Under certain circumstances a court may order the New York State Public Employment Relations Board to issue determinations on pending improper practice charges

Petitioner in the Article 78 action had filed two improper practice charges with the Public Employment Relations Board [PERB] in 2014. Contending that PERB had yet to issues its determinations concerning these charges, in 2018 Petitioner initiated a CPLR Article 78 proceeding, seeking a court order compelling PERB to issue determinations on these two improper practice charges then pending before it, naming PERB and the State of New York [State] as respondents,.

In lieu of filing an answer to Petitioner's complaint, PERB moved to dismiss the petition for, among other reasons, Petitioner's alleged failure to exhaust administrative remedies. State, in lieu of filing an answer to Petitioner's complaint, separately moved to dismiss the petition with respect to it, alleging that it "was not a proper party to the proceeding."

The Supreme Court [1] granted the State's motion to dismiss it from the proceedings on the ground that it was not a proper party to the proceeding; [2] denied PERB's motion to dismiss the action on the grounds that petitioner "had failed to exhaust" administrative remedies; and [3] granted Petitioner's petition on the merits, directing PERB to issue determinations on Petitioner's improper practice charges within 60 days of the serving of the court's order, with notice of entry, on PERB.

PERB appealed the Supreme Court's ruling to the Appellate Division, thereby "invoking an automatic stay of Supreme Court's judgment."*

While the appeal was pending in the Appellate Division, however, PERB issued it's decisions on Petitioner's improper practice charges, thus providing Petitioner with all of the relief that he requested in his CPLR petition. 

The Appellate Division, observing that "the rights of the parties would not be affected by a determination" of PERB's appeal"on the merits," rejected PERB's contention that exceptions** to the mootness doctrine applied in this action. The court explained that the controversy presented by this case "evaded its review solely because PERB issued the requested determination during the pendency of the appeal."

Holding that the controversy between Petitioner and PERB had been resolved as the result of PERB's issuing the determinations demanded by Petitioner, the Appellate Division dismissed PERB's appeal as moot.

* See CPLR §5519[a][1], which, in pertinent part, provides for a stay of the enforcement of a court decision without a court order upon the filing of a notice of appeal or an affidavit of intention to move for permission to appeal where "the appellant or moving party is the state or any political subdivision of the state or any officer or agency of the state or of any political subdivision of the state."

** Claims of exception to the mootness doctrine typically require the court to consider three issues: [a] is the question presented of a substantial public nature; [b] is there is a need for an authoritative determination for the future guidance of public officers; and [3] is there a likelihood of future recurrence of the question [see Hearst Corp. v Clyne, 50 NY2d 707].

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_03858.htm

Adjudicating claims filed against an employer alleging disability discrimination and retaliation pursuant to the Americans with Disabilities Act

The Federal District Court dismissed an employee's [Petitioner] claim that his public employer [City] had unlawfully discriminated against him and took retaliatory actions against in violation of the Americans with Disabilities Act [ADA] and the New York State Human Rights Law [NYSHRL].

Petitioner appealed the district court's ruling to the United States Circuit Court of Appeal, challenging three conclusions of the District Court that Petitioner:

[1] was not disabled after he returned to work;

[2] failed to show the existence of an accommodation that would allow him to

perform the essential functions of his employment; and

[3] did not produce evidence sufficient to show discrimination or retaliation.

Deciding that it need not consider Petitioner's first challenge, i.e., did the District Court erred in determining that Petitioner was disabled after he returned to work as, assuming, but not deciding that Petitioner was disabled after he returned to work,* the Circuit Court held that Petitioner's "claims fail as a matter of law" as he did not meet his burdens of "both production and persuasion as to the existence of some accommodation that would allow [him] to perform the essential functions of [his] employment.”

The Circuit Court explained that Petitioner failed to provide evidence of a reasonable accommodation, which “may include modification of job duties and schedules, alteration of the facilities in which a job is performed, acquisition of devices to assist the performance of job duties, and, under certain circumstances, reassignment to a vacant position.” Thus, said the court, Plaintiff's failure to accommodate claim fails as a matter of law, citing Borkowski v. Valley Cent. Sch. Dist., 63 F.3d 131.

Turning to Plaintiff's claim that he suffered discrimination and retaliation based on his three-day and subsequent termination from his position. Plaintiff argued that the City's discriminatory or retaliatory intent was demonstrated by "[a] the temporal proximity between his placement on light duty and his suspension the following business day and [b] the failure of the employer "to engage with him in an interactive process to identify a potential reasonable accommodation."

The City rebutted these allegations by explaining that Petitioner's suspension and later termination resulted from Petitioner's "numerous disciplinary infractions, several of which pre-date the time of his first injury."

Conceding that “A plaintiff can indirectly establish a causal connection to support a discrimination or retaliation claim by showing that the protected activity was closely followed in time by the adverse employment action” and that “an employer’s failure to engage in a good faith interactive process [to identify a reasonable accommodation] can be introduced as evidence tending to show disability discrimination,” the Circuit Court opined that "temporal proximity alone is 'insufficient to satisfy [plaintiff’s] burden' at the third stage of the McDonnell Douglas analysis." Considering his "prolific and longstanding disciplinary record," the court held that Plaintiff had not adduced sufficient evidence for a reasonable jury to conclude that the City had suspended or terminated Plaintiff for discriminatory or retaliatory reasons rather than as a result of his disciplinary problems.

Finally, said the court, "for the same reasons stated above, even assuming without deciding that an ADA mixed-motive discrimination claim under the framework set out in Price Waterhouse v. Hopkins, 490 U.S. 228 ... is still viable after Gross v. FBL Fin. Servs., Inc., 557 U.S. 167," Plaintiff failed to produced evidence warranting a shift in burden under Price Waterhouse.

The Circuit Court explained that “[T]o warrant a mixed motive burden shift, the plaintiff must be able to produce a smoking gun or at least a thick cloud of smoke to support his [or her] allegations of discriminatory treatment.”

Accordingly, the Circuit Court of Appeals affirmed the judgment of the District Court.

* The Circuit Court of Appeals noted that Petitioner did not argued that the District Court erred by dismissing his NYSHRL claims for the same reasons as his ADAclaims.

The decision is posted on the Internet at:

https://www.courtlistener.com/opinion/4603613/molina-v-city-of-rochester/

An attorney admitted to the New York State Bar is subject to the State's registration requirements as long as he or she remains "duly admitted to the bar"

22 NYCRR 118.1 [a]-[c] provides that the registration requirements for attorneys applies "for as long as the attorney remains duly admitted to the New York bar" and such registration may only be terminated by the attorney's death, disbarment or formal resignation upon order of the Appellate Division.* Attorneys once admitted to practice law in New York State are required to register with the Office of Court Administration biennially.

An attorney was admitted to practice in New York State in 1982 and listed his business address as being in another state. When the attorney sought to leave to resign from the New York State bar for nondisciplinary reasons as permitted by 22 NYCRR 1240.22 [a], the Attorney Grievance Committee [AGC] opposed the attorney's application because the attorney was not current in his New York attorney registration requirements, having failed to timely register for his biennial period registration period, which commenced in 2018.

The Appellate Division found that "[i]nasmuch as [the attorney] was subject to potential disciplinary action as a result of such failure to register, the attorney was ineligible for nondisciplinary resignation and his application must be denied.

The court, citing Matter of Frank, 146 AD3 1228, opined that any future application by the attorney to resign from the New York State Bar must be supported by proof of his full satisfaction of the requirements of Judiciary Law §468-a and 22 NYCRR 118.1.**

In contrast, an attorney admitted to practice in New York State by the Appellate Division in 1996 and whose business address was on record with the Office of Court Administration, as being in another state, applied for leave to resign from the New York State bar for nondisciplinary reasons.

The AGC opposed the application, contending that attorney was ineligible for nondisciplinary resignation because he has failed to fulfill his New York State attorney registration requirements for the most recent biennial period, which began on his date of birth in 2018. However, Office of Court Administration records establish that the attorney had, in fact, become current in his New York State attorney registration obligation and cured any preexisting registration delinquency.

Accordingly, as the AGC had advanced no other substantive objection to the attorney's application seeking to resign from the New York State Bar, the Appellate Division determined that the attorney was then eligible to resign from the New York State Bar for nondisciplinary reasons and granted his application and accepted his resignation. ***

* See Rules for Attorney Disciplinary Matters, 22 NYCRR 1240.22 [a].

** This decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_03877.htm

*** This decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_03878.htm

If the custodian of a record demanded pursuant to the Freedom of Information Law refuses to provide the record, the custodian has the burden of showing that an exemption applies

The basic concept underlying the Freedom of Information Law [FOIL] is that all government documents and records, other than those having access specifically limited by statute,* are available to the public.

The custodian of the records or documents requested may elect, but is not required, to withhold those items that otherwise within the ambit of the several exceptions to disclosure permitted by FOIL. In other words, there is no bar to providing information pursuant to a FOIL request, or otherwise, that falls within one or more of the exceptions that the custodian could rely upon in denying a FOIL request, in whole or in part, for the information or records demanded.

Citing Matter of Xerox Corp. v Town of Webster, 65 NY2d 131, the Appellate Division sustained a Supreme Court's ruling that a report prepared by an outside consultant for the agency was not shown to be eligible for the "intra-agency materials exemption" permitted by FOIL.

Public Officers Law §87 sets out the "ground rules" for a party accessing government records. Certain records, however, may be exempt from such disclosure including inter-agency or intra-agency materials other than statistical or factual tabulations or data; ii. instructions to staff that affect the public; iii. final agency policy or determinations; and iv. external audits, including but not limited to audits performed by the State Comptroller and the federal government.

In this instance the Appellate Division found that the agency failed to establish that it retained its outside consultant "for purposes of preparing the report, a necessary prerequisite for invocation of the intra-agency materials exemption for documents prepared by an outside consultant." In the words of the Appellate Division, " Supreme Court correctly held that [the agency] failed to meet its burden of showing that the intra-agency materials exemption applies, and properly directed [the agency] to produce an unredacted copy of the subject report."

The Appellate Division, however, remanded the matter to Supreme Court for further proceedings, explaining that Supreme Court failed to address the Petitioners' request for an award of reasonable attorneys' fees.

As the Court of Appeals noted in Matter of Madeiros v New York State Educ. Dept., 30 NY3d 67,FOIL "is based on a presumption of access in accordance with the underlying premise that the public is vested with an inherent right to know and that official secrecy is anathematic to our form of government." Further, in a FOIL proceeding, the court shall provide for the agency to pay "reasonable attorney's fees and other litigation costs" reasonably incurred by a plaintiff where "such person has substantially prevailed" and, or, when the agency failed to respond to a request or appeal within the statutory time.

Further, noted the Appellate Division, the attorneys' fees provision of FOIL was amended to provide that the court "shall" award counsel fees where the agency has no basis for denying access to the material sought," and that an award of attorney's fees is intended to "encourage compliance with FOIL and to minimize the burdens of cost and time from bringing a judicial proceeding."**

* Examples of laws prohibiting the release of certain public records pursuant to a FOIL request include Education Law §1127 - Confidentiality of records and §33.13 of the Mental Hygiene Law - Confidentiality of clinical records.

** Chapter 453, Laws of 2017

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_03295.htm

Disciplinary hearing decisions handed down by Administrative Law Judges of the Office of Administrative Tribunals and Hearings

A correction officer was charged with using excessive force and submitting a false report concerning force used by officers in subduing a group of inmates. At trial petitioner presented testimony of an investigator and video of the incident. The officer testified on his own behalf, denying that his report was false. Following the officer’s testimony, petitioner withdrew the excessive force charge. ALJ John B. Spooner recommended dismissal of the false report charge, finding the video did not show that the officer was in the vicinity of where force was used against the inmate. Dep’t of Correction v. Smith, OATH Index No. 1001/19 (Apr. 2, 2019).

An emergency medical technician (“EMT”) was charged with leaving a patient in the care of persons who were not medically trained, refusing an order to undergo substance use testing, being absent without leave, falsely reporting that a patient had flagged down an ambulance so that he could eat his meal, creating a false patient care report for a nonexistent patient, forging his partner’s signature on the false patient care report, and testing positive for a controlled substance. Following a two-day trial where petitioner presented testimony from seven witnesses and documentary evidence, and the EMT testified on his own behalf, ALJ Astrid B. Gloade sustained the charges and recommended termination of the EMT’s employment. Fire Dep’t v. Gala, OATH Index No. 2772/18 (Apr. 16, 2019), adopted, Comm’r Dec. (May 7, 2019).

A medicolegal investigator was charged with negligently failing to take jurisdiction over one case, failing to perform adequate investigations of six other cases, and being discourteous during a phone conversation with a decedent’s daughter. ALJ Kevin F. Casey sustained the charge that the investigator negligently failed to take jurisdiction over a case involving a 12-year old boy with a dislodged tracheostomy tube, who died after he was transported from school to the hospital. He found that in four instances petitioner showed the errors were so serious that they amounted to misconduct and he sustained that charge in part. He dismissed the discourtesy charge. A 40-day suspension was recommended. Dep’t of Health & Mental Hygiene v. Yee, OATH Index No. 520/19 (Apr. 5, 2019).

A correction captain was found to have been excessively absent over a 17 month period. All but two days of absence were due to psychological disability caused by an inmate assault. The captain had returned to her post for three months, when petitioner ordered her out on leave for the next four months. The captain has since returned to work. Petitioner sought termination of the captain’s employment, but ALJ Casey found that would be unduly harsh. Noting that the available penalties under section 75 of the Civil Service Law are limited, he recommended a 30 day suspension, but he urged the parties to consider an alternative, appropriate remedy, such as a leave of absence, probation, or holding the penalty in abeyance. Dep’t of Correction v. Anonymous, OATH Index No. 348/19 (Apr. 29, 2019).