Standards applied by courts in determining if hostile work environment claim has merit

Plaintiff [Petitioner] appealed the decision of the United States Federal District Court's granting summary judgment to Defendants [Respondents] in the action brought by Petitioner in which he had alleged that he had suffered having to work in a hostile work environment in violation of 42 U.S.C. §1983 and the Equal Protection Clause of the Fourteenth Amendment. 

The Circuit Court of Appeals, noting that summary judgment is appropriate “if there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law,” explained that to establish a hostile work environment claim under 42 U.S.C. §1983, a plaintiff must show that “the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment” such that a reasonable person would find it hostile or abusive. 

In addition, said the court, the victim "must subjectively perceive the work environment to be abusive" and the incidents complained of "must be more than episodic; they must be sufficiently continuous and concerted in order to be deemed pervasive.” 

Addressing Petitioner's complaint, the Court of Appeals opined that "the evidence brought forth at summary judgment is insufficiently severe to satisfy the objective component of the hostile work environment analysis" because:

1. The conduct here was not so continuous as to create an objectively hostile work environment and while distasteful, the incident was not repeated nor were similar vulgar comments made. 

2. Three other incidents recited by Petitioner were not sufficiently “continuous and concerted” as to satisfy the objective component of a hostile work environment claim. 

3. Although a single episode may be sufficient to give rise to a hostile work environment claim, the one incident so relied on by Petitioner "falls short of the severity required to make out such a claim."

4. Conceding that the workplace environment here was characterized by "a degree of offensive language," the court observed that Petitioner "himself had participated and which sometimes included physical contact."* 

Considering these factors, the Circuit Court concluded that the conduct and comments complained of by Petitioner "were not so humiliating as to take them outside the run-of-the-mill, if unpleasant, vulgarity present in this workplace" and the conduct Petitioner described is more properly characterized as “mere offensive utterance[s]” rather than the “physically threatening or humiliating” conduct condemned by Title VII and the 14th Amendment. 

Accordingly, the Circuit Court held that under the circumstances "the district court was correct in granting summary judgment in [Respondent's] favor." 

* The decision states that Petitioner's deposition testimony noted that he had “talked about sex” with other officers and that other officers had said “outrageous things” to be funny.

The decision is posted on the Internet at:

https://www.leagle.com/decision/infco20200603101

AELE case notes, publications, and seminar alerts for June 2020

• Adverse Actions Against Public Employees For First Amendment
  Speech: An Introduction and Overview. New June AELE Law Journal article, http://www.aele.org/law/2020all06/2020-06MLJ201.pdf
• 
  
• Public Safety Discipline and Internal Investigations Seminar---Attend Virtual or In Person. Las Vegas, Nevada is opening for business and will be in full swing for the September 28, 2020 3.5-day updated seminar on "Public Safety Discipline and Internal Investigations Seminar." A first: You can virtually attend the seminar because it will be broadcast live. The seminar begins on Monday, September 28 and ends at Noon on October 1, 2020. Another first is online registration and payment. For registration and more information, http://www.aele.org/public-safety-discipline-and-internal-investigations.html
• 
  
• June Law Enforcement Liability Reporter: This issue has cases on assault and battery: pepper spray, false arrest/imprisonment: no warrant, Federal Tort Claims Act, firearms related: intentional use, firearms related: Second Amendment issues, interrogation: juveniles, immigrants and immigration issues, search and seizure: home/business, and search and seizure: person. http://www.aele.org/law/2020all06/LR2020JUN.pdf
• 
  
• June Fire, Police & Corrections Personnel Reporter: This issue has cases on age discrimination: termination, FLSA: overtime in general, First Amendment, handicap/abilities discrimination, race discrimination, and whistleblower protection. http://www.aele.org/law/2020all06/FP2020JUN.pdf
• 
  
• June Jail and Prisoner Law Bulletin: This issue has cases on   COVID-19, governmental liability: policy/custom, medical care: dental, Prison Litigation Reform Act: exhaustion of remedies, prisoner assault: by inmates, prisoner suicide, prisoner transport, and religion. http://www.aele.org/law/2020all06/JB2020JUN.pdf
• 
  
• An ON-DEMAND recording of the May 26, 2020 Webinar: Law Enforcement Use-of-Force Accountability: Qualified Immunity, "Standards," Degrees of Certainties, and Junk Science is now available for viewing at https://www.youtube.com/watch?v=Dg5GUe9BQt8&feature=youtu.be
• 
  

Imposing a "one-year dismissal probation" as part of a disciplinary penalty

A New York City police officer [Officer] was charged and found guilty of multiple New York City Police Department patrol guide violations that occurred in five separate incidents in course of a disciplinary hearing conducted by an assistant deputy commissioner [ADC]. The penalty recommended: a "one-year dismissal probation",* a 31 day suspension without pay which , the decision notes, had already been served, and the forfeiture of 20 vacation days.

Officer filed a CPLR Article 78 petition in Supreme Court challenging the disciplinary action taken against him. Supreme Court transferred Officer's petition to the Appellate Division, which court unanimously denied Officer's petition and dismissed the action.

The Appellate Division explained that all charges against Officer that were sustained by the ADC were supported by substantial evidence in the record. The court said it found no reason to overturn the ADC's credibility determinations, noting that such determinations are "largely unreviewable".**

As to Officer's allegation that hearsay evidence had been considered by the ADC in his arriving at his determination, the Appellate Division, citing Matter of Rosa v New York City Hous. Auth., Straus Houses, 160 AD3d 499, said "hearsay evidence may be the basis for an administrative determination and — if sufficiently relevant and probative — may constitute substantial evidence alone".

Addressing Officer's objection to the disciplinary penalty imposed on him, the Appellate Division, applying the so-called Pell standard***,  opined that it did not find such penalty to be so disproportionate to the offences for which Officer had been found guilty as to shock one's sense of fairness.

* No specific condition or reason is identified in the court's decision with respect an act or omission that would trigger the appointing authority's power to terminate Officer without notice and hearing while Officer was serving as a probationary employee [see Taylor v Cass, 122 A.D.2d 885]. 

** Berenhaus v Ward, 70 NY2d 436.

*** Pell v Board of Education, 31 NY2d 222.

The decision is posted on the Internet at: 
http://www.nycourts.gov/reporter/3dseries/2020/2020_03075.htm

________________________

A Reasonable Disciplinary Penalty Under the Circumstances

 Determining an appropriate disciplinary penalty to be imposed on an employee in the public service found guilty of misconduct or incompetence. For more information click on http://booklocker.com/7401.html

________________________ 

A 15-day suspension from employment without pay found reasonable under the circumstances

Supreme Court denied a teacher's [Plaintiff] petition seeking to vacate an arbitration award suspending him for 15 days without pay. The Appellate Division unanimously affirmed the Supreme Court's ruling. 

Citing Lackow v Department of Educ. [or "Board"] of City of N.Y., 51 AD3d 563, the Appellate Division held that the arbitrator's decision has a rational basis and was supported by the evidence. 

The record, said the court, shows that the arbitrator reasonably determined that the Petitioner was guilty of misconduct when he locked a 10-year old student out of the classroom and left him unsupervised in the hallway. 

Even if Petitioner was justified in removing the student from the classroom, said the Appellate Division, his actions in locking the boy out of the room, in a state of distress and leaving him in the hallway without adequate supervision, violated school policy.

The Appellate Division said that imposing a penalty of a 15-day suspension without pay from employment "does not shock our sense of fairness."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2020/2020_00976.htm

Resolving a dispute that arose in the course of negotiating a collective bargaining agreement

The Detective Association [Plaintiff] alleged that the City of New York [City] made an oral promise in the course of its collective bargaining negotiations with the Plaintiff that in the event it reached a collective bargaining agreement [CBA] with the Plaintiffs before reaching a CBA with another union with which it was then engaged in collective bargaining, the Benevolent Association, it would not then use its contract with the Benevolent Association as leverage to extract additional concessions from Plaintiff.

After negotiating a CBA with the Plaintiff, the  City subsequently entered in a CBA with the Benevolent Association that included a wage increase for incumbent officers 2.25% higher than Plaintiff had received on behalf of its negotiating unit members. This increase was funded by reducing entry level pay and, or, benefits for new officers in the Benevolent Association negotiating unit, a practice known as "selling the unborn." 

Plaintiff contended that it did not represent entry-level members and the City said Plaintiff would have to make concessions such as giving back certain benefits then being enjoyed by Detective Association unit members if it wished to obtain the same 2.25% wage increase for individuals in its negotiating unit as the Benevolent Association had negotiated for its unit members, a practice known as "attrition bargaining."

Plaintiff sued, seeking a declaration that its unit member are entitled to the 2.25% wage increase and the City is estopped from demanding that funds for the increase be achieved through "attrition bargaining". 

Supreme Court denied the City's motion to dismiss Plaintiff's complaint in its entirety, which ruling was unanimously reversed, on the law, by the Appellate Division.

The Appellate Division explained that in this instance Plaintiff was attempting to have the court interpret the CBA between the City and the Plaintiff on grounds of fairness and equity -- impliedly to include a 2.25% wage increase -- places this dispute squarely within the definition of a grievance within the meaning of the CBA, i.e., "a dispute concerning the ... interpretation of the terms of this collective bargaining agreement." 

Accordingly, opined the Appellate Division, the issue must be resolved pursuant to the grievance procedures set forth in the CBA which provides that in the event a matter is not resolved at an earlier stage, it will be arbitrated before the New York City Board of Collective Bargaining (BCB).

The Appellate Division concluded that this dispute was within BCB's primary jurisdiction as Plaintiff alleged  that the City not only failed to "implement" the CBA between the parties, but subverted it by negotiating a CBA with another employee organization that entailed "selling the unborn" and thus had "engaged in conduct antithetical to good faith bargaining as defined in [the New York City] Administrative Code §12-306(c)."

In the words of the Appellate Division, "This is a claim of 'improper practices' that is properly addressed by BCB," citing §12-309[a][4] of the Administrative Code of the City of New York.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2020/2020_01711.htm