Can employers require employees to submit to tests for COVID-19?

An analysis by Richard Dahl dated June 23, 2020 posted by FindLaw* on the Internet at:  https://blogs.findlaw.com/law_and_life/2020/06/can-employers-require-employees-to-test-for-covid-19.html?DCMP=cons_everyday:nwl:cp:c19r:feature

* Source: FindLaw Newsletters at findlawnewsletters@thomsonreuters.com

Parsing a complaint alleging various acts of unlawful discrimination

A tenured associate professor [Plaintiff] employed by the defendant [College], commenced this action alleging that the College discriminated against her on the basis of sex and  her disability and retaliated against her after she complained of such alleged unlawful discrimination. Supreme Court granted the College's motion for summary judgment dismissing the complaint and Plaintiff appealed.

With respect to the alleged disparate treatment and disability discrimination that was based on the College's purported refusal to provide Plaintiff a reasonable accommodations for her disability in violation of the Americans with Disabilities Act Contrary, the Appellate Division ruled that Supreme Court properly granted that portion of the College's motion with respect to Plaintiff's allegations of disparate treatment and disability discrimination based on the College's purported refusal to provide reasonable accommodations for her disability in violation of the Americans with Disabilities Act. The Appellate Division explaining that the College had met its initial burden on the motion with respect to those aspects of Plaintiff's causes of action by establishing that an essential function of Plaintiff's job was teaching and that Plaintiff's requested accommodation, -- that she be allowed to work part time without teaching any courses -- was unreasonable.

Addressing Plaintiff's allegation that College violated the Equal Pay Act of 1963, the Appellate Division modified the Supreme Court's order based on its finding that the College "failed to establish as a matter of law that the difference in pay between Plaintiff and a less senior male colleague who performed similar work under similar conditions 'is due to a factor other than sex.'" In so doing the court rejected the College's claim that the pay disparity was the result of a merit system, finding that the evidence it submitted in support of its motion [1] failed to demonstrate as a matter of law that there was "an organized and structured procedure whereby employees are evaluated systematically according to predetermined criteria" and [2] that the College's employees "were aware of the purported merit system."

Turning to Plaintiff's causes of action for alleged sexual discrimination under Title VII and the New York State Human Right Law [NYSHRL], the Appellate Division concluded that issues of fact existed as to whether the College's challenged actions were "based upon nondiscriminatory reasons," and thus summary judgment was precluded on those causes of action and that they should also be reinstated.

With respect to Plaintiff's allegations of unlawful retaliation, the Appellate Division opined that to establish a claim for unlawful retaliation under the NYSHRL, a plaintiff must show that "(1) she has engaged in protected activity, (2) her employer was aware that she participated in such activity, (3) she suffered an adverse employment action based upon her activity, and (4) there is a causal connection between the protected activity and the adverse action." In contrast, said the court, a defendant may establish entitlement to summary judgment in a retaliation case if the defendant "demonstrate[s] that the plaintiff cannot make out a prima facie claim of retaliation."

The Appellate Division decided that the College's denial of Plaintiff's request to return to work part time without any teaching duties and its requirement that she retain an administrative role that fell "within the duties of [her] position'" were not adverse employment actions and thus Plaintiff failed to make out a prima facie claim of retaliation with respect to these allegations.

In contrast, however, the Appellate Division found that 'issues of fact exist" as to whether  the College unlawfully retaliated against Plaintiff after she complained of gender discrimination when it required her to retain her position as the undergraduate coordinator while at the same time maintaining her regular course load and also reinstated this element of her petition.

As to Plaintiff's allegations of violations of Title VII based on unlawful retaliation, the Appellate Division held that Supreme Court correctly dismissed this element of Plaintiff's complaint because she had failed to exhaust her administrative remedies, a condition precedent to going forward with this aspect of her complaint.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2020/2020_03346.htm

Some factors considered by courts in evaluating an arbitration award

The Appellate Division reviewed Supreme Court's denial of an Educator's petition seeking a court order vacating an arbitration award sustaining 13 specifications set out in disciplinary charges served on the Educator alleging incompetence and neglect of duty which resulted in Educator's termination from her employment as a New York City public school teacher by the New York City Board of Education [Board].

The Appellate Division unanimously affirmed Supreme Court's ruling and its granting the Board's cross motion to dismiss Educator's petition, explaining that the Hearing Officer's determinations concerning Educator's alleged teaching deficiencies during a four-year observational period:

a. were supported by adequate evidence, including testimony by school administrators and documentation;

b. were was rational, and not arbitrary and capricious; 

c. considered the Board's "significant remediation efforts;" and

d. the Hearing Officer found that those remediation efforts were adequate and supported by the evidence showing that Educator received feedback and suggestions for improvement through observation reports and one-on-one meetings, as well as assistance and support from her colleagues and outside professionals, and was provided with a teacher improvement plan.

Further, said the Appellate Division, in determining an appropriate penalty to be imposed, the Hearing Officer's considered Educator's "long-term pattern of inadequate performance." 

Thus, opined the court, the Hearing Officer's imposing a penalty terminating Educator from her position was, under the circumstances, "proportionate to the offenses" for which Educator was found guilty.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2020/2020_03473.htm

A police officer forfeited his qualified immunity by using excessive force against an individual who posed no threat to the officer or to others

A complaint brought pursuant to 42 U.S.C. §1983 alleged that a number of New York City police officers [Defendants] used excessive force against Plaintiff in the course of his being arrested. The jury found that only one officer, Officer A, used excessive force against the Plaintiff when Officer A used "two taser cycles" against him.*

The federal district court granted Officer A's motion claiming qualified immunity** and dismissed Plaintiff's complaint "as a matter of law." Plaintiff appealed the ruling to the U.S. Circuit Court of Appeals, Second Circuit.

The Circuit Court reversed the lower court's decision, explaining that the evidence before the jury allowed it to reasonably conclude that Plaintiff was no longer resisting arrest and was not a safety threat to the officers, or others, at the time of Officer A used the taser against him a second time.

Citing Garcia v. Dutchess County, 43 F. Supp. 3d 281, in which the federal district court in that action concluded that “[i]t was . . . clearly established law in the Second Circuit as of April 2000 that it was a Fourth Amendment violation to use ‘significant’ force against arrestees who no longer actively resisted arrest or posed a threat to officer safety," the Circuit Court vacated the district court’s judgment and remanded the matter "for proceedings consistent with this opinion."

* The jury found that the other officers present during Plaintiff's arrest were not liable. 

** Jones v Muniz, posted on the Internet at https://casetext.com/case/jones-v-muniz

The Second Circuit Court's decision is posted on the Internet at:

https://www.leagle.com/decision/infco20200626119

Conditioning the disclosure of material sought pursuant to a FOIL request upon the prepayment of costs authorized by statute

Supreme Court, among other things, granted Petitioners' motion to prohibit the School District's imposition of costs under color of Public Officers Law §87(1) related to Petitioners' request pursuant to the Freedom of Information Law [FOIL]. School District appealed.

The Appellate Division unanimously affirmed the lower court's decision, explaining that School District "failed to demonstrate sufficient justification for the costs sought to be imposed pursuant to §87(1)." 

Citing Matter of Weslowski v Vanderhoef, 98 AD3d 1123, the Appellate Division opined that in the event an agency conditions disclosure of material sought pursuant to FOIL upon the prepayment of costs or refuses to disclose records except upon prepayment of costs, the agency has the burden of articulating a particularized and specific justification' for the imposition of those fees."

In the words of the Appellate Division: "Specifically, the agency must demonstrate that the fees to be imposed are authorized by the cost provisions of FOIL" and found that the School District failed to meet that burden in this instance.

With respect to School District's contention that Supreme Court should have denied, with prejudice, Petitioners' motion seeking attorney's fees and other litigation costs, the Appellate Division concluded that Supreme Court properly determined that the issue of the School District's liability for such payments remained an open question at this stage in the litigation as no determination could yet be made as to whether Petitioners would "substantially prevail" for the purposes of claiming such reimbursement.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2020/2020_03298.htm