Recent decisions by Administrative Law Judges of the NYC Office of Administrative Trials and Hearings

Recent decisions by Administrative Law Judges of the NYC Office of Administrative Trials and Hearings

Human Resources Administration v Smart, OATH Index No. 1325/16

NYC Dept. of Transportation v Harris, OATH Index No. 1531/16 

Matter of Smart: In the Smart case, OATH Administrative Law Judge Kevin F. Casey found that a job opportunity specialist, Averyl Smart, guilty of charges of [1] speaking on her cell phone while a client was waiting, [2] refusing to set up her work voicemail, and [3] burning the edges of a disciplinary memorandum. Judge Casey, however, dismissed the allegation charging that Smith had made disrespectful comments to a supervisor.

Finding that was Smart guilty of three of the four charges alleged against her, the ALJ recommended that a 15-day suspension without pay be imposed as her penalty.

The decision is posted on the Internet at: 

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/16_cases/16-1325.pdf

Matter of Harris: The New York Department of Transportation alleged that Maurice Harris, a highway repairer, intentionally pushed and cursed his supervisor.

Administrative Law Judge Alessandra F. Zorgniotti found that Harris had intentionally pushed his supervisor but had been provoked by the supervisor but that the Department of Transportation had filed to prove that Harris had cursed him.

Considering Harris’ 18 years of service with the Department and his a minor disciplinary record – in 2006 he was given a written reprimand for failing to notify his work location that he was unable to report to work and in 2012 he was suspended for five days for using in appropriate language towards a supervisor -- ALJ Zorgniotti recommended a ten-day suspension without pay.

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/16_cases/16-1531.pdf

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The Discipline Book - A 458 page guide focusing on New York State laws, rules, regulations, disciplinary grievances procedures set out in collective bargaining agreements and selected court and administrative decisions concerning disciplinary actions and the termination of permanent, provisional, temporary and term state and municipal public officers and employees. For more information click on http://booklocker.com/5215.html

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Determining whether a collective bargaining agreement provides for the arbitration of an alleged violation of the agreement

Determining whether a collective bargaining agreement provides for the arbitration of an alleged violation of the agreement

In the Matter of Wilson Cent. Sch. Dist. (Wilson Teachers' Assn.), 2016 NY Slip Op 04866, Appellate Division, Fourth Department

The Wilson Central School District appealed Supreme Court’s decision denying its CPLR Article 75 petition to stay the arbitration of a grievance concerning the transfer of a physical education teacher from its high school to its elementary school and granted the Wilson Teachers’ Association’s cross petition to compel arbitration.

The Appellate Division unanimously affirmed the lower court’s ruling.

The sole issue to be resolved in this appeal, explained the Appellate Division, is whether the parties "have agreed to arbitrate the dispute at issue" pursuant to their collective bargaining agreement (CBA).” A court’s review of that question, however, is limited.  

Holding that Supreme Court “properly determined that, because the CBA contains a broad arbitration clause, and there is a reasonable relationship between the subject matter of the dispute, i.e., the transfer of a teacher to another position, and the general subject matter of the CBA," whether the grievance falls within the scope of the arbitration provision set out in the CBA is for the arbitrator, and not the court, to determine.

The decision is posted on the Internet at:

Top of Form

Bottom of Form

http://www.nycourts.gov/reporter/3dseries/2016/2016_04866.htm

Daughter admits stealing over $148,000 of New York State Public Employees’ Retirement System funds after failing to report her retired father’s death

Daughter admits stealing over $148,000 of New York State Public Employees’ Retirement System funds after failing to report her retired father’s death

Source: Office of the State Comptroller

New York State Comptroller Thomas DiNapoli and Attorney General Eric T. Schneiderman announced that Renee Kanas, 63, a resident of Tamarac, Florida, pleaded guilty today to Grand Larceny in the Third Degree, a Class D felony, for stealing over $148,000 in pension payments from the New York State and Local Employees Retirement System paid to her father, Jacob Yudenfreund, a New York State pensioner who died in March 2010.

By failing to notify the New York Stateand Local Employees Retirement System of her father’s passing in March 2010, Kanas she continued to collect his pension benefits for approximately five years. During this time period, Kanas lived off the stolen money and, among other things, took multiple cruises, including to the Caribbean.

In May 2016, Kanas was arrested on a warrant by City of Tamarac Road Patroland Broward County Sheriff’s in Florida. Having been brought to Albany Countyto face these charges, on June 30, 2016, Kanas today pleaded guilty before Honorable Thomas A. Breslin in Albany Supreme Court. As part of her plea, Kanas signed a confession of judgment in favor of New York Statein the amount of $148,092.24 and now faces up six years in state prison when she is sentenced.

The investigation was conducted by the New York State Comptroller’s Division of Investigations and the Attorney General. This case is the latest joint investigation under the Operation Integrity partnership of the Comptroller and Attorney General, which to date has resulted in dozens of convictions and more than $11 million in restitution. Comptroller DiNapoli and the Attorney General thank the City of Tamarac Road Patrol and Broward County Sheriff’s in Floridafor their assistance.

The Comptroller’s investigation was conducted by the Comptroller’s Division of Investigations, working with the New York Stateand Local Retirement System.

The Attorney General’s investigation was conducted by Investigator Mark Spencer, Investigator Casey Quinlan and Deputy Chief Antoine Karam. Forensic accounting was performed by Associate Forensic Auditor Meaghan Scovello. The Investigations Bureau is led by Chief Dominick Zarrella. The Forensic Audit Section is led by Chief Auditor Edward J. Keegan.

This case is being prosecuted by Assistant Attorney General Philip V. Apruzzese of the Criminal Enforcement and Financial Crimes Bureau. The Criminal Enforcement and Financial Crimes Bureau is led by Bureau Chief Gary T. Fishman and Deputy Bureau Chief Stephanie Swenton. The Division of Criminal Justice is led by Executive Deputy Attorney General Kelly Donovan.

Since taking office in 2007, DiNapoli has committed to fighting public corruption and encourages the public to help fight fraud and abuse.  Individuals can report allegations of fraud involving public funds by calling the toll-free Fraud Hotline at 1-888-672-4555, by transmitting an e-mail to investigations@osc.state.ny.us, by filing a complaint online athttp://osc.state.ny.us/investigations/complaintform2.htm or by mailing a complaint to Office of the State Comptroller, Division of Investigations, 14th Floor, 110 State St., Albany, NY 12236.

State Division of Human Rights’ complaint alleging discriminatory housing practices filed in Supreme Court held untimely

State Division of Human Rights’ complaint alleging discriminatory housing practices filed in Supreme Court held untimely

New York State Div. of Human Rights v Folino, 2016 NY Slip Op 04821, Appellate Division, Fourth Department

The New York State Division of Human Rights (SDHR), on the complaint of Housing Opportunities Made Equal, Inc. (HOME), commenced an action in Supreme Court seeking damages from Anthony and Carmeline Folino for their alleged discriminatory housing practices. Supreme Court denied the Folino’s motion to dismiss SDHR’s complaint as untimely and the Folinos appealed the Supreme Court’s ruling.

The Appellate Division said that it agreed with the Folinos that Supreme Court erred in denying their pre-answer motion to dismiss the complaint as time-barred pursuant to CPLR §214(2). 

The court's decision noted that HOME had filed an administrative complaint with the United States Department of Housing and Urban Development, which then forwarded the matter to SDHR pursuant to a work-sharing agreement. Accordingly, said the Appellate Division, the running of the statute of limitations was tolled upon the filing of the administrative complaint, and during its pendency, until the administrative proceeding was terminated.

The Appellate Division explained that the last discriminatory act set forth in the SDHR’s complaint occurred on November 8, 2010, and thus the cause of action accrued and the three-year statute of limitations for the New York State Human Rights Law began to run on that date.

Following a probable cause determination by SDHR, the Folinos had submitted a notice of their election to terminate the administrative proceeding and instead "to have an action commenced in the civil court" by SDHR as authorized by Executive Law §297[9].* 

That election triggered the continuation of the running of the Statute of Limitations, the running of which had been tolled upon the filing of the administrative complaint by HOME.

The Appellate Division, noting that 143 days elapsed after the cause of action accrued and before the tolling period commenced upon HOME's filing of its administrative complaint, found that SDHR had two years and 222 days within which to commence the civil action after the tolling period ended. 

This period, said the court, ended on February 22, 2014. SDHR, however, did not commence its civil action until July 3, 2014. Accordingly, said the court, it was untimely, sustaining the Folino’s motion to dismiss complaint filed by SDHR in a civil court.

*§297[9] of the Executive Law, a statutory exception to the Doctrine of Election of Remedies, in pertinent part provides “…. Any party to a housing discrimination complaint shall have the right within twenty days following a determination of probable cause pursuant to subdivision two of this section to elect to have an action commenced in a civil court, and an attorney representing the division of human rights will be appointed to present the complaint in court, or, with the consent of the division, the case may be presented by complainant's attorney.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_04821.htm

A probationary employee may not be dismissed from his or her position in bad faith or for an improper or unlawful reason

A probationary employee may not be dismissed from his or her position in bad faith or for an improper or unlawful reason

Castro v Schriro, 2016 NY Slip Op 05105, Appellate Division, First Department

Supreme Court denied Raymond Castro’s CPLR Article 78 petition seeking a court order annulling  his termination from his position as a probationary correction officer with the New York City Department of Corrections [DOC]. The Appellate Division, reversing the lower court’s action, reinstated Castro’s petition and remanded the matter to Supreme Court for further proceedings.

The Appellate Division summarized the events leading to Castro’s termination as follows: Castro was terminated “after an inmate died because [Castro’s] superior, a captain, thwarted the efforts of several people, including Officer Castro, to assist the inmate with his medical condition. Officer Castro cooperated in the investigation of the inmate's death and the federal prosecution of his superior.”

The decision sets out “the present record” with respect to the events that preceded Castro’s termination in some detail and opines that “Officer Castro's termination, without an explanation [by DOC], appears questionable and in bad faith. Under the circumstances, this Court is unable to conclude that his claim of wrongful termination as a probationary correction officer is without foundation to warrant a pre-answer dismissal based solely on the ground that it fails to state a cause of action.”

Citing Swinton v Safir, 93 NY2d 758, the Appellate Division said that a “probationary employee may be dismissed for almost any reason, or for no reason at all, and the employee has no right to challenge the termination in a hearing or otherwise,* absent a showing that he or she was dismissed in bad faith or for an improper or impermissible reason” and the burden falls on the petitioner to demonstrate by competent proof that bad faith exists, or that the termination was for an improper or impermissible reason.”

DOC had asked Supreme Court to dismiss Castro’s Article 78 petition at the pre-answer stage on the sole ground that his petition failed to state a cause of action. The Appellate Division said it disagreed with Supreme Court's determination that the petition failed to sufficiently state a claim of improper termination of a probationary correction officer, noting that Castro alleged that his termination was arbitrary and capricious, and in bad faith and set out “a factual predicate for his allegations.”

Castro’s petition, said the court, “avers that despite serving as a correction officer who acted in complete accord with DOC's rules and proper protocol, pursuant to orders from his supervisor, and in full cooperation with the investigation of inmate Echevarria's death, which lead to Captain Pendergrass' indictment, Officer Castro was inexplicably terminated.”

Noting that in its appeal DOC made no attempt to refute Castro’s allegations but simply argued that, as a probationary employee, it was not required to furnish Castro with the charges against him and he could be dismissed without a reason being stated.

The Appellate Division rejected DOC’s argument, explaining that Castro’s termination was within the ambit of an exception to this general principle. The court ruled that where a substantial issue of bad faith is raised, as was here the case, in that the termination a probationary employee may not have been the result of the probationary employee's failure to perform his or her duties satisfactorily but may have been due to some improper basis, a petition should not be dismissed on the pleadings.

DOC presented nothing other than a pre-answer motion to dismiss Castro based on the sole ground that Castro’s petition failed to state a claim of improper termination. The Appellate Division said that although the burden falls squarely on Castro to demonstrate by competent proof at an evidentiary hearing that his termination was for an improper or impermissible reason, DOC, as the firing agency, “should be required to provide responsive pleadings so as to explain the basis of the termination.”  

Accordingly, the matter was remanded to Supreme Court for further consideration.

* Courts have ruled that probationers are entitled to notice and hearing if the appointing authority seeks to dismiss the individual during his or her minimum period of probation. The rationale for this was noted in McKee v. Jackson, 152 AD2d 54, where the court said that a probationer is entitled to a minimum period of time to demonstrate his or her ability to successfully perform the duties of the position. In contrast, as the Court of Appeals held in Gray v Bronx Developmental Center, 65 NY2d 904, a probationer may be dismissed without notice and hearing after completing his or her minimum period of probation and prior to the expiration of his or her maximum period of probation.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_05105.htm

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The Discipline Book - A 458 page guide focusing on New York State laws, rules, regulations, disciplinary grievances procedures set out in collective bargaining agreements and selected court and administrative decisions concerning disciplinary actions and the termination of permanent,  provisional, temporary and term state and municipal public officers and employees. For more information click on http://booklocker.com/5215.html

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