Considering certain arguments advanced by a petitioner for a new trial following an adverse decision

The appellant [Plaintiff] in this action sued his employer, a public institution of higher education and a number of its administrators as individual defendants [Defendants] alleging that he was not reappointed to his teaching position in retaliation for his complaints alleging unlawful discrimination. A jury ultimately returned a verdict in favor of the Defendants and Plaintiff appealed the federal district court's judgment and denial of his motion for a new trial.

Among the issues raised by Plaintiff in his appeal were the following:

1. The district court's evidentiary rulings.

The United States Circuit Court of Appeals, Second Circuit, said that such ruling are reviewed for abuse of discretion, citing Manley v. AmBase Corp., 337 F.3d 237, and “[u]nless justice requires otherwise, no error in admitting or excluding evidence -- or any other error by the court or a party -- is ground for granting a new trial, for setting aside a verdict, or for vacating, modifying, or otherwise disturbing a judgment or order." Further, said the court, at every stage of the proceeding the court must disregard all errors and defects that do not affect any party’s substantial rights. 

Applying this deferential standard of review, the circuit court ruled that the district court did not exceed the bounds of its discretion in admitting Plaintiff's teaching evaluations from his previous university for two purposes: (a) to impeach Plaintiff’s credibility given his representation that he generally received good teaching evaluations; and (b) to provide after-acquired evidence of misrepresentations that could mitigate damages. In this instance, said the court, the district court "reasonably determined that the probative value of such evidence for impeachment purposes outweighed any potential prejudicial effect because [Plaintiff's] credibility was critical to his retaliation claim."

2. The district court's jury instruction concerning "after-acquired evidence."

The Circuit Court found that Plaintiff had failed to object to the challenged instruction during the trial and a  party who fails to object to a jury instruction at trial waives the right to make that instruction the basis for an appeal. Further, observed the court, assuming that Plaintiff had objected to this instruction, any error would be harmless because it relates only to the calculation of damages and in this instance the jury found for the Defendants and, thus, never calculated damages.

3. Denial of Plaintiff's motion for Venue Transfer.

To successfully challenge the denial of a motion to transfer of venue after entry of a final judgment, a party must demonstrate that the outcome of the trial would have been different had the case been transferred. The circuit court found that Plaintiff failed to meet this burden as he did not contend that the outcome of his trial would have been different in the Southern District of New York. The court also noted that Plaintiff's claim that "a Title VII retaliation claim cannot get a fair hearing in the Northern District [of New York] is belied by the fact that a jury found in his favor at [Plaintiff's] first trial" in the course of this litigation.

4. Challenges to the district court’s discovery rulings.

Although Plaintiff complained that he was prejudiced by the district court’s limitation on his discovery request, the Circuit Court observed that Plaintiff "failed to seek any additional discovery from the [district] court despite the court’s express invitation to do so." In addition, observed the Circuit Court, Plaintiff never objected to the Defendants’ compliance with the court orders until after his second trial resulted in a verdict against him, when he raised it for the first time as a ground for a new trial. Having failed to reserve these issues below, the Circuit Court held that Plaintiff cannot now pursue them on appeal and deemed them waived.

5. Denial of Plaintiff's motion for a new trial on the ground that the jury’s verdict was against the weight of the evidence.

The Circuit Court of Appeals explained that "It is well established that '[a] district court’s denial of a motion for a new trial on weight-of-the-evidence grounds, is not reviewable on appeal", citing Rasanen v. Doe, 723 F.3d 325.

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/6daacf97-43d4-4cc0-bde4-e05fc35168b9/1/doc/17-3512_so.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/6daacf97-43d4-4cc0-bde4-e05fc35168b9/1/hilite/

An appointing authority may, as a matter of discretion, elect not to fill a vacant position notwithstanding the availability of an appropriate eligible list for the position

After reviewing the duties and responsibilities of the position of stenographer then  held by Plaintiff, the County Civil Service Commission advised  the Appointing Authority that it had reclassified the position to senior stenographer. The Commission then certified the promotion list for senior stenographer to the Appointing Authority. Plaintiff's name was first on the list certified to the Appointing Authority.

The Appointing Authority returned the list to the Commission, indicating that "it would not be making an appointment to the position of senior stenographer at that time."*

Plaintiff sued, seeking a court order compelling the Appointing Authority to appoint her to the reclassified position, an action "sounding in mandamus."** Supreme Court never reached the merits of Plaintiff's claim as it dismissed her petition on the grounds that it was untimely. The Appellate Division affirmed the lower Court's ruling explaining  that although Plaintiff knew that Appointing Authority was not going to appoint her to the position of senior stenographer, she waited more than six months before commencing her CPLR Article 78 action.

The Court pointed out that "before commencing a proceeding in the nature of mandamus, it is necessary to make a demand and await a refusal and the Statute of Limitation begins to run on the date of the refusal and expires four months later." A party, however, cannot delay in making his demand, thereby extending indefinitely the period during which he or she is required to take action. In this instance the Appellate Division decided that Plaintiff had not proceeded with sufficient promptness in making her demand and thus the doctrine of laches barred her from suing.***

Although Plaintiff's action was found untimely and thus not decided on the merits, as a general proposition an appointing authority cannot be required to fill a vacant position, even if there is an appropriate eligible list available. For example, in Porto v Town of Harrison, 100 AD2d 870, the Appellate Division said that an individual on an eligible list does not have a "presumptive right" to appointment." 

In the event a court or a civil service commission is confronted with an eligible's demand to be appointed to the vacancy sought, it will typically decline to act on the ground that it lacks the power to command an appointing authority to fill a vacancy, which is  a power vested in the appropriate appointing authority.

Indeed, the genesis of the modern "rule of three"  is the Court of Appeals' decision in People v Mosher, 163 NY 32 as prior to 1900 New York State civil service appointments from eligible lists were based on "the rule of one," also referred to as "the rule of the list." This rule mandated the appointment of the candidate standing highest on the eligible list certified by the responsible civil service commission to the appointing authority. In 1900 "the rule of one" was struck down by the high court as unconstitutional. 

In Mosher the Court explained that "if the civil service commissioners have power to certify to the appointing officer only one applicant of several who are eligible and whom they have, by their own methods, ascertained to be fitted for a particular position, and their decision is final ... then the civil service commission becomes and is the actual appointing power."

This decision prompted establishment of the so-called "rule of three," currently set out in Section 61.1 of the Civil Service Law. Section 61.1 permits the appointing authority to select from among those attaining the highest scores on the eligible list and who are interested in the appointment. The rule of three was ruled valid by the Court of Appeals in People v Gaffney, 201 NY 535, a case decided in 1911.****

However, the so-called Rule of Three is not literally "the rule of three."

In applying the Rule of Three, tie scores can allow the appointing authority to make its selection from among far more than three eligibles. For example, if the eligible list consists of one candidate having a score of 100, a second with a score of 99 and 60 candidates each with a score of 98, all 62 eligibles will be deemed "reachable for appointment." On the other hand, if there is but one vacancy to fill and 60 individuals attained a score of 100 while one eligible had a score of 99 and another eligible had a score of 98, the appointing authority may only select from among the "top 60" eligibles and may not consider either of the two lower scoring eligibles for the appointment.

Further, under certain circumstance, Section 60.1 of the Civil Service Law permits the responsible civil service commission to combine two eligible lists in order to provide a "mandatory list" -- a list consisting of at least three qualified candidates willing to accept the position.

In contrast, the "rule of one" is mandated in situations involving reinstatement from a preferred list. Where a preferred list is certified, the appointing authority must appoint the most senior individual on the preferred list willing to accept the appointment or keep the position vacant.

In addition, the Court of Appeals has concluded that no strong public policy prohibits an appointing authority from agreeing to be bound by a "rule of one" -- appointing the eligible standing highest on the list certified to fill the position -- in the course of collective bargaining where a probationary period must be successfully completed in order for the appointee to attain tenure in the position.

* Although the decision does not indicate Plaintiff's status following the reclassification of her former position, as public policy disfavors "reclassifying an individual out of a job" presumably Plaintiff was reassigned to another available stenographer position.

** A writ of mandamus is one of a number of "ancient writs" and was issued by a court to command the performance of an official or ministerial duty by a public officer or a lower court. A Writ of Prohibition is another of the "ancient writs." It is issued by a higher tribunal to a lower tribunal to "prohibit" the adjudication of a matter then pending before the lower tribunal, typically on the grounds that the lower tribunal "lacked jurisdiction." Other "ancient writs" include the writ of injunction - a judicial order preventing a public official from performing an act. New York State's Civil Practice Law and Rules [CPLR] sets out the modern equivalents of the surviving ancient writs.

*** Laches results from the failure of a party to initiate action to enforce a claimed right before the expiration of the controlling statute of limitations.

**** See, also, Matter of Snyder, 132 A.D.2d 905, 907, aff'd 72. N.Y.2d 981, a case involving an employee eligible for contingent permanent appointment to a temporarily vacant position did not attain such status as the result of his being  provisionally appointed to the temporary vacancy absent the appointing authority affirmatively designating the appointment as "contingent permanent." The Court of Appeals explained that said that making an appointment on a contingent permanent basis was discretionary and that the appointing authority did not have to make such an appointment merely because it was possible to do so.

The decision is posted on the Internet at:

https://www.leagle.com/leaglesearch?cite=239+A.D.2d+415+

Individual caring for an ailing family member is not a member of a protected class under New York State's Human Rights Law

In an action commenced pursuant to CPLR Article 78 and Executive Law §298, Plaintiff challenged the New York State Division of Human Rights' [SDHR] finding that there was no probable cause to believe that her employer [Employer] had engaged in any unlawful discriminatory practice against her. The Appellate Division affirmed the Supreme Court's decision denying Plaintiff's petition.

The Appellate Division explained that Plaintiff's challenging SDHR's determination of "no probable cause" with respect to her complaint based on her status as a caregiver for a member of her family failed as a matter of law as serving as a care giver for an ailing family member is not a protected activity under the State's Human Rights Law.

With respect to Plaintiff's allegation that her Employer discriminated against her based on its "perceiving" her to be disabled due to a mental illness or an addiction based on its making two inquiries concerning Plaintiff's behavior which Employer believed was unusual and, on one occasion, requiring her to undergo a drug test, the Appellate Division ruled that SDHR rationally concluded that those events alone did not establish that Plaintiff's Employer perceived her to be disabled due to an addiction or mental illness.

Significantly, the court noted that Plaintiff did not  allege that she suffered any adverse employment or personnel action resulting from those events or that she was subjected to "discriminatory intimidation, ridicule, and insult that [was] sufficiently severe or pervasive to alter the terms or conditions of employment."

Noting that "probable cause" for the purposes of New York State's Human Rights Law "exists only when, after giving full credence to the complainant's version of the events, there is some evidence of unlawful discrimination," the Appellate Division opined that there was no evidence before SDHR sufficient to support Plaintiff's contention that she had been subjected to acts of unlawful discrimination by her Employer.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_06282.htm

Claiming the protections of the Doctrine of Legislative Immunity in the course of litigation

The Doctrine of Legislative Immunity may be invoked by members of a legislative body being sued for alleged acts or omissions made in the course of their serving in their official capacity as a legislator.*

In this action certain members of a school board [Members] were subpoenaed to give depositions in the course of litigation initiated by the Plaintiffs in federal district court against the school district. The Members resisted, contending that they could not be forced to appear for such depositions because they were entitled to legislative immunity.

The United States District Court, Southern District of New York, affirming an order of the magistrate judge, rejected the Members' claim that they were entitled to legislative immunity that protects them against being called as witnesses at depositions regardless of whether they are parties in the action and directed the Members to appear for their depositions. The Members appealed the district court's ruling to the United States Court of Appeals, Second Circuit.

The Circuit Court rejected the arguments advanced by the Members that they entitled to legislative immunity explaining that "because the Board Members are not parties to this action and have not raised a colorable claim of official immunity," they are not within the ambit of the Doctrine.

Citing Mitchell v Forsyth, 472 U.S. 511, in which the Mitchell court described such “immunity from suit” as “entitlement not to stand trial or face the other burdens of litigation,” the Circuit Court said that the Members’ claim that their status as legislators shields them from serving as witnesses at depositions "sounds in evidentiary privilege,** and, as non-party witnesses seeking to challenge an order compelling them to appear for depositions, they have not presented a question of their entitlement to immunity."

Further, the Circuit Court opined that although the Members attempted to cloak  their claims under color of seeking the protection of legislative immunity, in fact the Members "in this case have sought to exercise an evidentiary privilege to avoid attending a deposition."

As the Members’ claims were founded on an evidentiary privilege, the Circuit Court concluded that it lacked jurisdiction over the appeal of the order compelling their attendance at the depositions as “[a]n order compelling testimony in an ordinary civil or criminal action is neither a final order ... nor an interlocutory order granting an injunction ... and it is not appealable.”

In contrast, the Circuit Court pointed out that to obtain such appellate review, the subpoenaed person ordinarily "must defy the district court’s enforcement order, be held in contempt, and then appeal the contempt order" which is regarded as a final order.

Indicating that this requirement applies whether the individual subpoenaed “is a party to the litigation or a non-party witness,” the Circuit Court granted the Plaintiffs' motion to dismiss the Members' appeal seeking to vacate the lower court's decision.

* The Doctrine of Legislative Immunity does not protect legislators from criminal prosecution, nor does it relieve them from responsibility for their actions unrelated to their office. See also https://publicpersonnellaw.blogspot.com/2018/02/sovereign-immunity-absolute-immunity_12.html addressing Sovereign Immunity, Absolute Immunity, Qualified Immunity, Use Immunity, Transaction Immunity and Qualified Privilege claims that may be advanced by public officers and employees involved in litigation and, or, administrative hearings.

** Privileged evidence refers to evidence that is exempt from production to an opposing party.

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/378b60c7-cb2c-418e-890b-35a203574789/4/doc/18-3481_so.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/378b60c7-cb2c-418e-890b-35a203574789/4/hilite/

New York State Comptroller Thomas P. DiNapoli issues audits and examinations

New York State Comptroller Thomas Dinapoli issued the following audits and reports during the week ending September 6, 2019. Click on the text in color to access the complete audits and reports.

Department of Agriculture and Markets: Oversight of Weights and Measures Programs (Follow-Up) (2019-F-11)

An initial report, issued in December 2017, identified systemic issues with the quality of the data the department relies on to administer the state’s weights and measures program. In a follow-up, auditors found the department made significant progress addressing the problems identified in the initial audit. Of the four prior audit recommendations, two were implemented and two were partially implemented.

Department of Environmental Conservation (DEC): Oversight of Waste Tire Site Cleanup and Use of Waste Tire Fees (2018-S-43)

Auditors found DEC has made significant progress abating identified waste tire sites. Nearly 44 million tires (99 percent) were abated at 160 sites (86 percent) as of October 2018. Auditors also found about $5.1 million in expenses charged to the program that did not appear to be related to waste tire abatement or other waste management activities allowable under the law. 

Department of Environmental Conservation: Report of Title V Operating Permit Program Revenues, Expenditures, and Changes in Fund Balance for the Eight Fiscal Years Ended March 31, 2017 (2017-S-81)

Program revenues were insufficient to cover program expenses, as required by the federal Clean Air Act and New York’s Clean Air Compliance Act. Program revenues decreased 38.8 percent during the period, while program expenses decreased 10.8 percent, resulting in a trend of increasing annual deficits. 

Department of Health (DOH): Inappropriate Payments Related to Procedure Modifiers (Follow-Up) (2019-F-10)

An initial audit issued in April 2018 found that DOH incorrectly implemented claims processing system controls to prevent inappropriate payments for evaluation and management services, which resulted in Medicaid overpayments totaling about $2.6 million. In a follow-up, auditors found DOH made some progress in addressing the problems identified in the initial report, but no action has been taken to review and recover the inappropriate payments identified.

Department of Health (DOH): Medicaid Claims Processing Activity April 1, 2018 through Sept. 30, 2018 (2018-S-13)

Auditors identified over $134 million in Medicaid payments that require DOH’s prompt attention, including $123.9 million in Medicaid managed care premiums paid on behalf of 86,475 Medicaid recipients who had concurrent comprehensive third-party health insurance.

Metropolitan Transportation Authority (MTA): New York City Transit: Maintenance and Inspection of Event Recorder Units (2018-S-19) Auditors found train car inspections were not always done on time. They determined that, of the 822 timed inspections during the audit period, 70 were late, exceeding the permitted time or mileage interval. For 129 inspections, maintenance personnel did not provide evidence that they downloaded information from event recorder units to ensure that they were functioning correctly, as required by the MTA’s transit unit’s work manuals.

Office for People With Developmental Disabilities (OPWDD): Accountability and Surplussing of Vehicles (2018-S-42)

OPWDD lacks sufficient controls over fleet vehicle management at the four local Developmental Disabilties Services Offices (DDSOs) to ensure that all vehicles are properly accounted for, that vehicles are used for official state business only, and that DDSOs are properly surplussing vehicles following a process that is fair and complies with OGS requirements. Such deficiencies, which might largely be attributable to OPWDD’s lack of procedures and guidance, create an environment at risk of mismanagement and impropriety.

Rochester-Genesee Regional Transportation Authority (RGRTA): Compliance With Requirements to Maintain Systems at Vendor-Supported Levels (2019-S-6)

The authority must adhere to the State Information Security Policy which defines the minimum information security requirements that all state entities must follow to secure and protect the confidentiality, integrity, and availability of information. Auditors found that, generally, RGRTA maintained its systems at vendor-supported levels. However, they did identify unsupported systems used by RGRTA on 14 devices.

State Education Department (SED): Children’s Unit for Treatment and Evaluation: Compliance with the Reimbursable Cost Manual (2018-S-47)

For the three fiscal years ended June 30, 2016, auditors identified $232,606 in reported costs that did not comply with SED’s requirements for reimbursement. These costs included $232,464 in parent agency administrative costs and $142 in consultant travel expenses.

State Education Department (SED): Early Childhood Learning Center of Greene County: Compliance With the Reimbursable Cost Manual (2018-S-67)

For the fiscal year ended June 30, 2015, auditors identified $12,843 in reported non-personal service costs that did not comply with SED’s requirements for reimbursement.

The State Comptroller also provides the following information concerning how taxpayer money is spent at Open Book New York. Track municipal spending, the state's 160,000 contracts, billions in state payments and public authority data.

Visit the Reading Room for contract FOIL requests, bid protest decisions and commonly requested data.