Reasonable statements made in the course of defending a claim of unlawful discrimination do not violate the anti-retaliation provisions of Title VII

A former employee [Petitioner] filed a complaint with the New York State Division of Human Rights [SDHR] alleging his former employer, the Office of the Attorney General [OAG], had engaged in unlawful discriminatory practices when it did not promote him to certain positions because of his age and because of religious discrimination. DSHR dismissed Petitioner's complaints, finding no probable cause to believe OAG had engaged in any unlawful discriminatory practices with respect to Petitioner's employment. In the ensuing appeal, the dismissal was affirmed (Cagino v Levine, 199 AD3d 1103.

During the pendency of the lawsuit, Petitioner submitted a Freedom of Information Law request to OAG seeking records related to the use of identification cards by certain employees — two of whom were the named defendants — to gain access to State buildings. OAG's Records Access Officer denied the request, concluding that the records were exempt under Public Officers Law §87(2)(b) because disclosure would result in an unwarranted invasion of privacy. The Records Access Officer's decision was sustained in the administrative appeal that followed.

Petitioner then filed a CPLR Article 78 appeal challenged that administrative determination and certain statements made in OAG's opposition papers, which Petitioner contended defamed him, resulting in Petitioner filing a complaint with the federal Equal Employment Opportunity Commission, which was transferred to SDHR

SDHR dismissed Petitioner's retaliation complaint, finding no probable cause to substantiate such a claim insofar as the allegedly defamatory statements, made in court papers, did not form the basis for a viable retaliation claim. Supreme Court subsequently dismissed the Petitioner's Article 78 action, concluding, as relevant here, that SDHR's finding of no probable cause was supported by a rational basis and was neither arbitrary nor capricious. Petitioner appeals.

The Appellate Division affirmed the Supreme Court's decision, holding that "SDHR's determination that there was no probable cause to support the retaliation claim is not contrary to law, nor is it arbitrary or capricious." Citing Matter of Curtis v New York State Div. of Human Rights, 124 AD3d 1117, the court noted that upon investigating a complaint, SDHR may dismiss it without a hearing "if it concludes that no probable cause exists" and that "Courts give deference to SDHR due to its experience and expertise in evaluating allegations of discrimination, and will only disturb a determination of no probable cause if it is arbitrary [and] capricious or lacks a rational basis".

In this instance, the Appellate Division noted that the dispute focused on whether OAG's statements about Petitioner in court papers filed in the FOIL proceeding constituted an adverse employment action. The court's decision notes that Petitioner "characterizes as retaliatory certain statements made by OAG in defending the denial of his FOIL request, including statements in an affirmation by an Assistant Attorney General that Petitioner:

[1] Made "increasingly and repeated hateful and alarming allegations" against the individuals to whom the records pertained; and

[2] Referred to Petitioner as a "disgruntled former employee" who had a "vendetta against" the individuals who were the subject of the records.

Explaining that in the context of a case of unlawful retaliation courts have deemed an adverse employment action to one which might have dissuaded a reasonable worker from making or supporting a charge of discrimination but have declined to do so "where the action complained of was undertaken by the employer as an "[o]rdinary defensive measure[ ] ... for the very purpose of defeating the employee's claim".

Further, the Appellate Division opined that "[r]easonable defensive measures do not violate the anti-retaliation provision of Title VII, even though such steps are adverse to the charging employee and result in differential treatment", citing United States v New York City Tr. Auth., 97 F3d at 677.

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

 

State Comptroller DiNapoli releases municipal and school audits

New York State Comptroller Thomas P. DiNapoli announced the following municipal and school audits were issued on June 23, 2023.

Click on the text highlighted in color to access the entire audit report. 

Village of Odessa – Clerk-Treasurer’s Records and Reports (Schuyler County) The former clerk-treasurer did not make cash deposits in a timely manner or properly record her leave usage. In addition, she earned and used leave that she was not entitled to and paid herself an unauthorized payment for unused leave totaling $13,293 when she left employment. The former clerk-treasurer also erroneously reported an additional 392.54 days worked to the New York State and Local Retirement System. 

N.B. The release of this report was delayed by the Office of the State Comptroller and submitted to "outside law enforcement for review".

Broome-Delaware-Tioga Board of Cooperative Educational Services (BOCES) – Capital Planning BOCES officials did not properly plan or budget for capital expenditures. Between 2018-19 and 2020-21, officials budgeted $916,304 for building repairs. However, building repairs and improvements totaled over $3.4 million for the same period. Without adequate capital planning, BOCES officials are limited in their ability to set long-term priorities. As a result, BOCES officials did not transparently fund capital expenditures and instead utilized more than $2.5 million of the component and participating school districts’ surplus funds over the last three school years.

Afton Central School District – Fund Balance Management (Chenango County) The board and district officials did not effectively manage the district’s fund balance. As a result, they levied more taxes than needed to fund operations and were not transparent with taxpayers. The board annually overestimated appropriations from fiscal years 2019-20 through 2021-22 by an average of $1.1 million or 7%. In addition, surplus fund balance exceeded the 4% statutory limit in each of the last three fiscal years by approximately $2.9 million to $5.6 million. The board also unnecessarily appropriated fund balance that was not needed, which in effect is a reservation of fund balance that is not provided  by statute and circumvents the statutory limit on surplus fund balance. Lastly, the district incurred $63,561 in unnecessary interest and other associated costs for the issuance of bond anticipation notes to purchase school buses.

Henry Johnson Charter School – Resident Tuition Billings and Collections (Albany County) While School officials ensured resident district tuition billings were adequately supported for the sample of 30 students reviewed, they did not ensure related district tuition collections reviewed totaling $8 million were deposited in a timely manner. Officials and staff also did not monitor collections received to ensure they were deposited in a timely manner or deposit 29 district tuition collections totaling $4.9 million in a timely manner.  

East Williston Central School District – Management of Nonstudent Network User Accounts (Nassau County) District officials did not adequately manage and monitor nonstudent network user accounts to help prevent unauthorized use, access and loss. Auditors found 222 (32%) of the enabled nonstudent network user accounts were not needed or disabled. Most of these accounts should have been disabled in February 2021 when the district updated their network access requirements. However, district officials did not develop a system to communicate when a network account was no longer necessary and should be deactivated.

Chenango Valley Central School District – Network User Accounts and Information Technology (IT) Contingency Planning (Chenango County) District officials did not adequately manage network user accounts or develop and adopt an IT contingency plan. Auditors found that sixty-eight (12%) of the district’s nonstudent network user accounts were no longer needed. Unneeded network user accounts are additional entry points into a network and, if accessed by attackers, could be used to inappropriately access and view personal, private and sensitive information or disable the network.

Rochester Academy Charter School – Credit Cards (Monroe County) School officials did not ensure credit card charges were properly approved, adequately supported and for school purposes and did not perform an effective and timely review of credit card charges. As a result, school officials approved and paid certain credit card charges without knowing what was purchased or whether the charges were for appropriate school purposes. Auditors found 35% of the tested credit card charges worth $68,523 did not have a receipt or did not have an itemized receipt and 48% totaling $91,673 had no documented school purpose. Subsequently, officials obtained and provided some of the missing receipts; however, 9% of the charges were still missing receipts. Officials also did not establish adequate written credit card policies and procedures or ensure compliance with the established policy requirements.

Town of New Albion – Town Supervisor’s Financial Duties (Cattaraugus County) The supervisor did not perform his financial duties or obtain training on how to perform his duties and was unfamiliar with the duties of his office. The town clerk and the bookkeeper performed the supervisor’s financial duties without oversight. By allowing others to perform his duties without oversight, the supervisor has weakened internal controls. For example, from Jan. 1, 2022 through Sept. 30, 2022, the town clerk collected and deposited $937,815 on behalf of the supervisor and performed the supervisor’s payroll duties without oversight. In addition, the bookkeeper performed many of the supervisor’s other day-to-day financial duties, including recording cash receipts and disbursements into the accounting records, preparing the monthly bank reconciliations and generating all of the supervisor’s reports to the board.

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Administrative Law Judge recommends dismissal of correction officer foung guilty of using excessive force

New York City Office of Administrative Trials and Hearings [OATH] Administrative Law Judge Astrid B. Gloade recommended that the appointing authority terminate the employment of a correction officer [Officer] she found had retaliated against an incarcerated person.

Judge Gloade found that the New York City Department of Correction met its burden of proof that Officer used excessive and unnecessary force when he threw urine on an incarcerated person and failed to submit an accurate and complete use of force report regarding his actions. The ALJ noted Officer conceded the Department's allegations and the only disputed fact was "whether liquid that the incarcerated person tossed out of the cell before [Officer's] actions made contact with [Officer]".

Noting Officer's testimony that since the incident, "he has grown mentally and learned from the experience" and the proven misconduct arises from a single incident for which Officer has expressed remorse, Judge Gloade held that Officer's "conduct was egregious and raises grave concerns about his fitness to perform his duties as a correction officer."

Although Officer's Counsel argued that a penalty of not more than a 60-day suspension without pay was "appropriate in light of all of the circumstances" considered during the hearing, the Administrative Law Judge opined Officer's "disciplinary record, which includes a prior, recent use of force and a domestic violence incident, offers little by way of mitigation."

Click HERE to access the ALJ's findings and recommendation posted on the Internet.

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A Reasonable Disciplinary Penalty Under the Circumstances.  The text of this NYPPL e-book focuses on court and administrative decisions addressing disciplinary penalties imposed on officers and employees in the public service in instances where the individual has been found guilty of misconduct and, or, incompetence. For additional information about this e-book, and access to a free excerpt, click HERE.

 

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.

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