Two recent decisions published by the New York City Office of Administrative Trials and Hearings

Decision 1.

New York City Office of Administrative Trials and Hearings [OATH] Administrative Law Judge [ALJ] Kara J. Miller considered the Agency's request that a community coordinator [CC] charged with violating a previously issued warning memo* and making threats of harm or violence to agency staff members be terminated from the position.

Judge Miller found that CC made threatening comments to his supervisors and colleagues, including referencing his access to guns and repeated attempts to find out when an office gathering would take place via emails sent to his supervisors and text messages to his personal therapist, which were subsequently forwarded to the Agency’s Equal Employment Opportunities Office. The text message referenced an upcoming office holiday party, instructed CC's therapist to look for him on the news, and stated, “The System has failed me so it will be punished.”

Finding CC guilty of the charge of making threats of harm or violence toward his co-workers, the ALJ recommend the Agency terminate CC’s employment. 

* ALJ Miller dismissed the disciplinary charge alleging CC violated "a warning memo", finding that the Agency failed to properly introduce the warning memo into evidence and failed to allege specifics as to how CC violated the warning memo.

Click HERE to access the text of Judge Miller's decision posted on the Internet.

 

Decision 2. 

OATH Administrative Law Judge Tiffany Hamilton recommended termination of employment for a correction officer [CO] who engaged in "undue familiarity" with individuals in custody and other related misconduct. 

Judge Hamilton found:

[1] CO passed notes between a male person in custody (BL), and a female person in custody (TG), who occupied holding pens across the hallway from one another;

[2] failed to look inside BL’s holding pen when removing TG from that pen approximately 50 minutes later; and

[3] Failed to submit a report regarding sexual contact between the said two persons in custody; and

[4] CO did not deny the alleged misconduct charged but argued that her actions did not warrant termination.

The ALJ, noting that CO's remorse for her conduct and the absence of CO being the subject of any prior disciplinary action in the record, nevertheless concluded that termination was warranted because CO's conduct demonstrated "several fundamental lapses in judgment, an inefficient performance of duties, and untrustworthiness" and recommended CO impose the penalty of dismissal from service as requested by the Appointing Authority.

Click HERE to access the text of Judge Hamilton's decision posted on the Internet.

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 A Reasonable Disciplinary Penalty - For information and access to a free excerpt of the material presented in this New York Public Personnel Law e-book, click HERE

 

 

Former employees of a candidate's election campaign organization challenged their termination after the candidate's withdrawal from the campaign

Plaintiffs-Appellants in this appeal to the United States Court of Appeals, Second Circuit, are fifty former field employees of defendants "Michael Bloomberg and Mike Bloomberg 2020, Inc." [Campaign], which sought to promote and secure the Democratic presidential nomination for Michael Bloomberg.

Plaintiffs contended that Campaign recruited them to the job by promising employment through November 2020, but reneged on that promise when the Campaign dismissed Plaintiffs shortly after Bloomberg withdrew from the race in March of 2020. Plaintiffs, alleging "fraudulent inducement and promissory estoppel", challenged a federal district court’s dismissal of their complaint, with prejudice and without leave to amend.

The Circuit Court said it reviewed de novo "both the district court’s dismissal under Rule 12(b)(6) and its denial of the request to amend [the complaint] on the basis of futility," citing Chambers v. Time Warner, Inc., 282 F.3d 147,  and Panther Partners Inc. v. Ikanos Commc’ns, Inc., 681 F.3d 114.

Concluding that "(1) Plaintiffs are unable to prove the reasonable reliance required for their claims because of the at-will nature of their employment agreement,* and (2) Plaintiffs would not be able to survive dismissal even if granted leave to amend", the Circuit Court sustained the district court's ruling.

* A footnote, Footnote 4, in the Circuit Court's decision notes Campaign's offer of employment letter states “[t]he nature of your employment at the [Campaign] is and will continue to be ‘at will,’ as defined by applicable law, meaning that either we or you may terminate your employment at any time, with or without notice and with or without cause, for any reason or for no reason.” Further, observed the court, Campaign's employee handbook states “[y]our employment with the [Campaign] is ‘at will,’ which means that it is for no definite period of time, and may be terminated at any time by either you or the [Campaign], with or without cause, notice or procedural requirements.”

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

 

A Veterans’ Day 2023 advisory memorandum has been issued by the New York State Department of Civil Service

The Department of Civil Service has issued Attendance and Leave Advisory Memorandum 2023-04 addressing Veterans’ Day, November 11, 2023, noting that a number of State Departments and  agencies have inquired about Veterans’ Day, which this year will fall on Saturday, November 11, 2023. 

The Department reports that it has been advised by the Office of Employee Relations that another day will not be designated to be observed as a holiday by State employees in lieu of November 11, 2023.

The text of Advisory Memorandum 2023-04 is posted on the Internet at: https://www.cs.ny.gov/attendance_leave/AdvMemo23-04.cfm

The Department of Civil Services has made a version of Advisory Memorandum 2023-04 available in PDF for those wishing to print it.

Click HERE to access the PDF version of Advisory Memorandum 2023-04 posted on the Internet.

Earlier Attendance and Leave bulletins issued by the Department of Civil Service are posted on the Internet at https://www.cs.ny.gov/attendance_leave/index.cfm .

 

 

 

Private entities and employees of private entities are typically not within the ambit 42 U.S.C. §1983 for the purposes of filing violation of civil rights complaints

The Plaintiff in this action appealed a federal district court’s dismissal of her 42 U.S.C. §1983 civil rights complaint. Plaintiff had sued a private hospital and a number of its employees [Respondents] for allegedly for violating her constitutional rights while involuntarily hospitalizing and medicating her.

A federal district court had dismissed Plaintiff's amended complaint as she failed to plead that Respondents were acting under color of state law and denied further leave to amend her complaint as futile.*

Reviewing a dismissal of a cause of action for failure to state a claim the Second Circuit Court of Appeals said it assumed "all well-pleaded allegations in the operative complaint are true and draw every reasonable inference in the plaintiff’s favor," citing N.Y. Pet Welfare Ass’n, Inc. v. City of New York, 850 F.3d 79. 

Further, observing that Plaintiff brought this action pro se, the Circuit Court pointed out that although pro se filings “must be construed liberally and interpreted to raise the strongest arguments that they suggest,” a pro se complaint "must still state a 'plausible claim for relief' to survive a Rule 12(b)(6) motion to dismiss."

Agreeing with the district court that Plaintiff’s complaint, which was premised on alleged constitutional violations by private parties, failed to demonstrate that Respondents were acting under color of state law, the Circuit Court explained that state action “requires both the exercise of some right or privilege created by the State and the involvement of a person who may fairly be said to be a State actor.” As a result, opined the Circuit Court, "a §1983 claim against a private actor will usually fail because private actors do not act under the color of state law, no matter how 'discriminatory or wrongful' their conduct might be."

The Circuit Court's decision notes that Plaintiff did not allege that the Defendants were state actors and "did not press any meaningful argument to that end on appeal". Although Plaintiff focused on the alleged severity and illegality of the Respondents' alleged misconduct, the Circuit Court said "even egregious acts cannot form the basis of a §1983 claim unless the defendant is also acting under color of state law."

Accordingly, the Circuit Court held the district court correctly dismissed Plaintiff's complaint and so doing "with prejudice" was also proper.

 * See Alicea v. Yang, No. 21-CV-1638 (KAD), 2022 WL 2527994.

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

 

New York Public Personnel Law e-books

NYPPL's Public Personnel Law e-books, described below, may be ordered from BookLocker, Inc. and other fine book stores.

The Discipline Book - Click HERE to access a free excerpt of the material presented in this e-book and other information.

A Reasonable Disciplinary Penalty - Click HERE to access a free excerpt of the material presented in this e-book and other information.

The Layoff, Preferred List and Reinstatement Manual - Click HERE to access a free excerpt of the material presented in this e-book and other information.

Disability Leave for fire, police and other public sector personnel - Click HERE to access a free excerpt of the material presented in this e-book and other information.