Applying the three-step burden-shifting framework established in McDonnell Douglas Corp. followed where the plaintiff lacks direct evidence of discriminatory conduct

Under the McDonnell Douglas Corporation* three-step shifting framework used in evaluating a Title VII discrimination complaints, the plaintiff must first establish a prima facie case of discrimination, which then shifts the burden to the employer to come forward with a legitimate, nondiscriminatory reason for the adverse employment action. If the employer provides such a justification, the plaintiff must present evidence from which a reasonable jury could find that the employer’s explanation is a pretext for intentional discrimination.

In this case the U. S. Court of Appeals, Second Circuit, assuming that the Plaintiff had established a prima facie case of unlawful discrimination within the meaning of Title VII, found that the record showed that the employer "proffered legitimate reasons for the various employment actions" the Plaintiff challenged as discriminatory and that the Plaintiff failed to present sufficient evidence from which a jury could find pretext.

Citing Schnabel v. Abramson, 232 F.3d 83, the Circuit Court explained that at the third step of the McDonnell Douglas framework, the court's task is to “examin[e] the entire record,” using a case-specific approach, “to determine whether the plaintiff could satisfy his ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff.” To satisfy this requirement, the plaintiff must produce enough evidence "to support a rational finding not only that the employer’s nondiscriminatory reasons were false but also 'that more likely than not discrimination was the real reason for the' employment actions."

Finding that the overall record showed that:

1. Plaintiff’s subordinates lodged repeated complaints against him over the course of several years;

2. Plaintiff was consistently combative and defiant toward his superiors; and

3. Plaintiff was unwilling to incorporate constructive feedback in response to his performance reviews over that time.

The Circuit Court opined that assuming it could be argued that Plaintiff in this action presented some evidence of pretext, "the record, taken as a whole, does not permit a reasonable trier of fact to find that 'the most likely alternative explanation' for his termination was [unlawful] discrimination."

Noting that a plaintiff is not guaranteed a trial merely because he can satisfy a prima facie case and can adduce “evidence that arguably would allow a reasonable factfinder to conclude that [the employer’s] explanation . . . is false”, in this instance Plaintiff failed to demonstrate “weaknesses, implausibilities, inconsistencies, or contradictions in the employer's proffered legitimate, nonretaliatory reasons for its action.”

In the words of the court, "there can be no question that [the Employer] proffered legitimate, non-retaliatory reasons for disciplining and ultimately terminating [Plaintiff]" and based on the totality of the record, the Circuit Court of Appeals said it agreed with the federal district court that "a rational jury could not find that retaliation was the but-for cause of the actions taken against [Plaintiff]."

* McDonnell Douglas Corp.v. Green, 411 U.S. 792.

Click here to access the text of the decision.

 

Attendance and Leave information for officers and employees of New York State as the employer

The leave benefits available to Executive Branch State Officers and Employees in the Classified Service are contained in the Attendance Rules for Employees in New York State Departments and Institutions, attendance and leave provisions of the relevant collective bargaining agreements negotiated with State employee organizations, and related laws, rules and regulations. 

These Attendance Rules and the other attendance and leave provisions referred to above apply to officers and employees of the State of New York as the employer*  and, as provided by 4 NYCRR 1.1, "Except as otherwise specified in any particular rule, these rules shall apply to positions and employments in the classified service of the State and public authorities, public benefit corporations and other agencies for which the New York State Civil Service Law is administered by the New York State Department of Civil Service."

N.B. Civil service commissions of political subdivisions of the State of New York and Personnel Officers appointed pursuant to New York State Civil Service Law §15.1(b) or §15.1(d) may have promulgated or adopted similar provisions applicable to public officers and employees employed in positions under their jurisdiction.

The information listed below has been posted on the Internet by the New York State Department of Civil Service. The New York State Attendance and Leave Manual is the official published description of the manner in which leave benefits are to be administered. Links to the Manual and other relevant information concerning attendance and leave issues, and calendars of legal holidays, are set out below.

Click here to access the  New York State Attendance and Leave Manual posted on the Internet. 

Memoranda of special note posted by the New York State Department of Civil Service are listed below. Click on text in colorto access the particular information of interest.

Family Medical Leave Act

Military Leave Related Memoranda

 

Recent Memoranda and Bulletins posted on the Internet by the New York State Department of Civil Service.

Click on text in colorto access the particular information of interest.

Policy Bulletin No. 2020-06, Implementation of the Productivity Enhancement Program for 2021

Policy Bulletin No. 2020-05, Clarification of Policy Bulletin 2020-01 and 2020-04

Policy Bulletin No. 2020-04, Clarification of Policy Bulletin 2020-01, entitled Guidance Related to Recent State and Federal Law and Policy Changes Due to COVID-19

Policy Bulletin No. 2020-03, Executive Order Recognizing Juneteenth as a Holiday for State Employees - June 19, 2020

Advisory Memorandum No. 2020-04, Designation of Floating Holidays in lieu of Election Day and Lincoln's Birthday for Contract Year 2020–2021

Advisory Memorandum No. 2020-03, Independence Day—July 4, 2020

Policy Bulletin No. 2020-02, Time Off to Vote

Policy Bulletin No. 2020-01, Guidance Related to Recent State and Federal Law and Policy Changes Due to COVID-19

Advisory Memorandum No. 2020-02, Memoranda of Understanding on Extension of Special Military Benefits and Post-Discharge Benefits through December 31, 2020

Advisory Memorandum No. 2020-01, Special Holiday Waiver Memoranda of Understanding for Security Supervisors Unit (SSpU), Security Services Unit (SSU), and Agency Police Services Unit (APSU)

Policy Bulletin No. 2019-05, Implementation of the Productivity Enhancement Program for 2020

Policy Bulletin No. 2019-04, Attendance and Leave Item - 2016-2023 State-NYSCOPBA Negotiated Agreement

Advisory Memorandum No. 2019-03, Designation of Floating Holidays in Lieu of Election Day and Lincoln's Birthday for Contract Year 2019-2020

Transmittal Memorandum No. 45, 2020 Calendar of Legal Holidays and Days of Religious Significance

Policy Bulletin No. 2019-03, Implementation of Paid Family Leave Benefits for Rent Regulation Services Unit Employees

Advisory Memorandum No. 2019-02, Special Holiday Waiver Memoranda of Understanding for Security Supervisors Unit (SSpU), Security Services Unit (SSU), and Agency Police Services Unit (APSU)

Policy Bulletin No. 2019-01, Military Leave for Combat Related Health Care Services

Advisory Memorandum No. 2019-01, Memoranda of Understanding on Extension of Special Military Benefits and Post-Discharge Benefits through December 31, 2019

Policy Bulletin No. 2018-05, Implementation of the Productivity Enhancement Program for 2019

Policy Bulletin No. 2018-04, Line of Duty Sick Leave Related to World Trade Center Conditions

Policy Bulletin No. 2018-03, Attendance and Leave Items in the 2016-2021 Negotiated Agreements Between the State of New York and CSEA for Employees in the Administrative Services Unit (ASU), Institutional Services Unit (ISU), Operational Services Unit (OSU) and the Division of Military and Naval Affairs (DMNA)

Policy Bulletin No. 2018-02, Leave for Cancer Screening

 

Information posted on the Internet by the New York State Department of Civil Service for the calendar years indicated:

2020

2019

2018

2017

2016

2015

2014

2013

2012

2011

2010

2009

2008

2007

2006

2005

2004

2003

2002

2001

2000

 

Calendars of Legal Holidays

2021

2020

2019

* Although not all employees of the State are "state officers," all officers of the State are State employees.

Questions concerning attendance and leave issues? Call (518) 457-2295.

 

Challenging a school board's approving the cost of providing for the defense and indemnification of board members and district officers in an appeal to the Commissioner of Education

The Applicant [Petitioner] in this appeal to the Commissioner of Education, among other things, challenged the school board's approval of resolutions to pay for the cost of the defense and indemnification of certain members of the school board and district officers in connection with prior appeals under Education Law §310. Interim Commissioner of Education Betty A. Rosa said the Petitioner's application must be denied and the appeal must be dismissed.

Petitioner had filed several prior appeals and applications involving various school district officers and the school board had voted to provide for the defense and the indemnification of the district officers in such prior appeals. Petitioner, in the instant appeal, contended that the school board had "improperly authorized the defense and indemnification of 'individuals who do not possess certificates of good faith', because the indemnified officers failed to notify the board of the commencement of the proceedings against them within five days as required by Education Law §3811(1)."

The Commissioner initially addressed some procedural issues and ruled:

1. The Petitioner's applications concerning the board's authorization for "defense and indemnification" in three of the four events must be dismissed as untimely* as they were not commenced "within 30 days from the making of the decision or the performance of the act complained of" by the school board and the Applicant failed to show "good cause" for the Commissioner to excuse such delay; and

2. Petitioner's application to remove certain school officers from their positions was untimely as a removal application must be commenced within 30 days of the petitioner’s good faith discovery of the misconduct alleged in the application even though the alleged misconduct occurred "more than 30 days before the application was instituted."

Turning to the merits of Petitioner’s several challenges to the school board's actions concerning providing for the defense and indemnification of district officers, the Commissioner said that a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief. Further, explained the Commissioner, Education Law §3811 requires a board of education to defend and indemnify school board members, officers and employees if: 

(1) The targets of the petitioner's appeal notify the board in writing of the commencement of an action or proceeding against them within five days after service of process;

(2) The action or proceeding arises out of the exercise of their powers or the performance of their duties; and

(3) A court or the Commissioner, as the case may be, certifies that they appeared to act in good faith with respect to the exercise of their powers or the performance of their duties.

Further, said the Commissioner, Public Officers Law §18(3) provides for defense and indemnification "in any civil action or proceeding arising out of any alleged act or omission which occurred or allegedly occurred while a public employee was acting within the scope of his or her employment or duties, so long as he or she: 

(1) provides a written request for defense along with copies of the relevant pleadings within 10 days of service of such pleadings upon the employee; and 

(2) cooperates fully in his or her defense. 

Public Officers Law §18, however, contains no requirement that a public employee obtain a certificate of good faith to avail him or herself of its protections.

Citing Matter of Scimeca v. Brentwood Union Free Sch. Dist., 140 AD3d 1174, the Commissioner opined that "once adopted by a public entity," Public Officers Law §18 normally becomes the exclusive source of a public employee’s defense and indemnification rights, "unless the governing body of such public entity has provided that [the] benefits [of Public Officers Law §18] shall supplement, or be in addition to, defense or indemnification protection conferred by another enactment.”

Finding that the school board has adopted a board policy which “recognizes” the board’s duty to defend and indemnify district officers under Education Law §3811 and additionally “confers” upon district officers the benefits of Public Officers Law §18, the Commissioner concluded that Petitioner’s reliance on the argument that Education Law §3811 is "the only vehicle for the board to authorize the defense and indemnification of district officers" was misplaced. 

The Commissioner noted that Petitioner claimed that providing for the defense and indemnification of the relevant officials was improper "because the indemnified officers did not obtain certificates of good faith."  However, said the Commissioner, such certification is not required to be defended or indemnified pursuant to Public Officers Law §18. 

Accordingly, the Commissioner ruled that Petitioner has failed to prove that any aspect of the board’s December 19, 2019 vote to approve the defense and indemnification of district officers was unwarranted or improper under Public Officers Law §18.  

Additionally, with respect to Education Law §3811, the Commissioner said she "took notice" that the record indicated the officers requested that the Commissioner certify, pursuant to Education Law §3811, that they acted in good faith and thus complied with Education Law §3811 with respect to the underlying appeals.

Turning to Petitioners’ application for removal of certain school board members and school officers, the Commissioner explained that "A member of the board of education or a school officer may be removed from office pursuant to Education Law §306 when it is proven to the satisfaction of the Commissioner that the board member or school officer has engaged in a willful violation or neglect of duty under the Education Law or has willfully disobeyed a decision, order, rule or regulation of the Board of Regents or Commissioner of Education." 

In the words of the Commissioner, " ... [P]etitioner has not proven a violation of Education Law §3811 or any other act pertaining to common schools, let alone a willful violation of such laws" and denied Petitioner's application for such removals.

Noting the "multiplicity of appeals and applications" filed by Petitioner over a short period of time, the Commissioner observed that "Although [Petitioner] retains a right to commence proceedings under Education Law §310 and Education Law §306, I caution [Petitioner] that such proceedings should not be used to harass school district officers or employees.  Additionally, I remind [Petitioner] that he bears the burden of proving any alleged wrongdoing and that an appeal pursuant to Education Law §310 or an application for removal under Education Law §306 will not succeed on bald assertions alone."

* The Commissioner explained that while Petitioner timely commenced the fourth proceeding within 30 days of the board’s December 19, 2019 vote, his challenges to the three earlier votes must be dismissed as untimely.

Click here to access the full text of this decision.

 

Audits issued by the New York State Comptroller during the week ending January 15, 2021

New York State Comptroller Thomas P. DiNapoli announced the following audits of State departments and agencies and local governmental entities were issued during the week ending January 15, 2021.

Audits of State Departments and Agencies

Office for the Aging (OFA): Long-Term Care Ombudsman Program (Follow-Up) (2020-F-27) An audit issued in October 2019 found that certain system-generated office data may not have been sufficiently reliable for the agency’s use for analysis at the facility, regional program, or complaint level, which may limit its usefulness in decision making. Auditors also found that many residents of long-term care facilities lack regular access to ombudsman services, due in part to a decline in the number of volunteers combined with a lack of paid regional program staff. In a follow-up, auditors determined OFA has made significant progress in addressing the problems identified in the initial report.

Office of Children and Family Services (OCFS): Access Controls over Selected Critical Systems (Follow-Up) (2020-F-11)  An audit issued in March 2019 found that access controls over six OCFS systems containing confidential information were insufficient to prevent unnecessary or inappropriate access to those systems. In a follow-up, auditors found OCFS has made progress in correcting the problems identified in the initial report. Of the two recommendations OCFS officials implemented one and did not implement one.

Department of Civil Service: New York State Health Insurance Program: CVS Health - Accuracy of Drug Rebate Revenue Remitted to the Department of Civil Service (Follow-Up) (2020-F-23) An audit issued in January 2019 reviewed the rebate revenue generated from agreements with six drug manufacturers and found that CVS Health did not always properly invoice drug manufacturers for rebates or remit all rebate revenue it collected. As a result, New York was due $2,052,653 in rebates. In a follow-up, auditors found CVS Health has made progress in correcting the problems and collecting some of the rebates identified in the initial report.

Department of Civil Service: New York State Health Insurance Program: Empire Plan Members with Dual Family Coverage (2019-S-23)New York state does not allow two family coverages for its employees. Other public organizations that participate in the Empire Plan, including local governments and public authorities, may allow for dual family coverage, whereby each employee has family coverage. Auditors identified 696 employees and retirees of participating organizations with dual family coverage during the audit period. The total cost of premiums to the members and participating organizations for the second family coverage was $39,777,772.

Department of Health (DOH): Improper Medicaid Payments for Childhood Vaccines (Follow-Up) (2020-F-3) An audit released in December 2018 identified $32.7 million in improper Medicaid payments, which included payments for free vaccines and inaccurate payments for the administration fee. Of this amount, managed care organizations made improper payments totaling $29.8 million, and the department made improper fee-for-service payments totaling $2.9 million. In a follow-up auditors found DOH has made some progress in addressing the problems identified in the initial audit report, yet significant action is still required to prevent future Medicaid overpayments.

State Education Department (SED): The Kelberman Center Inc. – Compliance with the Reimbursable Cost Manual (2019-S-57) Kelberman is an SED-approved special education provider located in Utica. Kelberman provides preschool special education services to children with disabilities who are between three and five years of age. Kelberman is reimbursed for these services through rates set by SED. For the fiscal year ended June 30, 2017, auditors identified $23,616 in ineligible costs Kelberman reported for reimbursement. 

State Education Department (SED): Kids Unlimited, PT, OT & SLP, PLLC - Compliance with the Reimbursable Cost Manual (2020-S-33)Kids Unlimited is a New York City-based for-profit organization authorized by SED to provide special education services. The New York City Department of Education refers students to Kids Unlimited. For the three fiscal years ended June 30, 2015, auditors identified $446,835 in reported costs that did not comply with the requirements for reimbursement. 

State Education Department (SED) Mama Program LLC – Compliance with the Reimbursable Cost Manual (2019-S-73) Mama Program is a New York City-based for-profit organization authorized by SED to provide preschool special education services. The New York City Department of Education refers students to Mama Program. For the three fiscal years ended June 30, 2015, auditors identified $95,562 in reported costs that did not comply with requirements for reimbursement.

State Education Department (SED): SteppingStone Day School Inc. - Compliance with the Reimbursable Cost Manual (2020-S-23) SteppingStone is a New York City-based not-for-profit organization authorized by SED to provide special education services. The New York City Department of Education refers students to SteppingStone. For the three fiscal years ended June 30, 2018, auditors identified $562,609 in reported costs that did not comply with the requirements for reimbursement.

Department of Taxation and Finance: Personal Income Tax and Property Tax (2020-BSE08-01) Auditors found 19,049 questionable or inappropriate refunds resulting in a savings of $34.9 million and 4,331 credits resulting in a savings of over $1.1 million. In addition, auditors identified 10,142 credits totaling $4.1 million where the department potentially paid more than one credit to the same individual on multiple properties, or paid credits to multiple individuals on the same property where only one credit was due.

 

Audits of Local Governmental Entities

Village of Dering Harbor – Payroll (Suffolk County)The board did not establish adequate controls over payroll and employee benefit payments. The board also did not require formal, written employment contracts to document terms of employment; job descriptions and responsibilities; work hours; salaries or hourly rates and employee benefits. In addition, the village paid overtime payments to employees as if they were independent contractors. Auditors also found the board approved reimbursements to employees for medical benefit claims without ensuring they had adequate supporting documentation.

 

Madison County – Temporary Courthouse Lease and Renovations County officials paid more than $1.5 million to a limited liability company (LLC) to lease and renovate temporary courthouse space for a 19-month period. Auditors found county officials did not use a competitive process to lease and renovate the temporary courthouse space. Auditors determined officials paid the LLC a $500,000 deposit before any renovation work was completed or services rendered. They paid approximately $131,000 in renovation claims to the LLC without adequate supporting documentation.

 

Town of Orange – Budget Review (Schuyler County)Certain significant revenue and expenditure projections in the town’s adopted budget for the 2021 fiscal year are not reasonable. Auditors’ review took into consideration the potential impact the COVID-19 pandemic may have on the town’s finances. They determined the general and highway fund revenues are potentially overestimated by $25,000. In addition, highway fund appropriations are underestimated by at least $17,900.The general fund’s 2020 ending fund balance is estimated at $64,000, which is sufficient to balance the 2021 budget. However, additional fund balance may be needed to replace revenue shortfalls and to supplement the highway fund. The deficit in the highway fund is estimated at $27,000 as of Dec. 1, 2020. The town’s 2021 adopted budget complies with the tax cap limit.

 

Village of Remsen – Clerk-Treasurer’s Records and Reports (Oneida County) The clerk-treasurer did not maintain adequate records and reports to allow the board to properly manage village finances. Required annual financial reports were not completed or filed with the State Comptroller’s Office for any of the last four years (2015-16, 2016-17, 2017-18 and 2018-19). Fund transfers were not properly recorded and inadequate financial reports were provided to the board. In addition, the board did not annually audit the clerk-treasurer’s records and reports, as required.

 

 

 

 

Challenging administrative decisions made by educational institutions

The petitioner [Plaintiff] in CPLR Article 78 proceeding has been employed by the New York City Department of Education [DOE] as a teacher of library or as a librarian for over 20 years. Plaintiff 's performance was reviewed by her Supervising Principal at the conclusion of the relevant school year,. The Supervising Principal rated the Plaintiff's overall performance as unsatisfactory. 

Plaintiff filed an administrative appeal challenging her unsatisfactory performance rating. DOE's Deputy Chancellor for Teaching and Learning denied Plaintiff's appeal and sustained the Supervising Principal's rating of unsatisfactory.

Plaintiff initiated a CPLR Article 78 proceeding challenging the Deputy Chancellor's determination and Supreme Court, after a hearing, determined that the Deputy Chancellor's determination was arbitrary and capricious and that the rating of unsatisfactory was not rational. 

Supreme Court then granted Plaintiff's Article 78 petition, annulled the determination of the Deputy Chancellor and substituted a determination rating the Petitioner's performance as satisfactory. DOE appealed.

The Appellate Division reversed the judgment of the Supreme Court, denied Plaintiff's petition and confirmed the Deputy Chancellor's determination, explaining:

1. "Administrative decisions of educational institutions involve the exercise of highly specialized professional judgment and these institutions are, for the most part, better suited to make relatively final decisions concerning wholly internal matters"; and

2. Court should not overturn an employer's rating of an employee as unsatisfactory unless it is arbitrary and capricious, made in bad faith, or contrary to the law.

Observing the Plaintiff failed to demonstrate that the Supervising Principal's rating her unsatisfactory was arbitrary or capricious. Rather, said the Appellate Division, the evidence in the record "demonstrated that the rating of unsatisfactory was based on incidents of misconduct, unprofessionalism in interacting with other teachers, and insubordination."

Concluding that the Deputy Chancellor's determination was rational, the Appellate Division held that the lower court "should not have supplanted the judgment of the DOE with its own" and vacated the Supreme Court's decision.

The Appellate Division's decision is posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2020/2020_07384.htm.