New York State’s Human Rights Law does not protect an employee from all retaliation, only from retaliation that results in an injury or harm

New York State’s Human Rights Law does not protect an employee from all retaliation, only from retaliation that results in an injury or harm

Napierala v New York State Div. of Human Rights, 2016 NY Slip Op 04832, Appellate Division, Fourth Department

Lisa Napierala challenged New York State Division of Human Rights’ [SDHR] determination of "no probable cause" with respect to her complaint that Erie Community College [ECC] had retaliated against her in violation of the State’s Human Rights Law. Supreme Court granted Napierala’s CPLR Article 78 petition and the SDHR appealed.

The Appellate Division unanimously reversed the Supreme Court’s ruling “on the law” and reinstated SDHR’s determination.

Napierala, a security officer at ECC had alleged that ECC had retaliated against her "by subjecting her to adverse employment actions after she complained of discrimination." In particular, she contended that:

1. ECC retaliated against her by assigning her to guard duty in its athletic center at a time when the gymnasium floor was being polyurethaned and strong fumes resulted in her becoming ill near the end of her shift.*  

2. ECC retaliated against her when it allegedly lost her "On-the-Job-Training Certificate," which led to the lapse of her security license and resulted in her suspension without pay.

In reinstating SDHR’s finding of "no probable cause" the Appellate Division observed that when SDHR renders a determination of no probable cause without holding a hearing, the appropriate standard of judicial review is whether the "no probable cause" determination was arbitrary and capricious or lacked a rational basis. Further, noted the court, SDHR "has broad discretion to determine the method to be employed in investigating complaints … and its determinations are entitled to considerable deference due to its expertise in evaluating discrimination claims."

The court said that in its view, SDHR's determination is not arbitrary or capricious and it has a rational basis. Further, the record established that Napierala "had a full and fair opportunity to present her case and that [SDHR's] investigation was neither abbreviated nor one-sided." Probable cause exists, explained the Appellate Division, "only when, after giving full credence to the complainant’s version of the events, there is some evidence of unlawful discrimination."

Crediting Napierala’s contention that ECC intentionally assigned her to its athletic center knowing that the gym floor was being polyurethaned, the Appellate Division concluded that there is no evidence of unlawful discrimination as Napierala:

[1] was not forced to stay at the athletic center against her will, nor 

[2] was she disciplined for leaving work early. 

The New York State’s Human Rights Law and Title VII of the Civil Rights Act of 1964, and, in the words of the Appellate Division, "are textually similar and ultimately employ the same standards of recovery," and thus "federal case law in this area . . . proves helpful to the resolution of this appeal." The Appellate Division then pointed out that the United States Court of Appeals for the Second Circuit has opined that Title VII "does not protect an employee from all retaliation, but only retaliation that produces an injury or harm.  ... and in Napieralasituation there was no injury or harm."

Turning to Napierala’s allegation concerning the security license lapse issue, the Appellate Division stated that it did not appear from the record that ECC ever was in possession of Napierala’s training certificate. In any event, the court said that the record shows that ECC provided Napierala with an opportunity to rectify the situation. While Napierala was ultimately suspended without pay, this suspension was initiated only after she failed to rectify the situation, an action consistent with ECC’s treatment of other security officers with lapsed licenses.

As to SDHR’s failure to hold a hearing concerning Napierala’s complaint, the Appellate Division explained that “there was no need for a hearing ‘because the record does not demonstrate the existence of unresolved questions that required further scrutiny.’”

Citing McFarland v New York State Div. of Human Rights, 241 AD2d 108, the court explained that "[A]s long as the investigation is sufficient and the [petitioner is] afforded a full opportunity to present his [or her] claims, [i]t is within the discretion of [SDHR] to decide the method or methods to be employed in investigating a claim." As SDHR had contacted both Napierala and ECC and had requested specified answers and documents related to Napierala’s allegations, "the conflicting evidence before SDHR did not create a material issue of fact that warranted a formal hearing."

* Napieralaleft work after leaving a voice message with her supervisor advising him that she had to leave her shift early. She subsequently met with the Human Resources Department to discuss why she went home sick without first obtaining her supervisor's permission. However, no disciplinary action against her was taken.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_04832.htm

Changes in IRS rule concerning deferred compensation plans of a state, a local government and other tax-exempt organizations proposed

Changes in IRS rule concerning deferred compensation plans of a state, a local government and other tax-exempt organizations proposed

Source: The FEDERAL REGISTER, 40548, Vol. 81, No. 120

Proposed regulations set out rules addressing the taxation of compensation applicable to "tax deferred compensation plans" established and maintained by State or local governments and other tax exempt organizations.* 

The proposed regulations include rules for determining "when amounts deferred under these plans are includible in income, the amounts that are includible in income, and the types of plans that are not subject to these rules."

The proposed regulations would affect participants, beneficiaries, sponsors, and administrators of certain plans sponsored by State or local governments or tax-exempt organizations that provide for a deferral of compensation.

* Article 8-C of New York State's Education Law, Special Annuity Plan, establishes a “deferred compensation plan” available to “a person employed by the state university [of New York and the employees at the Statutory Contract Colleges at Cornell and Alfred Universities], the board of higher education of the city of New York, or a community college established and operated under article one hundred twenty-six” of the Education Law as permitted pursuant to §403(b) of the Internal Revenue Code, as amended. Article 63 of the Education Law allows “§403(b) deferred compensation plans” to be made available to employees of a school district or a BOCES by the appointing authority.

The proposed regulations and notice of public hearing is posted on the Internet at: https://www.gpo.gov/fdsys/pkg/FR-2016-06-22/pdf/2016-14329.pdf

Collateral estoppel effect given to the factual findings of the hearing officer made in the course of an administrative hearing

Collateral estoppel effect given to the factual findings of the hearing officer made in the course of an administrative hearing

Matter of Mykhaskiv (Westhampton Beach Union Free Sch. Dist.--Commissioner of Labor), 2016 NY Slip Op 05214, Appellate Division, Third Department

Oksana Mykhaskiv appealed a decision of the Unemployment Insurance Appeal Board after it ruled that she was disqualified from receiving unemployment insurance benefits after determining that the Westhampton Beach Union Free School District had terminated Mykhaskivemployment due to her misconduct.

Mykhaskiv had been employed as a custodian with a school district. Several charges were preferred against her alleging misconduct and neglect of duty. The specifications set out in disciplinary charges filed against her included allegations that she failed to comply with her supervisor's directive to assist in cleaning an area assigned to another coworker who was absent from work.

In the disciplinary hearing held pursuant to Civil Service Law §75, the Hearing Officer sustained, among other things, the charge that Mykhaskiv was guilty of misconduct, finding that she refused to comply with her supervisor's directive to clean a particular area. Based upon the Hearing Officer's findings of fact and recommendation, Mykhaskiv was discharged from her employment for insubordinate behavior.

Subsequently the Unemployment Insurance Appeal Board denied Mykhaskiv application for unemployment insurance, finding that her employment was terminated due to disqualifying misconduct. Mykhaskiv appealed the Board’s decision.

The Appellate Division said that the record indicates that Mykhaskiv had a full and fair opportunity to litigate the issue of her misconduct at the Civil Service Law §75 hearing.

Citing Matter of Ranni [Ross], 58 NY2d 715, the Appellate Division said that at the §75 disciplinary hearing [1] Mykhaskiv was represented by an attorney, [2] had a representative from her union present and [3] was afforded an opportunity to testify, present witnesses and cross-examine the school district's witnesses. Under these circumstances, said the court, “the Board properly gave collateral estoppel effect to the factual findings of the Hearing Officer.”

In addition, the court noted that the record confirmed that the Board made its own conclusions as to whether Mykhankiv’s behavior constituted disqualifying misconduct for the purposes of determining her eligibility for unemployment insurance benefits. Insubordinate behavior has been held to constitute disqualifying misconduct within the meaning of the Unemployment Insurance Law.

As substantial evidence supported the Board's finding that Mykhankiv, who had previously been warned about failing to comply with a supervisor’s directives, was disqualified from receiving unemployment insurance benefits, the Appellate Division declined to disturb the Board's determination.

The decision is posted on the Internet at:

Top of Form

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http://www.nycourts.gov/reporter/3dseries/2016/2016_05214.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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Selected preliminary appeal statements filed with the Court of Appeals during the month of June 2016

Selected preliminary appeal statements filed with the Court of Appeals during the month of June 2016

Source: Court of Appeals 

Is a demand to negotiate a municipality's police disciplinary procedure a mandatory subject of collective bargaining?

City of Schenectady v New York State Public Employment Relations Board (PERB), 136 AD3d 1086

Leave to appeal granted by Court of Appeals,

Issue: Did the Taylor Law, as codified in Civil Service Law Article 14, supersede Article 9 of the Second Class Cities Law thereby making City of Schenectady's police disciplinary procedure a mandatory subject of collective bargaining?

Supreme Court, Albany County, among other things, dismissed Schenectady's CPLR Article 78 application to review a determination of PERB finding that Schenectady's police disciplinary procedures were a mandatory subject of collective bargaining. The Appellate Division affirmed. [See, also, Matter of Patrolmen's Benevolent Assn. of City of N.Y., Inc. v New York State Pub. Empl. Relations Bd., 6 NY3d 563 and Matter of Town of Wallkill v Civil Serv. Empls. Assn., Inc. (Local 1000, AFSCME, AFL-CIO, Town Of Wallkill Police Dept. Unit, Orange County Local 836), 19 NY3d 1066.] 

Offsetting the loss of future pension benefits
Andino v Mills, 135 AD3d 407

Leave to appeal granted by Appellate Division

Issue: Did the Appellate Division correctly hold that, under Oden v Chemung County Indus. Dev. Agency, 87 NY2d 81, the jury's award for future loss of pension benefits should have been offset by the total amount that plaintiff was projected to receive under her accidental disability pension?

Supreme Court, Bronx County, after a hearing, denied defendants' motion for a collateral source offset pursuant to CPLR 4545; thereafter, Supreme Court, upon a jury verdict, awarded plaintiff the principal sums of $600,000 for past pain and suffering, $23,000,000 for future pain and suffering over 37 years, $283,422 for past lost earnings, $2,392,512 for future lost earnings over 19.24 years, $2,100,000 for future medical expenses over 37 years, and $2,490,829 for future loss of pension over 17.7 years; App. Div. modified to grant that portion of defendants' motion seeking to offset the jury's award of future pension benefits by the amount of plaintiff's accidental disability benefits, and to vacate the award for future pain and suffering and order a new trial as to such damages, unless plaintiff, within 30 days of service of a copy of the order with notice of entry, stipulated to accept a reduced award for future pain and suffering in the amount of $2.7 million and to entry of an amended judgment in accordance therewith, and otherwise affirmed.

Providing for the defense and indemnification of public officers and employees named as defendants in certain litigation

Providing for the defense and indemnification of public officers and employees named as defendants in certain litigation

Scimeca v Brentwood Union Free Sch. Dist., 2016 NY Slip Op 05157, Appellate Division, Second Department

The Brentwood Union Free School District [Brentwood] and a number of Brentwood employees* [Employees] were named as respondents in complaint filed with the New York State Division of Human Rights [SDHR] by another Brentwood employee [Complainant].

Employees sought “defense and indemnification” by Brentwood and a law firm other than the law firm representing Brentwood in the SDHR action was designated by Brentwood’s insurance carrier to represent Employees in the SDHR proceeding. Employees, however, perceiving conflict of interest between themselves and Brentwood, employed a different attorney to represent them in the SDHR action. Employees then sought reimbursement for the fees and litigation expenses they had incurred in defending themselves in the SDHR action from Brentwood, citing Public Officers Law §18 as authority for such payments.

Brentwood declined to  pay the fees and litigation expenses incurred by Employees as a result of their having employed their own attorney for this purpose. Employees filed an Article 78 petition seeking a court order to compel Brentwood to indemnify them for the legal expenses they had incurred in defending themselves in the SDHR action.

The Supreme Court denied the employees’ petition and dismissed the proceeding; the Appellate Division affirmed the Supreme Court’s ruling.

Both Public Officers Law §18** and Education Law §3811 provide for a political subdivision of the State to provide for the defense and indemnification of its employees in certain actions or proceedings. 

The provisions of Public Officers Law §18, however, only become available to the employees of the political subdivision as the result of  the governing body of the political subdivision adopting a law, rule, regulation or resolution [1] providing for such representation and indemnification of its employees at the entities expense and [2] providing for the reimburse employees of any the costs and damages for which the employees are liable, exclusive of punitive or exemplary damages, fines or penalties.

Education Law §3811applies to officers, the teaching or supervisory staff, and non-instructional employee of any school district, other than the city school district of the city of New York or any board of cooperative educational services. §3811 provides for the defense of such personnel in any action or proceeding and all of his or her reasonable costs and expenses, as well as all costs and damages adjudged against him or her other than those incurred [1] in a criminal prosecution or [2] an action or a proceeding brought against him or her by a school district, including proceedings before the Commissioner of Education, arising out of the exercise of his or her powers or the performance of his or her duties under the Education Law.

According to the decision by the Appellate Division, Brentwood extended the benefits of Public Officers Law §18 to its employees, but, as that statute specifically authorizes, specified that "[t]he benefits accorded to Brentwood employees under Section 18 of the Public Officers Law shall supplement and be available in addition to defense and indemnification protection conferred by other enactments or provisions of law," such as Education Law §3811.

Insofar as relevant in this proceeding, the Appellate Division said:

1. Education Law §3811 does not exclusively govern the retention of counsel for a school district employee entitled to a defense under that statute and Public Officers Law §18;

2. Public Officers Law §18(3)(b), applies in the event that either the employer or a court determines that a conflict of interest exists and permits an employee to obtain an attorney of his or her choice and that this provision is consistent with Education Law §3811;

3. Education Law §3811 provides that the trustees or board of education have the right to designate and appoint legal counsel for an eligible employee as long as it does so within 10 days of receiving notice of the relevant action or proceeding; otherwise the employee may select his or her own legal counsel; and

4. The provisions of Public Officers Law §18 and Education Law §3811 can be read together to provide that the trustees or the board have the right to designate and appoint counsel within 10 days of receiving notice of an action or proceeding, unless the School District and the employee have conflicting interests, in which case the employee is permitted to select his or her own counsel. Under this reading, Public Officers Law §18 supplements Education Law §3811 by addressing and making provision for a specific set of circumstances not addressed in Education Law §3811.

That said, the Appellate Division noted that Brentwoodcorrectly contended that no conflict of interest existed between Brentwood and Employees with respect to defending the subject SDHR complaint that would otherwise entitle Employees to select private counsel, payable by the School District

The court explained that the SDHR complaint, which was asserted against Brentwood and Employees jointly, did not allege that Employees committed any acts outside the scope of their employment and, significantly, Brentwood, in its response to the complaint, did not assert that Employees were acting outside the scope of their employment, or that they acted improperly in any way.

As Brentwood “categorically denied all of the allegations in the complaint, countered each of the allegations with detailed facts aimed at demonstrating their falsity, and asserted that it was the Complainant who had threatened and intimidated one of [the Employees], the court concluded that no conflict of interest existed between Brentwood and Employeeswith regard to the subject SDHR complaint that would otherwise have entitled Employees to employ private counsel, to be paid by Brentwood, under a theory that a "conflict of interest" between the parties existed.

Accordingly, said the Appellate Division, Supreme Court “properly denied, and the proceeding [was] properly dismissed.”

* Although all not all public employees of a public entity are public officers, all public officers of that entity are public employees.

** §17 of the Public Officers Law provides for the defense and indemnification of officers and employees of the State as the employer in the event such persons are defendants in a civil action arising out acts or omissions involving or performed within the scope of their official duties. §19 of the Public Officers Law addresses so reimbursing an officer or an employee of the State as the employer named as a defendant in a criminal action arising out of acting within the scope of his or her public employment or duties upon his or her acquittal or upon the dismissal of the criminal charges against such officer or employee. 

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_05157.htm