Applying the Doctrine of Collateral Estoppel

Applying the Doctrine of Collateral Estoppel

Roth v. County of Nassau, United States Court of Appeals, Second Circuit, Index#18-966-cv, Summary order

Rulings by summary order do not have precedential effect.

Craig Roth appealed the federal district court's granting summary judgment dismissing his claims that Nassau County had subjected him to unlawful discrimination after finding that Roth was collaterally estopped from asserting his discrimination claims under the Americans with Disabilities Act (ADA) and the New York State Human Rights Law (NYSHRL).

The Second Circuit Circuit Court of Appeals said that it:

1. reviews a district court’s grant of summary judgment de novo and that the judgment may be affirmed on any ground fairly supported by the record;

2. in reviewing a district court’s application of the doctrine of collateral estoppel de novo, the Second Circuit accepts "all factual findings of the district court unless clearly erroneous; and

3. under New York law, collateral estoppel a. “may be invoked to preclude a party from raising an issue (1) identical to an issue already decided (2) in a previous proceeding in which that party had a full and fair opportunity to litigate”; and b. “the issue that was raised previously must be decisive of the present action.”

Roth conceded that he is collaterally estopped from arguing that he could perform the “essential functions” of a police officer’s job but argued that he was not collaterally estopped from arguing that he could perform the essential functions of the job “with or without reasonable accommodation.” Roth claimed that the state court’s Article 78 order did not adequately address the issue of accommodation, and that he is not barred from demonstrating that he was able to perform the essential duties of the police officer job with or without such accommodation.*

The Second Circuit held that the District Court correctly concluded that Roth’s ADA and NYSHRL claims are precluded under the doctrine of collateral estoppel explaining that Roth’s complaint in this appeal seeks to relitigate issues that were fully and fairly decided during his Article 78 proceeding in New York Supreme Court as his Verified Petition before the New York Supreme Court specifically asserted that his disqualification violated Section 296(1)(a) of the NYSHRL and “may be actionable pursuant to the American’s [sic] with Disabilities Act as that Act protects individuals from employment discrimination based upon an actual or perceived disability.”

Roth's memorandum and reply memorandum in support of his Verified Petition filed with the State Supreme Court claimed to have “established a prima facie case of discrimination" that the County medically disqualified him for the position of police officer because of his medical disability.” In order to demonstrate a “disability” within the meaning of the NYSHRL, said the court, a plaintiff must show that he or she was able to perform the essential functions of the job with or without a reasonable accommodation. Nassau County's medical experts’ medical conclusions was that there was a significant risk that Roth could become mentally or physically incapacitated during bursts of severe exertion, including in pursuing suspects, using force, and rescuing individuals.

Considering the "particular nature of those functions" and Roth’s conceded failure to request any accommodation, the Circuit Court ruled that "absent a clear indication to the contrary the New York Supreme Court reasonably concluded that there was 'substantial evidence' to support a determination that it would have been impossible to provide any reasonable accommodation for those particular essential functions" of a police officer

In the words of the Second Circuit, "Roth’s discrimination claims fail because he is precluded under the doctrine of collateral estoppel from arguing that he was able to perform the essential functions of a police officer with or without a reasonable accommodation."

* Both the NYSHRL and the ADArequire a plaintiff to demonstrate as an element of his or her claim that he or she was able to perform the essential duties of his or her job with or without a reasonable accommodation.

The decision is posted on the Internet at:

https://www.leagle.com/decision/infco20190117078

Guidelines for confirming an award issued pursuant to compulsory interest arbitration

Guidelines for confirming an award issued pursuant to compulsory interest arbitration

Matter of Walker (Read), 2019 NY Slip Op 00340, Appellate Division, Third Department

The collective bargaining agreement [CBA] for uniformed firefighters [Firefighters] employed by the City of Plattsburgh [Plattsburgh], with the exception of the Fire Chief and the Assistant Fire Chief, expired. Since the expiration of that CBA the Firefighters and Plattsburgh had participated in compulsory interest arbitration three times to resolve disputes that arose during their negotiations of successor agreements as provided by Civil Service Law §209[4]).

In 2016 an arbitration award covering the 2012-2013 contract period granted the firefighters a 2% wage increase for 2012 and 2013, carried through 2017, and directed that all retroactive payments be disbursed within 45 days of the award.*  

Plattsburgh, however, failed to implement the mandated wage increases and make the required retroactive payments whereupon Firefighters commenced a CPLR §75.10 proceeding seeking to confirm the arbitration award. Plattsburgh, on the other hand, cross-moved to vacate the award as being "violative of public policy and exceeding the scope of the panel's authority."

Supreme Court granted the Firefighters application to confirm the award and denied Plattsburgh's cross motion, prompting Plattsburgh's appealing the Supreme Court's decision.

As a general policy of supporting and encouraging the resolution of disputes through arbitration (see Matter of City of Oswego [Oswego City Firefighters Assn., Local 2707], 21 NY3d 880, judicial interference with an arbitration award is confined to narrowly circumscribed circumstances. Courts may vacate an arbitration award if the arbitrator exceeded his or her authority by issuing an award that violates a strong public policy, is irrational or clearly exceeds a specific, enumerated limitation on the arbitrator's power (see Matter of Shenendehowa Cent. Sch. Dist. Bd. of Educ. [Civil Serv. Empls. Assn., Inc., Local 1000, AFSCME, AFL-CIO, Local 864], 20 NY3d 1026.**

Addressing Plattsburgh's argument that the arbitration award should be vacated on the basis that it violated public policy, the court said that in granting relief on such grounds "courts must be able to examine [the] arbitration ...  award on its face, without engaging in extended fact-finding or legal analysis, and conclude that public policy precludes its enforcement." In other words, said the Appellate Division, "judicial inquiry is constrained to determining whether 'the actual result of the arbitration process' — without evaluation of the underlying rationale — on its face, and 'because of its reach, . . . violates an explicit law of this [s]tate'."

Plattsburgh contended that the enactment of Chapter 67 of the Laws of 2013 demonstrated that a strong state public policy exists "to control and stabilize the [general] fund balance and real property tax levies of 'fiscally eligible municipalities' who are experiencing ongoing fiscal distress," arguing that the award of a 2% salary increase for 2012 and 2013, carried through 2017, would deepen Plattsburgh's fiscal crisis by requiring it to completely deplete its general fund balance and raise taxes over the tax cap.

The Appellate Division said that Plattsburgh's reliance on such an argument was misplaced, explaining that, as  relevant here, Chapter 67 established a permanent financial restructuring for local governments to "provide a meaningful, substantive avenue for fiscally eligible municipalities to reform and restructure and provide public services in a cost-effective manner," while also setting "new parameters for arbitration awards" involving fiscally eligible municipalities.

Where, as here, the public interest arbitration panel determines that the public employer is a fiscally eligible municipality, the panel must, "first and foremost, consider [the public employer's] ability to pay by assigning [that criterion] a weight of [70%]", while assigning an aggregate weight of 30% to the remaining statutory criteria set out in Civil Service Law §209 subdivisions [4][c][v] and [6][e].

In the view of the Appellate Division, the amendments relied upon by Plattsburgh did not a "reveal strong and well-defined policy considerations prohibiting, in an absolute sense, the relief awarded here — that is, the 2% salary increases and the retroactive payments flowing therefrom" but rather "clearly evince a general policy recognizing the importance of considering, during the arbitration process, the fiscal status of fiscally-distressed municipalities" and the law requires only that, "when resolving a dispute and fashioning an award, the public interest arbitration panel accord a weight of 70% to a fiscally eligible municipality's ability to pay."

Concluding that the arbitration panel had complied with its mandate and the required 70% weighting factor, the Appellate Division said it could not reweigh the statutory factors and substitute its judgment for that of the arbitration panel nor could it engage in the extended fact-finding or legal analysis required by Plattsburgh's argument.

Finding that the arbitration award was not prohibited by a strong and well-defined policy embodied in law, the Appellate Division concluded that there was no basis upon which to invoke the public policy exception to vacate the arbitration award. Further, ruled the court, there was no merit to Plattsburgh's argument that the arbitration award mandated legislative action and in its absence, the panel exceeded the scope of its authority.

* Before issuing this arbitration award, the panel offered the parties an opportunity to consent to an alternate proposed opinion and award granting the panel the authority to issue a determination addressing more than a two-year period and, if agreed to, providing for, among other things, a 1.5% wage increase for 2012, 2013 and 2014 and a 1.75% wage increase for 2015, 2016 and 2017. However, the Common Council of the City of Plattsburgh unanimously rejected this alternate proposed opinion and award. 

** Citing Matter of Kowaleski [New York State Dept. of Correctional Servs.], 16 NY3d 85, the Appellate Division observed that "Even where an arbitrator has made an error of law or fact, courts generally may not disturb the arbitrator's decision".

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_00340.htm

New legal specialties traineeship titles established by the State of New York

New legal specialties traineeship titles established by the State of New York

Source: NYS Department of Civil Service Director of Staffing Services

In a memorandum from the Department of Civil Service’s (DCS) Director of Classification and Compensation, dated December 27, 2018, New York State Departments and Agencies were notified of a restructuring of the Legal Specialties Traineeship.

The Department of Civil Service has issued General Information Bulletin No. 19-03 providing information about the selection plan and appointment process for the Legal Specialties Traineeship going forward and it has been posted on the Internet at:

https://www.cs.ny.gov/ssd/pdf/GIB19-03.pdf

Entry level appointments can be made to all levels of the Senior Attorney, Senior Attorney (Realty), Senior Attorney (Financial Services), Hearing Officer, Unemployment Insurance Referee and Motor Vehicle Referee traineeships, including the journey level. All appointments must be made to the highest level for which the candidate is qualified.

DCS will be reissuing the continuous recruitment, open competitive announcement for Legal Specialties soon.

How Lawyers Are Using Social Media in 2019

How Lawyers Are Using Social Media in 2019

Nicole Black, a Rochester, New York attorney and the Legal Technology Evangelist at MyCase - law practice management software for small law firms, notes that the majority of lawyers are learning about - and are using - social media. She asks "Are you one of those lawyers? Is your law firm using social media? Are you? How does your social media use compare?"

Her article "How Lawyers Are Using Social Media in 2019" is posted on the Internet at:

https://nylawblog.typepad.com/suigeneris/2019/01/how-lawyers-are-using-social-media-in-2019.html?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+SuiGeneris--aNewYorkLawBlog+%28Sui+Generis--a+New+York+law+blog%29

Qualifications for employment in the public service mandated by statute may not be waived

Qualifications for employment in the public service mandated by statute may not be waived

Martin, as Administratrix of The Estate of Christos Lekkas v State of New York et al., 82 AD2d 712

Christos Lekkas, a permanent Assistant Clinical Physician in the then Office of Mental Retardation and Developmental Disabilities,* [OMRDD] was never licensed to practice medicine in New York or in any State of the United States or in the Dominion of Canada. Summarily terminated from his position pursuant to Education Law §6522 of the Education Law which provides that "Only a person licensed or otherwise authorized under this article shall practice medicine or use the title physician," Lekkas initiated an Article 78 proceeding alleging that both the Federal and State Constitutions as well as §50.4 of the Civil Service Law required that Lekkas be given a pre-termination hearing or, alternatively, the opportunity to respond to the reasons given by the State for his discharge."

Prior to its repeal in 1971 §6512.1(b) of the Education Law had exempted full-time employees of a State hospital from the normal requirement of a State license to practice medicine. Announcements for civil service examinations for certain physician positions in State hospitals were not updated to reflect  that appointees to these positions now must be licensed to practice medicine by the State of New York. As a result, Lekkas' was permanently appointed an Assistant Clinical Physician following his passing a post-1971 examination for the position.

Supreme Court, addressing the narrow issue of whether a permanently appointed civil service employee in the competitive class may be summarily discharged from his or her position because he or she did not meet the minimum qualifications for the position, citing Ferrine v Bahou, 75 A.D.2d 669, as being dispositive of the issue, ordered Leekas reinstated to his former position with back pay and benefits "without prejudice to further proceedings" deemed advisable by the State.

The State appealed contending that Lekkas was ineligible for employment as an Assistant Clinical Physician because he was not licensed to practice medicine by New York State.

The Appellate Division framed the issue before it as "[w]here, as here, an ineligible applicant is appointed, the issue narrows to whether such an appointee can be discharged without being afforded an opportunity to challenge the reasons for his discharge." The court, affirming the Supreme Court's ruling, explained that resolution of this question turned on whether the qualifications for Assistant Clinical Physician were prescribed by regulation or by statute.

If Education Law, §6522 controlled, it was beyond the power and jurisdiction of the Civil Service Commission or any other administrative body to confer upon an applicant eligibility for appointment "denied to him [or her] by the Legislature."*

If a regulation controlled, the Appellate Division, citing Matter of Wolff v Hodson, 285 N.Y. 197, said that the decision was within the sole power and jurisdiction of the administrative agency and thus no appointee who has obtained permanent appointed to his or her position can be removed without being afforded the procedural rights set forth in §50.4 of the Civil Service Law, "despite the fact that had his [or her] infirmity to qualify for the position been timely known he [or she] would not have been appointed."

Noting that the duties of an Assistant Clinical Physician were defined administratively rather than by statute, the Appellate Division concluded that such duties were amenable to administrative change. The record, said the court, indicates that OMRDD notified Lekkas and others performing medical duties requiring licensure by circulating memoranda advising unlicensed physicians that they must desist from such practice except under the supervision of a licensed physician.**

  

Accordingly, ruled the Appellate Division, the State's contention that Lekkas was subject to job dismissal, without recourse to any benefits of his permanent employee status on the sole ground that he was practicing medicine without a license was without merit as Lekkas' assigned duties as an Assistant Clinical Physician were defined administratively, rather than by statute and thus such duties were amenable to administrative change. Presumably, Lekkas, on the date his employment was terminated, was discharging limited medical duties under the supervision of a licensed doctor.

Thus, said the court, the State's claim that Lekkas was subject to summary dismissal, without recourse to any benefits of his permanent employee status, on the sole ground that he was practicing medicine without a license as required by Education Law §6522 was without merit in view of the fact that the duties of an Assistant Clinical Physician were both defined and changed by administrative fiat. Accordingly, said the Appellate Division,  the provisions of the Civil Service Law rather than the Education Law controlled.

In the words of the Appellate Division, While it is clear that decedent would not have been eligible either to take the examination or be appointed if the announcements for civil service examinations for positions as physicians in State hospitals had reflected the 1971 statutory changes, it is equally clear that respondents could not terminate decedent on the ground of disqualification, in the absence of fraud, more than three years after the date of such appointment (see Civil Service Law, §50.4). Special Term thus correctly annulled decedent's discharge and ordered respondents to reinstate him with back pay and benefits" and affirmed the lower court's judgment , with costs.

It should be noted that Leekas died subsequent to the perfection of this appeal but prior to oral argument and the administratrix of his estate was substituted as party petitioner. As Special Term ordered Leekas' reinstated with back pay, the possibility exists that his estate could be the beneficiary of monetary benefits if it should ultimately prevail in this matter. Accordingly, the Appellate Division declined to dismiss the appeal on the ground of mootness.

* Subsequently redesignated the Office for People with Developmental Disabilities

** Such physicians were continued in employment and were given a period of time during which they could seek to obtain a New York State license to practice medicine. Leekas failed to obtain the required license prior to the deadline imposed to do so.

The decision is posted on the Internet at:

https://www.leagle.com/decision/198279886ad2d7122464