Selection of a medical officer to examine an employee terminated from her position pursuant to §72.5 of the Civil Service Law to determine the individual's "fitness for reinstatement" to the position

An individual [Plaintiff] was placed on "ordinary disability leave" involuntarily by the appointing authority pursuant to Civil Service Law §72(5).* About two years later Plaintiff was terminated from her position by the appointing authority pursuant to Civil Service Law §73.**

When she sought to be reinstated to her position the Department of Citywide Administrative Services (DCAS) designated an outside entity, JurisSolutions, to provide a medical officer to examine Plaintiff to determine her fitness to return to duty. Following the medical examination, Plaintiff filed a CPLR Article 78 petition contending that the physicians that had conducted her fit-for-duty evaluation were unqualified.

The Appellate Division dismissed Plaintiff's cause of action, holding that DCAS did not improperly delegate its duty to select a medical officer to an outside entity, JurisSolutions.

Both Civil Service Law §72(1) and §73 essentially provide that "When in the judgment of an appointing authority an employee is unable to perform the duties of his or her position by reason of a disability . . . the appointing authority may require such employee to undergo a medical examination to be conducted by a medical officer selected by the civil service department or municipal commission having jurisdiction."

The court, noting that neither §72(1) or §73 mandates any method that the "civil service department or municipal commission having jurisdiction" must use to select the medical officer, and nothing in the text prohibits DCAS from employing a procurement process to select the medical officer who will conduct the evaluation.

The Appellate Division then cited Lazzari v Town of Eastchester, 20 NY3d 214, a case involving a public employee on "worker's compensation leave" pursuant to §71 of the Civil Service Law, in which the Court of Appeals opined "Although Civil Service Law §71 does not indicate to whom the certification must be made, read in context, it is clear that the certification is made to the Department of Human Resources acting as a civil service commission, the body that arranges for the examination and to whom the results of such an examination are reported. Indeed, the purpose of section 71 is to involve a neutral agency and a physician, independent of both the employee and the employer, with appropriate oversight."

The Appellate Division, noting that "Although JurisSolutions provides the doctors, DCAS maintains complete control over the selection process," rejected Plaintiff's contention that the doctors that conducted her fit-for-duty evaluation were unqualified as not being supported by the record, and the hearing officer's determinations concerning the doctors' credibility should not be disturbed.

* Civil Service Law §72(5), in pertinent part, provides "Notwithstanding any other provisions of this section, if the appointing authority determines that there is probable cause to believe that the continued presence of the employee on the job represents a potential danger to persons or property or would severely interfere with operations, it  may place such employee on involuntary leave of absence   immediately."

** Civil Service Law §73 of the Civil Service Law provides, in pertinent part, "When an employee has been continuously absent from and unable to perform the duties of his position for one year or more by reason of a disability, other than a disability resulting from occupational injury or disease as defined in the workmen's compensation law, his employment status may be terminated and his position may be filled by a permanent appointment."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_04658.htm

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A request for reconsideration of a final administrative decision neither tolls the running of the Statute of Limitations for bring an Article 78 action nor began anew the time within which judicial review could be sought

A job seeker [Applicant] appealed the decision of Supreme Court granting the prospective employer's [Agency] motion the dismiss Applicant's CPLR Article 78 petition seeking a court order annulling the Agency's decision not to hire the Applicant and directing the Agency to reconsider his application for employment.

The Appellate Division Unanimously affirmed the Supreme Court's action explaining that the lower court had "properly dismissed this proceeding as untimely" as it had been commenced more than four months after the Agency's determination to deny Applicant's renewed application for employment became final and binding on the Applicant for the position.

The court rejected Applicant's argument that the statute of limitations period did not begin to run on the date of the General Municipal Law §50-h hearing* held in connection with a notice of claim Applicant had filed with the Agency concerning his claim for damages arising from its alleged discrimination in violation of Correction Law §752,** noting that one cannot "circumvent the statute of limitations by demanding that an agency change its determination and seeking [a writ of] mandamus to compel when that demand is refused."***

The Appellate Division characterized the Applicant's notice of claim as constituting "at best a plea for reconsideration" which effort "neither tolled the Statute of Limitations nor began anew the time within which review could be sought," citing Miller v McGough, 97 AD2d 416. Further, noted the court, the record does not support Applicant's claim that he made a demand for compliance with a duty enjoined on the Agency by law at the §50-h hearing.

* § 50-h, Examination of claims, sets out the procedures to be followed in the event an individual files a notice of claim is filed against a political subdivision of the State involving the occurrence and extent of the injuries or damages for which claim is made.

** §752 of the Corrections Law prohibits "Unfair discrimination against persons previously convicted of one or more criminal offenses.

*** 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]. The Civil Practice Law and Rules sets out the modern equivalents of the surviving ancient writs.

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2019/2019_05069.htm

Initiating litigation in federal court under a pseudonym

An employee of the Port Authority of New York and New Jersey filed the complaint under the pseudonym "Female Port Authority Officer 47708" v Port Authority of New York and New Jersey.

In this appeal to the United States Circuit Court of Appeals, Second Circuit the court initially noted the case was captioned: “Female Port Authority Officer 47708,” until now notwithstanding the fact that the employee did not object to the use of her name in court.

With respect to filing a complaint under a pseudonym, the Second Circuit, citing Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, explained that "[g]iven the presumption in favor of open records, a district court may permit a plaintiff to use a pseudonym only in the unusual circumstances in which 'the plaintiff’s interest in anonymity' outweighs both the public interest in disclosure and any prejudice to the defendant.”

However, the district court never made such a determination, nor, said the Second Circuit, did it "discern any basis for permitting to proceed under a pseudonym,"* and directed the Clerk of Court is directed to amend the caption to read as follows:

Kathleen Howard, Plaintiff-Appellant, v. Port Authority of New York and New Jersey, Port Authority Police Department of New York and New Jersey, John Degnan, Chairman, Michael Fedorko, Superintendent, Police Officer, 18-2423-CV

Howard's Discrimination Complaint

The federal district court dismissed Howard's complaint that (1) she suffered sexual harassment and (2) was terminated from her position as a Port Authority probationary police officer  on the basis of her sex, both in violation of 42 U.S.C. §2000e et seq. and 42 U.S.C. §1983. On appeal, however, Howard argued only that she was discriminated against "because she is a woman."

Turning to the merits of this aspect Howard's complaint, the Second Circuit said that Howard primarily substantiates her sex discrimination claim by arguing that [1] although she informed police investigators that she could not recall answers to their questions and was fired, her similarly situated male colleagues lied to police investigators and were not fired and [2] that the Port Authority’s proffered reason for her termination is false.

Apply the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 , the court explained that a plaintiff must [1] establish a prima facie case of discrimination, which [2] shifts the burden to the employer to come forward with a legitimate, nondiscriminatory reason for the adverse employment action. At the summary judgment stage, once the employer comes forward with a permissible reason for the adverse employment action, the plaintiff must present evidence from which a reasonable jury could find that the employer’s justification is a pretext for intentional discrimination.

Here the Circuit Court rejected the Port Authority argument that Howard did not possess the minimal qualifications to be a police officer because she is not a truthful person because the Port Authority did not raise this argument with the district court and it "decline[d] to consider this waived argument."

Assuming, but not deciding, that Howard has satisfied her “minimal” burden to establish that she was “similarly situated in all material respects” to fellow probationary police officers who were not terminated despite engaging in conduct materially similar to Howard’s conduct, the Circuit Court addressed the question of whether Howard has presented evidence from which a reasonable jury could find that she was the victim of intentional sex discrimination by applying the "Reeves" test.**

Reeves requires the court “to examine the entire record” and “make [a] case-specific assessment as to whether a finding of discrimination may reasonably be made.” "After thoroughly reviewing the record," the Circuit Court concluded that a reasonable jury could not find by a preponderance of the evidence that Howard’s termination was motivated by her sex. In the words of the court, "[a]ssuming that Howard has presented sufficient evidence to carry her de minimis burden of establishing a prima facie case, on the record here, such evidence—even combined with some evidence of pretext—is insufficient as a matter of law to carry her ultimate burden at trial."

* The Court also noted that "until now even though the employee did not object to the use of her name in court."

** Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133. In Reeves the United States Supreme Court rejected the view of those circuits that had granted summary judgment for the employer on the ground that the terminated employee had failed to prove more than employer pretext (the ‘pretext plus’ cases). “Pretext plus” is the phrase used when referring to the requirement that a plaintiff both prove that an employer’s proffered reason is untrue (the “pretext” evidence) and offer “additional evidence” (the “plus”) of discrimination.

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/5c339c32-be73-4320-9359-51a40765b950/2/doc/18-2423_so.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/5c339c32-be73-4320-9359-51a40765b950/2/hilite/

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

The appropriate statute of limitations for commencing litigation of an issue depends of the nature of the redress being sought

In this action the Appellate Division affirmed Supreme Court dismissal of the Plaintiff's CPLR Article 78  petition seeking to annul the appointing authority's termination of Plaintiff's on the grounds that it was untimely, explaining that CPLR §217(1) requires that an Article 78 proceeding challenging an individual's termination from government employment must be brought within four months from the date on which the appointing authority's decision to terminate the employee became final and binding.*

The court rejected Plaintiff's claim that he was entitled to the longer period for commencing his action available under the Family Medical Leave Act because, said the court, "the crux of [Plaintiff's] proceeding was to challenge and seek redress for the administrative decision to fire him, and not to make a claim under the FMLA.

* N.B. Submitting request to the appointing authority to reconsider its decision does not serve to toll the running of the controlling statute of limitations.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_04648.htm