New York State's local government tax cap to remain at two percent for calendar 2020

Property tax levy growth for all counties, towns, fire districts, 44 cities and 10 villages having fiscal years that close on Dec. 31 will be capped at 2 percent for the 2020 fiscal year according to a statement released by New York State Comptroller Thomas P. DiNapoli dated July 11, 2019. 

The tax cap, which first applied to local governments in 2012, limits tax levy increases to the lesser of the rate of inflation or 2 percent with some exceptions, including a provision that allows municipalities to override the tax cap. During the 2014 through 2018 fiscal years, municipalities with a fiscal year ending on Dec. 31 had their levy growth capped at less than 2 percent.

For a list of allowable levy growth factors for all local governments, visit: https://www.osc.state.ny.us/localgov/realprop/pdf/inflation_allowablegrowthfactors.pdf

Paid Family Leave information for employers in the public sector and the private sector

New York State offers complete details and resources on Paid Family Leave at PaidFamilyLeave.ny.gov, including a special page for public employers. Help is also available via a toll-free Paid Family Leave Helpline at (844) 337-6303, Monday through Friday, 8:30 a.m. – 4:30 p.m.

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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Disability Benefits for fire, police and other public sector personnel - Addresses retirement for disability under the NYS Employees' Retirement System, the NYS Teachers' Retirement System, General Municipal Law Sections 207-a/207-c and similar statutes providing benefits to employees injured both "on-the-job" and "off-the-job." For more information click on     http://booklocker.com/books/3916.html

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/