Dismissing a human rights complaint for "administrative convenience" and "dismissal of a human rights complaint on the merit" distinguished

Dismissing a human rights complaint for "administrative convenience" and "dismissal of a human rights complaint on the merit" distinguished

Vetro v Hampton Bays Union Free School Dist., 2017 NY Slip Op 01910, Appellate Division, Second Department

In an action seeking to recover damages for his alleged wrongful termination of employment by the Hampton Bays Union Free School District, Frank J. Vetro appealed an order of the Supreme Court that denied his motion for summary judgment on the complaint and granted Hampton Bay's cross motion for summary judgment dismissing the complaint.

The Appellate Division sustained the lower court's ruling explaining that in this instance the "doctrine of election of remedies" barred Vetro from bringing an action in Supreme Court alleging the same discriminatory acts the he had advanced in his complaint filed with the New York State Division of Human [Division] in his complaint.

Executive Law §297(9) provides that in the event the Division has dismissed a complaint filed with it for "administrative convenience" the complainant is able to "maintain all rights to bring suit as if no complaint had been filed with the [Division]." In contrast, in the event the Division had dismissed the complaint or complaints on the merits and not for mere administrative convenience, recourse to Supreme Court alleging the same acts or omissions is not available to the complainant.

In particular, §297(9) provides that at  any  time  prior  to  a   hearing  before a hearing examiner, a person who has a complaint pending at the division may request that the division dismiss the complaint  and   annul his or her election of remedies so that the human rights law claim   may  be  pursued  in  court,  and  the  division may, upon such request,   dismiss the complaint on the grounds that such person's election  of  an   administrative  remedy  is  annulled.*

In this instance, said the Appellate Division, the Division of Human Rights dismissed Vetro's complaints on the "merits and not for mere administrative convenience." Thus, said the court, Supreme Court properly granted the school district's motion for summary judgment dismissing the complaint on the ground that this action is barred by the election of remedies doctrine.

* N.B. A complaint filed by the Equal  Employment Opportunity Commission to comply with the requirements of 42 USC 2000e-5(c)and 42 USC 12117(a) and29 USC 633(b) does not constitute the filing of a complaint within the meaning of §297(9) of New York State's Executive Law.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_01910.htm

Use of excessive and inappropriate force on juvenile residents at a facility

Use of excessive and inappropriate force on juvenile residents at a facility

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Administrative Law Judge Kara J. Miller recommended termination of employment for a juvenile counselor who used excessive and inappropriate force on three residents.

The employee placed his arms, hand, and knee on one resident’s neck, pulled another resident backwards off a desk by his boxer shorts causing the resident to fall on his back and hit his head on a chair, and grabbed a third resident around the waist, lifting him in the air, and slamming him to the ground.

Additionally, the employee submitted a false report regarding the incident.   

Admin. for Children’s Services v. Judge, OATH Index No. 1412/16 (Jan. 20, 2017).

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A Reasonable Penalty Under The Circumstances - a 618-page volume focusing on New York State court and administrative decisions addressing an appropriate disciplinary penalty to be imposed on an employee in the public service found guilty of misconduct or incompetence. For more information click on http://booklocker.com/7401.html

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New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending March 25, 2017

New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending March 25, 2017
Source: Office of the State Comptroller

Links to material posted on the Internet highlighted in COLOR

Audits and examinations concerning State Department and Agencies:

Department of Health (DOH) - Security and Controls Over

Medications and Related Supplies

New York City Department of Housing Preservation and Development (HPD) - Awarding Housing Units and Maintaining Waiting Lists

Department of Labor (DOL)/Department of Corrections and Community Supervision (DOCCS)- Pay for Success Program

State Education Department - Compliance With the Reimbursable Cost Manual

Audits concerning the following political subdivisions of the State:

Ballston Lake Fire District - Length of Service Awards Program Service Credit

Town of Barker -Broome County- Justice Court Operations

Town of Genesee, -  Disbursements

Town of Hempstead Sanitary District No. 2 - Financial Condition and Procurement

Town of Horicon - Leave Accruals

Town of Kirkwood - Justice Court Operations

Lyon Mountain Fire District - Cash Disbursements

Manorville Fire District - Board Oversight and Fuel

Town of Mentz - Board Oversight

City of Olean - Budget Review

Inference of unlawful discrimination rebutted by employer's showing that its reasons for its decision not subterfuge for unlawful discrimination

Inference of unlawful discrimination rebutted by employer's showing that its reasons for its decision not subterfuge for unlawful discrimination

Uwoghiren v City of New York, 2017 NY Slip Op 01782, Appellate Division, First Department

Fridrey O. Uwoghirenalleged that his former employer, the New York City Department of Juvenile Justice (DJJ), discriminated against him on the basis of his Nigerian national origin by not selecting him for two promotions and by paying him less than it paid a peer of a different national origin.

Appellate Division said that Uwoghiren had established prima facie that he was passed over for promotion under circumstances raising an inference of discrimination. However, said the court, DJJ offered legitimate, nondiscriminatory reasons for promoting two employees who were not of Nigerian origin. Representatives of DJJ had testified to the effect thatUwoghiren had limited his work to fulfilling the minimal requirements of his job, that he sometimes balked at assignments without good reason, and that he failed to meet all of his goals.

In contrast, DJJ had demonstrated that the promoted employees had done outstanding work in positions relevant to the two vacancies to which they had been appointed.

The Appellate Division ruled that Uwoghiren had failed to raise triable issues of fact as to whether DJJ's proffered reasons for its decisions were pretextual in view of the absence of any evidence from which a reasonable jury could infer that Uwoghiren national origin played a role in DJJ's decision to pass him over for promotions.

Indeed, observed the court, Uwoghiren "admittedly never complained about the promotion process before commencing this action, and there is no indication that he raised any internal complaints of discrimination."

Another issue raised by Uwoghiren: the individuals selected for advancement were promoted in violation of the Civil Service Law. The Appellate Division said that although the promoted individuals were provisional rather than permanent employees, "this technical violation does not establish a discriminatory motive."

In his testimony Uwoghirenrecounting two occasions when one of the decision-makers allegedly shouted admonitions at him or another employee of Nigerian origin. Such type of behavior, said the court, "does not establish discrimination based on national origin" as mere personality conflicts "must not be mistaken for unlawful discrimination, lest the antidiscrimination laws become a general civility code."

The decision also notes that Uwoghiren "failed to make a prima facie showing in support of his claim that he was paid less than a peer of another national origin." The court explained that while Uwoghiren and the other employee had the same civil service title, "they were not similarly situated in light of the differences in their experience ... the other employee's earlier salary ... and their differing job responsibilities.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_01782.htm

Sleeping on duty

Sleeping on duty

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Administrative Law Judge Susan J. Pogoda recommended termination of employment for a patient care technician at a hospital.

The employee was found sleeping on duty three times, including one incident where a patient he was assigned to observe, fell from his bed and struck the leg of a doctor who was performing a bone marrow biopsy on a patient in the adjacent bed.

The employee also failed to document his observations of patients every 15 minutes, as required.

Additionally, the employee  had a significant disciplinary record including a previous suspension for sleeping on duty.

Health & Hospitals Corp. (Bellevue Hospital Ctr.) v. Ogbonna, OATH Index No. 165/17 (Jan. 17, 2017), adopted, Hosp. Dec. (Feb. 14, 2017)

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A Reasonable Penalty Under The Circumstances - a 618-page volume focusing on New York State court and administrative decisions addressing an appropriate disciplinary penalty to be imposed on an employee in the public service found guilty of misconduct or incompetence. For more information click on http://booklocker.com/7401.html

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