Administrative decision adversely affecting employee that considered allegations not set out in the charges vacated

Administrative decision adversely affecting employee that considered allegations not set out in the charges vacated
2015 NY Slip Op 04764, Appellate Division, First Department

Supreme Court’s denial of a probationary teacher’s [Probationer] the petition to [1] annul the Board of Education’s [BOE] determination sustaining the Probationer’s an unsatisfactory rating (U-rating) as a teacher for the 2006-2007 school year, and [2] dismissing the proceeding, was unanimously reversed, on the law, by the Appellate Division. The Appellate Division then vacated Probationer’s U-rating for the 2006-2007 school year and remanded the matter to the BOE for “further proceedings consistent” with its ruling.

After discussing the events leading to Probationer’s U-rating, the court noted:

1. Probationer was informed that her file would be reviewed for a determination of whether her services as a probationary teacher would be discontinued and whether her teaching license would be terminated as of the close of business on July 15, 2007 “.based on professional attitude and professional growth; attention to records and reports; unsatisfactory classroom performance; poor planning and preparation; skill in adapting instruction to the individual needs of the students; evidence of pupil growth in knowledge and skills;" and

2. This letter constituted the charging document that was the basis of the ensuing hearing.

In particular the Appellate Division noted “missing from the charging document was any mention of excessive absences.”

An “officially designated” committee, composed of three members, conducted a review of [1] the decisions to issue Probationer’s U-rating for the 2006-2007 school year; to discontinue her probationary service; and [2] to revoke her New York City teaching certificate.

The majority of the committee concurred as to the recommendation to discontinue Probationer’s probationary service. However, said the Appellate Division, "[r]ecognizing that [Probationer] is young and inexperienced and that she had to take over a new class, which may have been more of a challenge than she could handle," the committee "reached unanimous non-concurrence on the recommendation to terminate all license(s)/certificate(s) held by [Probationer]."

Ultimately Probationer was advised that a "reviewed the report of [the committee] concerning the recommendation that all your teaching certificate(s)/licenses be terminated . . . and that your probationary service as a Teacher of Common Branches be discontinued," and the recommendation had been sustained. The Appellate Division noted that this determination was made “notwithstanding the unanimous view” of the committee that the recommendation to terminate all [Probationer’s] licenses/certificates … should not be adopted.”

One of the elements referred to in this “ultimate” ruling was the Probationer’s alleged “excessive absence” not withstanding, as the Appellate Division pointed out, no mention of  alleged excessive absences were setout in the “charging document.”

Probationer sought judicial relief in a prior proceeding which resulted in a Supreme Court concluding that the petition to review the termination of Probationer's probationary employment was time-barred. However the court granted Probationer’s petition to the extent of annulling the unsatisfactory rating and the revocation of Probationer’s teaching license. The court then remanded the matter for a new hearing on Probationer’s unsatisfactory rating and the imposition of a penalty.*

Supreme Court, in this earlier proceeding, also ruled the Probationer had not been provided with adequate notice that absenteeism was a basis for BOE’s taking adverse action against her and thus that its reliance on Probationer’s attendance record in making a final determination violated due process.

Nevertheless, on remand, BOE again relied on “evidence of absenteeism,” as did Supreme Court in upholding Probationer’s U-rating in the proceeding giving rise to this appeal.

The Appellate Division said that Supreme Court in this second Article 78 proceeding acted in a manner that was arbitrary and capricious, explaining that “While the evidence of pedagogical deficiency — apart from the evidence of absenteeism — might, by itself, be sufficient to warrant the U-rating, that is for [BOE] to decide.”

The Appellate Division ruled that if on remand BOE “declines to sustain [Probationer’s] unsatisfactory rating, [BOE] is free to reconsider the termination of her probationary employment.”

However, in the event BOE sustains the unsatisfactory rating, it is precluded from imposing the penalty of revocation of Probationer’s teaching license because the judgment in the first Article 78 proceeding directed that the penalty, if any, should be something less than revocation of Probationer's license, and BOE did not appeal from that judgment.

Noting that “it is significant that the wrongful admission of evidence in this case occurred after a specific direction from [Supreme Court] that evidence of absenteeism was not authorized, based on the charges,” the Appellate Division again remand the matter to BOE for its reconsideration of Probationer’s performance rating for the 2006-2007 school year “based solely on the evidence related to the charges of which [Probationer] received proper notice.”

* The Supreme Court’s decision in that action is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2012/2012_22316.htm

The Appellate Division's decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_04764.htm

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Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending June 19, 2015

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending June 19, 2015

Click on text highlighted in color  to access the full report

Son left father’s body in morgue in order to steal his father's pension and social security payments  

On June 14, 2015State Comptroller Thomas P. DiNapoli announced the pending sentencing of a Queens man for concealing his father’s death so he could continue to unlawfully collect pension payments electronically deposited into a checking account in the name of his father. Christopher Bunn is expected to make restitution full on based upon his guilty plea in October to grand larceny in the third degree, a Class D felony, and petit larceny. Bunn has already served six months in federal prison related to his arrest.

Bunn’s father was a designated beneficiary collecting retirement benefits that were not transferable upon his death. State Comptroller DiNapoli said that “Mr. Bunn left his deceased father’s body unclaimed at the Nassau County morgue for more than a year so he could steal his pension and social security payments.”

The Comptroller thanked District Attorney Brown and the Social Security Inspector General for their partnership and continued commitment to protecting public funds.”

Special Agent in Charge Edward J. Ryan, Office of the Inspector General, Social Security Administration said that “It is illegal to conceal or fail to report deaths to continue receiving someone else’s Social Security benefits. I am gratified by the State Comptroller’s pursuit of justice in this case.”

Queens District Attorney Richard A. Brown said that Christopher Bunn’s actions was “robbing the New York pension system and the federal government of tens of thousands of dollars in unlawfully obtained benefits. My office will continue to pursue and prosecute individuals who abuse the system for their own benefit.”            

This is one of a series of investigations by DiNapoli’s office that have led to criminal convictions and recovery of unlawful retirement payments. In 2011, DiNapoli’s investigation of a double-dipping former Rome police officer resulted in the recovery of almost $90,000. DiNapoli’s 2012 investigation of double-dipping at the Troy Housing Authority led to two guilty pleas and the recovery of almost $70,000 in unlawfully paid pension earnings. In 2015, DiNapoli’s work with the Attorney General’s Office resulted in a two- to six-year prison sentence of a Florida resident for defrauding the system of over $100,000 and pending indictments of two New Jersey residents for stealing over $100,000 in pension funds. Most recently, in May 2015, a retired Suffolk County police officer was convicted in Nassau County of defrauding the pension system of more than $465,000 and ordered to pay full restitution.  

Since taking office in 2007, DiNapoli has committed to fighting public corruption and fraud and encourages the public to help fight fraud and abuse.  Allegations of fraud involving New York 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. 

A Ticking Clock for Job Benefits

New York State Comptroller Thomas P. DiNapoli’s “op-ed,” A Ticking Clock for Job Benefits, was published in The Albany Times Union on June 16, 2015. The Comptroller urges the state Legislature to act on his proposal to create an optional investment pool to help fund retire health insurance and other post employment benefits (OPEB).

The text of the Comptroller “op-ed” is posted on the Internet at:

http://www.timesunion.com/tuplus-opinion/article/A-ticking-clock-for-job-benefits-6328455.php

New York State Comptroller Thomas P. DiNapoli announced his office completed audits at the

Village of Brookville
http://www.osc.state.ny.us/localgov/audits/villages/2015/brookville.pdf?utm_source=weeklynews20150621&utm_medium=email&utm_campaign=061815release

Village of Canajoharie 
 http://www.osc.state.ny.us/localgov/audits/villages/2015/canajoharie.pdf?utm_source=weeklynews20150621&utm_medium=email&utm_campaign=061815release

Fairport Public Library 
http://www.osc.state.ny.us/localgov/audits/libraries/2015/fairport.pdf?utm_source=weeklynews20150621&utm_medium=email&utm_campaign=061815release

Revena-Coneymans-Selkirk Community Library
http://www.osc.state.ny.us/localgov/audits/libraries/2015/ravenacoeymansselkirk.pdf?utm_source=weeklynews20150621&utm_medium=email&utm_campaign=061815release

Rockland County Department of Social Services

http://www.osc.state.ny.us/localgov/audits/counties/2015/rocklandco.pdf?utm_source=weeklynews20150621&utm_medium=email&utm_campaign=061815release

and the Town of Saugerties 
http://www.osc.state.ny.us/localgov/audits/towns/2015/saugertiesjc.pdf?utm_source=weeklynews20150621&utm_medium=email&utm_campaign=061815release
 

New York State Comptroller Thomas P. DiNapoli announced his office completed audits at the following school districts:

Cheektowaga-Maryvale UFSD
http://www.osc.state.ny.us/localgov/audits/schools/2015/cheektowagamaryvale.pdf?utm_source=weeklynews20150621&utm_medium=email&utm_campaign=061815arelease

Corinth CSD 
 http://www.osc.state.ny.us/localgov/audits/schools/2015/corinth.pdf?utm_source=weeklynews20150621&utm_medium=email&utm_campaign=061815arelease

Millbrook CSD
http://www.osc.state.ny.us/localgov/audits/schools/2015/millbrook.pdf?utm_source=weeklynews20150621&utm_medium=email&utm_campaign=061815arelease

and the Mount Morris CSD 
 http://www.osc.state.ny.us/localgov/audits/schools/2015/mountmorris.pdf?utm_source=weeklynews20150621&utm_medium=email&utm_campaign=061815arelease

Distinguishing between a covered employee and an independent contractor for the purposes of eligibility for unemployment insurance benefits

Distinguishing between a covered employee and an independent contractor for the purposes of eligibility for unemployment insurance benefits

2015 NY Slip Op 04550, Appellate Division, Third Department

A law firm [Firm] appealed a decision of the Unemployment Insurance Appeal Board [Board] which assessed Firm for additional unemployment insurance contributions after ruling that a claimant [Lawyer] for unemployment insurance benefits for eligible for such benefits.

Lawyer had been retained as a "contract attorney" by the Firm to perform document review services in conjunction with the litigation of a class action lawsuit. After his assignment ended, Lawyer applied for unemployment insurance benefits and . The Unemployment Insurance Appeal Board ruled that Lawyer was the Firm’s employee and assessed it for additional unemployment insurance contributions as a result.

The Appellate Division affirmed the Board’s decision explaining that "Whether an employer-employee relationship exists is a factual determination for the Board, and its decision will be upheld if supported by substantial evidence." Citing Matter of LaValley, 120 AD2d 1498, the court said that "in cases where the rendering of professional services is involved, an employment relationship can be found where there is substantial evidence of control over important aspects of the services performed other than results or means."

The decision indicates that Lawyer:

1. was paid an agreed-upon hourly rate and required to work at least 45 hours a week, but not more than 50 hours per week;

2. was given specified hours each day to report to his assigned work station;

3. was required to take a daily unpaid 30 minute lunch break and was occasionally required to report to work on weekends;

4. was allowed to take unpaid days off, provided that he requested the time off in advance;

5. received daily assignments from an associate attorney employed by the Firm and who supervised Lawyer’s work; and

6. assisted in the litigation by providing written memoranda summarizing deposition testimony, work that included Lawyer's attendance at meetings with attorneys from other firms involved in the litigation.

These elements, said the Appellate Division, constituted “substantial evidence” supporting the Board's decision that the Firm retained sufficient overall control of Lawyers services to establish an employment relationship, despite evidence in the record that could support a contrary conclusion.

Significantly, the court commented that “The fact that [Lawyer] signed a written agreement designating him as an independent contractor does not compel a different result, citing Matter of Joyce, 116 AD3d 1132.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_04550.htm

Anatomy of an unlawful discrimination complaint

Anatomy of an unlawful discrimination complaint

2015 NY Slip Op 04601, Appellate Division, Second Department

The Plaintiff commenced this action seeking to recover damages for alleged unlawful discrimination and retaliation within the meaning of 42 USC §§1981 and 1983, the “Civil Rights Act” and for alleged violation of Executive Law §296, the State’s Human Rights Law, in connection with his employment at a State agency [Agency].  Supreme Court granted the Agency’s motion for summary judgment dismissing the complaint and Plaintiff appealed.

In considering Plaintiff’s appeal the Appellate Division said:

1. Aplaintiff alleging discrimination in employment has the initial burden to establish a prima facie case of discrimination; and

2. To meet this burden, the plaintiff must show that (1) he or she is a member of a protected class; (2) he or she was qualified to hold the position; (3) he or she was terminated from employment or suffered another adverse employment action; and (4) the discharge or other adverse action occurred under circumstances giving rise to an inference of discrimination.

If the plaintiff is able to satisfy each of these requirements, said the Appellate Division, the burden then shifts to the employer "to rebut the presumption of discrimination by clearly setting forth, through the introduction of admissible evidence, legitimate, independent, and nondiscriminatory reasons to support its employment decision."

If the employer is able to do so, the burden of going forward shifts to the plaintiff and in order to succeed on his or her claim, "the plaintiff must prove that the legitimate reasons proffered by the defendant were merely a pretext for discrimination by demonstrating both that the stated reasons were false and that discrimination was the real reason."

With respect to Supreme Court granting Agency’s motion for summary judgment dismissing Plaintiff’s complaint, the court said to prevail on a motion for summary judgment in a discriminatory employment action, “a defendant must demonstrate either the plaintiff's failure to establish every element of intentional discrimination, or, having offered legitimate, nondiscriminatory reasons for their challenged actions, the absence of a material issue of fact as to whether their explanations were pretextual.”

In this instance the Appellate Division found that after Agency demonstrated a prima facie entitlement to judgment as a matter of law while Plaintiff failed to raise a triable issue of fact as to whether any adverse employment action he allegedly suffered occurred under circumstances giving rise to an inference of discriminatory motive.

Further, the court noted that the Agency’s setting out “legitimate, nondiscriminatory reasons” for its challenged actions, said that Plaintiff failed to raise a triable issue of fact as to whether the Agency’s explanations were pretextual.

While it is unlawful to retaliate against an employee for opposing discriminatory practices, in order to make out a claim for retaliation, the plaintiff must show that (1) he or she has engaged in protected activity; (2) his or her employer was aware of such activity; (3) he or she suffered an adverse employment action based upon the protected activity; and (4) there is a causal connection between the protected activity and the adverse action.

Again, Agency demonstrated, prima facie, its entitlement to judgment as a matter of law on the causes of action alleging retaliation while Plaintiff, again, failed to raise a triable issue of fact as to whether he engaged in a protected activity or that Agency was aware of any such complaint prior to the date on which Plaintiff sent an email specifically complaining of discrimination.

The Appellate Division decided that Plaintiff did not submit sufficient evidence from which a jury could reasonably find a causal connection between any protected activity in which he engaged and any adverse employment action nor did he rebut the Agency’s evidence that any adverse action taken against him was justified by legitimate, nondiscriminatory reasons.

Accordingly, the court held that Supreme Court had properly granted Agency’s motion for summary judgment dismissing the complaint.

The decision is posted on the Internet at:

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http://www.nycourts.gov/reporter/3dseries/2015/2015_04601.htm

Benefit available members of union pursuant to a "Memorandum of Agreement" was a “vested lifetime benefit”

Benefit available members of union pursuant to a "Memorandum of Agreement" was a “vested lifetime benefit”

Port Auth. of N.Y. and N.J. v Union of Automotive Technicians, 2015 NY Slip Op 05114, Appellate Division, First Department

Due to budget constraints, the Port Authority of New York and New Jersey [Port Authority], effective January 1, 2011, discontinued its free E-Z Pass program available to retired Port Authority employee.

The Appellate Division unanimously affirmed a decision by Supreme Court modifying an arbitration award to rule that the E-Z Pass benefit as encompassed in the parties' 2006-2011 Memorandum of Agreement was a vested lifetime benefit available to retired members of the Union of Automotive Technicians in accordance with the provisions set out in the parties' 2006-2011 Memorandum of Agreement.

The court noted that “In light of our disposition of previous appeals raising the same issue, Supreme Court reached the right result in this matter,” citing Port Authority of New York and New Jersey v Port Authority of New York and New Jersey Police Lieutenants Benevolent Association, 124 AD3d 473, among other relevant decisions.

NYPPL’s summary of the Supreme Court’s ruling in the Lieutenants’ case is posted on the Internet at: http://publicpersonnellaw.blogspot.com/2013/06/article-75-petition-seeking-to-confirm.html

The Automotive Technician decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_05114.htm