Evaluating a defendant's motion for summary judgment in the course of Title VII litigation

The complainant [Plaintiff] in this Title VII action appealed the decision of a United States District Court to grant the Employer and several named employees of the Employer [Defendants'] motions for summary judgment on all of Plaintiff’s claims. 

Plaintiff had alleged that the Defendants had  (1) discriminated against him after one of his coworkers claimed he had engaged in workplace misconduct, including sexual harassment; (2) retaliated against him for appealing, pursuant to his union contract, subsequent adverse disciplinary decisions; and (3) violated his due process rights in the course of investigating and responding to the allegations of his alleged workplace misconduct. 

Reviewing the lower court's decision granting summary judgment to Defendants de novo, the Second Circuit Court of Appeals noted that summary judgment is appropriate when “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." To establish a due process violation, said the court, a plaintiff must show that he possessed “a protected liberty or property interest” and that he was deprived of that interest “without constitutionally adequate process.” In addition, the Plaintiff must “establish [an individually named] defendant’s personal involvement in the claimed violation in order to hold that defendant liable in his individual capacity.”

The Circuit Court, observing that Plaintiff failed to address the district court’s dismissal of his intentional infliction of emotional distress and defamation claims in his brief, held that Plaintiff waived those issues for purposes of this appeal, citing Norton v. Sam’s Club, 145 F.3d 114. In Norton that Second Circuit Court held that “Issues not sufficiently argued in the briefs are considered waived and normally will not be addressed on appeal.”

Here the Circuit Court concluded that "there is no genuine dispute of material fact and that Defendants are entitled to judgment as a matter of law on each of [Plaintiff's] discrimination, retaliation, and due process claims."

Addressing Plaintiff 's due process claims against individual Defendants, the Circuit Court affirm the district court's ruling on the basis of qualified immunity, explaining the “unlawfulness of their conduct”—if any—was not “clearly established at the time.” With respect to Plaintiff's Title VII retaliation claim, the Circuit Court  affirm the district court's ruling holding that Plaintiff had not been engage in any relevant Title VII-protected activity.

Click HERE to access the Circuit Court's decision posted on the Internet.

Woman arrested for allegedly stealing over $450,000 in New York State pension and Social Security payments

On February 23, 2023, New York State Comptroller Thomas P. DiNapoli, the U.S. Attorney for the Northern District of Georgia Ryan K. Buchanan and the Inspector General for the Social Security Administration Gail S. Ennis announced the arrest of a Georgia resident, Sandra Smith, for allegedly stealing over $450,000  in New York state pension and Social Security payments made to her deceased mother-in-law over a 16-year period.* 

Admitting to investigators that she stole the money, Sandra Smith was charged with 20 counts of wire fraud and 10 counts of theft of government funds. She was arraigned before U.S. Magistrate Judge Justin S. Anand.

“The defendant callously took advantage of her mother-in-law’s death to profit at the expense of New York’s retirement system and the Social Security Administration,” DiNapoli said. “She has now been brought to justice and we will seek full restitution. I thank U.S. Attorney Buchanan and the Social Security Administration Office of the Inspector General for their partnership on this matter.”

“Smith allegedly stole money that taxpayers and government employees paid into both retirement systems,” Buchanan said. “Money she was not entitled to. Through this joint effort, one more person who believed they could game the system has been caught and will be prosecuted.”

“For nearly 15 years, the beneficiary’s death was allegedly concealed by Ms. Smith so that she could illegally obtain Social Security benefits, which is a federal crime. These charges exemplify that my office will continue to pursue those who defraud the Social Security Administration,” Ennis said. “I thank the New York Office of the State Comptroller for investigating with us. I also thank the U.S. Attorney’s Office and Special Assistant U.S. Attorney Diane Schulman for prosecuting this case.”

Sandra Smith’s mother-in-law, Minnie Smith, was a longtime Brooklyn resident who had worked for the State Insurance Fund from 1985 until her retirement in 2005. She subsequently moved to Georgia to be close to family and died on Sept. 14, 2006. Her family did not notify the New York State and Local Retirement System (NYSLRS) or the SSA of her death and the retirement system received a change of address form purportedly signed and dated by “Minnie Smith.”  

At the time of Minnie Smith’s death in September 2006, Sandra Smith was her caretaker and handled her finances. As her caretaker, Sandra Smith had access to Minnie Smith’s bank account. After Minnie Smith died, Sandra Smith did not close the bank account. Instead, she kept Minnie Smith’s bank account open and NYSLRS and SSA continued to deposit funds into the account until early 2021. Sandra Smith knew exactly when those benefits would be deposited each month, and each month she allegedly withdrew the funds from the account almost as soon as they were deposited. 

When Minnie Smith's death was discovered, payments were stopped and the Comptroller DiNapoli’s Division of Investigations coordinated with the SSA-OIG, which was conducting its own review of the fraud.  

A total of $264,700 in retirement system payments and $194,351 in Social Security payments were deposited into Minnie Smith’s bank account from September 2006 through April 2021.

* The Comptroller noted that the charges filed against Sandra Smith in this case are merely accusations and Smith is presumed innocent unless and until proven guilty in a court of law.

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Since taking office in 2007, Comptroller DiNapoli has been committed to fighting public corruption and encourages the public to help fight fraud and abuse. Allegations of fraud involving taxpayer money may be reported to the Comptroller DiNapoli by using the toll-free Fraud Hotline at 1-888-672-4555, by filing a complaint online using the Internet at https://www.osc.state.ny.us/investigations, or by mailing a complaint to the Office of the State Comptroller, Division of Investigations, 8th Floor, 110 State St., Albany, NY 12236.

Disclosing complaints or allegations of a public officers' misconduct sought pursuant to the New York State Freedom of Information Law

In the Matter of New York Civil Liberties Union [CLU] v New York City Department of Correction [DOC], 2023 NY Slip Op 00930, the Appellate Division noted that the personal privacy exemption in Public Officers Law §87(2)* allows state agencies to protect sensitive matters "which are of little or no public interest, and which may include unsubstantiated allegations," citing Matter of New York Times Co. v City of New York Off. of the Mayor, 194 AD3d 157.

However, cautioned the court, "Public Officers Law §87(2) does not create a categorical or blanket exemption from disclosure for unsubstantiated complaints or allegations of uniformed officers' misconduct ... Documents concerning unsubstantiated complaints or allegations should be disclosed to the extent that they can be redacted to prevent an unwarranted invasion of personal privacy, including the removal of identifying details [citations omitted]."

In this instance the Appellate Division held that DOC did not establish that identifying details in the records or data requested by CLU could not be redacted to prevent an unwarranted invasion of privacy. 

Accordingly, the Appellate Division held that Supreme Court properly required DOC to disclose the requested records, subject to redactions with specific justification under Public Officers Law §87(2). Supreme Court, said the Appellate Division, also properly required that DOC sufficiently document its justification for redactions to facilitate potential in camera** review by Supreme Court.

Addressing CLU's request for an award of attorney's fees and costs, the Appellate Division opined that "as this proceeding at this stage concerns a novel interpretation of legislation that both repealed a statute and enacted new provisions to a longstanding statutory scheme", it cannot be said that DOC had no reasonable basis for denying access to the records at issue.

* See Public Officers Law §89(2), concerning personal privacy exceptions authorized by law. 

** Judicial review of a matter in the privacy of the judge's chambers."

Click HERE to access the Appellate Division's decision posted on the Internet.

See, also, Matter of Puig v New York State Police, https://www.nycourts.gov/reporter/3dseries/2023/2023_00258.htm

School board policy requiring speakers at board meetings to disclose their name and address challenged

A school board's policy requires speakers at board meetings to provide their names and addresses.  Petitioner in this Education Law §310 appeal to the Commissioner of Education sought to avoid giving her last name or street address in order to speak at a school board meeting. Petitioner asked the Commissioner of Education to removal from the school board president for enforcing this policy, which Petitioner alleged violated the board’s Ethics Code.  Petitioner also contended that the Commissioner should invalidate the board’s policy that speakers be required to give their name and address before speaking because it allegedly violated New York State's Open Meetings Law.

The Commissioner dismissed Petitioner's application on number of procedural grounds, including lack of jurisdiction, noting Public Officers Law §107 vests consideration of alleged violations of the Open Meetings Law in the Supreme Court of the State of New York. 

The Commissioner's decision cites Comm on Open Govt OML-AO-5607 (2019) and Comm on Open Govt OML-AO-2717 (1997), advisory opinions issued by Committee staff*, which posit that while the public entity may request an individual to provide his name and address, "a person may not be required [sic] to do so in order to attend, speak or otherwise participate relative to a meeting of a public body".

As the school board indicated that after receipt of the instant appeal it “voted against suspending its policy to conform to ... these opinions" issued by Committee staff, the Commissioner said that she would transmit her decision in this matter "to the Committee on Open Government for appropriate action."

* The Committee's staff prepares written advisory opinions in response to particular sets of facts and circumstances.

Click HERE to access the Commissioner's decision posted on the Internet.

Self-insured employer's claim for reimbursement for workers' compensation payments it made to a firefighter for a work-related injury rejected

In this appeal the City of Newburgh Fire Department [Department] challenged the Workers' Compensation Board's [WCB] decision that the Department, a self-insured workers' compensation employer, was not entitled to reimbursement or credit for certain payments it made to a Claimant [Firefighter].

Firefighter suffered a disabling work-related injury in the course of his performing his firefighting duties and established a claim for workers' compensation benefits. Ultimately classified as permanently partially disabled, Firefighter was paid his full salary during his period of disability by the Department. The Department filed requests for reimbursement of those wages against any award of workers' compensation benefits.*

In April 2016 Firefighter's application for performance of duty disability retirement pursuant to Retirement and Social Security Law §363-c was approved and provided for a 50% pension. Although full wage payment to Firefighter pursuant to General Municipal Law §207-a(1) were discontinued upon Firefighter's disability retirement, the Department commenced paying Firefighter the difference between the amount received from his pension and the amount of his regular wages under color of General Municipal Law §207-a[2].

In 2019, Firefighter submitted a request for additional benefits, claiming that his "permanency classification" entitled him to retroactive workers' compensation awards from April 2016 and continuing, which payments had been discontinued. The Department sought credit against any workers' compensation awards based upon its supplemental pension payments pursuant to General Municipal Law §207-a(2).

Ultimately Firefighter was awarded benefits "retroactive to April 30, 2016 and continuing". However, the Workers' Compensation Law Judge [WCLJ] found that the Department was not entitled to reimbursement against the workers' compensation awards for pension payments made to Firefighter under General Municipal Law §207-a(2).

The Department appealed but ultimately the WCB affirmed the decision of the WCLJ, noting that "any determination as to the setoff/reimbursement of the workers' compensation payments against the pension supplement the [Department] pays pursuant to General Municipal Law §207-a(4-a) was outside its jurisdiction." The Department's subsequent application "for reconsideration and/or full Board review was denied" and it appealed this ruling by the WCB.

The Appellate Division said was "unpersuaded by the [Department's] contention that because [Firefighter] is receiving a performance of duty disability pension, as opposed to an accidental disability retirement pension, the matter is distinguishable from Matter of Harzinski v Village of Endicott (126 AD2d 56 [3d Dept 1987]) and, as such, [the Department] is entitled — pursuant to Workers' Compensation Law §25(4)(a) or §30(2) — to reimbursement of its General Municipal Law §207-a(2) payments against [Firefighter's] workers' compensation awards."

Workers' Compensation Law §25(4)(a), said the court, provides that in the event an "employer has made advance payments of compensation, or has made payments to an employee in like manner as wages during any period of disability," the employer "will be entitled to reimbursement out of any unpaid workers' compensation award (emphasis provided by the court in its decision)" and Workers' Compensation Law §30(2) provides for the reimbursement of "any salary or wages paid" to a firefighter pursuant to General Municipal Law §207-a against any workers' compensation award.

Explaining that "because the supplemental retirement benefits paid by the [Department] were not wages, the workers' compensation awards were not reimbursable to the [Department] by way of Workers' Compensation Law §25(4)(a) or §30(2)," the Appellate Division sustained the WCB's determination.

To the extent that the Department argued that limiting "any offset or reimbursement to future General Municipal Law §207-a(2) supplemental payments" as set forth in General Municipal Law §207-a(4-a) is inappropriate and thwarts the statutory scheme,** the court said the Board made no determination with regard to the applicability of that statute, noting that its determination in that regard would be inappropriate. In the words of the court: "The employer does not challenge this finding on appeal and, as such, it is not properly before us."

* Any award of workers' compensation to Firefighter was to be designated reimbursable to the employer.

** General Municipal Law §207-a(4-a) provides that "[a]ny benefit payable pursuant to [General Municipal Law §207-a(2)] to a person who is granted retirement for disability incurred in performance of duty pursuant to [Retirement and Social Security Law §363-c] shall be reduced by the amount of the benefits that are finally determined payable under the workers' compensation law by reason of accidental disability."

 

Click HERE for access to the decision of the Appellate Division posted on the Internet.