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  probationary period 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

Courts impose stricter standards than required by CPLR Article 75 when considering a petition seeking to vacate an arbitration award promulgated pursuant to compulsory arbitration

The educator [Petitioner] in this CPLR Article 75 action appealed the Supreme Court's granting the appointing authority's motion to confirm an arbitration award terminating Petitioner's employment as a teacher, denied her petition seeking to vacate the award and dismissed the proceeding. Petitioner appealed but the Appellate Division unanimously affirmed the lower court's rulings.

Education Law §3020-a(5) provides that judicial review of a hearing officer's findings is limited to the grounds set forth in CPLR 7511(b), which provides that the court may vacate the award in the event it finds that the rights of the party challenging the award were prejudiced by:

(i) corruption, fraud or misconduct in procuring the award; or

(ii) partiality of an arbitrator appointed as a neutral, except  where  the award was by confession; or

(iii) an arbitrator, or agency or person making the award exceeded his power or so  imperfectly executed it that a final and definite award upon  the subject matter submitted was not made; or

(iv) failure to follow the CPLR Article 75 procedures, unless the party applying  to vacate the award continued with the arbitration with notice of the defect or defects and without objection.

Where, however, the parties have submitted to compulsory arbitration, as was here the case, judicial scrutiny is stricter in that the determination must be in accord with due process, supported by adequate evidence, be rational, and not arbitrary and capricious, the criteria required to be met in adjudicating final administrative disciplinary determinations in CPLR Article 78 proceedings.

The Appellate Division held that arbitrator's decision here being challenged was based on sufficient evidence, was rational, and was not arbitrary or capricious. Further, said the court, Petitioner did not dispute the absences and lateness noted in Specifications 1 through 6, which "the arbitrator properly found were excessive," and as to which the arbitrator noted that Petitioner failed to seek a medical accommodation until shortly before the charges were filed against her.

Further, noted the Appellate Division, Petitioner did not provide medical documentation supporting her claim that the absences and lateness were causally related to her medical condition.

Turning to the charges and specification alleging Petitioner had subjected a student to corporal punishment, the Appellate Division acknowledged the fact that the arbitrator had credited the student's testimony with respect to this element in the disciplinary action taken against Petitioner, and, citing Paul v NYC Department of Education, 146 AD3d 705, opined that a "hearing officer's determination of credibility is largely unreviewable."

Applying the Pell Doctrine set out in Matter of Pell v. Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale and Mamaroneck, 34 NY2d 22, the Appellate Division said that termination of Petitioner's employment does not shock the conscience given her repeated and prolonged attendance issues, which were the subject of two prior disciplinary proceedings, and her other substantial misconduct.

Citing Bolt v NYC Department of Education, 30 NY3d 1065, the court observed that although " .... reasonable minds might disagree over what the proper penalty should have been does not provide a basis for vacating the arbitral award or refashioning the penalty."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_05088.htm

Court remands appeal to the employer "only for the development of appropriate written factual findings," not for a new evidentiary disciplinary hearing

In this somewhat convoluted litigation, the county's personnel officer [Petitioner] was suspended by the County Board of Supervisors [Respondent] with pay and thereafter Respondent served Petitioner with charges seeking to remove her the position for cause pursuant to §24.1 of the Civil Service Law.  §24.1 essentially provides that the officer or body having the power of appointment of the members of a municipal civil service commission or a personnel officer may at any time remove any such member or personnel officer for cause, after a public hearing, and appoint his successor for the unexpired term.*

Ultimately Respondent, following a hearing, determined that cause for Petitioner's removal existed and terminate her. Petitioner then initiated a CPLR Article 78 proceeding seeking to annul Respondent's determination.

Supreme Court transferred the matter to the Appellate Division. The Appellate Division concluded that it could not conduct a meaningful review of Respondent's determination because Respondent "did not make any findings of fact, despite having heard testimony from multiple witnesses and considering the admitted documentary evidence." The Appellate Division then "withheld decision" and remitted the matter for Respondent to develop appropriate factual findings.

Contending that this action by the Appellate Division had "essentially nullified" Respondent's determination with respect to her termination from her position, Petitioner demanded that Respondent reinstate her to her former position with back pay and benefits. When Respondent refused, Petitioner commenced a second CPLR Article 78 proceeding seeking reinstatement and back pay.

Supreme Court treated this second petition as one in the nature of mandamus ** and dismissed the petition, observing that Petitioner had failed to establish that she had a clear legal right to the relief sought. Petitioner then appealed this ruling as well but the Appellate Division sustained the Supreme Court's ruling.

The court then explained that Petitioner's demanded that she be reinstated to her position of personnel officer was based on an incorrect interpretation of its prior decision as that decision did not remit the matter to Respondent for a new evidentiary hearing, but, rather, "only for the development of appropriate written factual findings." This ruling by the Appellate Division is posted on the Internet, and its URL is set out at Footnote [3] below.

Respondent subsequently issued findings of fact and conclusions of law in support of its determination to remove petitioner from her position. Petitioner commenced another proceeding challenging the Respondent's response to the court's directive to make findings of fact. The Appellate Division's ruling is this regard is also posted on the Internet, and its URL is set out at Footnote [4] below.

Picking up at the point where Respondent issued findings of fact and conclusions of law in support of its determination, finding that Petitioner withheld relevant information and material from the County's labor attorney and submitted them to the Appellate Division, addressing the status of the several Article 78 actions initiated by Petitioner, explained that "Because we withheld decision, the [initial] matter was still pending before this Court and it was unnecessary for any party to commence a new proceeding. Nevertheless, as Petitioner has commenced this proceeding and moved to withdraw her petition in the 2015 proceeding, we now address the merits of Respondent's determination.

The Appellate Division concluded that Respondent's determination to remove Petitioner from office is supported by substantial evidence. Citing Civil Service Law §24.1 provides that "[t]he officer or body having the power of appointment of . . . a personnel officer may at any time remove any such . . . personnel officer for cause, after a public hearing."

Citing Matter of Haug v State Univ. of N.Y. at Potsdam, 32 NY3d 1044, the court opined that when reviewing an administrative determination rendered after a hearing that is required by law, the court's standard is whether the determination "is, on the entire record, supported by substantial evidence" which is a "minimal standard ... demand[ing] only that a given inference is reasonable and plausible, not necessarily the most probable." Thus the court may not substitute its judgment for that of the panel nor weigh the evidence presented, beyond assuring that there is substantial evidence.

The record establishes that two former employees commenced proceedings against the Respondent alleging that they were improperly terminated. An issue raised in each of those proceedings was whether Petitioner was interim or acting director of the County health department or held herself out as such. When defending the County in those proceedings, the Respondent and Petitioner denied these allegations.

According to the attorney representing the Respondent, Petitioner had affirmed that she had not been appointed to the position either officially or unofficially, that she had never held herself out as such and that she was not in any way acting or interim director of the health department. The attorney also indicated that she expected Petitioner to provide any documents in the Respondent's possession that were relevant to any issues in the proceedings.

The Appellate Division noted that the record contains numerous documents indicating that Petitioner held herself out as interim director of the health department and that Petitioner admitted in her testimony that at times she had done so. Although Petitioner provided reasons for her actions and asserted that the attorney was aware of this information during the prior proceedings, Respondent specifically discounted Petitioner's credibility and truthfulness as a witness. Moreover, even if the attorney obtained these documents at some point from other sources, the record indicated that Petitioner had not provided them to the attorney.

Accordingly, said the court, substantial evidence supports Respondent's determination to remove Petitioner for cause because she withheld relevant information and materials from the attorney, which the attorney should have been able to review to determine whether they were necessary or important to the defense of matters being litigated matters.

The Appellate Division also reject Petitioner's argument that Respondent's factual findings are defective due to not being signed by all members of the hearing panel. No statute or regulation requires a unanimous vote of a hearing panel to remove a public official pursuant to Civil Service Law §24.1 nor that all of the participating panel members sign a determination said the court, concluding that the signatures of five of the eight original participating panel members constituted sufficient approval of the factual findings.

As to the penalty imposed, termination, the Appellate Division indicated that "A penalty must be upheld unless it is so disproportionate to the offense as to be shocking to one's sense of fairness, thus constituting an abuse of discretion as a matter of law," citing O'Connor v Cutting, 166 AD3d 1099. Further, said the court, the record reflects that the attorney relied primarily on Petitioner for correct information and evidence in defending the Respondent in the two proceedings, as she typically did in all labor proceedings, due to Petitioner's position as personnel officer. Notwithstanding the favorable decisions that the Respondent obtained in those two matters, the Appellate Division pointed out that Petitioner signed and submitted affidavits that contained false information, primarily because she failed to provide the attorney with relevant documents and accurate information.

Finally, the court pointed out that Civil Service Law §24 does not provide any disciplinary remedy other than removal of the incumbent from the position in contrast to Civil Service Law §75.3 which provides a range of penalties running from "a reprimand" to dismissal from the position. However, said the Appellate Division, even were imposing a lesser penalty possible, "it is not proper to substitute our judgment for that of [Respondent]" absent its finding that the  penalty of termination was shocking or disproportionate under the circumstances, i.e., the penalty imposed violated so-called "Pell Doctrine," Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale and Mamaroneck, 34 NY2d 222.

* §24.2, in pertinent part, provides that "A municipal civil service commissioner or personnel officer may be removed by the state civil service commission for incompetency, inefficiency, neglect of duty, misconduct or violation of the provisions of this chapter or of the rules established thereunder ...."

** The writ of mandamus is one of number of the ancient “common law” writs and is granted by a court to compel an official to perform "acts that officials are duty-bound to perform." Other writs include the writ of prohibition – a writ issued by a higher tribunal to a lower tribunal to "prohibit" the adjudication of a matter then pending before the lower tribunal on the grounds that the lower tribunal "lacked jurisdiction;" the writ of injunction - a judicial order preventing a public official from performing an act; the writ of "certiorari," compelling a lower court to send its record of a case to the higher tribunal for review by the higher tribunal; and the writ of “quo warranto” [by what authority], requiring the target of the writ to explain the authority for the action challenged. The Civil Practice Law and Rules sets out the modern equivalents of the surviving ancient writs.

The decisions are posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_05031.htm 

and

http://www.nycourts.gov/reporter/3dseries/2019/2019_05035.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 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 made a motion for summary judgment dismissing Plaintiff's sole claim under the Federal Employee Liability Act [FELA]. Supreme Court denied MTA's motion and MTA appealed. The Appellate Division unanimously affirmed the Supreme Court's ruling.

The Appellate Division explained:

1. The  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 under FELA, "the plaintiff must prove the traditional common-law elements of negligence: duty, breach, damages, causation and foreseeability" but these elements are "substantially relaxed" and "negligence is liberally construed to effectuate the statute's broadly remedial intended function."

3. A claim under FELA "must be determined by the jury if there is any question as to whether employer negligence played a part, however small, in producing a plaintiff's injury" 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 "relaxed standard," 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

Uniformed Services Employment and Reemployment Rights Act of 1994 Class Action claims survive employer's motion to dismiss the action