Evaluating conflicting testimony and the credibility of witnesses in a disciplinary hearing

A court may not weigh the evidence or reject the choice made by the hearing officer in a disciplinary proceeding where there is conflicting evidence and room for choice exists. Where  there is room for choice, the court may not substitute its judgment for that of the hearing officer regarding the credibility of the witness.*

In Crossman-Battisti v Traficanti, Appellate 235 A.D.2d 566, the Appellate Division rejected the employee's claim that all the witnesses had motives to lie and fabricate their testimony, finding that there was no basis "to disturb the resolution of issues of credibility implicit in [the employer's] determination [and] the duty of weighing the evidence and making the choice between conflicting inferences which can be drawn from the evidence is for the administrative agency, not the courts."

Citing  Matter of Di Vito v State of New York, Dept. of Labor, 48 N.Y.2d 761, the Appellate Division explained that considering "the broad discretion afforded to an administrative agency in cases involving internal discipline," it would not substitute its judgment for that of the appointing authority.

Addressing the employee's "retaliation defense" for whistle-blowing asserted in her answer [see Civil Service Law §75-b(3)], the court opined that the whistle-blowerdefense "applies only where the disciplinary proceeding is based solely on the employer's unlawful retaliatory action." Where, as here, explained the Appellate Division, "the employer presented evidence of specific incidents of inappropriate conduct which are found to demonstrate a separate and independent basis for the action taken, a defense under Civil Service Law §75-b cannot be sustained."

As to the penalty imposed by the appointing authority, termination of the employee, the court ruled that "there is no basis to disturb the penalty of dismissal imposed in this case, which we do not find so disproportionate to the offenses as to be shocking to one's sense of fairness," applying the Pell Doctrine.**

The Appellate Division sustained the agency's terminating the employee after finding her guilty of "unauthorized activity, altercations with other employees, unauthorized absences and abuse of leave time."

* Kolanik v Safir, 231 A.D.2d 720.

** Matter of Pell v Board of Educ., 34 N.Y.2d 222.

The decision is posted on the Internet at:

https://www.leagle.com/decision/1997801235ad2d5661271

Establishing a prima facie case of unlawful discrimination triggers the McDonnell Douglas Corp. protocols used to evaluate employee's claims

In this appeal the United States Circuit Court of Appeals, Second Circuit, considered the employee's [Plaintiff] challenge to a federal district court's summarily dismissing his Title VII  complaint  "in the entirety" on the motion of his former employer [Defendant] and the lower court's dismissal of his New York City Human Rights Law"* allegations. Essentially Plaintiff alleged that Defendant had unlawfully discrimination against him on the basis of his race, ethnicity, or national origin in violation of Title VII.

The Circuit Court observed that summary judgment must be granted to the moving party “if the pleadings, the discovery and disclosure materials [in] the files, and any affidavits show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” The court then explained that a petitioner's federal law unlawful discrimination claims are to be analyzed under the three-step McDonnell Douglas burden-shifting framework, in which the employee must initially present a prima facie case of unlawful discrimination.**

By establishing a prima facie case of unlawful discrimination, the employee shifts the burden of going forward to the employer, requiring the employer to articulate a legitimate, non-discriminatory reason for its actions.

In the event the employer presents a legitimate, non-discriminatory reason for its actions, the burden of going forward then shifts back to the employee, who must now show that the employer’s explanation or justification for its action is merely a "pretext" in order for the individual to go forward with his or her claim of unlawful discrimination.

In this action the federal district court held that although the Plaintiff satisfied the requirements of articulating a prima facie case of unlawful employment discrimination, the Defendant, citing the Plaintiff's poor work performance, had set out a legitimate, non-discriminatory basis for its dismissing Plaintiff from his position. The district court then rejected Plaintiff's contention that the Defendant's allegation of "poor work performance"  as its justification for Plaintiff's termination was "mere pretext" for its action.

Thus, in the words of the Circuit Court, the central issue on appeal is were the reasons advanced by the Defendant as justification for its action "pretext." The Circuit Court decided that the Plaintiff had, in fact, demonstrated the existence of a triable issue of fact as to whether Defendants' proffered reason for his dismissal was mere pretext.

The court observed that in both Plaintiff's federal district court complaint and in an exhibit to his complaint to the New York State Division of Human (sic), Plaintiff asserted that he had overheard one of the named Defendants state during a phone to another party that she “know[s] how to terminate this stupid [referring to Plaintiff's nationality] guy” and submitted other evidence of discriminatory animus towards him, including additional comments made by said Defendant to others.

In reviewing a district court’s grant of summary judgment de novo, and "construing the evidence in the light most favorable to the non-moving party," here the Plaintiff, and drawing all reasonable inferences in the non-moving party's favor,” the Circuit Court concluded that "it [was] for the jury to determine whether to credit Plaintiff's representation, and vacated both of the federal district court’s rulings.

The Circuit Court then remanded the matter to the federal district court "for further proceedings consistent with this order."

* The Circuit Court noted that with respect to Plaintiff's New York City Human Rights Law claim, which it considered separately, it was “construing [its] provisions broadly in favor of discrimination plaintiffs, to the extent that such a construction is reasonably possible", citing Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d 102.

** McDonnell Douglas Corp. v. Green, 411 U.S.792.

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/958d92a9-8f01-4893-bdc0-4a764f2d7068/4/doc/17-1051_so.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/958d92a9-8f01-4893-bdc0-4a764f2d7068/4/hilite/

Standing to challenge the appointing authority's decision finalizing a disciplinary action taken against an employee

Certain residents and taxpayers of the Village [Plaintiffs] commenced a CPLR Article 78 proceeding seeking a court order annulling a resolution adopted by the Village's Board of Trustees [Board] approving, by a three-to-two vote, a modified disciplinary settlement agreement entered into by the Village and an employee of the Village.

The Plaintiffs, among other things, alleged that the Board's action violated the Village's Code of Ethics as one of the Board members who voted in favor of the resolution was the employee's brother-in-law. The Village and the employee separately moved to dismiss the Plaintiffs' Article 78 petition on various grounds, including lack of standing.

Supreme Court granted those branches of the separate motions of the Village and the employee seeking to dismiss the proceeding for lack of standing, thus denying the petition and dismissing the proceeding. The Plaintiffs appealed.

The Appellate Division said it agreed with the lower court's ruling, explaining:

1. Plaintiffs "effectively concede" that they are unable to show the existence of an injury in fact; and

2. Plaintiffs "do not qualify for common-law taxpayer standing."

The Doctrine of "Common-Law Taxpayer Standing" referred to by the Appellate Division was considered by the Court of Appeal in its decision in Matter of Transactive Corp. v New York State Dept. of Social Servs., 92 NY2d 579.  The Transactive court  noted "it is one thing to have standing to correct clear illegality of official action and quite another to have standing in order to interpose litigating plaintiffs and the courts into the management and operation of public enterprises."

As the Court of Appeals explained in Colella v Bd. of Assessors, 95 NY2d 401, it fashioned a remedy for taxpayers to challenge important governmental actions, despite such parties being otherwise insufficiently interested for standing purposes, when "the failure to accord such standing would be in effect to erect an impenetrable barrier to any judicial scrutiny of legislative action." The Doctrine, opined the court, should not be applied, however, to permit challenges to the determinations of local governmental officials having no appreciable public significance beyond the immediately affected parties, by persons having only the remotest legitimate interest in the matter.

Citing General Municipal Law §51, which provides for the prosecution of municipal officers for illegal acts, the Court of Appeals commented that its position with respect to the Doctrine of Common Law Taxpayer Standing is reinforced by the fact that "the Legislature has seen fit to confer general taxpayer standing to challenge the actions of local governmental officials in only limited situations."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_02703.htm

Considering the strong policy of including all public employees within the ambit of the Taylor Law, authority to designate certain employees managerial or confidential is to be read narrowly

For the purposes of Article 14 of the Civil Service Law, the Taylor Law, the term "public employee" means any person holding a position by appointment or employment in the service of a public employer except:

[1] judges and justices of the unified court system;

[2] persons holding positions by appointment or employment in the organized militia of the state; and 

[3] persons who may reasonably be designated from time to time as managerial or confidential upon application of the public employer to the appropriate body in accordance with such body's duly established procedures. 

Such persons, however, remain subject to the provisions of §210 of the Taylor Law, "Prohibition of strikes" and §211 of the Taylor Law which provides for obtaining "injunctive relief" where required.

Further, only persons (i) who formulate policy or (ii) who may reasonably be required on behalf of the public employer to assist directly in the preparation for and conduct of collective bargaining pursuant to the Taylor Law or to have a major role in the administration of collective bargaining agreements and, or, negotiated memoranda of understandings, or in personnel administration, provided that such role is not of a routine or clerical nature and requires the exercise of independent judgment, may be designated "managerial" within the meaning of the Taylor Law while only employees who assist and act in a confidential capacity to employees designated "managerial" may be designated "confidential" for the purposes of the Taylor Law.*

Managerial  or confidential employees may not be an officer or a member of any employee organization that is currently, or seeks to become, the certified  or recognized representative of the public employees employed by the public employer of such managerial or confidential employee.

Following the New York City Board of Certification's [the Board] approving an application by the Organization of Staff Analysts [the Organization] to add the title of Senior Auditor to the Organization's collective bargaining unit, the New York City Health + Hospitals [NYC Health] initiated an Article 78 action in Supreme Court seeking a court order annulling the Board's determination. 

Supreme Court dismissed NYC Health's petition. NYC Health appealed but the Appellate Division unanimously affirmed the Supreme Court's decision.

The Appellate Division opined that Supreme Court had properly deferred to the Board's rational interpretation of the applicable statutes, including the Board's finding that the exemption to public employees' eligibility for collective bargaining set out in the Taylor Law is controlling. Citing Viruet v City of New York , 97 NY2d 171, the Appellate Division explained that as the Taylor Law is incorporated into the New York City Health and Hospitals Corporation Act and the exemptions in the Act are substantially consistent with Article 14 of the Civil Service, "the override provision of Unconsolidated Laws §7405(5) does not apply" in this instance.

Noting that the exclusions for managerial and confidential employees are an exception to the Taylor Law's strong policy of extending its coverage to all public employees and are to be read narrowly, the court concluded that here the Board had a rational basis for finding that Senior Auditors were not "managerial" employees within the meaning of the Taylor Law. Although a Senior Auditor specifies how audits are to be conducted and may proposed changes based on the audit's findings, the Appellate Division said that "the Board reasonably found that submitting such nonbinding recommendations" does not constitute "formulat[ing] policy." Further, said the court, the Board also rationally found that Senior Auditors are not "confidential" employees within the meaning of the Taylor Law.

* For the purposes of the Taylor Law, §201.7(b) of the Civil Service Law provides that assistant attorneys general, assistant district attorneys, and law school graduates employed in titles leading to promotion to assistant district attorney upon admission to the New York bar are "managerial" employees. Confidential investigators employed by the New York State Department of Law are "confidential" employees within the meaning of the Taylor Law pursuant to §201.7(b).

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_02812.htm

By commencing a CPLR Article 78 action involving arbitrable issues, the petitioner may be deemed to have waived his or her right to demand arbitration of those issues

The Village of Bronxville terminated the employment of one of its police officers [Employee] and notified him that his "health insurance coverage, as well as any other insurance coverage that had been provided by the Village, would terminate." Employee objected, contending that the collective bargaining agreement [CBA] between the Village and the Bronxville Police Taylor Act Committee [BPTC] provided that he was entitled to individual and family health insurance coverage as a disability retiree.

The CBA outlined a grievance procedure to resolve "[a]ny dispute arising concerning the interpretation, construction or application" of the terms of the CBA. Under the terms of the CBA, if the dispute was not resolved through the grievance procedure, the parties were to submit the matter to arbitration. Ultimately the Village Board of Trustees denied the grievance. When BPTC served a demand to arbitrate the matter, the Village commenced an CPLR Article 75 proceeding seeking a permanent stay of arbitration of Employee's claim for health insurance benefits pursuant to the terms set out in the relevant collective bargaining agreement.

The Village argued that the BPTC and Employee [1] had waived the right to arbitration the grievance, and [2] that arbitration should be permanently stayed for laches. Supreme Court granted the Village's petition holding that while the BPTC had not waived the right to arbitrate Employee's claim, arbitration should be permanently stayed pursuant to the doctrine of laches and BPTC appealed.  

The Appellate Division agreed with Supreme Court's determination granting a stay of arbitration, but for a different reason. Explaining that the doctrine of laches bars the enforcement of a right where there has been an unreasonable and inexcusable delay that results in prejudice to a party and prejudice may be demonstrated "by a showing of injury, change of position, loss of evidence, or some other disadvantage resulting from the delay," and although the BPTC unreasonably and inexcusably delayed filing a demand for arbitration, the Village failed to demonstrate that it suffered any prejudice as a result of that delay. Thus, concluded the Appellate Division, the doctrine of laches does not bar the arbitration in this instance.

Citing Sherrill v Grayco Bldrs., 64 NY2d 261, the Appellate Division opined that "[l]ike contract rights generally, a right to arbitration may be modified, waived or abandoned." The court then noted that Employee had previously commenced a proceeding pursuant to CPLR Article 78 against, among others, the Village, challenging the Village's determination to terminate his health insurance benefits. In that proceeding Employee had alleged that the Village had breached the collective bargaining agreement by failing to provide him with disability retiree health insurance coverage.*

"By commencing an action at law involving arbitrable issues" pursuant to Article 78 the Appellate Division opined that BPTC and Employee "had waived whatever right [they] had to arbitration," citing Hart v Tri-State Consumer, Inc., 18 AD3d 610.

The Appellate Division then ruled that Supreme Court should have permanently stayed the arbitration on the ground that BPTC and the Employee had waived any right to arbitrate the matter.

* The Appellate Division noted that "Where a party affirmatively seeks the benefits of litigation, in a manner 'clearly inconsistent with [its] later claim that the parties were obligated to settle their differences by arbitration,' the right to arbitrate has been waived."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_02710.htm