Court sustains employer's denial of employee's request for a religious exemption from the employer's COVID-19 vaccination requirement

In response to a New York City employee's [Petitioner] challenge to the denial of his request for a religious exemption from COVID-19 vaccinations the Appellate Division sustained the City's action, observing that:

1. Petitioner failed to demonstrate that the City's determination was arbitrary and capricious or made in violation of lawful procedure;

2. Petitioner's application contained a "generic statement that does not support [his] request";

3. Petitioner "failed to explain how his religious tenets conflict with the vaccine requirement.'

The court's decision also noted that Petitioner's employer "found that [Petitioner] had no demonstrated history of refusing medications or vaccines.

Finding that the employer's decision "had a rational basis in the record", the Appellate Division declined to substitute its judgment for that of the employer's, citing  Matter of Roberts v Gavin, 96 AD3d 669.

Addressing a procedural issue, the Appellate Division opined "where, as here, there was no administrative hearing, an agency may submit an official's affidavit to explain the information that was before the agency and the rationale for its decision" the court may consider such an affidavit even though it was not submitted during the administrative process [See Matter of Robins v New York City Off. of Chief Med. Examiner, 212 AD3d 541.

The Appellate Division also held that Petitioner did not established that the City's process for resolving requests for accommodations to the vaccine mandate fell short of the requirements of New York City's Human Rights Law.

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

 

State Comptroller Thomas P. DiNapoli announced the following school audits have been issued

 

On June 20, 2023, New York State Comptroller Thomas P. DiNapoli announced the following school audits were issued. 

Olean City School District – Reserve Funds (Cattaraugus County) The board and district officials properly established the district’s nine general fund reserve funds totaling $10.9 million but did not use the reserve funds and could not demonstrate that $8 million held in seven of these reserves was reasonable or needed. In addition, the board and district officials did not adopt a comprehensive written reserve fund policy, transparently fund reserves or take appropriate action to address overfunded reserves.

 

Thousand Islands Central School District – Financial Management (Jefferson County) The board and district officials did not properly manage fund balance and reserves. As a result, officials withheld funds from productive use and may have missed opportunities to reduce the tax levy. The board and district officials overestimated appropriations by $9.7 million (11.6%) between the 2017-18 and 2020-21 fiscal years and appropriated fund balance totaling $6.1 million that was not needed. They also reported fiscal year-end surplus fund balance ranging from $2.4 to $3 million (10.3 to 12.8%) of the next year’s budget (during the same period), which exceeded the 4% statutory limit by $1.4 to $2.1 million. In addition, a tax certiorari reserve was improperly funded by $304,641 and a debt reserve, with a balance of approximately $1 million, was not used to pay debt-service costs during the 2019-20 and 2020-21 fiscal years as required.

 

Ontario-Seneca-Yates-Cayuga-Wayne Board of Cooperative Educational Services (BOCES) – Budget Development BOCES officials’ budget development process was ineffective and did not ensure reasonable budget estimates. Budgets developed for the 2019-20, 2020-21 and 2021-22 fiscal years had overestimated appropriations totaling $65.5 million and overestimated revenues totaling $41.2 million. This resulted in net operating surpluses totaling more than $24 million over the three-year period. Appropriations for three equipment accounts and two printing service accounts were consistently overestimated by approximately $11.5 million and $3 million annually. In addition, department heads utilize worksheets to prepare budget estimates, which are then required to be manually input into the financial system by the business office, which is inefficient and increases the likelihood of errors.

 

Ontario-Seneca-Yates-Cayuga-Wayne Board of Cooperative Educational Services (BOCES) – Payroll Although BOCES officials compensated employees the auditors reviewed in accordance with collective bargaining agreements and employment contracts, 40 employees received unearned wages totaling $25,948 of which $19,985 was not recouped. In addition, it cost BOCES approximately $111,000 annually for time spent in the review, approval and manual entry into the financial system of the timesheets utilized by certain bargaining units/departments.

 

Oxford Academy and Central School District – Transportation Department Purchase and Service Contracts (Chenango County) District officials did not comply with competitive bidding requirements for 33 of 35 transportation contracts totaling $322,056. In addition, district fuel credit card purchases resulting in 155 charges totaling $16,258 did not comply with district procedures. Lastly, vehicle repair invoices and parts ordered by the vehicle maintenance and repair vendor were not reviewed and 22 charges, totaling $1,891, did not have enough detail to verify that the parts ordered were used for district vehicles.

 

Hawthorne Cedar Knolls Union Free School District – Financial Condition (Westchester County) The district had a general fund balance deficit in each of the last five fiscal years, averaging more than $2.9 million each year. This contributed to the district’s overall cash position, which decreased by 71%. The largest deficit occurred in the 2020-21 fiscal year and totaled more than $5.1 million. Although a multiyear financial plan would provide more transparency regarding the district’s long-term financial goals and help guide the board and officials as they develop district budgets, they did not develop a multiyear financial plan for the district.

 

Gouverneur Central School District – Medicaid Reimbursements (St. Lawrence County) District officials did not identify students who received Medicaid-eligible services or file Medicaid-reimbursement claims to recover part of the costs associated with these services. As a result, the district did not receive about $68,200 for reimbursements to which it was entitled. Although the district provided Medicaid-reimbursable services to 27 students who were eligible for Medicaid during the 2021-22 fiscal year, officials did not file for reimbursements because a district-prepared cost-benefit analysis did not fully quantify the potential revenue that could be realized. District officials also did not establish Medicaid claims procedures to ensure that staff maintained sufficient documentation for eligible services provided.

 

Fishers Island Union Free School District – Website Transparency (Suffolk County)District officials did not ensure the district’s website provided the public with transparent and comprehensive financial information. As a result, the community and other interested parties could not readily access and review information that could be used to make informed decisions. Officials also did not post information they were required to include on the district’s website.

###

Judicial review of the denial of a grievance alleging a violation of a provision set out in a collective bargaining agreement

The Governor's Office of Employee Relations denied certain out-of-title work grievances  filed by the President of the New York State Public Employees Federation, [PEF] AFL-CIO, the certified representative of employees in the Professional, Scientific and Technical Services bargaining unit, on behalf of a number of aggrieved members of the collective bargaining unit.

The aggrieved members of the bargaining unit were employed by the New York State Division of State Police in the title of Program Research Specialist [PRS], Salary Grade 18, in the Criminal Intelligence Section of the New York State Intelligence Center [NYSIC]. PEF contended that the grievants had been assigned to perform the duties of an Intelligence Analyst, [IA] Salary Grade 25, a title that PEF alleged  existed exclusively within the Counter Terrorism Section of NYSIC in violation of Civil Service Law §61(2) and in violation of certain terms set out in the controlling collective bargaining agreement. State Police denied the grievance on procedural grounds. 

Upon appeal, the Governor's Office of Employee Relations [GOER], in conformance with the recommendations of Division of Classification and Compensation of the Department of Civil Service, GOER concluded that the grieving employees were working out-of-title and directed the State Police to "cease and desist from making such out-of-title assignments." GOER further concluded that additional compensation was unwarranted as the out-of-title work performed was appropriate to salary grade 18.*

PEF then commenced a CPLR Article 78 proceeding challenging GOER's determination. Supreme Court sustained GOER's decision to the extent that it denied the individual grievants additional compensation for their out-of-title work relating to criminal intelligence and anti-crime duties and remanded the matter to GOER to:

1. More fully develop the administrative record with respect to the individual grievants' counter-terrorism duties; and 

2. Issue a new determination addressing whether the individual grievants were entitled to additional compensation for performing those specific duties. 

PEF appeal Supreme Court's ruling.

Citing  Matter of Brenner v Governor's Off. of Empl. Relations, 3 AD3d 644, the Appellate Division affirmed Supreme Court's decision, holding that "it was not erroneous for Supreme Court to remit for a new determination following development as to the alleged counter-terrorism duties, the length of time each individual [employee] engaged therein and the ratio of any such duties to each individual [employee's] work as a whole".**

Addressing GOER's ultimate conclusion that the grieving employees' duties were appropriate to salary grade 18, the Appellate Division said that the controlling provisions of the applicable collective bargaining agreement provided "out-of-title duties found to be appropriate to the same salary grade as that held by the affected employees do not entitle those employees to monetary compensation; rather, in such circumstances, the employees are entitled only to a declaration that the duties were out-of-title and to a discontinuance of the out-of-title assignments", citing Matter of Spence v New York State Governor's Off. of Empl. Relations, 183 AD3d 1199, leave to appeal denied, 35 NY3d 916.

Concluding that judicial review of GOER's determination in this context is limited to assessing whether it is arbitrary and capricious, the Appellate Division said that considering the similarities between the criminal intelligence duties performed by the individual employee during the relevant time period and the new IS 1 classification standard, it found no basis for disturbing that aspect of GOER's determination.

Accordingly, the Appellate Division held that Supreme Court properly partially dismissed PEF's petition.

* The Appellate Division noted that the subject grievance and others like it ultimately led to the Department of Civil Service reclassifying the PRS and IA titles within NYSIC to a new title series — State Police Intelligence Analyst 1-4, Salary Grades 18, 23, 25 and 29.

** The Appellate Division opined that "that the procedural posture of this appeal is less than ideal; when faced with an administrative determination that is inadequate to permit meaningful judicial review, the better practice would be for Supreme Court to withhold decision, remit for a new or supplemental determination and to then consider the matter as a whole, avoiding piecemeal review."

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

Upcoming Webinars offered by the New York State Department of Environmental Conservation

Upcoming Webinars focusing on:

Electric Vehicles and Charging Stations Extreme Heat and Climate Change: Preparing for Summer 2023 Environmental Bond Act Educational Listening Sessions Learn Why Municipalities are Transitioning Fleets to Electric Vehicles and Investing in Public Charging Infrastructure in Communities State and Utility Incentives and Programs are Available to Help The Central New York Regional Planning and Development Board (CNY RPDB), in collaboration with National Grid, presents a new webinar about electric vehicles (EVs) and EV charging stations. Topics to be covered in this webinar: why municipalities should consider EVs and charging stations now; current market trends; incentives; State programs; and statewide utility programs. In addition, hear about how electrifying fleets and installing public EV charging stations can benefit municipalities working towards certification in the Climate Smart Communities program and designation in the Clean Energy Communities program. Webinar Information: Date: June 22, 2023 Time: 12:30 p.m. – 1:30 p.m. Register to attend: https://us02web.zoom.us/meeting/register/tZctdemhqTgpE9JAFcGFiMoum9u7daH2kHaa#/registration Featuring Chris Carrick, Energy Program Manager at CNY RPDB Amanda Mazzoni, Clean Energy Communities Coordinator at CNY RPDB Mike Boccuzzi, Climate Smart Communities Coordinator at CNY RPDB Whitney Skeans, Senior Program Manager Electric Vehicles – NY at National Grid Leslie Vishwanath, Lead Project Manager Electric Vehicles/Clean Fleets - NY at National Grid Who Should Attend? Municipal officials and planning staff, Climate Smart Communities Task Force members, and all other members of the public are encouraged to attend. Questions? Contact Amanda Mazzoni at amazzoni@cnyrpdb.org.   Final Webinar in the Series About Extreme Heat and Climate Change in New York State – June 22 This webinar will highlight ways in which communities can assess, plan for, and adapt to extreme heat impacts. The presentations will review data and tools for understanding impacts, showcase key State programs and resources, and describe individual measures to adapt and stay cool. The webinar will discuss the various ways in which local governments, emergency response coordinators, and community groups can help their communities be safe during extreme heat events and highlight some of the available resources the State provides to support local preparedness and adaptation to extreme heat. Webinar Information: Date: June 22, 2023 Time: 2:00 p.m. – 4:00 p.m. Register to attend: https://meetny.webex.com/weblink/register/r264fbdc9b8c251e630b9ea766e7acba5 Expert Panel: Neil Muscatiello - Bureau of Environmental and Occupational Epidemiology at the New York State Department of Health. Corrina Cavallo – New York State Division of Homeland Security and Emergency Services Shannon Clarke – New York State Division of Homeland Security and Emergency Services Elaine Mahoney – New York State Homes & Community Renewal David Burgy – New York State Office of Resilient Homes and Communities Mara-Louise Shea – New York State Department of Environmental Conservation, Office of Climate Change Emily D’Angelo – New York State Association of County Health Officials Rami Dinnawi – El Puente David Hondula – Arizona State University’s School of Geographical Sciences and Urban Planning, and the City of Phoenix, Arizona Moderator: Meghan Holtan – University at Buffalo The webinar series is part of the New York State Department of Environmental Conservation (DEC) and New York State Energy Research and Development Authority (NYSERDA)’s development of an extreme heat action plan in response to the increased frequency and intensity of extreme heat events caused by climate change. DEC and NYSERDA started convening the Extreme Heat Action Plan Work Group last year. It consists of more than 20 State agencies working together on immediate steps to address the dangers of extreme heat. The webinars, hosted by DEC and NYSERDA in conjunction with the Extreme Heat Action Plan Work Group and University at Buffalo, include presentations by a panel of subject matter experts on topics relevant to State and local planning for extreme heat events. Municipal officials and planning staff, community organizations, and all other members of the public are encouraged to attend. Recordings of all webinars in the series are posted on the DEC website. More information about extreme heat and climate change in New York, and additional extreme heat action tools and resources are available on the DEC website.   Attend an Environmental Bond Act Educational Listening Session Overwhelmingly approved by voters last fall, the $4.2 billion Clean Water, Clean Air, and Green Jobs Environmental Bond Act prioritizes investments in environmental justice, climate change mitigation, shoreline restoration, flood resilience, water quality, open space conservation, recreational resources, and green jobs. This spring and summer, the public and potential funding applicants will be able to learn more about the Bond Act at a series of educational listening sessions. Sessions have been announced across the state - use the links below to register: Virtual Meeting: June 26, 6 to 8 p.m. Saranac Lake: July 14, 1 to 3 p.m., North Country Community College, Sparks Athletic Complex Alumni Gymnasium Capital Region: July 20, 1 to 3 p.m. University at Albany, Campus Center Auditorium Virtual Meeting: July 26, 6 to 8 p.m. Brooklyn: August 9, 6 to 8 p.m., Brooklyn College Lower Hudson: August 15, 1 to 3 p.m., Westchester County Center, Little Theater Bronx: August 22, 6 to 8 p.m., La Central YMCA Gymnasium Brentwood: August 24, 1 to 3 p.m., Suffolk County Community College Sessions will feature a presentation on the Bond Act and an opportunity for one-on-one discussion with State experts. Meetings will be open to the public. State agencies, local governments, and partners will be able to access Environmental Bond Act funding over a multi-year process. Recognizing that vulnerable populations are disproportionately affected by negative environmental and climate change impacts, at least 35%, with a goal of 40%, of Bond Act benefits will be directed toward disadvantaged communities.

DEC Delivers - Information to keep you connected and informed from the NYS Department of Environmental Conservation

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Failure to establish a causal connection between any protected activity and any adverse employment action fatal to employee's allegations of unlawful discrimination

In this action to recover damages for alleged employment discrimination on the basis of age in violation of the New York State Human Rights Law and 42 USC §1983, Supreme Court granted the Defendants' motion for summary judgment and dismissed the employee's complaint. Plaintiff appealed.

The Appellate Division sustained the Supreme Court's decision, noting that the Defendants met their initial burden of demonstrating that the Plaintiff could not make out a prima facie case of unlawful retaliation by showing that the challenged actions were not causally connected to any protected activity engaged in by the Plaintiff and Plaintiff failed to submit sufficient evidence from which a causal connection could be found between any protected activity in which he engaged and any adverse employment action.

The Appellate Division's decision is set out below:

Shapiro v State of New York

2023 NY Slip Op 03030

Decided on June 7, 2023

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on June 7, 2023 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
BETSY BARROS, J.P.
VALERIE BRATHWAITE NELSON
WILLIAM G. FORD
BARRY E. WARHIT, JJ.

2020-01368
(Index No. 602678/14)

Leonard R. Shapiro, appellant,

v

State of New York, et al., respondents.

Leeds Brown Law, P.C., Carle Place, NY (Rick Ostrove and Brandon Okano of counsel), for appellant.

Letitia James, Attorney General, New York, NY (Judith N. Vale and Blair J. Greenwald of counsel), for respondents.

DECISION & ORDER

In an action, inter alia, to recover damages for employment discrimination on the basis of age in violation of the New York State Human Rights Law and 42 USC § 1983, the plaintiff appeals from an order of the Supreme Court, Nassau County (James P. McCormack, J.), entered November 21, 2019. The order granted the defendants' motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

The plaintiff, who was born in August 1946, has been employed as an Administrative Law Judge for the New York State Unemployment Insurance Appeal Board (hereinafter the UIAB) under various titles since 1975, and has been in the UIAB's Garden City office since 2003. During the relevant time period, the defendant Jayson S. Myers was the Chief Judge of the UIAB and the defendants Teresa A. DeMeo and Matthew J. Tierney were Principal Administrative Law Judges of the UIAB. The plaintiff commenced this action in June 2014, asserting causes of action, inter alia, alleging age discrimination and retaliation in violation of the New York State Human Rights Law (see Executive Law § 296 [hereinafter the NYSHRL]), violation of his constitutional rights pursuant to 42 USC § 1983 to equal protection as a result of age discrimination, and that the individual defendants aided and abetted each other in the alleged discrimination and retaliation. The plaintiff alleged that the defendants engaged in adverse employment actions consisting of issuing him three counseling memoranda and an action plan; assigning him a disproportionately heavy workload; temporarily removing his supervisory duties; and declining to consider him as a candidate for a new senior Administrative Law Judge position in the UIAB office where he was employed. After discovery, the defendants moved for summary judgment dismissing the complaint. In an order entered November 21, 2019, the Supreme Court granted the motion. This appeal ensued.

The NYSHRL prohibits employment discrimination on the basis of age and retaliation against an employee for opposing discriminatory practices, as well as the aiding and abetting of any such discriminatory act (see Executive Law § 296[1], [6], [7]).

A plaintiff alleging discrimination in violation of the NYSHRL must establish that (1) he or she is a member of a protected class, (2) he or she was qualified to hold the position, (3) he or she suffered an adverse employment action, and (4) the adverse action occurred under circumstances giving rise to an inference of discrimination (see Stephenson v Hotel Empls. & Rest. Empls. Union Local 100 of AFL-CIO, 6 NY3d 265, 270; Forrest v Jewish Guild for the Blind, 3 NY3d 295, 305). To prevail on a motion for summary judgment in an action alleging discrimination in violation of the NYSHRL, a defendant "must demonstrate either plaintiff's failure to establish every element of intentional discrimination, or, having offered legitimate, nondiscriminatory reasons for their challenged actions, the absence of a material issue of fact as to whether their explanations were pretextual" (Forrest v Jewish Guild for the Blind, 3 NY3d at 305; see Golston-Green v City of New York, 184 AD3d 24, 36). At the time this action was commenced, under the NYSHRL, to be actionable, the adverse employment action had to be "a materially adverse change in the terms and conditions of employment" (Forrest v Jewish Guild for the Blind, 3 NY3d at 306; cf. Executive Law § 300; Golston-Green v City of New York, 184 AD3d at 34-40).

Here, the defendants demonstrated, prima facie, that the plaintiff did not suffer an adverse employment action within the meaning of the NYSHRL (see Forrest v Jewish Guild for the Blind, 3 NY3d at 307; Golston-Green v City of New York, 184 AD3d at 37; Furfero v St. John's Univ., 94 AD3d 695, 698). In opposition, the plaintiff failed to raise a triable issue of fact (see Johnson v NYU Hosps. Ctr., 39 AD3d 817, 818).

At the time the plaintiff commenced this action, in order to establish a cause of action alleging unlawful retaliation, the "plaintiff [had to] show that (1) [he or] she has engaged in protected activity, (2) [his or] her employer was aware that [he or] she participated in such activity, (3) [he or] she suffered an adverse employment action based upon [his or] her activity, and (4) there is a causal connection between the protected activity and the adverse action" (Forrest v Jewish Guild for the Blind, 3 NY3d at 313; cf. Executive Law § 300; Golston-Green v City of New York, 184 AD3d at 38). In the context of a case of unlawful retaliation, an adverse employment action is one which might have dissuaded a reasonable worker from making or supporting a charge of discrimination (see Burlington N. & S.F.R. Co. v White, 548 US 53, 68). "To establish its entitlement to summary judgment in a retaliation case, a defendant must demonstrate that the plaintiff cannot make out a prima facie claim of retaliation or, having offered legitimate, nonretaliatory reasons for the challenged actions, that there exists no triable issue of fact as to whether the defendant's explanations were pretextual" (Delrio v City of New York, 91 AD3d 900, 901; see Forrest v Jewish Guild for the Blind, 3 NY3d at 312-314; Langton v Warwick Val. Cent. Sch. Dist., 144 AD3d 867, 868).

Here, the defendants met their initial burden of demonstrating that the plaintiff could not make out a prima facie case of unlawful retaliation by showing that the challenged actions were not causally connected to any protected activity engaged in by the plaintiff (see Langton v Warwick Val. Cent. Sch. Dist., 144 AD3d at 868; Delrio v City of New York, 91 AD3d at 902). In opposition, the plaintiff failed to submit sufficient evidence from which a causal connection could be found between any protected activity in which he engaged and any adverse employment action (see Langton v Warwick Val. Cent. Sch. Dist., 144 AD3d at 868). Accordingly, the Supreme Court properly granted that branch of the defendants' motion which was for summary judgment dismissing the unlawful retaliation cause of action.

Since the plaintiff has failed to raise a triable issue of material fact that he was either retaliated against or discriminated against because of his age, his claims that the defendants aided and abetted each other in any discrimination or retaliation cannot survive (see Forrest v Jewish Guild for the Blind, 3 NY3d at 314; Johnson v NYU Hosps. Ctr., 39 AD3d at 818).

The plaintiff's remaining contention is without merit.

BARROS, J.P., BRATHWAITE NELSON, FORD and WARHIT, JJ., concur.

ENTER:

Maria T. Fasulo

Clerk of the Court