ARTIFICIAL INTELLIGENCE [AI] IS NOT USED, IN WHOLE OR IN PART, IN PREPARING NYPPL SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS

October 06, 2016

An employer is not liable for an employee's discriminatory acts targeting a co-worker unless the employer encouraged, condoned or approved such misconduct


An employer is not liable for an employee's discriminatory acts targeting a co-worker unless the employer encouraged, condoned or approved such misconduct
Figueroa v New York State Div. of Human Rights and Buffalo City School Dist., 2016 NY Slip Op 06319, Appellate Division, Fourth Department
Schwallie v New York State Div. of Human Rights and Buffalo City School Dist., 2016 NY Slip Op 06322, Appellate Division, Fourth Department
 
At the time of the alleged unlawful acts of employment discrimination both Rachel Figueroa and Ashleigh Schwallie were employed by the Buffalo City School District [District] and both worked at the same school.

They both alleged that they had been victims sexual harassment by a coworker. They subsequently filed separate complaints against the District alleging sexual harassment and retaliation with the New York State Division of Human Rights [Division]. The Division dismissed their respective complaints.

Then both Figueroa and Schwallie commenced separate proceedings pursuant to Executive Law §298* seeking court orders annulling the relevant decisions of the Division dismissing their complaints of sexual harassment and retaliation. The Appellate Division dismissed both appeals “on the merits.”

The court said it agreed with the District that substantial evidence supported the determinations of the Division that the District was not liable for the coworker's discriminatory conduct. The Appellate Division explained that "[u]nder [New York State’s] Human Rights Law, an employer cannot be held liable for an employee's discriminatory act[s] unless the employer became a party to [them] by encouraging, condoning, or approving [them]."

Neither Figueroa nor Schwallie had established that the District became a party to the alleged sexual harassment by a co-worker. Indeed, said the court, “the record establishes that [the District] reasonably investigated complaints of discriminatory conduct and took corrective action.”

The Appellate Division also found that substantial evidence supported the Division’s determinations that neither Figueroa nor Schwallie were subjected to retaliation by the District for complaining about alleged acts of unlawful discrimination by the co-worker. While both had established  prima facie cases of retaliation, the court found that the District "came forward with legitimate, independent, and nondiscriminatory reasons to support its employment decision[s]" and neither Figueroa not Schwallie had shown that that those reasons were pretextual,

With respect to alleged acts of alleged retaliation for filing a human rights complaint, where the employer has presented a lawful reason or explanation to rebut a charging party's prima facie evidence of retaliation, the burden shifts to the charging party to present facts to rebut each reason or explanation advanced by the employer in it defense against the charge of retaliation.

The Appellate Division unanimously confirmed the Division’s decisions and dismissed both petitions.

* §298 of the Executive Law provides for judicial review and enforcement of determinations by the New York State Division of Human Rights and provides, in pertinent part that “Any complainant, respondent or other person aggrieved by an order of the commissioner which is an order after public hearing … dismissing a complaint, … may obtain judicial review thereof ….”

The Figueroa decision is posted on the Internet at:

The Schwallie decision is posted on the Internet at:

October 05, 2016

Reducing health insurance prescription co-pay benefits for an employer’s retirees to the same level as the employer’s active employees' prescription co-pay benefit


Reducing health insurance prescription co-pay benefits for an employer’s retirees to the same level as the employer’s active employees' prescription co-pay benefit
Altic v Board of Educ., 2016 NY Slip Op 06315, Appellate Division, Fourth Department

As relevant to this action, §14 of Part B of Chapter 504 of the Laws of 2009  amended Chapter 729 of the Laws of 1994 and made permanent temporary legislation prohibiting a school district, a BOCES, or a vocational education and extension board providing health insurance benefits and employer contributions on behalf  retirees and their dependents that were less than the health insurance benefits and employer contributions it provide on behalf a corresponding group of active employees.*

In this action there was no question that the prescription co-pay benefits for retirees and active employees were identical from June 30, 1994, the effective date of this so-called Moratorium Statute through June 30, 2007. Effective July 1, 2007, pursuant to a collective bargaining agreement [CBA], the prescription co-pay benefit for active employees was reduced. The prescription co-pay benefit for active employees was again reduced pursuant to the terms and conditions of a subsequent CBA, effective September 1, 2013. 

Accordingly, Onondaga-Cortland-Madison Board of Cooperative Educational Services [OCM] reduced its prescription co-pay benefits for its active employees’ as the result of collective bargaining effective September 1, 2013. OCM subsequently reduced its prescription co-pay benefits for its retirees to the same level it paid on behalf of the active employees' for the prescription co-pay benefit effective April 1, 2014.

Nancy Altic, on behalf of herself and other OCM retirees, filed an Article 78 petition challenging OCM’s reduction of its prescription co-payment benefits it made on behalf of its retirees. Supreme Court granted Altic’s petition and annulled OCM’s decision to reduce the OCM’s prescription co-pay benefit for its retired employees to the then same level of its prescription co-pay benefit it made on behalf of its active employees as set out in the collective bargaining agreement. Supreme Court held that OCM had violated certain provisions of Chapter 504 of the Laws of 200.

OCM appealed and the Appellate Division unanimously reversed the Supreme Court’s ruling “on the law” and dismissed Altic’s petition.

The Appellate Division explained that the Moratorium Statute, first enacted in 1994 "sets a minimum baseline or floor for retiree health insurance benefits.” That floor was measured by the health insurance benefits received by active employees.” In other words, said the court, the Moratorium Statute “does not permit an employer to whom the statute applies to provide retirees with lesser health insurance benefits than active employees."

In view of this, the Appellate Division concluded that, “inasmuch as there was a corresponding diminution of  [prescription co-pay] benefits . . . effected [with respect to retired employees] . . . from the present level  … on or after June 30, 1994” to the level of the prescription co-pay benefits being made on behalf of active OCM employees, OCM did not violate the Moratorium Statute.

* §14 of Part B of Chapter 504 of the Laws of 2009 amended §1 of Chapter 729 of the laws of 1994, making permanent temporary legislation addressing the health insurance benefits and contributions to be made on behalf of retired employees of school districts, BOCES and certain other educational entities, to read as follows: “Section 1. From on and after June 30, 1994 [until May 15, 2010,]a school district, board of cooperative educational services, vocational education and extension board or a school district as enumerated in section 1 of chapter 566 of the laws of 1967, as amended, shall be prohibited from diminishing the health insurance benefits provided to retirees and their dependents or the contributions such board or district makes for such health insurance coverage below the level of such benefits or contributions made on behalf of such retirees and their dependents by such district or board unless a corresponding diminution of benefits or contributions is effected from the present level during this period by such district or board from the corresponding group of active employees for such retirees.” 

The decision is posted on the Internet at:



October 04, 2016

AELE posts items of special interest to those involved in public safety, law enforcement and firefighting on its LawBlog


Americans for Effective Law Enforcement, Inc. posts items of special interest to those involved in public safety, law enforcement and firefighting on its LawBlog
  [Internet links highlighted in color]

Americans for Effective Law Enforcement, Inc. [AELE] offers free access to certain publications. In addition, it has a searchable library of more than 35,000 case digests organized into 700 + indexed topics. Users do not have to preregister and there is no time limit on research sessions. Except for commercial purposes the contents of its online law library may be copied and pasted, saved or printed.

AELE’s current issues of its three publications, back issues since 2000, case digests since 1975, and a search engine are accessible through the Internet and AELE invites everyone to read, print or download AELE publications without charge. The main menu is at: http://www.aele.org/law

Some of the items listed on AELE’s October 2016 LawBlog are: 

AELE Monthly Law Journal article - Overtime Pay Entitlement for Public Safety Employees Under the Fair Labor Standards Act (FLSA) – Part 2.View here.

Law Enforcement Liability Reporter - This issue has cases on assault and battery: flashbangs, dogs, false arrest/imprisonment with and without warrants, firearms related: Second Amendment, public protection: 911 systems, and search and seizure of persons and vehicles. View here.  

Fire, Police & Corrections Personnel Reporter - This issue has cases on First Amendment, Fair Labor Standards Act: donning and doffing uniforms and equipment, pay disputes, political activity/patronage employment, race/national origin discrimination, retaliatory personnel actions, sex discrimination, sexual harassment, and whistleblower protection. View here.

Jail and Prisoner Law Bulletin - This issue has cases on disability discrimination: prisoners, medical care, dental care, the "three strikes" rule of the Prison Litigation Reform Act, prisoner assault by inmates, prisoner discipline, religion, search of prisoners, and sexual assault. View here.

Discipline and Internal Investigations Seminar - AELE's 2016 seminar on Discipline and Internal Investigations for public safety agencies -police, corrections and the fire services - will be held in Las Vegas on October 24-26. This is a comprehensive 2 and a half day program will address all major aspects of discipline. The program covers both substantive and procedural issues as well as rules and regulations. The program includes the latest hot topics such as cell phones, social media, and constitutional issues. More information is available at http://www.aele.org/menu-disc.html

AELE’s annual seminar on Jail and Prisoner Legal Issues will be held in Las Vegas on January 9-12, 2017. More info at http://www.aele.org/menu-jail.html

October 03, 2016

Decisions involving an employee’s use of the employer's electronic equipment that resulted in disciplinary action being taken against an employee


Decisions involving an employee’s use of the employer's electronic equipment that resulted in disciplinary action being taken against an employee 

[Internet links highlighted in color]

Sprague v Spokane Valley Fire Department

Sprague v. Spokane Valley Fire Department, summarized by Dave Strausfeld, J.D. concerns a fire department captain who was discharged for sending religious messages to coworkers via the department’s internal email system was unable to prove that his First Amendment free speech rights were violated, held a Washington Court of Appeals, affirming a lower court’s grant of summary judgment. The email system was a nonpublic forum, and limiting its usage to fire department business was reasonable and viewpoint neutral. Judge Lawrence-Berrey filed a separate concurring opinion.

In dissent, Chief Judge Fearing argued the department had opened the email system to religious messages by forwarding newsletters from its health insurer about solving personal problems and living a healthy lifestyle, because the government may not “prefer secular chatter over religious oration” 

The full text of Mr. Srausfeld's summary of the decision is posted on the Internet at:

N.B. The foregoing summary was posted by Employment Law News, WK WorkDay - A service provided by Wolters Kluwer Legal and Regulatory U.S. No part of the above materials may be copied, photocopied, reproduced, translated, reduced to any electronic medium or machine-readable form, or retransmitted, in whole or in part, without the prior written consent of WK. Any other reproduction in any form without the prior written consent of WK is prohibited. Written consent may be obtained from WK. Please click here for more information.

Other decisions involving an employer’s use of electronic equipment underlying  disciplinary action being taken against the employee include:


Fraser v Nationwide Mutual Insurance Co.
USDC, 135 F. Supp. 2d 623
The court held that an employee using his or her employer's computer equipment for personal business does not enjoy any "right to privacy" barring the employer’s reviewing the employee's e-mail that is stored in its computer system. Federal District Court Judge Anita B. Brody decided that an employer may peruse an employee's e-mail files that are stored in the system without violating either federal or Pennsylvania wiretap laws. On appeal the USCA, Third Circuit, affirmed the District Court's grant of summary judgment in favor of Nationwide on Fraser's wrongful termination claim but vacated and remand the state claims, and his bad-faith claim and forfeiture-for-competition claim for consideration in light of the Pennsylvania Supreme Court's decision in Hess v. Gebhard and Co., Inc., 570 Pa. 148.


Leo Gustafson v Town of N. Castle 

45 A.D.3d 766
The employee, an assistant building inspector with the Town of North Castle, was charged and found guilty of falsifying official records with respect to where he was while on duty. The individual was assigned a town vehicle for the purpose of making field inspections in connection with his employment. The vehicle had a global positioning system installed that transmitted information to the town’s computer reporting the vehicle’s location and movements. Based on this information, the Town charged the employee with falsifying town records as to his whereabouts. This, said the Appellate Division, constituted substantial evidence to support the determination that the employee was guilty of falsifying town records.

Ghita v Department of Education of the City of New York 
2008 NY Slip Op 30706(U), Supreme Court, New York County, Docket Number: 0110481/2007 [Not selected for publications in the Official Reports] 
The employee challenged an arbitrator’s determination terminating his employment with the New York City Department of Education after finding him guilty of downloading a file of pornographic material from his AOL email account and openly viewed such pornographic material from a school computer. Supreme Court rejected the individual’s claim that the arbitrator exceeded his authority under Education Law §3020-a, and the award terminating petitioner's employment is a violation of public policy and New York State Law.

Perry v Comm. of Labor 

App. Div. 3rd Dept., 283 A.D.2d 754
An unemployment insurance claimant challenged a determination by the Unemployment Insurance Appeals Board denying him benefits after finding that his employment was terminated due to his misconduct. The nature of the individual's alleged misconduct: his misuse of his employer's computer equipment. The employee, a human resource specialist, was dismissed from his position after his employer discovered that he used his computer terminal to frequently access pornographic websites during working hours.





October 01, 2016

School audits published issued by the New York State Comptroller during the week ending October 1, 2016


School audits published issued by the New York State Comptroller during the week ending October 1, 2016
Source: Office of the State Comptroller

[Internet links highlighted in color]


Adirondack Central School District– Financial Condition

Purpose of Audit
The purpose of our audit was to assess the District’s financial condition for the period July 1, 2014 through February 29, 2016.

Background
The Adirondack Central School District is located in the Towns of Ohio, Russia and Webb in Herkimer County; the Towns of Lewis, Leyden, Lyonsdale and West Turin in Lewis County; and the Towns of Annsville, Ava, Boonville, Forestport, Lee, Remsen, Steuben and Western in Oneida County. The District, which operates five schools with approximately 1,300 students, is governed by an elected seven-member Board of Education. Budgeted appropriations for the 2015-16 fiscal year totaled approximately $28.6 million.

Key Findings

In recent years, the Board has balanced its adopted budgets with appropriations of fund balance and reserves, which has led to planned operating deficits from 2012-13 through 2014-15 and a $2.2 million decline in the general fund balance.

The school lunch fund was not self-sufficient and required advances and subsidies from the general fund to finance its operations.

The Board has not developed a multiyear financial plan to address the declining fund balance and to guide the use of the reserve funds.

Key Recommendations

Carefully consider the amount of available fund balance and reserves appropriated to fund future budgets and ensure that a reasonable amount of unrestricted fund balance is retained.

Take the necessary steps to ensure that the school lunch fund becomes self-sufficient, such as increasing revenue or cutting costs.

Develop and periodically review a comprehensive multiyear financial plan to establish long-term objectives for funding long-term needs, provide a framework for future budgets and guide the District’s management of financial condition.

The text of the audit is posted on the Internet at:


Greenburgh Central School District– Payroll and Reserve Funds

Purpose of Audit
The purpose of our audit was to examine the District’s payroll procedures and reserve funds for the period July 1, 2014 through March 23, 2016.

Background
The Greenburgh Central School District is located in the Town of Greenburgh, Westchester County. The District, which operates six schools with approximately 2,000 students, is governed by an elected seven-member Board of Education. Budgeted appropriations for the 2015-16 fiscal year totaled approximately $65 million.

Key Findings

District officials have not provided employees with written procedures over payroll.

District officials did not adequately segregate payroll duties or establish sufficient compensating controls.

Overtime and leave requests were not preapproved as required.

There was no evidence that the Board periodically assessed four of the six reserves for necessity.

Key Recommendations

Develop written payroll-processing procedures for employees to follow.

Implement compensating controls to address the lack of segregation of duties in the payroll process.

Ensure that leave time is preapproved, that supporting documentation is retained and that overtime is preapproved.

Adopt a reserve fund policy that addresses the funding and use of all reserve funds.

The text of the audit is posted on the Internet at:


Greenville Central School District Information Technology

Purpose of Audit
The purpose of our audit was to evaluate the District’s internal controls over Information Technology for the period July 1, 2014 through January 14, 2016.

Background
The Greenville Central School District is located in the Town of Greenville in Greene County. The District, which operates two schools with approximately 1,200 students, is governed by an elected seven-member Board of Education. Budgeted appropriations for the 2015-16 fiscal year totaled approximately $28.7 million.

Key Findings

The District has not updated its acceptable use policy since September 2001.

The Board has not adopted a breach notification policy.

The District’s disaster recovery plan was not kept up to date, properly distributed or tested on a regular basis.

The District’s web filter permitted categories that did not appear to be for educational purposes.

Key Recommendations

Update the District’s acceptable use policy to include the use of personal devices on the

District’s network and acceptable use of District assets when used outside the District’s network.

Develop a policy for breach notification.

Ensure that the disaster recovery policy is periodically updated.

Adjust the web content filtering to ensure that staff and students are in compliance with the District’s acceptable use policy.

The text of the audit is posted on the Internet at:


LaFargeville Central School District– Financial Condition

Purpose of Audit
The purpose of our audit was to assess the District`s financial condition for the period July 1, 2014 through April 30, 2016.

Background
The LaFargeville Central School District is located in the Towns of Alexandria, Clayton, Le Ray, Orleans, Pamelia and Theresa in Jefferson County. The District, which operates one school with approximately 560 students, is governed by an elected five-member Board of Education. Budgeted appropriations for the 2015-16 fiscal year totaled approximately $11 million.

Key Findings

The Board and District officials overestimated appropriations when developing budgets for the three fiscal years 2012-13 through 2014-15.

District officials appropriated about $1 million of fund balance in each of the past three
fiscal years but the District experienced operating surpluses each year that averaged about $225,000 annually, and as a result, the District did not use any of the appropriated fund balance.

The Business Manager has developed a long-term planning model used when preparing the District’s annual budget but the Board has not officially adopted this or any other multiyear plan to address the District’s use of its excess fund balance.

Key Recommendations

Adopt budgets that represent the District’s actual needs, based on current information and historical data.

Discontinue the practice of adopting budgets that result in the appropriation of fund balance that will not be used.

Formulate a long-term multiyear capital and operational plan that addresses the use of excess unrestricted fund balance in the general fund in a manner that benefits District residents.

The text of the audit is posted on the Internet at:



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Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the information and, or, decisions summarized in NYPPL. For example, New York State Department of Civil Service's Advisory Memorandum 24-08 reflects changes required as the result of certain amendments to §72 of the New York State Civil Service Law to take effect January 1, 2025 [See Chapter 306 of the Laws of 2024]. Advisory Memorandum 24-08 in PDF format is posted on the Internet at https://www.cs.ny.gov/ssd/pdf/AM24-08Combined.pdf. Accordingly, the information and case summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.
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NYPPL Blogger Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
New York Public Personnel Law. Email: publications@nycap.rr.com