Circumstantial evidence relied upon to sustain a finding that an employee used his or her employers resources for private purposed in violation of law, rule or regulation

Circumstantial evidence relied upon to sustain a finding that an employee used his or her employers resources for private purposed in violation of law, rule or regulation 

Oberman v New York City Conflicts of Interest Bd., 2017 NY Slip Op 02366, Appellate Division, First Department

The New York City Conflicts of Interest Board, based on "strong circumstantial evidence" including records of numerous calls involving Igor Oberman's work telephone and donations to his political campaign, concluded that Oberman had used his public employer's resources for private purposes in violation of New York City Charter §2604(b)(2) and 53 RCNY § 1-13(a) and (b) and imposed a civil penalty of $7,500.

The Appellate Division dismissed Oberman's appeal, finding that the Board's determination was "based on substantial evidence" and there was no basis to disturb the credibility determinations of the Administrative Law Judge.

The court then opined that "The penalty is not shockingly disproportionate to the offense in light of the extent of [Oberman's] misconduct, the warnings he had received against such misconduct, his failure to accept responsibility, and the high ethical standards to which he was held as an attorney."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_02366.htm

Public policy prohibits an employer from bargaining away its right to remove those employees satisfying the plain and clear statutory requisites for termination

Public policy prohibits an employer from bargaining away its right to remove those employees satisfying the plain and clear statutory requisites for termination

Enlarged City Sch. Dist. of Middletown N.Y. v Civil Serv. Empls. Assn., Inc., 2017 NY Slip Op 02421, Appellate Division, Second Department

Thomas Turco, a member of the Civil Serv. Empls. Assn., Inc. [Union], sustained an on-duty injury to his left shoulder. After Turco was out of work for more than one year on Workers' Compensation leave, the district terminated his employment pursuant to Civil Service Law §71. Turco filed a grievance, alleging that such termination violated the CBA. After Turco's grievance was denied, the Union filed a demand for arbitration. Ultimately the Appellate Division granted the district's motion for a temporary stay of the arbitration proceedings.

Conceding the general policy favoring the resolution of disputes by arbitration, the Appellate Division held that some matters, because of competing considerations of public policy, cannot be heard by an arbitrator, explaining "If there is some statute, decisional law or public policy that prohibits arbitration of the subject matter of dispute, . . . the claim is not arbitrable'."

In this instance the district contended that arbitration of the subject matter of the dispute was prohibited by public policy, and in effect, decisional law. The Appellate Division agreed citing Matter of Economico v Village of Pelham (50 NY2d 120, overruled on other grounds Matter of Prue v Hunt, 78 NY2d 364). In Economico the Court of Appeals held that "public policy prohibits an employer from bargaining away its right to remove those employees satisfying the plain and clear statutory requisites for termination."

The district terminated Turco's employment pursuant to Civil Service Law §71 which provides that a public employer may terminate an employee who is absent due to an occupational disability for a cumulative period of one year if the employee remains physically or mentally unable to return to work.*

The Appellate Division noted that Civil Service Law §71 establish "the point at which injured civil servants may be replaced," as it "strike a balance between the recognized substantial State interest in an efficient civil service and the interest of the civil servant in continued employment in the event of a disability." The same is true, said the court, with respect to the termination of an individual absent on §72 leave for “ordinary disability” -- a disability unrelated to work -- pursuant to §73 of the Civil Service Law.**

Thus, concluded the court, the abrogation of the authority granted to a public employer by the statute to terminate the employee absent on §71 leave is implicated in Turco’s situation. As an arbitrator would not be able to fashion a remedy that would not violate public policy in this matter, the Appellate Division ruled that “a preemptive stay of the instant matter is not improper” and Supreme Court should have granted the school district’s petition to permanently stay arbitration.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_02421.htm

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* N.B. Where an employee has been separated from the service by reason of a disability resulting from an assault sustained in the course of his or her employment, he or she shall be entitled to a leave of absence for at least two years, unless his or her disability is of such a nature as to permanently incapacitate him or her for the performance of the duties of his or her position.

** Although the phrase used in the decision is "be discharged from his position," such termination is not a pejorative dismissal as both §71 and §73, in pertinent part, specifically provide that an individual terminated from a §71 or a §72 leave, as the case may be, “may, within one year after the termination of such disability, make application to the civil service department or municipal commission having jurisdiction over the position last held by such employee for a medical examination to be conducted by a medical officer selected for that purpose by such department or commission.”

Hiring policy prohibiting the appointment of teachers "above Step 5" found unlawful discrimination because of age

Hiring policy prohibiting the appointment of teachers "above Step 5" found unlawful discrimination because of age

Geller v. Markham, 635 F.2d 1027.

In Geller a School Board policy of not initially employing teachers above “Step 5” (i.e. teachers having more than 5 years of teaching experience) was held to constitute unlawful discrimination because of age by the 2nd Circuit Court of Appeals.

The rejected teachers were able to show that 93% of teachers over age 40 had more than 5 years of teaching experience but only 60% of teachers under age 40 had more than 5 years of such experience.

Failure to testify concerning the event permits a disciplinary hearing officer to draw the strongest inference against the individual permitted by the record

Failure to testify concerning the event permits a disciplinary hearing officer to draw the strongest inference against the individual permitted by the record

Varriale v City of New York, 148 AD3d 650 

The New York City Board of Education terminated Suzanne Varriale's employment as a tenured school teacher.

The Appellate Division affirmed the Board of Education's determination noting that although Varriale "was a thirteen-year employee with no prior disciplinary history, and no charges had ever previously been preferred against her, the penalty of termination was not shocking to one's sense of fairness" in light of the seriousness of the charges filed against her and the fact that the record showed that Varriale "had strayed from her duties as a school teacher by deliberately escalating a confrontation with a student by yelling expletives and threatening him with violence."

Noting that Varriale "showed no remorse nor appreciation for the seriousness of her conduct to support a finding that she would not engage in similar conduct if faced with such circumstances in the future," the Appellate Division held that as she declined to take the stand to testify concerning the event, "the hearing officer was permitted to draw the

strongest inference against her permitted by the record."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_02513.htm

The anatomy of a discrimination action

The anatomy of a discrimination action
Clarke v Metropolitan Transp. Auth., 2017 NY Slip Op 04421, Appellate Division, Second Department

In processing an employment discrimination claim "A plaintiff alleging discrimination in employment has the initial burden to establish . . . that (1) he or she is a member of a protected class; (2) he or she was qualified to hold the position; (3) he or she was terminated from employment or suffered another adverse employment action; and (4) the discharge or other adverse action occurred under circumstances giving rise to an inference of discrimination"

If the individual makes such a prima facie showing, the burden of going forward shifts to the employer "to rebut the presumption of discrimination by clearly setting forth, through the introduction of admissible evidence, legitimate, independent, and nondiscriminatory reasons to support its employment decision."

The burden of going forward then shifts back to the plaintiff "to establish every element of intentional discrimination, and if the employer had advanced a "legitimate, nondiscriminatory reasons for the challenged actions," to show that the employer's explanation or explanations were pretextual.

In this action seeking to recover damages for alleged employment discrimination Supreme Court, granted the Metropolitan Transportation Authority's [MTA] motion for summary judgment dismissing Edmond Clarke's causes of action alleging employment discrimination on the basis of age and sex, and hostile work environment.

The Appellate Division, in response to Clark's appeal challenging the Supreme Court's ruling, affirmed the lower court's determination.

The Appellate Division explained that in this instance MTA was, prima facie, entitled to judgment as a matter of law dismissing the cause of action alleging employment discrimination on the basis of age and sex by offering legitimate, nondiscriminatory reasons for the challenged actions and demonstrating the absence of material issues of fact as to whether their explanations were pretextual.

A hostile work environment exists where the workplace is "permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." However, said the court, "Various factors, such as frequency and severity of the discrimination, whether the allegedly discriminatory actions were threatening or humiliating or a "mere offensive utterance," and whether the alleged actions "unreasonably interfere[ ] with an employee's work" are to be considered in determining whether a hostile work environment exists."

Further, noted the Appellate Division, "The allegedly abusive conduct must not only have altered the conditions of employment of the employee, who subjectively viewed the actions as abusive, but the actions must have created an "objectively hostile or abusive environment—one that a reasonable person would find to be so."

MTA, said the court, "established [its] prima facieentitlement to judgment as a matter of law dismissing the cause of action alleging the existence of a hostile work environment by demonstrating that the conduct and remarks about which Clark complained were not sufficiently severe or pervasive as to permeate the workplace and alter the conditions of his employment at MTA.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_04421.htm