An arbitrator's determination may be based on hearsay testimony

Supreme Court confirmed an arbitration award terminating petitioner's [Educator] employment as a tenured teacher.

The Appellate Division unanimously affirmed the lower court's ruling, explaining that the  arbitrator's determination that Educator's teaching performance and judgment were poor during the relevant three-year period has a rational basis in the record and was not arbitrary and capricious.

The record, said the court, includes 10 substantiated written observational reports and testimony from multiple school administrators demonstrating inadequate teaching, efforts at remediation, and lack of improvement over the three-year period. In addition there was evidence that the Educator behaved unprofessionally toward a student.

Although Educator argued that there was no direct evidence substantiating certain of the charges against her, the Appellate Division noted that "an arbitrator's determination may be based on hearsay,"* citing Matter of Colon v City of N.Y. Dept. of Educ., 94 AD3d 568. Further, opined the court, "courts may not reweigh the evidence or substitute their own credibility determinations for those of the arbitrator."

Citing Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale and Mamaroneck, Westchester County, 34 NY2d 222, the Appellate Division said that under the circumstances, the arbitrator's imposing the penalty of termination did not shock its sense of fairness.

* Concerning the use of hearsay evidence in administrative proceedings, it is well established that "[h]earsay evidence can be the basis of an administrative determination" [see Gray v Adduci, 73 NY2d 741]. Notwithstanding the admissibility of hearsay as competent evidence, an employee may not be found guilty of charges solely on the basis of hearsay; some real evidence is required [Brown v Ristich, 36 NY2d 183; Carroll v Knickbocker Ice Co., 218 NY 435].

The decision is posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2020/2020_05586.htm

Claiming qualified immunity after denying an individual access to school district property

The petitioner [Plaintiff] appealed the dismissal of her 42 U.S.C. §1983 claims against the Central School District [District] and the District's Superintendent [Superintendent] by a federal district court.

Plaintiff had contended that her First Amendment and due process rights were violated when the Superintendent required her to obtain prior written permission to visit school property and that the Superintendent "expanded the scope of the restriction in retaliation for her objection to this requirement," and that these alleged violations occurred pursuant to a District custom or policy.

The United States Court of Appeal, Second Circuit, affirmed the federal district court's dismissal of Plaintiff's complaint, rejecting her arguments that:

(1) the limitations on her access to school property were not reasonable because no reasonable person could have believed that she was attempting to evade the school’s security procedures or that she otherwise presented a risk of disruption; and 

(2) in the absence of such a justification and because [the Superintendent] imputed a “negative” opinion of the school to her, a reasonable factfinder could conclude that the restrictions placed on her also were not viewpoint-neutral."

The court explained that the district court’s grant of qualified immunity to the District and Superintendent was premised on its conclusion that the parties did not dispute that the restriction “was a content-neutral response to [Plaintiff's] attempt to circumvent the school’s security protocol.”

In the words of the Circuit Court, “Qualified immunity insulates public officials from claims for damages where their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”

Addressing the doctrine of qualified immunity, the decisions notes that “[W]hen a defendant official invokes qualified immunity as a defense in order to support a motion for summary judgment, a court must consider two questions: 

(1) whether the evidence, viewed in the light most favorable to the plaintiff, makes out a violation of a statutory or constitutional right; and

(2) whether that right was clearly established at the time of the alleged violation”

and under the second prong, officials are “entitled to qualified immunity [when] their decision was reasonable, even if mistaken.”

Qualified immunity is an affirmative defense and the defendant bears the burden of proof. Plaintiff did not present any evidence that contradicted the Superintendent's testimony that he believed that Plaintiff was attempting to bypass the school’s security policy when he confronted her on the morning of the incident nor did Plaintiff ever argued that the initial restriction announced in the letter sent to her was "viewpoint-based."

Thus, said the court "[a]bsent a genuine dispute as to whether the restriction on [Plaintiff’s]  access to school property was viewpoint-based, [the Superintendent] is entitled to qualified immunity on [Plaintiff’s] First Amendment claim because the evidence, even construed in [Plaintiff's] favor, established that a reasonable official could have believed that (1) [Plaintiff] was attempting to circumvent school security procedures and (2) the notification restriction was a reasonable and constitutional response to her actions."

Further, said the court, "it was not clearly established that a permission requirement was an unconstitutional response to a parent’s attempt to evade a security restriction," noting  that based on its precedent, including its conclusions about the contours of parents’ clearly established First Amendment rights at the time of the underlying events, "a reasonable superintendent in [the Superintendent's] position could have concluded that a parent can lawfully be restricted from school activities based on a risk of disruption or safety concerns as long as those concerns are not a pretext for viewpoint discrimination, and that a requirement that a parent receive prior permission to enter school property is a minor and reasonable response to such concerns."

Addressing Plaintiff's argument that the District was liable for the alleged violations of her constitutional rights because it maintained a custom or policy of permitting the Superintendent to make unilateral decisions regarding the enforcement of the District visitor’s policy, in contravention of the written policy placing this authority with school principals, the Circuit Court stated that to establish liability against the District under 42 U.S.C. §1983 Plaintiff was required to show that an official custom or policy caused a violation of her constitutional rights.* Here, again in the words of Circuit Court, "the district court properly concluded that the cited custom did not cause a deprivation of [Plaintiff's] rights — a custom of delegating authority to enforce the District visitor’s policy to [the Superintendent] does not establish the existence of a custom of permitting [the Superintendent] to exercise that authority unlawfully."

Finding that the Plaintiff did not show the existence of a policy or custom of imposing unconstitutional restrictions on access to District property and noting that the Superintendent had restricted access to school property on only four other occasions in the more than ten years he served as Superintendent, and there is no evidence that these other restrictions were not reasonable responses to legitimate safety concerns, the Circuit Court held that the district court properly granted summary judgment to the District on Plaintiff’s Monell claim.

* See Monell v. Dep’t of Social Services of the City of N.Y., 436 U.S. 658.

The decision is posted on the Internet at https://www.leagle.com/decision/infco20201022076

 

A court will not confirm an arbitration award where it is in explicit conflict with law, rule or regulation and the relevant policy concerns

In this proceeding brought pursuant to CPLR Article 75 to modify an arbitration award the Nassau Healthcare Corporation [Employer] appealed that portion of an arbitration award that ordered the Employer to reinstate three Petitioners* [Employees] to their former positions while the Employee's cross-appealed that part of the arbitration award providing for reinstatement without back pay.

The genesis of this action was the Employees being terminated by the Employer based upon an incident that occurred during which the Employees allegedly ignored approximately nine minutes of visual and audible alarms signaling that a ventilator-dependent resident was in respiratory distress.

Pursuant to the collective bargaining agreement, the Employees' collective bargaining representative filed a grievance challenging these terminations and the matter ultimately proceeded to arbitration. The Employees elected not to testify at the hearing.**

Following the hearing, the arbitrator issued an award finding that Employer did not sustain its burden of proving that the blaring alarm of the central alarm system throughout the unit, which signaled a respiratory emergency, was triggered. However, because of the employees' failure to testify at the hearing, the arbitrator drew an adverse inference against them on the factual issue of whether the beeping alarm coming from the ventilator machine in the patient's room itself, which did not necessarily signal an emergency, was audible to them at the nursing station.

The arbitrator ruled that the Employees should be reinstated to their former positions, but directed that they be reinstated without back pay. Supreme Court confirmed the arbitration award and the Employer appealed.

The Appellate Division granted the Employer's motion to vacate the arbitration and dismissed the Employee's cross-appeal seeking back-pay as academic. The court also awarded "one bill of costs" to the Employer, payable by the Employees.

The Appellate Division, citing Matter of New York State Correctional Officers & Police Benevolent Assn. v State of New York, 94 NY2d 321, and Matter of Banegas v GEICO Ins. Co., 167 AD3d 873, pointed out that an arbitration award may be vacated if it violates strong public policy, is irrational, or clearly exceeds a specifically enumerated limitation on an arbitrator's power.

Considering the public policy exception, the Appellate Division commented that "a court may vacate an arbitral award where strong and well-defined policy considerations embodied in constitutional, statutory or common law prohibits a particular matter from being decided or certain relief from being granted by an arbitrator" and the focus of the analysis [in making that determination] is on the award itself." Quoting from New York State Correctional Officers and  Police Benevolent Assn. v State of New York, 94 NY2d at 327, the Appellate Division held that a court may vacate an award on public policy grounds "where the final result creates an explicit conflict with other laws and their attendant policy concerns,.

Here, opined the Appellate Division, the record reflects that after the employees were indicted on felony charges, the Office of Medicaid Inspector General [OMIG] notified the employees that they were excluded "from participation in the New York State Medicaid program based on New York State regulations authorizing the immediate exclusion of a person who has been charged with committing an act which would be a felony under the laws of New York and which relates to or results from," among other things, "the furnishing of or billing for medical care, services or supplies."

Citing 18 NYCRR 515.5(c), the court said that "[a] person who is excluded from the program cannot be involved in any activity relating to furnishing medical care, services or supplies to recipients of medical assistance for which claims are submitted to the program, or relating to claiming or receiving payment for medical care, services or supplies during the period." Further, the regulations also preclude reimbursement for medical care, services, or supplies provided by an excluded person.

Clearly the final result of the arbitrator's award in this case, reinstating the Employees to their former positions, "creates an explicit conflict with the subject regulations and their attendant policy concerns." Accordingly, under the particular circumstances of this case, the Appellate Division concluded that Supreme Court should have granted the Employer's motion to vacate that portion of the award providing for the reinstatement of the Employees, thereby mooting their claims to back salary.

* The three Employees involved were two registered nurses and a nurse aide

** Subsequently the Employees were indicted on several misdemeanor and felony charges, including criminally negligent homicide..

The decision is posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2020/2020_06777.htm

 

Claim of having an "invisible" or "hidden" disability undermines unlawful disability discrimination complaint

New York State Division of Human Rights [DHR] found no probable cause to believe that the New York City Human Resources Administration [HRA] had discriminated or retaliated against the petitioner [Plaintiff] in violation of the New York State Human Rights Law and dismissed Plaintiff's compliant. Plaintiff filed a CPLR Article 78 petition challenging DHR's determination.

The Appellate Division unanimously affirmed DHR's ruling, explaining that the DHR's determination of no probable cause to find that HRA engaged in disability discrimination against Plaintiff was rationally based in the record and not arbitrary and capricious.

Plaintiff had described her traumatic brain injury condition as an "invisible" or "hidden" disability, meaning that the "symptoms are invisible" and "not immediately apparent." This, said the court, "undermines [Plaintiff's] interactive dialogue contention, and indeed her disability discrimination and reasonable accommodation claims, since it suggests that it would not have been evident to HRA staff interacting with her that she was in fact disabled."

Further, noted the Appellate Division, it also did not appear that 'Plaintiff ever substantiated her disability for the HRA staff she interacted with," such as by presenting of a doctor's note" nor did Plaintiff ever demonstrate to HRA that her disability reasonably warranted the accommodation she requested. Addressing Petitioner's "broader disability discrimination claim -- that HRA staff "mistreated her and sidetracked her application because of animus against disabled persons" -- the court again opined that such an assertion was undermined by her claim that her traumatic brain injury is "invisible."

Coupled with Plaintiff's own claim that "HRA staff mistreated everyone at the job center," the Appellate Division concluded that DHR had rationally determined that Plaintiff failed to show that she was treated adversely under circumstances warranting an inference of discrimination.

As to Plaintiff's allegations of retaliation, the court decided that DHR rationally determined that HRA did not retaliate against Plaintiff and that HRA's initial denial of her application was not arbitrary in view of the fact that is was accompanied by an explanation that Plaintiff had "failed federal poverty guidelines." Plaintiff, said the Appellate Division, presented no evidence that this explanation "was false or pretextual and that discrimination and/or retaliation was the real reason" for HRA's action.

The decision is posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2020/2020_06038.htm

New York State Bar Association Local and State Government Law Session Three: October 29

Topics in Municipal Labor Relations During the Pandemic:

Part One – Civil Service and Educator Layoffs and Reductions in Force

Part Two – FLSA Considerations in a Remote Working Environment

There are still seats available for the third session of the Local & State Government Law Virtual Fall Meeting Series. 

Register Now