appellate Division explained that the hearing was mandated by a collective bargaining agreement and not required by statute or law. Thus [1] the “substantial evidence” test was not applicable in this instance and [2] both the determination of guilt and the penalty imposed are subject to judicial review.

Turning to the merits of the appeal, the court said that "[a]n action is arbitrary and capricious when it is taken without sound basis in reason or regard to the facts." Further, an agency’s determination "is entitled to great deference" if the reviewing court finds that the determination is supported by a rational basis and it “must sustain the determination even if the court concludes that it would have reached a different result than the one reached by the agency."

The Appellate Division also commented that “it is well settled that law enforcement officers may be ‘held to higher standards than ordinary civil service employees’ and that an administrative determination regarding discipline will be afforded heightened deference where a law enforcement agency . . . is concerned."

Finally, the court said that the penalty is not "so disproportionate to the offense as to be shocking to one's sense of fairness," citing Matter of Pell, 34 NY2d at 222. In view of the fact Petitioner was a law enforcement officer with over 20 years of experience, the Appellate Division said that he should have known that his participation in a Hells Angels-sponsored event would raise, at the very least, an appearance of impropriety, and that such participation could potentially jeopardize his authority and effectiveness as a correction officer.

Noting that Petitioner was "unrepentant, insisting that his personal opinion of [Hells Angels] and its members was the only criterion upon which his conduct should be judged," the court said it found no basis to disturb the penalty imposed by the appointing authority.

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A Reasonable Disciplinary Penalty Under the Circumstances - a 442-page volume focusing on determining an appropriate disciplinary penalty to be imposed on an employee in the public service in instances where the employee has been found guilty of misconduct or incompetence. Now available in two formats - as a large, paperback print edition, and as an e-book. For more information click on http://booklocker.com/books/7401.html

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