Court dismissed discrimination complaint for failure to allege discriminatory intent and for failure to exhaust administrative remedies

Court dismissed discrimination complaint for failure to allege discriminatory intent and for failure to exhaust administrative remedies

Burgis v New York City Department of Sanitation, USCA, Second Circuit, Docket #14-14-1640 cv

In this class action lawsuit the plaintiffs alleged that they suffered unlawful discrimination on the basis of race and/or national origin in the New York City Department of Sanitation’s promotional practices, relying on statistics that they claim demonstrate disparities in the composition of various supervisory positions within the department.

The federal district court dismissed the Equal Protection and §1981 claims filed by the plaintiffs “for failure to allege discriminatory intent”, and dismissed their Title VII claim  alleging disparate impact “for failure to exhaust administrative remedies.”

The Court of Appeals, Second Circuit, sustained the district court’s ruling, explaining that although statistics alone may be sufficient in some circumstances to show discriminatory intent in an Equal Protection or §1981 class claim, “the statistics here alleged in the complaint were insufficient for this purpose” and, further, the plaintiffs failed to exhaust their administrative remedies prior to filing the Title VII disparate impact claim.

As to the statistics presented by the plaintiffs, the Circuit Court said the plaintiff’s bare allegations do not present circumstances that “give rise to an inference of unlawful discrimination.” Without any specificity as to the qualifications considered for each position and without any reference to specific statements or individual circumstances that suggest discriminatory treatment, plaintiffs’ allegations do not support a finding that the Department of Sanitation acted with a discriminatory purpose.

Addressing the plaintiffs’ Title VII claim, the court said that discriminatory intent need not be alleged in a case based on so-called “disparate impact." In this instance, however, the plaintiffs’ Title VII claim must be dismissed for failure to exhaust administrative remedies.

To bring a claim under Title VII, explained the court, a plaintiff must first have filed a complaint with the Equal Employment Opportunity Commission (“EEOC”) or a state equivalent - here, the New York State Division of Human Rights - as Courts may only hear claims “reasonably related” to allegations set forth in the administrative complaint.

Accordingly, said the court, the judgment of the United States District Court is affirmed.

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/abbf2748-836b-4838-813b-85ffacc115c6/9/doc/14-1640_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/abbf2748-836b-4838-813b-85ffacc115c6/9/hilite/

Disqualification of applicants for a license or employment because of his or her criminal conviction

Disqualification of applicants for a license or employment because of his or her criminal conviction

Source: Civil Service Attorney LawBlog, by Kevin Sheerin

In a lawsuit brought by the New York Community Service Society [DCAS] for petitioner, KM, Judge Moulton of the New York County Supreme Court held “that both the New York City Department of Citywide Administrative Services and the New York City Civil Service Commission failed to consider Correction Law Article 23-A, in disqualifying the petitioner.”

Article 23-A of the Correction Law, enacted in 1976, addresses the “Licensure and Employment of Persons Previously Convicted of One or More Criminal Offenses,” and attempts to eliminate the effect of bias against ex-offenders by imposing an obligation on employers and public agencies to deal equitably with them by setting out a broad general rule that employers and public agencies cannot deny employment or license to an applicant solely based on the applicant status as an ex-offender.

Petitioner had applied for employment as a DCAS special officer  but was disqualified by Citywide Administrative Service. Petitioner then appealed Administrative Service’s decision to the New York City Civil Service Commission. The Commission sustained Petitioner’s disqualification. Supreme Court reversed the Commission’s decision.

In Arrocha v NYC Bd. of Education, 93 NY2d 361, a case involving the denial of a teaching license to an individual who had been convicted of a crime, the Court of Appeals said that the Correction Law protects individuals from unlawful discrimination based on his or her conviction of a crime and an applicant for a license or employment may not be automatically disqualified because of his or her previous conviction of a crime.  

Finding that the New York City Board of Education properly considered all eight factors set out in the Article 23-A of the New York State Correction Law when it refused to grant a teaching license to a person with a criminal record, the Court of Appeals explained that Article 23-A sets out a broad general rule that employers and public agencies cannot deny employment or license to an applicant solely based on the applicant’s status as an ex-offender. Rather it must measure its decision against the eight criteria set out in §753 of the Correction Law set out below,

1. The public policy of this state, as expressed in this act, is to encourage the licensure and employment of persons previously convicted of one or more criminal offenses;

2. The specific duties and responsibilities necessarily related to the license or employment sought;

3. The bearing, if any, the criminal offense or offenses for which the person was previously convicted will have on his fitness or ability to perform one or more such duties or responsibilities;

4. The time that has elapsed since the occurrence of the criminal offense or offenses.

5. The age of the person at the time of occurrence of the criminal offense or offenses;

6. The seriousness of the offense or offenses;

7. Any information produced by the person, or produced on his behalf, in regard to his rehabilitation and good conduct; and

8. The legitimate interest of the public agency or private employer in protecting property, and the safety and welfare of specific individuals or the general public.”

Read about New York Community Service Society by clicking Article 78 Civil Service Job disqualification case.

Settlement agreements

Settlement agreements

George W. & Dacie Clements Agric. Research Institute, Inc. v Green, 2015 NY Slip Op 06399, Appellate Division, Third Department

In its review of a Supreme Court ruling in a real property action in which one of the parties sought summary judgment to enforce a “settlement agreement,” the Appellate Division set out a number of guidelines that could lead to effecting a binding settlement agreement. 

These guidelines may prove helpful in the context of a “settlement agreement” resolving an employee disciplinary action.

1. An out-of-court settlement agreement "is not binding upon a party unless it is in a writing subscribed by [that party] or [that party's] attorney;"

2. Writings between parties to an action or proceeding that discuss the possibility of settlement will be considered to constitute a binding agreement if "the settlement agreement was adequately described in [such] writings, namely, the agreement was clear, the product of mutual accord and contained all material terms;" and

3. Settlement-related writings may be deemed to have contained sufficiently detailed terms to give rise to a binding agreement when, for example, these writings explicitly incorporate the terms of other documents prepared in anticipation of settlement.

In contrast, said the court, settlement-related writings will not be found to have created a binding agreement if they expressly anticipate a subsequent writing that is to officially memorialize the existence of a settlement agreement and set forth all of its material terms or where the terms of the settlement agreed upon by the employee organization on behalf of an employee and the appointing authority’s representative is subject to the approval of the appointing authority.

In Alfred v Safir, 283 AD2d 280, the disciplinary penalty to be imposed agreed upon by the employee and employer’s representative was made part of the record by the disciplinary hearing officer.

New York City Police Commissioner Howard Safir suspended Gary Alfred for 30 days without pay and placed him on disciplinary probation for one year following the "settlement of disciplinary charges" filed against Alfred. Alfred objected, contending that he, the department’s representative at the disciplinary hearing and the disciplinary hearing officer had all agreed to the imposition of a different disciplinary penalty.

The Appellate Division unanimously affirmed Safir’s decision, commenting that “[t]he various determinations and penalties agreed to by [Alfred] and [the department’s] advocate and/or hearing officer were not binding” on Safir, the appointing authority, citing Silverman v McGuire, 51 NY2d 228.

This decision suggests that where the appointing authority makes the final disciplinary determination, it would be prudent for:

1. The employer’s representative to insist that any settlement of a disciplinary action include a statement to the effect that the settlement is subject to the approval of the appointing authority; and

2. The employee or the employee’s representative to insist on a provision spelling out what is to happen if the appointing officer does not agree to impose the penalty set out in the settlement proposal.

Another issue that may arise as the result of efforts by the employer and the employee organization to settle a disciplinary action: the employee organization later refuses to sign the disciplinary settlement agreement. Would the union's refusal to sign the agreement constitute a failure to bargain in good faith? PERB considered this question in Town of Henrietta and CWA, 23 PERB 3004. 

The employer filed a complaint with PERB alleging the union violated its duty to negotiate in good faith when it refused to sign the disciplinary settlement agreement that the employer contended was required by §204.3 of the Civil Service Law [the Taylor Law].

PERB found an oral agreement had been reached. However, the only issue for it to decide, said PERB, was “whether a Taylor Law duty exists to execute the disciplinary settlement agreement reached.”

PERB ruled that “the duty to execute a written agreement created by §204.3 is most appropriately construed as applying to collectively negotiated agreements and not to settlement agreements reached pursuant to the grievance procedure contained in such a collective bargaining agreement.”

As to the contents of a settlement agreement, the agreement might set out provisions that could affect the employer's ability to file disciplinary charges against the employee in the future. 

For example, in Matter of the Board of Education of the Unadilla Valley Central School District, 97 AD3d 1078, the Appellate Division held that a disciplinary settlement agreement that provided that the appointing authority waived its right to bring certain charges against an individual barred it from subsequently bring charges based on the same event[s] or omission[s] while in Shuler v State of New York, 48 AD3d 384, the court sustained a provision in a disciplinary settlement agreement that preserved certain allegations of employee misconduct for subsequent action.

The Research Institute decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_06399.htm

Alternative to personal service of a petition upon a respondent in an appeal to the Commissioner of Education may be authorized

Alternative to personal service of a petition upon a respondent in an appeal to the Commissioner of Education may be authorized

Decisions of the Commissioner, Decision #16798

One of the objections raised by the School District in this appeal submitted by Stan J. Ercolano to the Commissioner of Education challenging the election of certain members of the School Board to the Board was that the petition was served on one of the named respondents [Pierce] by mail rather than by personal service. 

Addressing this particular objection included among a number of procedural challenges advance by School Board in its efforts to have Ercolano’s appeal dismissed, the Commissioner noted that §275.8(d) of the Commissioner’s regulations provides, in pertinent part. That “If an appeal involves the validity of a school district meeting or election ... a copy of the petition must be served upon the trustee or board of trustees or board of education as the case may be, and upon each person whose right to hold office is disputed and such person must be joined as a respondent.” (emphasis in the Decision).

However, said the Commissioner, although §275.8(a) of the Commissioner’s regulations generally requires that the petition be personally served upon each named respondent,  §275.8(a) provides, in pertinent part that, “if a named respondent cannot be found upon diligent search, ... [service may be made] as otherwise directed by the commissioner.” 

The decision indicates that Ercolano had sent a fax to Education Department’s Office of Counsel requesting permission to effect alternate service by mail upon Pierce after he had “unsuccessfully attempting to effect personal service” upon Pierce at various different times and on different days.  The Office of Counsel sent Ercolano a letter granting him permission to serve Pierce by regular and certified mail, return receipt requested.  Ercolano then effected service, as approved, that same day.

 

The Commissioner said that it appears that Pierce “chose not to pick up the copy of the pleadings sent to her by certified mail” and found that service upon Pierce “was proper and made in compliance with the alternative service petitioner was authorized to use pursuant to §275.8(a) of the Commissioner’s regulations.”

The School District also argue that Ercolano “should have continued to attempt personal service” on Pierce even after the pleadings had been mailed to her by Ercolano as he was directed to do in Office of Councel’s approval letter.  However, affidavits of service submitted by Ercolano stated that an additional attempt to personally serve Pierce was made on the evening of June 16, 2011, but was unsuccessful.

The Commissioner ruled that in this instance “service was proper and [declined] to dismiss the appeal for failure to properly serve Pierce … and join her as a necessary party. 

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume55/d16798

Dismissed probationary teacher seeks damages for the employer’s alleged fraudulent inducement and breach of contract and for the union’s alleged breach of its duty of fair representation

Dismissed probationary teacher seeks damages for the employer’s alleged fraudulent inducement and breach of contract and for the union’s alleged breach of its duty of fair representation

2015 NY Slip Op 06331, Appellate Division, Second Department

The plaintiff [Probationer] commenced an action against the School District and certain named individuals [district defendants] and against the school district’s Teachers Association and New York State United Teachers [union defendants] .after her employment as a probationary teacher was terminated. Probationer’s amended complaint asserted causes of action to recover damages for the district defendant' alleged fraudulent inducement and breach of contract and a cause of action to recover damages for the union defendants' alleged breach of the duty of fair representation.

The Appellate Division ruled that Supreme Court properly granted the district defendants' cross motion to dismiss the amended complaint insofar as asserted against them. The court explained that a teacher's employment may be terminated during his or her probationary period for any reason, or no reason at all, unless the teacher establishes that his or her employment was terminated for a constitutionally impermissible purpose or in violation of a statutory proscription.

Here, said the court, the amended complaint failed to allege that Probationer’s employment was terminated for a constitutionally impermissible purpose or in violation of a statutory proscription. As Probationer was an at-will employee, whose employment could be terminated at any time during the probationary period, the Appellate Division said that “there can be no action alleging breach of contract, citing Havilland v Yonkers Public Schools, 21 AD3d 527.

In addition, the court commented that the amended complaint failed to establish that the Probationer reasonably relied upon the district defendants' alleged misrepresentations, which is an element necessary to the recovery of damages under a theory of fraudulent inducement.

Accordingly, the Appellate Division concluded that the amended complaint failed to state a cause of action against the district defendants.

Turning Supreme Court’s dismissal of the amended complaint insofar as asserted against the union defendants, the Appellate Division said that “Because the union defendants were unincorporated associations, and because the amended complaint failed to allege that the conduct complained of on the part of the union defendants was authorized or ratified by every one of their respective members, the amended complaint failed to state a cause of action against the union defendants.”

In Martin v Curran, 303 NY 276, the Court of Appeals held that a voluntary unincorporated association "has no existence independent of its members" and that "for better or worse, wisely or otherwise, the Legislature has limited . . . suits against association officers, whether for breaches of agreements or for tortious wrongs, to cases where the individual liability of every single member can be alleged and proven" it vacated the lower courts ruling. 

Although certain exceptions have been carved out from this general rule, the court said that one commentator has observed that, “although a claim of breach of the duty of fair representation may be brought either in court or before an appropriate agency (such as the Public Employment Relations Board), the reality in light of Martin is that most such claims must be brought before an agency to survive early dismissal," citing Rubenstein, Union Immunity From Suit in New York, 2 NYU Journal of Law & Business 641.

An abstract of the Rubenstein article is posted on the Internet at:

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=919143

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

http://www.nycourts.gov/reporter/3dseries/2015/2015_06331.htm