Some of the elements consider by the courts when an educator challenges his dismissal during his probationary period

The Appellate Division affirmed Supreme Court's denying a probationary employee's [Petitioner] CPLR Article 78 petition seeking a court order annulling a city school district's terminating Petitioner's employment.

The court opined that:

1. It perceived no basis for finding that Petitioner's termination "was for a constitutionally impermissible purpose, violative of a statute, or done in bad faith," citing Matter of Mendez v New York City Dept. of Educ., 28 NY3d 993;

2. Evidence in the record indicated that Petitioner received both "ineffective" and "developing" ratings on more than one occasion, supporting the conclusion that the determination to terminate him prior to the completion of his maximum period of probation was not made in bad faith;

3. Petitioner was given timely notice of the possibility that his probationary employment would be terminated as mandated by Education Law §2573[1]*;

4. Petitioner was provided with support and any alleged deviations from internal procedures did not deprive him of a substantial right or undermine the fairness and integrity of the rating process followed by the school district; and

5. The record contained evidence of Petitioner's persistent and unresolved issues despite ongoing efforts by school administrators to help him improve his instructional methods.

* §2573[1] of the Education Law addresses the appointment and removal of probationary assistant, district or other superintendents,  teachers and other employees employed by a city school district having 125,000 or more inhabitants.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_05090.htm

Although seeking a hearing may be couched in permissive rather than mandatory terms, that will not excuse employee's failing to make a timely demand for such a hearing

A police officer's [Petitioner] initiated a CPLR Article 78 review a determination of the Village Mayor that the Petitioner application for a hearing and further evaluation of a determination of the Chief of Police denying Petitioner's application for benefits pursuant to General Municipal Law §207-c was untimely. Supreme Court sustained the Mayor's decision and Petitioner appealed.

The Appellate Division affirmed the lower court's ruling, explaining:

1. The basis for the Mayor's denial was that the Petitioner's request for a hearing and further evaluation was made more than 10 days after the Petitioner received the Chief's determination, which violated the time requirements set forth in Appendix C, §11 of the governing collective bargaining agreement [CBA] between the Village and the employee organization representing the Village's police officers.

2. A person aggrieved by an administrative determination must exhaust all available administrative remedies before seeking court intervention.

3. Although the CBA provided that the employee "may serve a written demand on the Mayor for a hearing and further evaluation of the application," was couched in permissive rather than mandatory terms, Petitioner was not excused from exhausting the administrative remedies available to him.

4. Here the  CBA's provisions governing an application for benefits pursuant to §207-c of the General Municipal Law are clear -- after an initial denial of benefits, they permit, but do not require, an employee to seek a hearing and further evaluation of the application from the Mayor.

Thus, said the Appellate Division, Petitioner "may" serve a written demand on the Mayor for such hearing and further evaluation but if Petitioner intended to do so the CBA requires Petitioner to do so by filing the written demand upon the Mayor within 10 days after receiving the decision denying benefits, opining that the use of the word "may" in §11 of the CBA simply provided Petitioner with the choice between seeking further review from the Mayor or accepting the Chief's denial of benefits.

In the opinion of the court, the Mayor's denial of Petitioner's demand for a hearing and further evaluation as untimely [1] was not rendered in violation of lawful procedure, [2] was not affected by an error of law, and [3] was not arbitrary or capricious or an abuse of discretion.

The Mayor, said the court, had examined the Chief's denial letter and the certified mail return receipt indicating the Petitioner's receipt of the letter on June 18, "correctly determined that the demand for a hearing ...  was untimely within the meaning of §11 of the CBA, and the mayor "had no discretionary authority to find otherwise," citing JP and Assoc. Corp. v NYS Division of Housing and Community Renewal, 122 AD3 739.

Accordingly, the Appellate Division concurred with the Supreme Court's determination denying the petition and dismissing the proceeding.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_04937.htm

Employee's conduct following an acrimonious end of a romantic relationship with a coworker basis for disciplinary action and termination

An employee [Petitioner] was involved in a romantic relationship with a coworker that ended acrimoniously. The appointing authority [Respondent] thereafter served Petitioner with an notice of discipline pursuant to Civil Service Law §75 alleging that Petitioner had "made numerous prank telephone calls to the coworker, mailed letters disparaging the coworker to other employees and mailed packages containing underwear and notes disparaging the coworker to one particular individual." The Petitioner was also charged that when questioned by representatives of the Respondent, Petitioner made numerous false statements to the interviewers.

Following a hearing, the Hearing Officer dismissed all but one of the allegations of harassment as untimely under Civil Service Law §75(4)* but determined that petitioner was guilty of the sole remaining allegation of harassment involving sending a package to another employee that contained underwear with a note suggesting that the employee may have contracted a sexually transmitted disease from the coworker. In addition, the Hearing Officer determined that Petitioner made three false statements during his questioning by the interviewers.

Based on these findings the Hearing Officer recommended that Petitioner be terminated, which findings and recommendations were adopted by the appointing authority, resulting in Petitioner's dismissal from the position.

Petitioner appealed, contending that efforts to questions the Hearing Officer "to determine if there was any basis to argue that the Hearing Officer was biased" and objected to Respondents' opening statements as being  improper as they "referenced conduct underlying charges that were ultimately dismissed as well as conduct for which no charges were filed."

The Appellate Division ruled that contrary to Petitioner's claim of a right to inquire as to whether the Hearing Officer was biased, Petitioner was not entitled to question the Hearing Officer to determine if there was any basis to argue that the Hearing Officer was biased, explaining that "There is a presumption of integrity on those serving as adjudicators . . . and hearing officers are presumed to be free from bias," citing Donlon v Mills, 260 AD2d 971, leave to appeal denied, 94 NY2d 752 . The court then opined that since Petitioner "failed to establish any reason to question the Hearing Officer's impartiality, [it found] no basis to annul the determination on that ground."

Addressing Petitioner's contention that Respondents' opening statements were improper inasmuch as they referenced conduct underlying charges that were ultimately dismissed as well as conduct for which no charges were filed, the court reject those contention's, indicating that with respect to statements concerning conduct underlying the charges that were ultimately dismissed as untimely, there was no impropriety because, had Respondents established that such conduct would have constituted a crime, they would not have been untimely. 

With respect to Petitioner's objections to statements concerning uncharged conduct, the Appellate Division said that the record "establishes that references to uncharged conduct were 'necessary to refute petitioner's attempts to explain his behavior' and his denials of guilt of the charged misconduct." Further, the decision indicates that the Hearing Officer "based his determination on specific and distinct findings as to each [specification] sustained; the dismissal recommendation was based on his finding that [Petitioner] was guilty of [four] very serious [specifications] of misconduct' . . . There is no record support for the contention that the determination or penalty recommendation was based on uncharged conduct."

In contrast, the Appellate Division found that Petitioner correctly contended that the Hearing Officer erred in relying on the preponderance of the evidence standard. However, opined the court, that error does not require it to annul the determination, explaining that the "preponderance of the evidence standard" used by the Hearing Officer "is a higher standard than the substantial evidence" standard Petitioner asserts should have been employed. Accordingly, the court found that Respondents satisfied a higher, rather than lower, standard of proof."

Concluding that Respondent's determination was supported by substantial evidence and the penalty of termination is not "so disproportionate to the offense as to be shocking to one's sense of fairness," the Pell Doctrine**, there was no abuse of discretion as a matter of law and unanimously confirmed Respondent's determination and dismissed Petitioner's complaint.

* Section 75.4, in pertinent part, provides that "no removal or disciplinary proceeding shall be commenced ... more than more than one year after the occurrence of the alleged incompetency or misconduct complained of and described in the charges, provided, however, that such limitations shall not apply where the incompetency or misconduct complained of and described in the charges would, if proved in a court of appropriate jurisdiction, constitute a crime."

** See Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale and Mamaroneck, 34 NY2d 222, generally referred to as the "Pell Doctrine."  Essentially the Pell Doctrine instructs that any permissible disciplinary penalty may be imposed on an employee found guilty of one or more disciplinary charges and specifications by an appointing authority or arbitrator unless the court finds that, considering the circumstances underlying the disciplinary action, such a penalty is "shocking to one's sense of fairness."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_04834.htm

The traditional common-law elements of negligence are "substantially relaxed" in cases where an employee of an interstate railroad seeks compensation for on-the-job injuries resulting from the railroad's alleged negligence

The Plaintiff in this action was working as an assistant conductor on MTA's Metro-North's New Haven Line [MTA] when she was physically attacked by a passenger while seeking to collect the passenger's fare. MTA Metro-North Railroad submitted a motion for summary judgment dismissing Plaintiff's sole claim under the Federal Employee Liability Act [FELA]. Supreme Court denied MTA's motion and the Railroad appealed. The Appellate Division unanimously affirmed the Supreme Court's ruling.

The Appellate Division explained:

1.  FELA, 45 USC §51 et seq., provides that operators of interstate railroads shall be liable to their employees for on-the-job injuries resulting from the railroad's negligence.

2. In an action brought pursuant to FELA, "... the traditional common-law elements of negligence: duty, breach, damages, causation and foreseeability" are "substantially relaxed" and "negligence is liberally construed to effectuate the statute's broadly remedial intended function."

3. FELA claim "must be determined by the jury if there is any question as to whether employer negligence played a part in the employee suffering an on-the-job injury, however small," but, citing Pidgeon v Metro-North Commuter R.R., 248 AD2d 318, the court noted that "A case is deemed unworthy of submission to a jury only if evidence of negligence is so thin that on a judicial appraisal, the only conclusion that could be drawn is that negligence by the employer could have played no part in an employee's injury."

4. To establish the element of foreseeability, a plaintiff must show that the employer had either actual or constructive notice of the defective condition but notice generally presents an issue of fact for the jury to determine.

Thus, under the FLEA "relaxed standard" applicable here, the court found that Plaintiff had submitted sufficient evidence to raise an issue of fact concerning MTA's actual or constructive notice of a risk of assault to conductors on the New Haven Line sufficient to be submitted to a jury based on Plaintiff testimony that:

[a] she was previously assaulted by a passenger;

[b] there was an ongoing problem of physical intimidation by large groups of adolescents refusing to pay their fares;

[c] Plaintiff had testified that she has called the MTA's rail traffic controllers for police assistance at least 250 times to deal with abusive passengers;

[d] another conductor was punched in the face and knocked out; and

[e] a passenger attempted to stab and rob another conductor on the Harlem Line.

Considering this testimony, the Appellate Division held that Supreme Court's summary judgment rejecting MTA's motion to dismiss Plaintiff's complaint was properly denied.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_05004.htm

State audits and examinations issued during the week ending June 21, 2019

On June 21, 2019, New York State Comptroller Thomas P. DiNapoli announced today the following audits and examinations have been issued.

Click on the text highlighted in blue to access the full text of the item.

Department of Agriculture and Markets: Annual Assessment of Market Orders for 2015 and 2016 (2018-S-44)
The department established procedures to accurately report its assessable expenses for the two years ended June 30, 2016 for the Apple and Sour Cherry Market Orders and for the two years ended March 31, 2016 for the Apple, Cabbage, and Onion Research and Development Programs. The department should work with the state Urban Development Corporation to improve oversight of the Market Order Program, specifically the Apple Market Order and the New York Apple Association Inc. contract.

Department of Agriculture and Markets: Safety of Seized Dogs (Follow-Up) (2019-F-5)
An initial report issued in April 2018 determined the department was adequately overseeing the seizure of dogs to ensure their safety and protect the rights of owners. However, auditors identified four minor deficiencies at four of the 48 shelters they visited. In a follow-up, auditors found the department made progress in addressing the problems identified.

New York City Department of Education (DOE): Compliance With Special Education Requirements: Evaluations (2017-N-3)
The DOE had difficulty meeting the 60-calendar-day time frame requirement for completing evaluations, resulting in potential delays in the provision of services for students. A delay in services could adversely impact students’ educational growth.

Department of Health: Medicaid Program: Improper Medicaid Payments for Recipients Diagnosed With Severe Malnutrition (2017-S-85)
Auditors identified $416,237 in overpayments on inpatient claims that hospitals billed to Medicaid that contained a severe malnutrition diagnosis that medical records did not appear to support. Auditors found the hospitals were not following recommended guidelines for identifying and documenting severe malnutrition.

Department of Health: Medicaid Overpayments for Inpatient Care Involving Mechanical Ventilation Services (2018-S-45)
Auditors identified $975,795 in overpayments on 32 inpatient claims that reported 96 consecutive hours or more of mechanical ventilation services. Auditors found claims processing weaknesses that prevent eMedNY from identifying claims where 96 consecutive hours or more of mechanical ventilation services was not possible.

Metropolitan Transportation Authority (MTA) – New York City Transit and MTA Bus Company: Bus Wait Assessment and Other Performance Indicators (2017-S-54)
Transit’s Service Guidelines Manual contains transit and MTA bus minimum service frequency standards; however, auditors found the guidelines are not always met. Further, there was insufficient documentation to determine if scheduled service was reasonable. Auditors found there is a risk that the number of buses may have been inappropriate to meet customer needs.

New York State Health Insurance Program: CVS Health: Accuracy of Drug Rebate Revenue Remitted to the Department of Civil Service (2018-S-50)
Auditors reviewed the rebate revenue generated from agreements with six drug manufacturers and found that CVS Health did not always invoice drug manufacturers for rebates, collect rebates from the manufacturers, or remit all rebate revenue to Civil Service. As a result, Civil Service is due $2,240,798 in rebates.

Office for People With Developmental Disabilities: Fuel Card (2018-BSE7-02)
Auditors found 119 purchases totaling nearly $8,000 made by one employee were not for legitimate business purposes, but instead for personal use. As a result of our examination, the employee was terminated, arrested, pled guilty to petit larceny (a Class A misdemeanor) and is required to make restitution to the state.

Port Authority of New York and New Jersey (PANYNJ): Selected Aspects of Leasing Practices for Real Estate Services Department and Port Commerce (2017-S-58)
The PANYNJ did not always accurately account for its leases. Discrepancies existed in the lease information contained in two primary systems. Moreover, neither system accounted for all PANYNJ leases. Auditors also found two properties that were vacant for a combined 45 months as of Nov. 29, 2018, resulting in forgone revenue totaling $828,290, and the authority could not document that it attempted to lease the properties examined at the market rate.

State Commission of Correction: Facility Oversight and Timeliness of Response to Complaints and Inmate Grievances (Follow-Up) (2019-F-4)
An audit released in January 2018 found the commission received data such as complaints and unusual incidents regarding various aspects of Department of Corrections and Community Supervision facilities operations, but had not analyzed and tracked the information to identify any trends or patterns that may have warranted monitoring or review. In a follow-up, auditors found the commission made significant progress in addressing the issues identified.

State Education Department (SED): Amerimed Kids LLC: Compliance With the Reimbursable Cost Manual (2018-S-17)
Amerimed Kids is a New York City-based for-profit organization authorized by SED to provide Preschool Special Education Itinerant Teacher services to children with disabilities who are between the ages of three and five years. For the three fiscal years ended June 30, 2015, auditors identified $975,845 in reported costs that did not comply with state requirements in the RCM, including $479,500 in compensation to the executive and assistant executive directors.

State Education Department: Family and Educational Consultants (FEC): Compliance with the Reimbursable Cost Manual (2018-S-29)
FEC is an SED-approved, for-profit special education provider located in Ulster County. FEC provides preschool special education services to children with disabilities who are between three and five years of age. For the three fiscal years ended June 30, 2015, auditors identified $161,956 in ineligible costs that FEC reported for reimbursement. The ineligible costs included $96,006 in personal service costs and $65,950 in other than personal service costs.

SUNY Maritime College: Review of Procurement Card (PCard) Transactions and Travel Card Expenses (2017-Credit Card-01)
Auditors found 58 of 59 PCard transactions in a sample were inappropriate, did not comply with state or Maritime PCard guidelines or had insufficient documentation to determine appropriateness. This includes $12,340 in inappropriate transactions. Maritime also approved up to $3,750 in unnecessary luxury lodging accommodations over a six-year period for a professor who taught an annual course on a Carnival Cruise ship.

Department of Transportation (DOT): Welcome Center and Rest Area Planning and Implementation (2017-S-25)
DOT did not follow its own policies and procedures for capital project planning and implementation for welcome centers and rest areas, prioritizing those ahead of other projects. DOT also incurred cost overruns of more than $8.8 million and needlessly spent approximately $4 million due to poor planning for one rest area and four welcome center capital projects.

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