Test used by courts to resolve a former employee's constructive dismissal claim

The Plaintiff [Petitioner] in this action alleged that she had worked for the City of New York in a variety of positions and left her job in 2015 after complaining of gender-based harassment by her supervisor [S]. 

Petitioner subsequently brought a lawsuit against the Employer [Defendant] asserting a variety of claims, including suffering a hostile work environment, retaliation, and constructive discharge in violation of New York City'a Human Rights Law [NYCHRL], as well as common-law battery. At the close of Plaintiff's case at trial, the district court granted Defendant's motion for summary judgment as a matter of law to the with respect to Petitioner's constructive discharge claim while allowing her other claims to proceed. 

The jury found for Plaintiff on her hostile work environment and retaliation claims. The district court, however, denied Plaintiff's motion seeking reconsideration of its constructive discharge ruling and Plaintiff filed a timely appeal in the U. S. Circuit Court of Appeals, Second Circuit.

Petitioner argued that the standard for constructive discharge under the NYCHRL "is unclear and, consequently, [the Circuit Court] should certify this case to [New York State's] Court of Appeals for clarification as to the proper standard." The Circuit Court disagreed, holding that under any standard advanced by Petitioner the facts she relied upon in this action were insufficient to state a constructive discharge claim.*

Citing Crookendale v. New York City Health and Hospitals Corporation, 175 A.D.3d 1132, the Circuit Court said in Crookendale the court held that the standard for constructive discharge under the NYCHRL is whether "the defendant deliberately created working conditions so intolerable, difficult or unpleasant that a reasonable person would have felt compelled to resign.” In so stating, opined the Circuit Court, the Appellate Division "appeared to confirm that the standard remains unchanged under the amended NYCHRL and that it mirrors the federal standard."**

Observing that Plaintiff acknowledged that any standard for constructive discharge relevant to this case will require  deliberate actions taken by an employer to be sufficient to cause a reasonable person to feel compelled to resign,*** the Circuit Court concluded that the circumstances present in Petitioner's employment situation were not such that a reasonable person would have felt compelled to resign, indicating that:

1. After complaining that she was being subjected to S's harassment, Petitioner continued to receive scheduled raises and remained in her position;

2. Petitioner's complaints concerning S resulted in the initiation of an EEO investigation; and

3. Defendant assigned Petitioner to a different supervisor and offered her employment in at least one other position where she would not be supervised by S, the individual that was the genesis of her complain.

As to Petitioner's complaint that her work assignments were reduced, the Circuit Court said that element is typically not considered sufficient to compel a reasonable person to resign, citing Petrosino v. Bell Atl., 385 F.3d 210. The  Petrosino court noted that “the law is clear that a constructive discharge claim cannot be proved by demonstrating that an employee is dissatisfied with the work assignments she receives within her job title” and that a reduction in responsibilities would not “support [an employee’s] constructive discharge claim”.

After addressing additional arguments in support of her claim of constructive discharge advanced by Petitioner, the Circuit Court held that her constructive discharge claim "fails under any standard she proposes here" and affirmed the judgment of the district court. 

* In determining whether a hostile work environment has been established, courts consider the totality of the circumstances, including the nature, frequency, and severity of the conduct as well as whether the conduct interferes unreasonably with an employee's work performance. 

** The Circuit Court said "to be clear, New York courts have expressed the view, as Petitioner asserts, that the proper standard for constructive discharge claims under the amended NYCHRL has not been fully articulated."

** In Green v. Brennan, 136 S. Ct. 1769, the court held that the “constructive-discharge doctrine contemplates a situation in which an employer discriminates against an employee to the point such that his working conditions become so intolerable that a reasonable person in the employee’s position would have felt compelled to resign”.

The decision is posted on the Internet at:
https://www.leagle.com/decision/infco20200603100

Serology testing for COVID-19

Science Magazine published an eLetter submitted by NYPPL's science consultant Dr. Robert Michaels on COVID-19 serology testing on June 18, 2020.

It is available on ResearchGate, in the Project titled Contaminants of Emerging Concern, via the following URL link: 

https://www.researchgate.net/publication/342318952_Michaels_Robert_A_Serology_testing_for_antibodies_induced_by_Covid-19_may_indicate_past_exposure_without_past_infection_Science_e-Letter_online_httpssciencesciencemagorgcontent36864951060tab-e-letters

You may e-mail Dr. Michaels at bam@ramtrac.com.

Governor Cuomo will propose legislation to make Juneteenth an official state holiday beginning in 2021

Gov. Andrew M. Cuomo signed an executive order on Wednesday, June 18, 2020,  declaring Juneteenth — a day commemorating the end of slavery in the United States — a holiday for employees of the State as the employer.

The holiday, also known as Freedom Day, falls annually on June 19, the same day in 1865 that a Union general arrived in Galveston, Texas, and informed enslaved African Americans that the Civil War had ended and they had been freed – more than two years after President Abraham Lincoln had signed the Emancipation Proclamation.

The Governor's executive order* states that "This observance is a reminder of the hardships and losses suffered by African Americans in their struggle to attain freedom, and we pay tribute to the memory of those who made the ultimate sacrifice in this quest. ... It is fitting that all New Yorkers join to commemorate such an important day in our nation’s history, as we take this opportunity to reflect upon and rejoice in the freedom and civil rights that we all share as Americans."

State officers and employees are being given a paid day off on Friday, June 20, 2020. Anyone required to work on this day will accrue one day of compensatory time credit.

Governor Cuomo also announce that he will propose legislation to codify the executive order and make Juneteenth an official state holiday beginning in 2021. A bill to do so was introduced earlier this month by Member of the State Assembly Alicia L. Hyndman. Currently, the holiday is a "day of commemoration" in New York.

* The Executive Order is posted on the Internet at:

https://www.governor.ny.gov/news/no-204-declaring-juneteenth-holiday-new-york-state-employees

Court finds employer's reasons for rejecting employee's application for short term disability benefits disingenuous

The Advocates for Justice Chartered Attorneys filed a CPLR Article 78 petition on behalf of a retired employee [Claimant] of the New York City Transit Authority [Authority] who had filed an application for "short term disability benefits" under the Authority's short term disability policy after Claimant's application for workers's compensation benefits was denied.

A Workers' Compensation Board Administrative Law Judge [ALJ] found that Claimant suffered from a psychiatric injury, including post-traumatic stress disorder, but determined that there was insufficient evidence that Claimant had experienced "stress at work greater than the usual irritations to which all workers in similar employment are normally subjected." The Workers' Compensation Board affirmed the ALJ's findings and decision.

The Authority advised Claimant that his application for short term disability benefits was approve by Occupational Health Services based on its finding that Claimant suffered from a qualifying medical condition. This finding, however, "did not determine if Claimant  was eligible for short term disability benefits." 

Ultimately the Authority orally advised Claimant's counsel that a final determination had been made that Claimant was not eligible for short term disability benefits. This decision was subsequently confirmed in a letter to counsel in which the Authority explained that Claimant "was not eligible since managers/non-represented employees are not permitted to use sick leave benefits for absence due to claimed injury on duty and exhaustion of sick leave is a prerequisite for short term disability benefits."

Supreme Court found that Claimant had commenced this proceeding within the applicable statute of limitations* but dismissed Claimant's petition on the basis of the Authority's representation that its short term disability policy rendered "workers who applied for Workers' Compensation benefits ineligible for short term disability benefits." Claimant appealed the Supreme Court's ruling arguing that the denial of his short term disability application on this basis was arbitrary and capricious.

The Appellate Division agreed, finding the Authority's denial of Claimant's short term disability benefits claim was arbitrary, capricious and irrational for a number of reasons, including:

1. Authority never notified Claimant that it was denying his claim because he had previously applied for Workers' Compensation benefits.** 

2. Nothing in the Authority's Employee Benefit Summary, its short term disability policy, or its letter confirming that Claimant's short term disability claim had been denied states that employees are barred from seeking short term disability benefits if they have previously applied for Workers' Compensation, places the rationality of the Authority's determination into question.

3. There is no risk of "double dipping," which is the sole rationale the Authority gave for interpreting its short term disability policy to bar an employee who has applied for Workers' Compensation from applying for short term disability as Claimant applied for short term disability benefits after his Workers' Compensation claim had been denied.

The Appellate Division opined that the Authority's position with respect to Workers' Compensation was disingenuous as it was inconsistent with its position regarding what the disability policy covers. If the Authority claims that the policy only covers non-work-related illnesses such as cancer or a heart attack, then it would have had no reason to be concerned about "double dipping," as Workers' Compensation benefits are provided only in the event a claimant has suffered a work-related injury or disease. 

The court said that the Authority's was similarly disingenuous to argue that Claimant was not eligible under the disability policy because he did not exhaust his sick leave as the Authority's letter confirming the denial of Claimant's short term disability application indicated that Claimant was "not permitted to use sick leave benefits for absence due to claimed injury on duty and exhaustion of sick leave is a prerequisite for short term disability benefits." The court observed that had Claimant been approved for Worker's Compensation, the Authority's rationale might hold but once Claimant was denied those benefits no rational basis for denying petitioner his sick time could be advanced.

The Appellate Division then remanded the matter to the Authority "for calculation of Claimant's short term disability benefits after deduction of Claimant's sick leave credit."

* In McLaughlin v Saga Corp., 242 A.D.2d 393, the Appellate Division held that if the party is able to submit "proof of mailing within the limitations period," the application or appeal is timely.

** The Appellate Division's decision in this action states that the Authority "had not notified [Claimant] of this alleged prohibition and nothing in the Authority's Employee Benefit Summary or short term disability policy states that employees who have applied for Workers' Compensation benefits are not eligible for short term disability" benefits.

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2020/2020_01694.htm

Individual found guilty of anonymously submitting false report alleging another employee's had engaged in misconduct terminated

A police detective [Petitioner] was served with disciplinary charges alleging he had anonymously filed a false allegation of misconduct targeting one of his supervisors with the police department's [Department] Internal Affairs Bureau [IAB]. Petitioner subsequently admitted the allegations set out in the charges and pleaded guilty to two instances of "conduct prejudicial to the good order of the department" and then "testified under oath before the Assistant Deputy Commissioner [ADC] in an effort to mitigate the penalty to be imposed.

Following a disciplinary hearing, the ADC found that Petitioner's "misconduct here constitutes extremely serious misconduct" and recommended the Police Commissioner dismiss Petitioner from his position. The Commissioner adopted the ADC's findings and recommendation and dismissed Petitioner from the Department.

Petitioner filed a CPLR Article 78 appeal challenging the penalty imposed by the Commissioner. Supreme Court granted his petition and vacated penalty of termination from the Department and remanded the matter for the imposition of a less severe penalty. The Department appealed and the Appellate Division unanimously reversed the Supreme Court's decision, on the law, and dismissed Petitioner's Article 78 action.

The Appellate Division opined that Supreme Court "erred in granting the petition to the extent of remanding the matter for the imposition of a lesser penalty." Citing Kelly v Safir , 96 NY2d 32, the court said that in matters of police discipline  "great leeway must be accorded to the Commissioner's determinations concerning the appropriate punishment, for it is the Commissioner, not the courts, who is accountable to the public for the integrity of the Department."

The decision notes that Petitioner "lied to IAB twice, acted with premeditation, and sought to have the [supervisor] that he reported to IAB face negative consequences as a result." As the ADC noted in the decision issued following Petitioner's disciplinary hearing, Petitioner's untruths:

[1] had an adverse impact on the supervisor, who had to defend himself against the false claim; and

[2] required the Department and IAB to spend significant time investigating Petitioner's false complaint.

The Appellate Division said that in Kelly v Safir, 96 NY2d 32, the Court of Appeals, quoting from Pell v Board of Education of Union Free School District. No. 1 of Towns of Scarsdale and Mamaroneck, 34 NY2d 222, held that in adjudicating disciplinary matters the penalty imposed by the appointing authority "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." 

Considering the record, the Appellate Division concluded that the Commissioner's imposing the penalty of termination was not so disproportionate to the offenses committed by Petitioner as to shock one's sense of fairness and the vacated the Supreme Court's order and dismissed the Article 78 petition "in its entirety."

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2020/2020_01716.htm

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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

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