Second Circuit Court of Appeals precedent holds Title VII's prohibition of unlawful discrimination based on "sex" does not encompasses discrimination based on "sexual orientation"

Second Circuit Court of Appeals precedent holds Title VII's prohibition of unlawful discrimination based on "sex" does not encompasses discrimination based on "sexual orientation"

Zarda v Altitude Express, USCA, 2nd Circuit, Docket #15-3775;

Donald Zarda,* a skydiver, alleged that he was terminated from his job as a skydiving instructor because of his sexual orientation. He sued his former employer, Altitude Express, alleging that his termination was in violation of Title VII of the Civil Rights Act of 1964 [42 U.S.C. § 2000e et seq.,] and New York State's Human Right Law [Executive Law Article 15].

The United States District Court, Eastern District of New York, found a triable issue of fact with respect to Zarda's contention that Altitude was in of violation of New York law but granted summary judgment to Altitude with respect to Zarda's Title VII claim. The district court, citing Simonton v Runyon, 232 F.3d 33, observed that Second Circuit precedent holds that Title VII does not protect against discrimination based on sexual orientation. 

Considering Zarda's allegations that Altitude violated New York State's Civil Rights Law, the jury found for Altitude.

On appeal, Zarda asked the Circuit Court's three-judge panel to reconsider the Second Circuit's interpretation of Title VII and hold that Title VII’s prohibition on discrimination based on “sex” includes discrimination based on “sexual orientation.” 

The panel declined to do so, explaining that "a three-judge panel of this Court lacks the power to overturn Circuit precedent."

* Zarda died in a skydiving accident before the case went to trial and two executors of his estate replaced him as plaintiff.

The decision is posted on the Internet at:
http://www.ca2.uscourts.gov/decisions/isysquery/bea90438-1fa4-4076-a1ff-2065c27c670d/1/doc/15-3775_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/bea90438-1fa4-4076-a1ff-2065c27c670d/1/hilite/

Exceptions to providing public records pursuant to New York State's Freedom of Information Law [FOIL]

Exceptions to providing public records pursuant to New York State's Freedom of Information Law [FOIL]

New York Civ. Liberties Union v New York City Police Dept., 2017 NY Slip Op 02506, Appellate Division, First Department

The basic rule when seeking public records pursuant to a Freedom of Information Law [FOIL] request is that FOIL provides that all public documents are subject to disclosure. However, where access to the records sought is not barred by law in the first instance, the custodian of the record or records sought may elect to deny access to documents otherwise subject FOIL if it decides that the document requested may be withheld because it meets one or more of the exceptions set out in FOIL.

In this action brought pursuant to FOIL Supreme Court granted the New York Civil Liberties Union's [NYCLU] petition compelling the New York City Police Department to disclose certain records concerning disciplinary actions taken against Department police officers.

The Appellate Division unanimously reversed the lower court's action, on the law, denying the Civil Union's petition and dismissing the action.

Noting that Public Officers Law §87(2)(a) provides that an agency "may deny access to records" that "are specifically exempted from disclosure by state . . . statute," the Appellate Division said that the NYPD disciplinary decisions sought by NYCLU fell within Civil Rights Law §50-a, which makes confidential police "personnel records used to evaluate performance toward continued employment or promotion."*

Although NYPD disciplinary trials are open to the public, the Appellate Division said that this "does not remove the resulting decisions from the protective cloak of Civil Rights Law §50-a." The court explained that "[w]hether the trials are public and whether the written disciplinary decisions arising therefrom are confidential are distinct questions governed by distinct statutes and regulations." In addition, said the court, "the disciplinary decisions include the disposition of the charges against the officer as well as the punishment imposed" [if the officer is found guilty of one or more of the disciplinary charges and specifications], "neither of which is disclosed at the public trial."

In Short v Board of Mgrs. of Nassau County Medical Center, 57 NY2d 399, the Court of Appeals ruled that where there is a "specific exemption from disclosure by State . . . statute," an agency is not required to disclose records with identifying details redacted.  Concluding that Short was the controlling precedent in this action, the Appellate Division held that in view of the provision set out in Civil Rights Law §50-a,  it could not order NYPD to disclose redacted versions of the disciplinary decisions sought by the NYCLU.

* The release of certain public records, such as those identified in Civil Rights Law §50-a, is limited by statute. Other examples of such limitations are set out in Education Law, §1127 - Confidentiality of records and §33.13, Mental Hygiene Law - Clinical records; confidentiality. Otherwise, an individual is not required to submit a FOIL request as a condition precedent to obtaining public records where access is not barred by statute. Submitting a "formal" FOIL request is required only in the event the custodian of the public record[s] sought declines to “voluntarily” provide the information or record requested. In such cases the individual or organization is required to file the FOIL request to obtain the information. It should also be noted that there is no bar to providing information pursuant to a FOIL request, or otherwise, that falls within one or more of the exceptions that the custodian could rely upon in denying a FOIL request, in whole or in part, for the information or records demanded.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_02506.htm

Failing to designate the individual to conduct a disciplinary hearing pursuant to §75 of the Civil Service Law in writing is a fatal jurisdictional error

Failing to designate the individual to conduct a disciplinary hearing pursuant to §75 of the Civil Service Law in writing is a fatal jurisdictional error

Hopton v Ponte, 2017 NY Slip Op 02649, Appellate Division, Second Department

New York City Correction Officer [Petitioner] was found guilty of violating certain Department of Correction rules and was terminated from her position. Contending that the administrative law judge (ALJ) that had presided at her Civil Service Law §75 disciplinary hearing did not have the authority and jurisdiction to conduct the hearing, Petitioner filed an Article 78 action with Supreme Court seeking to vacate the decision and have the court order the Department to reinstate her to her former position.

Supreme Court granted the Department's motion to her to dismiss Petitioner's claim "for failure to state a cause of action" and Petitioner appealed the court's ruling to the Appellate Division.

Civil Service Law §75, in relevant part, provides that "[t]he hearing upon such charges shall be held by the officer or body having the power to remove the person against whom such charges are preferred, or by a deputy or other person designated by such officer or body in writing for that purpose." Explaining that "The failure to designate a hearing officer for a disciplinary hearing in writing, as required by Civil Service Law §75(2), is a jurisdictional defect that renders the hearing officer's determination null and void," the Appellate Division said that in this instance the ALJ had been properly designated to conduct Petitioner's disciplinary hearing and to make findings of fact and to recommend the penalty that should be imposed by the appointing authority.

The Appellate Division noted that in accordance with a written request sent to the Chief Administrative Law Judge of the New York City's Office of Administrative Trials and Hearings [OATH] by the then serving appointing authority, the Chief Administrative Law Judge had properly designated an OATH ALJ to conduct Petitioner's disciplinary hearing and to make findings of fact and a recommendation with respect to penalty that should be imposed in the event Petitionerwas found guilty of one or more of the disciplinary charges and specifications served upon her.

Accordingly, said the court,  Petitioner's allegations, even if accepted as true, failed to state a cause of action based on the ALJ's purported lack of jurisdiction over her  disciplinary hearing and dismissed her appeal.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_02649.htm

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Recent administrative appointments announced by New York State Governor Andrew M. Cuomo

Recent administrative appointments announced by New York State Governor Andrew M. Cuomo

Source: Office of the Governor

On Monday, April 17,  2017 Governor Andrew M. Cuomo announced the following appointments to his administration:

Melissa DeRosa has been appointed Secretary to the Governor
Since April 2013, Ms. DeRosa has served as Communications Director, Strategic Advisor, and most recently Chief of Staff to the Governor. During her tenure, Ms. DeRosa has managed overall communications and press for the Executive Chamber and over 50 state agencies, political affairs, labor relations, and the administration’s strategic approach to enacting policy. She spearheaded the Governor’s campaigns to raise the minimum wage to $15 an hour, enact the nation’s strongest paid family leave program, and most recently to establish the ‘Excelsior Scholarship’, making New York the first state in the country to provide free public college tuition for middle and low-income families.  Before joining the Governor’s office, Ms. DeRosa worked in the Attorney General’s Office as Deputy Chief of Staff and as Acting Chief of Staff. Ms. DeRosa led the office’s effort to negotiate and pass the country’s most aggressive prescription drug reform package, I-STOP (Internet System for Tracking Over-Prescribing Act). Prior to working for the Attorney General, Ms. DeRosa served as New York State Director of Organizing for America, President Obama’s national political action organization. Before joining OFA, Ms. DeRosa served as the Director of Communications and Legislation for Cordo and Company, an Albany based government affairs firm. She was also the Campaign Manager for Tracey Brooks for Congress, Deputy Press Secretary to Congresswoman Nydia Velazquez, and Deputy Press Secretary for the successful NY State Transportation Bond Act Campaign in 2005. She holds a Bachelor’s Degree in Industrial and Labor Relations and a Master’s Degree in Public Administration, both from Cornell University. She has served on the executive board of the Women’s Leadership Forum Network of the Democratic National Committee.

Ms. DeRosa, the first woman to ever serve in the role of Secretary to the Governor, succeeds Bill Mulrow who departs the administration for the private sector. 


Jill DesRosiers has been appointed Executive Deputy Secretary to the Governor.

Since 2012, Ms. DesRosiers has served as Deputy Secretary for Executive Operations and previously Director of Scheduling for the Governor. Ms. DesRosiers will oversee the offices of Intergovernmental Affairs, Scheduling and Operations, Regional and Constituency Affairs, Special Events and Appointments.  Ms. DesRosiers has held leadership positions in New York City and State level government for years. After getting a degree from the University of Pennsylvania in Systems Engineering, Ms. DesRosiers worked in senior positions for the New York City Council for 12 years under both Speakers Gifford Miller and Christine Quinn, where her responsibilities included community outreach and member services. She created CouncilStat, the first computerized tracking system for citywide constituent issues. She has also served as campaign manager, field director and GOTV director for over a dozen successful campaigns in New York State. 


Adam Zurofsky has been appointed Deputy Secretary for Energy and Financial Services.

Mr. Zurofksy comes to state service after serving as President & Founder of Touchstone Metrics, LLC, a business management consulting company in New York City. Prior, he was a Partner at Cahill Gordon & Reindell LLP, where he advised companies and boards on regulatory, governance and litigation matters. Mr. Zurofsky has taught as an Adjunct Professor and worked as a Program Leader and Fordham Law School and is a Board Member of the Brookings Institution, Governance Studies Leadership Council. He earned his J.D. from Harvard Law School, where he graduated cum laude and earned a B.A. in Political Science from Stanford University.

Michael Schmidt has been appointed Deputy Secretary for Economic Development.

Mr. Schmidt previously served on a team of policy advisors to Hillary Clinton at the Hillary for America campaign. In this role he led the development of Secretary Clinton’s economic agenda on a wide range of issues, including financial regulation, trade, infrastructure, housing, small business and economic development. Before joining the campaign, he worked in the Office of Domestic Finance at the U.S. Department of the Treasury where he supported the Obama Administration’s efforts to enhance the regulation of Wall Street after the 2008 financial crisis. Before working in government, Mr. Schmidt was a Senior Finance Analyst at the Yale Investments Office. He holds a J.D. and a B.A from Yale.

Ali Chaudhry has been appointed Deputy Secretary for Transportation.

Mr. Chaudhry previously served as Deputy Secretary for Economic Development. Before that, he was Assistant Counsel to Governor Cuomo for two years with a focus on transportation and economic development.  He provided counsel on priority capital projects including the LaGuardia Airport redevelopment, the new Tappan Zee Bridge, the Second Avenue Subway, the MTA Capital Plan, the DOT Capital Plan, the Empire Station Complex, the Broadband Initiative, and the expansion of the Javits Convention Center. Mr. Chaudhry has also served as counsel on various economic development projects across the State, as well as alternative project delivery procurement. Prior to joining the Executive Chamber, Mr. Chaudhry served as Assistant Counsel in the New York State Senate, where he was counsel to several legislative committees over the course of three years. Before joining public service, Mr. Chaudhry practiced civil litigation in the private sector, focusing on employment matters. 

Adam W. Silverman has been appointed Assistant Counsel to the Governor for Public Safety.

Most recently Mr. Silverman served as Special Counsel to the Commissioner for Ethics, Risk and Compliance at the New York State Department of Corrections and Community Supervision.  Prior, he was an Associate Attorney in the litigation department of an international law firm. There, he focused his practice on complex government and commercial matters for clients ranging in size from small business owners to Fortune 500 corporations. Mr. Silverman also served as an Assistant Attorney General in the Office of the New York State Attorney General, representing the State and its employees in both state and federal courts.  He holds a J.D. from Albany Law School and a B.A. in Psychology, with a minor in Criminal Justice, from The George Washington University.

Tanisha Edwards has been appointed Assistant Counsel to the Governor for Taxation and Finance.

Ms. Edwards has over ten years of legal experience working in government. Most recently, she served as Chief Counsel in the finance division of the New York City Council where she advised the Council Speaker, Finance Committee Chairperson, and City Council Members on legislation and legal and policy issues related to the budget of New York City. While serving as Chief Counsel to the Finance Division, she also served as Counsel to the Finance Committee.  Prior to working with the City Council, she served as the Legislative Counsel at the Office of the New York City Comptroller. She earned a J.D. from Rutgers University Law School and a B.A. in Psychology from Syracuse University.


Rajiv Shah has been appointed Assistant Secretary for the Environment
Ms. Shah previously served as Senior Policy Advisor for the Environment. Prior to joining the Executive Chamber, Mr. Shah joined the New York State Department of Environmental Conservation as an Empire State Fellow and served in dual roles as a Special Assistant to the Commissioner and Counsel to the Bureau of General Enforcement. Prior to working at DEC, Mr. Shah served as Assistant Attorney General in the New York State Office of the Attorney General. He also clerked for the Honorable Eileen Nadelson in the Kings County Civil Court and for the Honorable Laura Taylor Swain in the U.S. District Court of the Southern District. Mr. Shah earned his J.D. from Fordham University and a B.A. from the University of Pennsylvania.

Megan Baldwin has been appointed Assistant Secretary for Health.

Ms. Baldwin most recently held multiple roles within the New York State Senate Finance Committee, including Principal Analyst for the Republican Conference, where she led budget negotiations on behalf of the Senate Majority. She also served as a Senior Analyst and Associate Analyst for the Democratic Conference, where she provided Senate Majority Members with research and recommendations concerning budget proposals for DOH, OCFS and OTDA. She also has experience working in the Office of the New York State Comptroller. She received an M.B.A. from the Rochester Institute of Technology and a B.S. in Business Administration from SUNY College at Brockport.

Natacha Carbajal-Evangelista has been appointed Assistant Secretary for Labor and Workforce.

Ms. Carbajal-Evangelista most recently served as the Special Counsel for Ethics, Risk and Compliance to the Commissioner for the New York State Department of Labor. Prior to government service, Ms. Carbajal-Evangelista was a senior associate at Baker & Hostetler LLP. She also served as a Judicial Law Clerk for the United States Bankruptcy Courts of the Southern and Eastern Districts of New York. Ms. Carbajal-Evangelista has received several awards for her provision of pro bono legal services to victims of domestic violence including the 2015 John Geiger Award from Her Justice and the 2013 Champion of Justice Award from the Brooklyn Bar Association Volunteer Lawyers Project and T.D. Bank. She holds a B.S. from Cornell University's School of Industrial and Labor Relations and a J.D. from Fordham University.

Daniel Fuller has been appointed Assistant Secretary for Education.

Having previously served as Education Policy Advisor, earlier Mr. Fuller served as Vice President of Legislative Relations at Communities in Schools. He was also the Director of Public Policy at the Association for Supervision and Curriculum Development, and prior to that, was the Director of Federal Programs at the National School Boards Association. Mr. Fuller holds a B.A. in English from SUNY Plattsburgh.

Peter Olmsted has been appointed Assistant Secretary for Energy.

Mr. Olmsted served as Manager of Strategic Engagement at the New York State Department of Public Service. In this role he was responsible for carrying out work vital to Governor Cuomo’s Reforming the Energy Vision (REV) and the implementation of the Regional Greenhouse Gas Initiative. Prior to working at DPS, Mr. Olmstead was the East Coast Regional Director for Vote Solar. He also worked as an Energy Policy Fellow in the Majority Caucus of the Delaware State Senate. Mr. Olmstead received a Master of Energy & Environmental Policy from the University of Delaware and a B.A. from Skidmore College.

Abbey Fashouer has been appointed First Deputy Press Secretary.

Ms. Fashouer most recently served as Deputy Press Secretary. Prior to that, she served as Press Secretary for State Senator Jeff Klein. Ms. Fashouer also served as a Director at Mercury, LLC where she helped develop and execute public affairs campaigns for both public and private sector clients. Ms. Fashouer also has experience on state and local campaigns, serving as a field organizer for the Sweeney, Burzichelli, and Riley Campaign in New Jersey, as well as the Quinn for New York Mayoral Campaign. She holds a B.A. from SUNY Albany.

Robyn Ryan has been appointed Assistant Director of Operations for Special Projects.

Ms. Ryan is an accomplished project manager and writer who most recently served as Executive Services Counsel for the New York State Bar Association. Prior, she clerked for U.S. District Court Judge Peter J. Messitte, after working in private practice as a Litigation Associate at Steptoe & Johnson in Washington, DC. Ms. Ryan has years of experience in journalism, working as a staff reporter for the Times Herald Record, and as a freelance writer. She earned her J.D. from Georgetown University Law Center and her B.A. from Barnard College.

Andrew Ball has been appointed Assistant Secretary for Intergovernmental Affairs.
Previously Mr. Ball served as Director of Scheduling and Confidential Assistant to the Governor. Mr. Ball joined the Cuomo administration in 2011 as special assistant for legislative and intergovernmental affairs, where he served as a liaison between local elected officials and the administration, including addressing constituent issues and facilitating coordination between legislative members and state agencies. A Long Island native, Mr. Ball graduated from Syracuse University in 2010.

 

Chelsea Muller has been appointed Senior Program Manager.

Ms. Muller joins the Executive Chamber after working in the Governor’s Office of Storm Recovery as a Senior Program Manager. In this role, she helped launch the NY Rising Community Reconstruction Program and led community development and planning projects for the agency. Before joining state government, she was the Executive Director of Rebuilding Together NYC, a nonprofit organization dedicated to rebuilding the New York City community after Hurricane Sandy. Before that, she was an Anchor, Reporter and a Producer for KDRV-TV in Medford Oregon, and an Associate Producer for KVBC-TV in Las Vegas, NV. She holds a B.A. from the University of Nevada and a Public Relations Certification from the University of Washington, Seattle.

Casey Kuklick has been appointed Senior Policy Advisor for Energy.

Mr. Kuklick has worked in Governor Cuomo’s administration in the Office of Energy and Finance since 2014, most recently as a Policy Advisor and prior, as an Infrastructure and Urban Policy Analyst. Before joining state government, he was a Program Assistant for the Urban and Regional Policy Program for the German Marshall Fund of the United States. He has held roles in the Office of Manhattan Borough President Scott M. Stringer, U.S. Senator Charles E. Schumer and in the City of Philadelphia Mayor’s Office of Sustainability. He received an M.P.A in Urban Policy and Advanced Policy and Economic Analysis from Columbia University School of International and Public Affairs and a B.A. from Northwestern University.

Right to administrative due process not compromised by a three-year delay in conducting a disciplinary hearing and, or, other alleged procedural errors

Right to administrative due process not compromised by a three-year delay in conducting a disciplinary hearing and, or, other alleged procedural errors

Armbruster v Cassano, 2017 NY Slip Op 02641, Appellate Division, Second Department

New York City Firefighter Daniel Armbruster had tested positive for cocaine during a random drug test administered by the New York City Fire Department, in contravention of the Department's "zero tolerance" drug policy. At his disciplinary hearing Armbruster admitted that he tested positive for cocaine but offered as his defense that "his ingestion of cocaine was unknowing" and he could not recall the circumstances of his cocaine use because "I was drinking excessively and I blacked out."

The Administrative Law Judge [ALJ] presiding at Armbruster's disciplinary hearing found him guilty of three charges of misconduct. As to the penalty to be imposed, the ALJ recommended that Armbruster be terminated from his employment as a New York City firefighter.

The Commissioner of the Fire Department adopted the ALJ's findings and the recommendation of the penalty to be imposed and dismissed Armbruster from his position. Armbruster then commenced a proceeding pursuant to CPLR Article 78 challenging the Commissioner's determination.

Among the issues considered by the Appellate Division in the course of Armbruster's appeal was the impact, if any, on Armbruster's right to due process in consideration of the following events alleged to have occurred in the course of Armbruster's disciplinary hearing:

1. The cumulative effect of the approximately three-year delay in conducting the administrative hearing;

2. The ALJ's rulings with respect to certain evidence presented in the course of the disciplinary hearing;

3. Armbruster's "brief exclusion from the hearing" during a pause in his testimony; and

4. The Fire Department counsel's isolated "disparaging commentary."

The Appellate Division concluded that "[t]he prejudice arising from these circumstances, where it arose at all, did not so permeate the underlying hearing as to render it unfair."

The court explained that a review of an administrative determination made after "a trial-type hearing directed by law" is limited to whether the administrative determination is supported by substantial evidence. In the event there is conflicting evidence or different inferences may be drawn from the evidence presented, the said court that "the duty of weighing the evidence and making the choice rests solely upon the [administrative agency]." Courts may not weigh the evidence or reject the choice made by such agency where the evidence is conflicting and room for choice exists.

The Appellate Division found that any credibility issues were resolved by the ALJ and that it found no basis upon which to disturb the ALJ's determination, which was supported by substantial evidence.

As to the penalty imposed by the Commissioner, dismissal, the court held that in view of Armbruster's "relatively brief tenure with the Fire Department at the time of his positive drug test," considered with the ALJ's finding that his testimony at the disciplinary hearing "lacked credibility" and the application of the Department's zero tolerance drug policy, the Appellate Division held that the imposition of the penalty of termination "was not so disproportionate to the offense committed as to be shocking to one's sense of fairness," notwithstanding evidence that Armbruster had previously sustained two employment-related injuries.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_02641.htm

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