The availability of General Municipal Law §50-e(1)(b) rights to "defense and indemnification" to a municipal employees in an action brought in federal court

The availability of General Municipal Law §50-e(1)(b) rights to "defense and indemnification" to a municipal employees in an action brought in federal court

Richard Hardy  v Daley et. al., [New York City police officers in their personal rather than their official capacities], United States Court of Appeals, Second Circuit, C.V. 17‐2906

The United States District Court, Southern District, dismissed Richard Hardy's amended complaint alleging sexual assault, intentional infliction of emotional distress, and failure to intervene federal civil rights claims with prejudice for failure to state a cause of action.

The Circuit Court sustained the district court's ruling with respect to the federal civil rights claims explaining that such a complaint must plead "enough facts to state a claim to relief that is plausible on its face ... and allow the court to draw the reasonable inference that the defendant is liable for the misconduct alleged."

Hardyʹs federal complaint, however, included New York State law claims, which the district court dismissed "failure to serve a timely notice of claim." The Circuit Court ruled that the district court had err in so doing.

Under New York law, explained the Circuit Court, service of a notice of claim is a condition precedent to tort actions against a municipal entity or its employees and these provision apply "to state law claims even when they are brought in federal court." In contrast, in actions commenced against a municipal employee but not against the employing municipal corporation,* the service of a notice of claim upon the corporation is "required only if the corporation has a statutory obligation to indemnify [the employee]" pursuant to §50-e(1)(b) of the General Municipal Law.

A municipality, however, is required to indemnify its employee only if his or her liability arose as the result of an act or omission constituting conduct "within the scope of his [or her] employment and in the discharge of his [or her] duties." Noting that Hardyʹs state law tort claims against defendants in their individual capacities are founded on alleged conduct that would be well beyond the scope of employment the Circuit Court explained that such allegations "would, by definition, have constituted 'intentional wrongdoing' [whereby] defendants would not have a right to indemnification by their public employer" otherwise available to such employees pursuant to §50-e(1)(b) of the General Municipal Law.

Accordingly, the Circuit Court found that Hardyʹs state law tort claims were not procedurally barred for failure to file a notice of claim and remanded the case is "for further proceedings consistent with this ruling."

* Service of the notice of claim upon an officer, appointee or employee of a public corporation shall not be a condition precedent to the commencement of an action or special proceeding against such person. If an action or special proceeding is commenced against such person, but not against the public corporation, service of the notice of claim upon the public corporation shall be required only if the corporation has a statutory obligation to indemnify such person under this chapter or any other provision of law. The defendants are New York City police officers being sued in their personal rather than their official capacities and the City of New York is not a defendant in this action.

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/ed1af089-8cc6-4bef-b0d9-6a58e44cfc23/4/doc/17-2906_so.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/ed1af089-8cc6-4bef-b0d9-6a58e44cfc23/4/hilite/

Appealing summary judgment in favor of the employer in an action involving alleged a racially hostile work environment and retaliation claims

Appealing summary judgment in favor of the employer in an action involving alleged a racially hostile work environment and retaliation claims

Berrie v. Bd. of Educ. of the Port Chester-Rye Union Free Sch. Dist. et al., USCA, Second Circuit, 17-2045-cv

Gregory Tyrone Berrie, the Plaintiff in Action I, alleged that the Port Chester-Rye Union Free School District [Board] had subjected him to a racially hostile work environment and retaliated against him following his filing complaints pursuant to Title VII of the Civil Rights Act of 1964 (“Title VII”) and the New York State Human Rights Law (“NYSHRL”), and against all named defendants pursuant to 42 U.S.C. §§1981 and 1983.

Sustaining the district court's granting the employer's motion for summary judgment dismissing Berrie's action, the Circuit Court of Appeals indicated that, with respect to the issues presented to it on appeal, it would address them "only as necessary to explain [its] decision to affirm" the lower court's disposition of the matter. Among the issues address by the Circuit Court were the following:

1. Consideration to be given to hearsay statements in the record. Although certain statements are hearsay as presented in the record, the court observed that such evidence could be presented in admissible form as live testimony from the students. Thus, said the court, it "could consider them on summary judgment."

2. Failure to address certain references in the record. The court noted that there were references in the record concerning certain incidents that Berrie did not discuss in his briefing and the Circuit Court concluded that "it appears" they are not part of Berry's claims.

3. Hostile work environment claims. As to Berrie’s hostile work environment claims, the Circuit Court said that district court reasoned that Defendants’ conduct was not sufficiently severe or pervasive to constitute a hostile work environment. With respect to the Board, the district court concluded that the Board had met its burden to establish the Faragher/Ellerth affirmative defense.*

As to Berrie’s retaliation claims, the district court concluded that Berrie had shown no adverse employment action against him that was causally related to Berrie’s complaints of discrimination.

Reviewing the district court’s grant of summary judgment de novo, the Circuit Court said that it would “resolve all ambiguities and draw all permissible factual inferences in favor of the non-moving party, and will affirm summary judgment only if the moving party shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Further, the Circuit Court, citing Lyons v. Lancer Ins. Co., 681 F.3d 50, said “[t]he mere existence of a scintilla of evidence in support of the [non-movant’s] position will be insufficient” to defeat summary judgment."

With respect to Barry's "hostile work environment claims, the court explained:

a. “To establish a hostile work environment claim . . . a plaintiff must . . . show that 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” and such mistreatment must have occurred “because of [the] employee’s protected characteristic, such as race or national origin,” although the protected characteristic need not be “the only motivating factor.”

b. “A hostile environment claim must be evaluated on the basis of the cumulative effect of the abusive conduct” by examining the totality of the circumstances, including: the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with the victim’s job performance.”

c. The hostile and abusive conduct alleged must be severe or pervasive both subjectively to the plaintiff and objectively to a “reasonable person.”

d. In considering the totality of the circumstances, there must be “some circumstantial or other basis for inferring that incidents [race-]neutral on their face were in fact discriminatory."

The Circuit Court found that "several of Berrie’s most substantial allegations are unsupported by the record evidence, or else not attributable to discriminatory animus."

Accordingly, the court held that summary judgment was warranted on Berrie’s hostile work environment claims.

With respect to Barry's retaliation claims, the Circuit Court said it evaluates retaliation claims under the burden-shifting framework articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792.

4. Unlawful retaliation claims. To establish a prima facie case of unlawful retaliation, “an employee must show that (1) he was engaged in protected activity; (2) the employer was aware of that activity; (3) the employee suffered a materially adverse action; and (4) there was a causal connection between the protected activity and that adverse action.”

A materially adverse action is one that “produces an injury or harm” in that it “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination” and "retaliatory actions need not be a “materially adverse change in the terms and conditions of employment.”

In contrast, the court observed that “trivial harms—i.e., those petty slights or minor annoyances that often take place at work and that all employees experience—are not materially adverse.” Further, “[m]aterial adversity is to be determined objectively, based on the reactions of a reasonable employee.”

To establish causation, a plaintiff may rely on evidence “that the protected activity was followed closely by discriminatory treatment, or [use] other circumstantial evidence such as disparate treatment of fellow employees who engaged in similar conduct” and/or “evidence of retaliatory animus directed against the plaintiff by the defendant.” However, said the Circuit Court, "[t]emporal proximity alone is generally insufficient after about three months."

Accordingly, the Circuit Court, Berrie did not establish a prima facie case of retaliation, and summary judgment was warranted on Berrie’s retaliation claims.

5. Evidentiary ruling by the federal district court. With respect to Barry's objections to certain evidentiary rulings made by the lower court underlying its granting the Defendant's motion for summary judgment as constituting an "abuse of discretion" the Circuit explained that "[a] district court abuses its discretion when it bases its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence, or renders a decision that cannot be located within the range of permissible decisions.”

Under the controlling local rule, Local Rule 56.1(c), a fact asserted in the moving party’s statement “will be deemed admitted unless controverted . . . by the opposing party.”

As the district court noted, Berrie had the opportunity "to take discovery and his counterstatement failed to impugn the motives and counter the testimony of witnesses whose testimony defeated his claims."

Accordingly, the Circuit Court ruled that the district court did not abuse its discretion in deeming admitted facts that Berrie failed to properly dispute.

* This defense takes its name from the two US Supreme Court decisions that created it: Faragher v. City of Boca Raton, 524 U.S. 775 (1998) and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998). Typically Faragher-Ellerth has been relied upon by defendants in action involving claims of hostile work environment sexual harassment but has cited in defending against claims of hostile work environment harassment not alleged to constituted sexual harassment.

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/ad835c46-7c98-435f-8b11-09d6d90547f6/1/doc/17-2045_SO.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/ad835c46-7c98-435f-8b11-09d6d90547f6/1/hilite/

How much privacy do public employees actually have?

How much privacy do public employees actually have?

Source: WORKFORCE, a publication of Governing.com

The digital age, new laws and recent events have created tension between government's transparency and the privacy of the people who work for it.

The full text of the article is posted on the Internet at:

http://www.governing.com/topics/workforce/gov-government-public-employee-privacy.html?utm_term=How%20Much%20Privacy%20Do%20Public%20Employees%20Actually%20Have&utm_campaign=LGBT%20Rights%27%20Longtime%20Leader%20Becomes%20Transgender%20Battleground%20State&utm_content=email&utm_source=Act-On+Software&utm_medium=email

Appealing summary judgment in favor of the employer in an action involving alleged a racially hostile work environment and retaliation claims

Appealing summary judgment in favor of the employer in an action involving alleged a racially hostile work environment and retaliation claims

Berrie v. Bd. of Educ. of the Port Chester-Rye Union Free Sch. Dist. et al., USCA, Second Circuit, 17-2045-cv

Gregory Tyrone Berrie, the Plaintiff in Action I, alleged that the Port Chester-Rye Union Free School District [Board] had subjected him to a racially hostile work environment and retaliated against him following his filing complaints pursuant to Title VII of the Civil Rights Act of 1964 (“Title VII”) and the New York State Human Rights Law (“NYSHRL”), and against all named defendants pursuant to 42 U.S.C. §§1981 and 1983.

Sustaining the district court's granting the employer's motion for summary judgment dismissing Berrie's action, the Circuit Court of Appeals indicated that, with respect to the issues presented to it on appeal, it would address them "only as necessary to explain [its] decision to affirm" the lower court's disposition of the matter. Among the issues address by the Circuit Court were the following:

1. Consideration to be given to hearsay statements in the record. Although certain statements are hearsay as presented in the record, the court observed that such evidence could be presented in admissible form as live testimony from the students. Thus, said the court, it "could consider them on summary judgment."

2. Failure to address certain references in the record. The court noted that there were references in the record concerning certain incidents that Berrie did not discuss in his briefing and the Circuit Court concluded that "it appears" they are not part of Berry's claims.

3. Hostile work environment claims. As to Berrie’s hostile work environment claims, the Circuit Court said that district court reasoned that Defendants’ conduct was not sufficiently severe or pervasive to constitute a hostile work environment. With respect to the Board, the district court concluded that the Board had met its burden to establish the Faragher/Ellerth affirmative defense.*

As to Berrie’s retaliation claims, the district court concluded that Berrie had shown no adverse employment action against him that was causally related to Berrie’s complaints of discrimination.

Reviewing the district court’s grant of summary judgment de novo, the Circuit Court said that it would “resolve all ambiguities and draw all permissible factual inferences in favor of the non-moving party, and will affirm summary judgment only if the moving party shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Further, the Circuit Court, citing Lyons v. Lancer Ins. Co., 681 F.3d 50, said “[t]he mere existence of a scintilla of evidence in support of the [non-movant’s] position will be insufficient” to defeat summary judgment."

With respect to Barry's "hostile work environment claims, the court explained:

a. “To establish a hostile work environment claim . . . a plaintiff must . . . show that 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” and such mistreatment must have occurred “because of [the] employee’s protected characteristic, such as race or national origin,” although the protected characteristic need not be “the only motivating factor.”

b. “A hostile environment claim must be evaluated on the basis of the cumulative effect of the abusive conduct” by examining the totality of the circumstances, including: the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with the victim’s job performance.”

c. The hostile and abusive conduct alleged must be severe or pervasive both subjectively to the plaintiff and objectively to a “reasonable person.”

d. In considering the totality of the circumstances, there must be “some circumstantial or other basis for inferring that incidents [race-]neutral on their face were in fact discriminatory."

The Circuit Court found that "several of Berrie’s most substantial allegations are unsupported by the record evidence, or else not attributable to discriminatory animus."

Accordingly, the court held that summary judgment was warranted on Berrie’s hostile work environment claims.

With respect to Barry's retaliation claims, the Circuit Court said it evaluates retaliation claims under the burden-shifting framework articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792.

4. Unlawful retaliation claims. To establish a prima facie case of unlawful retaliation, “an employee must show that (1) he was engaged in protected activity; (2) the employer was aware of that activity; (3) the employee suffered a materially adverse action; and (4) there was a causal connection between the protected activity and that adverse action.”

A materially adverse action is one that “produces an injury or harm” in that it “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination” and "retaliatory actions need not be a “materially adverse change in the terms and conditions of employment.”

In contrast, the court observed that “trivial harms—i.e., those petty slights or minor annoyances that often take place at work and that all employees experience—are not materially adverse.” Further, “[m]aterial adversity is to be determined objectively, based on the reactions of a reasonable employee.”

To establish causation, a plaintiff may rely on evidence “that the protected activity was followed closely by discriminatory treatment, or [use] other circumstantial evidence such as disparate treatment of fellow employees who engaged in similar conduct” and/or “evidence of retaliatory animus directed against the plaintiff by the defendant.” However, said the Circuit Court, "[t]emporal proximity alone is generally insufficient after about three months."

Accordingly, the Circuit Court, Berrie did not establish a prima facie case of retaliation, and summary judgment was warranted on Berrie’s retaliation claims.

5. Evidentiary ruling by the federal district court. With respect to Barry's objections to certain evidentiary rulings made by the lower court underlying its granting the Defendant's motion for summary judgment as constituting an "abuse of discretion" the Circuit explained that "[a] district court abuses its discretion when it bases its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence, or renders a decision that cannot be located within the range of permissible decisions.”

Under the controlling local rule, Local Rule 56.1(c), a fact asserted in the moving party’s statement “will be deemed admitted unless controverted . . . by the opposing party.”

As the district court noted, Berrie had the opportunity "to take discovery and his counterstatement failed to impugn the motives and counter the testimony of witnesses whose testimony defeated his claims."

Accordingly, the Circuit Court ruled that the district court did not abuse its discretion in deeming admitted facts that Berrie failed to properly dispute.

* This defense takes its name from the two US Supreme Court cases that created it: Faragher v. City of Boca Raton, 524 U.S. 775 (1998) and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998). Typically Faragher-Ellerth has been relied upon by defendants in action involving claims of hostile work environment sexual harassment but has cited in defending against claims of hostile work environment harassment not alleged to constituted sexual harassment.

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/ad835c46-7c98-435f-8b11-09d6d90547f6/1/doc/17-2045_SO.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/ad835c46-7c98-435f-8b11-09d6d90547f6/1/hilite/

Public employers may prohibit its employees from campaigning for, and holding, elected office subject to its action satisfying the so-called Pickering Balancing Test

Public employers may prohibit its employees from campaigning for, and holding, elected office subject to its action satisfying the so-called Pickering Balancing Test

Matter of Spence v New York State Dept. of Agric. & Mkts., 154 AD3d 1234, Decided October 26, 2017

In the Matter of Wayne Spence, as President of the New York State Public Employees Federation, AFL-CIO, et al. v New York State Department of Agriculture and Markets et al., 2018 NY Slip Op 06071, Court of Appeals, Decided on September 18, 2018

Gregory Kulzer and Ronald Brown were employed as Dairy Product Specialists by the New York State Department of Agriculture and Markets [Department]. Their duties included inspecting and rating milk plants and farms in accordance with state and federal law.

In 2013, Kulzer submitted a request for "approval of outside activities" to the Department to campaign for the elected position of Lewis County Legislator. His request was approved, subject to certain restrictions, and he successfully campaigned for and was sworn in as a Lewis County Legislator in January 2014. Upon expiration of the Department's initial approval, Kulzer submitted a renewed request seeking continued approval to serve as a Lewis County Legislator. In August 2014, the Department disapproved Kulzer's request and subsequently the Commissioner sustained the disapproval on the ground that, among other things, Kulzer's outside activities created the appearance of a conflict of interest.

Brown subsequently submitted a request for approval of outside activities to the Department, seeking approval to campaign for and serve as an Oneida County Legislator. Brown's request was disapproved by the Department, also on the ground that this outside activity would create the appearance of a conflict of interest, and, upon appeal, the Commissioner upheld the disapproval.*

Following these actions the Department revised its Employee Policies Handbook with respect to employees' outside activities providing that "[a]ny employee that holds a position that requires him or her to conduct inspections of regulated parties may not campaign for or hold elected office."*

Wayne Spence, as President of the New York State Public Employees Federation, et al, [Petitioners] initiated a CPLR Article 78 proceeding challenging the Department's disapproval of the requests submitted by Kulzer and Brown to campaign for and serve as county legislators, contending that the Department's determinations and subsequent amendment of its outside-activities policy violated the First Amendment of the Constitution of the United States and were otherwise arbitrary, capricious and without lawful authority.

Supreme Court granted the Department's motion to dismiss the Petitioners' Article 78 action and Petitioners appealed the Supreme Court's decision to the Appellate Division contending that the lower court had erred when found that the Department's disapproval of Kulzer's and Brown's requests to campaign and hold elected office and the revision of its outside activities policy did not violate the First Amendment.

The Appellate Division, citing Pickering v Board of Education of Township High School District, 391 US 563, noted that although "it is well settled that public employees do not 'relinquish the First Amendment rights [that] they would otherwise enjoy as citizens' as a result of their public employment," nevertheless upon entering government service, "public employees do accept certain restraints or limitations on their free speech rights" as it is recognized that the State has an interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general.**

In the words of the Appellate Division, "[t]he primary issue, therefore, is whether Supreme Court erred when it determined that the Department's interest in reducing potential unethical behavior and preserving the professionalism and integrity of the Department outweighed the interest of Kulzer and Brown to serve dual roles as both government inspectors and candidates for elected office."

Applying the so-called Pickering Balancing Test, courts have made clear that such a balance will tip in the employer's favor so long as "(1) the employer's prediction of the disruption that such speech will cause is reasonable; (2) the potential for disruption outweighs the value of the speech; and (3) the employer took the adverse employment action not in retaliation for the employee's speech, but because of the potential for disruption."

Here the Appellate Division found that Supreme Court had properly determined that the Pickering balance tips in the Department's favor and, therefore, the Department's disapprovals and revised outside activities policy were not unconstitutional. In effect the court decided that the  Department did not act arbitrarily or capriciously when it revised its outside activities policy nor when it disapproved Kulzer's and Brown's requests to campaign for and hold elected office, explaining that "so long as the Department's determinations have 'a rational basis, [they] will be sustained, even if a different result would not be unreasonable.'"

The Court of Appeals, Judges Rivera and Wilson, in a separate opinion, dissenting, sustained the Appellate Division ruling holding that "the challenged policy has not been shown to be unconstitutional."

* Upon disapproval of Kulzer's request to continue serving as Lewis County Legislator, the Department informed Kulzer that, absent his resignation from the County Legislature, he would be subject to disciplinary action. Kulzer did not resign from his position in the County Legislature and, as a result, in May 2015, the Department initiated disciplinary proceedings against him. It appears that said disciplinary proceedings have been held in abeyance pending the outcome of the instant appeal. Matter of Spence v New York State Dept. of Agric. & Mkts., 154 AD3d 1234, Decided October 26, 2017; affirmed, Court of Appeal, 2018 NY Slip Op 06071.

** N.B. The federal Hatch Act bars partisan political activities by certain State and municipal employees

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_07506.htm