Petitioner's appeal from a Board of Education's seniority determination for the purposes of layoff dismissed for failure to make "proper service" on all the parties

Petitioner's appeal from a Board of Education's seniority determination for the purposes of layoff dismissed for failure to make "proper service" on all the parties

Decisions of the Commissioner of Education, Decision No. 17,234

The Commissioner of Education dismissed a teacher's challenge to a Board of Education's decision concerning her seniority for the purposes of a layoff because the educator failed to comply with the service requirements set out in the Commissioner's Regulations on all the parties involved.

The Commissioner's regulation require that the petition be personally served upon each named respondent. 

1. If a school district is named as a respondent, service upon the school district must be made personally by delivering a copy of the petition to "the district clerk, to any trustee or any member of the board of education, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service."

2. A party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such. Joinder as a necessary party requires that an individual be clearly named as a necessary party by name in the caption of the petition and served with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense.

In this appeal the Commissioner found that the record indicated that the appellant [Petitioner] did not personally serve a necessary party [Respondent]. Although Petitioner attempted to effect service upon Respondent by serving papers upon a “person of suitable age and discretion,” the affidavit of service failed to demonstrate that Petitioner made any “diligent search” for Respondent before resorting to this method of "substitute service."

The Commissioner noted that the affidavit of service did not detail any prior attempts regarding service but Petitioner merely stated in her reply that two trips to Respondent's home were made and then asserts, upon information and belief, that the process server was informed on the first attempt that Respondent was on vacation. 

Petitioner then asserted that a second attempt was made to see if Respondent had returned from vacation and because the statute of limitations was near, service upon an individual of suitable age and discretion should be deemed sufficient for the purpose of "proper service" upon Respondent. 

The Commissioner ruled that Petitioner failed to prove that Petitioner's two attempts at service constitute a diligent effort to find Respondent "where [Petitioner] has not provided any evidence to support her assertion in her reply, made upon information and belief, that the process server was told that [Respondent] was on vacation and there is no evidence in the record concerning how much time elapsed between the first and second attempts."

In the words of the Commissioner, "Absent evidence of diligent efforts to effect service upon [Respondent], service upon an individual of suitable age and discretion is ineffectual and the appeal must be dismissed as to [Respondent] for improper service."

The significance of this is that as the rights of Respondent could be adversely affected should Petitioner to prevail in this appeal and thus "Respondent is a necessary party and should have been joined and served as such."

The Commissioner dismissed Petitioner's appeal for "failure to join a necessary party."

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume57/d17234

 __________________________

The Layoff, Preferred List and Reinstatement Manual -This e-book reviews the relevant laws, rules and regulations, and selected court and administrative decisions. For more information click on http://booklocker.com/books/5216.html  

 __________________________

Governmental immunity as a defense in the event a government entity or a government officer or employee is named as a defendant in litigation

Governmental immunity as a defense in the event a government entity or a government officer or employee is named as a defendant in litigation

Waterman v City of Rochester, 2017 NY Slip Op 07048, Appellate Division, Fourth Department

The City of Rochester [Rochester*] moved for summary judgment dismissing the action brought by Henry J. Waterman, claiming "government immunity." Supreme Court denied Rochester's  motion. Rochester appealed but the Appellate Division sustained the Supreme Court's ruling.

The Appellate Division said that the lower court had "properly denied" Rochester's motion for summary judgment dismissing the complaint as the Rochester defendants were not entitled to "governmental immunity." Governmental immunity, explained the court, is not triggered when a public employee, acting in the course of his or her employment, "commits an ordinary tort that anyone else might commit — for example, when the employee is negligent in driving [a vehicle]."

In contrast, public officers and employees,** may claim "qualified immunity," or, in some instances, absolute immunity, when named as a defendant in litigation alleging acts or omissions involving or related to the performance of their official duties.

The "Doctrine of Absolute Immunity" insulates certain public officials from civil lawsuits involving the performance of their official duties. Included among those protected by “absolute immunity” are legislators in connection with their legislative duties and judicial and quasi-judicial officers performing judicial or quasi-judicial functions. 

The Doctrine of Qualified Immunity may be an available defense when public officers and employees are being sued unless it can be shown that “clearly established” law which a reasonable official or employee in his or her position would have, or should have, known was violated.***

As to a public employee claiming "qualified immunity" as a defense in the course of litigation, the claim of "Qualified Immunity” is typically subjected to a "two prong test applied to determine if a public official or employee is entitled to "qualified immunity" when he or she is sued."

The first prong of the test addresses the question: Has the petitioner “stated a cause of action.” If the answer is yes the court turns to the second prong of the test.

The second prong of the test asks did the “[g]overnment official’s conduct violates clearly established law when, at the time of the challenged conduct, the contours of a right are sufficiently clear that every reasonable official would have understood that what he [or she] is doing violates that right.”

* David J. Bagley, II, an employee of the City of Rochester, was named as a co-defendant in this action.

** Although not all public employees are public officers, except in rare situations all public officers are public employees.

***  Under certain circumstances an attorney in private practice employed by public entity for certain purposes may be eligible to claim a qualified immunity [see NYPPL at: 
https://publicpersonnellaw.blogspot.com/2010/09/attorney-in-private-practice-employed.html].


The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_07048.htm

New York State's Human Rights Law requires the compliant to be filed with the State Division of Human Rights within one year of the most recent act of the unlawful discrimination alleged

New York State's Human Rights Law requires the compliant to be filed with the State Division of Human Rights within one year of the most recent act of the unlawful discrimination alleged

2017 NY Slip Op 06968, Appellate Division, Second Department

The Petitioner in this action, a long-term, at-will employee of the Town, was advised that his employment would be terminated as part of the Town's transitioning to the incoming administration of a newly elected Town Supervisor. Ultimately a formal resolution terminating the employment of Petitioner and several other employees was approved by the Town Board and the individuals affected notified of that fact.

Petitioner filed a complaint with the New York State Division of Human Rights [DHR] alleging that the termination of his employment was the result of discrimination based on his age, gender, and ethnicity. DHR subsequently issued an administrative determination finding that the matter was untimely because the complaint was filed more than one year after the most recent alleged discriminatory act. Petitioner commenced this CPLR Article 78 proceeding but Supreme Court denied the petition, confirmed DHR's determination, and dismissed the proceeding.

The Appellate Division affirmed the lower court's ruling, explaining that Executive Law §297(5) provides that "[a]ny complaint filed pursuant to this section must be so filed within one year after the alleged unlawful discriminatory practice." Thus, said the court, §297(5) "is in the nature of a statute of limitations" and therefore mandatory. Further, noted the court, the limitations period commences running on the date that a claimant receives his or her notice of the alleged discriminatory act or practice.

Rejecting Petitioner's argument that the one-year period in which he was required to file a complaint with the DHR begin to run on his last day of employment, the Appellate Division said the statute of limitations began to run on date that he received notice of the termination of his employment, i.e., on the date on which the individual knew, or should have know, he or she was the victim of the alleged act of unlawful discrimination.*

As it was undisputed that Petitioner had not file his complaint with DHR within the one year period following his receiving the notice of the termination of his employment as required by §297(5), the Appellate Division ruled that Supreme Court had properly sustained DHR's determination that the complaint was untimely.

* Gaston v NYC Department of Health, 432 F.Supp.2d 321. See, also, Fager v Board of Education, Rochester City School Dist., 73 AD3d 1458, in which the Appellate Division held that the statute of limitations to challenge an administrative decision starts to run when the determination becomes “final and binding.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_06968.htm

Summaries of court decisions involving fire, police and corrections personnel

Summaries of court decisions involving fire, police and corrections personnel

Source: AELE's blog

This month's issue of Fire, Police and Corrections Personnel Reporter, an employment law publication for law enforcement, corrections and the fire/EMT services agencies and personnel, summarizes court decisions that addressed:

Bill of Rights Laws

F.L.S.A. – Overtime in General

Disability Discrimination

Family and Medical Leave

Race Discrimination – In General

Retaliatory Personnel Action

Veterans and Other Preference Laws

 

View at http://www.aele.org/law/2017all11/FP2017NOV.html

New York City's City Council may, by express language, limit the New York City Civil Rights Law provide narrower coverage than the NYSHRL or the federal ADA

New York City's City Council may, by express language, limit the New York City Civil Rights Law provide narrower coverage than the NYSHRL or the federal ADA

2017 NY Slip Op 07208, Court of Appeals

In response to a question certified to it by the United States Court of Appeals for the Second Circuit, the Court of Appeals has advised the Circuit Court of Appeals that  has certified — and we have accepted for review (29 NY3d 1019 [2017]) — the §§8-102 (16) (c) and 8-107 (1) (a) of the New York City Administrative Code precludes a plaintiff from bringing a disability discrimination claim based solely on a perception of untreated alcoholism.

The court explained that § 8-102 [16] [c] stated that "[i]n the case of alcoholism, drug addiction or other substance abuse, the term 'disability' shall only apply to a person who (1) is recovering or has recovered and (2) currently is free of such abuse, and shall not include an individual who is currently engaging in the illegal use of drugs, when the covered entity acts on the basis of such use."

Applying the rules of statutory interpretation to this case, the Court of Appeals conclude that the certified question should be answered in the affirmative because the Administrative Code does not consider a mistaken perception of alcoholism to be a disability covered by the NYCHRL.

The court said the Second Circuit had noted that "there is no ambiguity about the plain language of the NYCHRL, which is only open to one reasonable interpretation: the disability of alcoholism "shall only apply to a person who (1) is recovering or has recovered and (2) currently is free of such abuse."

The Court of Appeals indicated that the NYCHRL covers circumstances in which employers unfairly typecast alcoholics who have sought treatment and who are not presently abusing alcohol so as to ensure that such persons are afforded a fair opportunity at recovery. In other words, NYCHRL is triggered "only when the individual "is recovering or has recovered" and "currently is free of such abuse."

In contrast, the NYSHLR and the ADA cover alcoholics presently abusing alcohol, as well as recovering and recovered alcoholics. However, said the Court of Appeals, " this is a rare case where through its express language, the City Council has mandated narrower coverage than the NYSHRL or the ADA."

The court's conclusion, Judge Garcia dissenting, in which dissent Judge Stein concurs: the Administrative Code does not consider a mistaken perception of alcoholism to be a disability covered by the NYCHRL