Plaintiff's allegations of unlawful discrimination and retaliation dismissed

The United States District Court for the Southern District of New York dismissed Plaintiff's claims of age, race, and gender discrimination and retaliation within the meaning of the Age Discrimination in Employment Act, 29 U.S.C. §621 et seq., Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e et seq., and the Civil Rights Act of 1866, 42 U.S.C. §1981.

Plaintiff appealed, contending that the district court had applied an incorrect legal standard to her retaliation claim and that it erroneously concluded that she had failed to demonstrate that her employer, the New York City Transit Authority's [Authority] race neutral explanations for not selecting her for two internal promotions were pretextual.

The Second Circuit of Appeals affirmed the judgment of the district court.

Initially the Circuit Court held that Plaintiff had not demonstrated that the Authority's explanations for her non-promotions were pretextual. 

Second, the Circuit Court opined "although the district court applied an incorrect standard to her retaliatory hostile work environment claim, Plaintiff had, nevertheless, failed to make out a prima facie case of retaliation and did not demonstrate that the Authority non-retaliatory explanations were pretextual"

Click HERE to access the text of the Second Circuit's decision posted on the Internet.

Judicial review of an administrative decision made without a formal hearing is limited

In a hybrid proceeding pursuant to CPLR Article 78 to review a resolution of the Town Board Supreme Court granted branches of a cross-motion of the Town Board pursuant to CPLR 3211 and 3212 to dismiss certain causes of action in the Plaintiffs' petition and complaint. Plaintiffs appealed the court's decision to the Appellate Division.

The Appellate Division, in a 3 to 2 decision, affirmed the Supreme Court's action and judgment, explaining:

1.  In reviewing an administrative determination, this Court must consider only whether the "determination was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion;" and

2. In instances where judicial review involves an administrative determination made without a formal hearing, such judicial review is limited to whether the determination was arbitrary and capricious, or without rational basis in the administrative record.*

One of the causes of action alleged that the determination of the Town Board was arbitrary, capricious, or irrational. Here the Appellate Division held that the Town Board had demonstrated that its determination to issue the resolution was rational and not arbitrary or capricious and thus was properly dismissed by Supreme Court.

Addressing the other relevant cause of action involving the Plaintiffs' allegation that the resolution of the Town Board was not supported by substantial evidence, the Appellate Division opined that the substantial evidence standard of review "is inapplicable here as the challenged determinations did not arise from a quasi-judicial hearing required by law," citing CPLR 7803[4] and Matter of 1300 Franklin Ave. Members, LLC v Board of Trustees of Inc. Vil. of Garden City, 62 AD3d at 1007. Accordingly, the Supreme Court also properly dismissed this cause of action which sought to annul the Town Board's determination "for lack of substantial evidence".

* See Matter of Peckham v Calogero, 12 NY3d 424.

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

Government Technology's "Question of the Day" raises critical issues concerning data security and Artificial Intelligence

A Government Technology [GT] article posted on the Internet on August 7, 2023, asks "How did AI [Artificial Intelligence] bots break Amazon?" Its answer: "By flooding the Kindle store with nonsense books" and then continues:

"Perhaps this is how the robot revolution starts — rather than physically rising up against us, the bots will just overwhelm the Internet with their own content until there’s nothing human left on it. That’s what they did in June in Amazon’s Kindle online bookstore.

"Twitter users reported a barrage of nonsense AI books topping the platform’s Kindle Unlimited young adult romance bestseller list at the end of June. “The AI bots have broken Amazon,” tweeted indie author Caitlyn Lynch. She went on to explain that of the top 100 books on the list, only 19 appeared to be legitimate books written by humans.

"The remaining 81 appear to have been written by AI, with nonsensical titles like Apricot bar code architecture, Ma La Er snorted scornfully, and Department of Vinh Du Stands in Front of His Parents’ Tombstone."

Will records and data accessible via the Internet, government, commercial, personal and otherwise, be compromised should they become the next target of unauthorized AI intrusions? 

GT then ponders: "Are You a Real Person? Proving You're Human Online". It notes that "CAPTCHA s have been around for decades, but new AI advances are changing the methods required to prove you are a real person. So where next with human verification — and user frustrations? READ MORE".

GT also noted that "Feds Announce Massive K-12 Cybersecurity Resilience Program", observing that "Cybersecurity is widely regarded as the No. 1 technology issue for schools, so the White House and U.S. Department of Education have unveiled a public information campaign, grants and ed-tech partnerships to tackle it head-on." READ MORE

Attorneys invited to consider a career in public service with the State of New York

The New York State Department of Civil Service invites attorneys to consider a career in public service with the State of New York.

For information describing current employment opportunities click HERE.

Surveillance video used to support disciplinary charges alleging patient abuse served on an employee at a geriatric facility

Petitioner, a certified nurse's aide at a geriatric facility, was observed on a surveillance video force-feeding a patient in a rushed and rough manner. Petitioner was charged by the New York State Department of Health [DOH] with patient abuse and neglect as defined under 10 NYCRR 81.1(a) and (c), respectively, in violation of Public Health Law §2803-d. 

Then Commissioner Zucker adopted the Administrative Law Judge's findings and recommendations and sustained the charges of patient abuse and neglect. Petitioner commenced this CPLR article 78 proceeding to challenge the Commissioner's determination.

The Appellate Division opined that contrary to the Petitioner's contention, the ALJ providently exercised her discretion in admitting into evidence the surveillance video footage, citing Walker v Zucker, 146 AD3d 789. Further, said the court, substantial evidence in the record supports the Commissioner's determination that the charges were substantiated by a fair preponderance of the evidence presented at the hearing.

The decision states "DOH's evidence showed the petitioner feeding the patient heaping spoonfuls of food at a rapid pace and in an extremely rough manner, not allowing the patient sufficient time to swallow. Even the [Petitioner], herself, testified that she fed the patient at a rapid pace and that she should have been "more gentle."

The Appellate Division confirmed the Commissioner's determination, denied the petition, and dismissed the proceeding on the merits.

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