Intentional acts of sexual harassment are not within the scope of a public employee's official duties nor do they advance the public employer's interests

A correction officer [CO] was employed at a Department of Corrections and Community Supervision [DOCCS] Correctional Facility [Facility]. A co-worker [Teacher] at the Facility complained that she was subjected to unwelcome and increasingly disturbing romantic advances by CO. CO's unwelcome behavior continued after Teacher told CO that she was offended and wrote him a letter directing him "to stop bothering her". 

After it became apparent that DOCCS officials were not taking action to resolve Teacher's repeated complaints about CO's conduct, Teacher obtained an order of protection against CO. CO was later arrested for violating the order. 

The stress of CO's ongoing behavior caused Teacher to develop physical and mental problems and at her physician's direction she discontinued working at the Facility. Teacher never returned to work at the Facility, and was subsequently terminated by DOCCS.

Teacher then commenced an action in the US District Court against CO, the State of New York, DOCCS and two Facility officials she alleged had failed to address her complaints about CO's conduct. Teacher also alleged that she had been subjected to unlawful discrimination, a hostile work environment, sexual harassment and suffered retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 USC §1983 and Executive Law §296. 

A jury found CO liable and awarded Teacher compensatory and punitive damages. Ultimately Teacher obtained a judgment against CO in the amount of $2,880,000 in compensatory damages and $50,000 in punitive damages.

CO appealed the judgment but the US Court of Appeals for the Second Circuit affirmed. In so doing, the Second Circuit observed that the award of noneconomic and punitive damages against CO was supported by proof of his "egregious conduct, including sending [Teacher] threatening messages, making unwanted advances after she asked him to stop, filing a false complaint accusing her of an inappropriate relationship with an inmate, and violating an order of protection".

CO then requested that he be indemnified by the State for the judgment amount. Supreme Court granted the State Defendants' motion, which it deemed a motion for summary judgment, and dismissed CO's petition/complaint. CO appealed the Supreme Court's decision.

The Appellate Division affirmed the lower court's ruling, opining although "Public Officers Law §17(3)(a) provides that the State shall indemnify its employees for a judgment or settlement provided that the act or omission which was the subject of the judgment or settlement occurred while the employee was acting within the scope of his [or her] public employment or duties," that duty does not extend to cases in which "the injury or damage resulted from intentional wrongdoing on the part of the employee", citing Matter of Spitz v Coughlin, 128 AD2d 281, and Hubbard v New York State Off. of Mental Health, Cent. N.Y. Psychiatric Ctr., 192 AD3d 1586.

In the words of the court: "There is no doubt that "intentional acts of sexual harassment ... [are] not within the scope of [an individual's] employment and [do] not advance the [State's] interests", citing Town of Somers v Titan Indem. Co., 289 AD2d 563, at 564 and Grasso v Schenectady County Pub. Lib., 30 AD3d 814. To the minimal extent that [CO] attempts to claim that his behavior toward [Teacher] did not constitute intentional wrongdoing, the jury that found him liable for that behavior disagreed. The record therefore reflects that the jury necessarily determined that [CO's] wrongdoing was intentional, and he is now collaterally estopped from arguing otherwise. Thus, as the [State and the other named respondents] demonstrated that a rational basis existed for the determination that [CO] was not entitled to indemnification, and [CO] did not raise a material question of fact in response, Supreme Court properly granted summary judgment to the [State and the named Respondents]."

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

 

 

Plaintiff's claims of alleged misconduct by City University of New York personnel and other named defendants must be brought in the Court of Claims

Supreme Court granted the several defendants' motions to dismiss the Plaintiff complaint was unanimously affirmed Appellate Division, without costs.

Rejecting Plaintiff's assertion that Supreme Court had jurisdiction over Queensborough Community College, where Plaintiff was employed, because it is a community college rather than a senior college, the Appellate Division explained:

1. Supreme Court lacked subject matter jurisdiction over the claim against defendant City University of New York [CUNY] because any claims of misconduct by CUNY's counsel with respect to the selection of the arbitrator must be brought in the Court of Claims;

2. It must reject Plaintiff's assertion that Supreme Court has jurisdiction over Queensborough Community College, where Plaintiff was employed, because "The gravamen of [Plaintiff's] complaint is not that Queensborough terminated his employment, but that the Office of the General Counsel, a part of CUNY's central administration, wrongfully selected one of the named defendants as the arbitrator in the matter,* noting the Court of Claims has exclusive jurisdiction over tort claims based on conduct by a CUNY senior college [see Education Law §§6202[5] and 6224[4][b]; and

3. The Plaintiff's complaint is barred on the basis of res judicata and collateral estoppel as in earlier appeals Plaintiff sought to set aside the arbitration award and Plaintiff's current claims are based on the same transaction as in the earlier action, and are therefore barred even though they are based upon different theories.

Further, said the Appellate Division, dismissal of the complaint is warranted on other grounds, as well. The court opined that (a) the American Arbitration Association and the designated arbitrator "are protected by immunity, as their acts were performed in their arbitral capacity", citing Trojan v Cipolla & Co., 172 AD3d 569 and (b) Plaintiff "fails to plead, as is necessary to sustain a claim against an unincorporated association, that the entire membership authorized and later ratified its actions, noting the Court of Appeals ruling in Palladino v CNY Centro, Inc., 23 NY3d 140.**

* The Appellate Division noted that Education Law §6202[5] defines "senior college" to include "an administrative institution".

** The Appellate Division noted Supreme Court "also properly dismissed [Plaintiff's] aiding and abetting fraud causes of action as against both CUNY and PSC [Professional Staff Congress/CUN] because they were not pleaded with the requisite particularity", citing CPLR §3016[b].

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

 

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General security measures and providing adequate supervision critical considerations in an incident involving an alleged sexual assault of a student by another student

This action was brought by a high school student [Plaintiff]. Plaintiff alleged that she was sexually assaulted by another high school student while at the school. Plaintiff, suing individually and Plaintiff's mother and natural guardian, commenced this action against the "Board of Education, et al." [Defendants], to recover damages for personal injuries.

The Defendants moved for summary judgment dismissing Plaintiff's complaint. Supreme Court denied the Defendants' motion for summary judgment and Defendants appealed the court's decision. The Appellate Division affirmed Supreme Court's ruling "insofar as appealed from, with costs" indicating:

1. "[T]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact*;

2. "Schools are under a duty to adequately supervise the students in their charge and they will be held liable for foreseeable injuries proximately related to the absence of adequate supervision ... The duty owed derives from the simple fact that a school, in assuming physical custody and control over its students, effectively takes the place of parents and guardians;

3. "In determining whether the duty to provide adequate supervision has been breached in the context of injuries caused by the acts of fellow students, it must be established that school authorities had sufficiently specific knowledge or notice of the dangerous conduct which caused injury; that is, that the third-party acts could reasonably have been anticipated; and

4. "Actual or constructive notice to the school of prior similar conduct is generally required ... [and] an injury caused by the impulsive, unanticipated act of a fellow student ordinarily will not give rise to a finding of negligence absent proof of prior conduct that would have put a reasonable person on notice to protect against the injury-causing act".

The Appellate Division, noting that Defendants "established that they lacked actual or constructive notice of the assailant's potential for causing harm; submitted evidence that [Plaintiff] and the assailant had no previous significant interaction; and that the assailant's disciplinary record did not include any sexually aggressive behavior", found Defendants "failed to establish as a matter of law that the general security measures at the school were sufficient under the circumstances and that the incident occurred in such a short span of time that it could not have been prevented by the most intense supervision."

The Appellate Division concluded that "under the circumstances", Supreme Court properly denied the Defendants' motion for summary judgment dismissing Plaintiff's complaint.

* A failure to make such prima facie showing requires the denial of the motion, regardless of the sufficiency of the opposing papers

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

 

New York State's Freedom of Information Law imposes a broad duty on government agencies to make their records available to the public

The Petitioner in this CPLR Article 78 action commenced this proceeding against the Village, and other named individuals, [Respondent], to compel Respondent to disclose records she had requested under New York State's Freedom of Information Law [FOIL] after the Village denied Petitioner's request for certain records.

Supreme Court denied the petition and dismissed the proceeding, holding that "[m]any of the items sought in the FOIL request [were] not records per se, but an open ended array of papers ... which are not maintained as records and are not readily identifiable or retrievable." Petitioner appealed Supreme Court's ruling.

Noting that Supreme Court determined that Petitioner failed to "reasonably describe the documents so that they [could] be located", the Appellate Division reverse the lower court's decision and remitted the matter to it "for further proceedings on the petition".

The principal questions presented to the Appellate Division by Petitioner's appeal:

1. Were the requested records "reasonably described" so as to allow the Village to locate and identify them?; and

2. Did the Respondent satisfy its obligations under FOIL by maintaining a public website, on which [it alleged] much of the information sought by the Petitioner could be found?

With respect to the identification of the records sought by Petitioner, the Appellate Division opined that questions of fact exist as to the Respondent's ability to locate, identify, and produce the records requested by the Petitioner, thereby precluding a summary determination of the petition by Supreme Court.

As to the issue concerning the ability of the Respondent to satisfy the mandates of FOIL via Internet sites, the Appellate Division held that "the mere availability of government records on a public website is insufficient to satisfy a request under FOIL for reproduction of such materials". The Appellate Division noted that Petitioner's FOIL request included certain materials pertaining to recusals and conflict-of-interest disclosures by members of a Village Commission, various Village Boards, and other Village entities.

In opposition to the petition, Respondents had submitted affidavits asserting that agendas and minutes of public meetings were available on the Village's website "and were capable of being searched by anyone, without the necessity of a FOIL request" and "the vast bulk of the records requested by the [Petitioner were] not maintained in any manner that would allow the responsive documents to be identified in any manner that would be possible for the Village to undertake."

The Appellate Division explained that the Legislature declared that "government is the public's business" and "[T]o promote open government and public accountability, FOIL imposes a broad duty on government agencies to make their records available to the public". Indeed, said the court, "[a]ll records of a public agency* are presumptively open to public inspection," and FOIL is to be liberally construed to achieve its purposes, citing Matter of Buffalo News v Buffalo Enter. Dev. Corp., 84 NY2d 488; Matter of Abdur-Rashid v New York City Police Dept., 31 NY3d at 225; and Matter of Data Tree, LLC v Romaine, 9 NY3d 454, at 463).

Further, opined the Appellate Division, "the burden of proof rests solely with the [custodian of the record] to justify the denial of access to the requested records [and] this burden must be met 'in more than just a plausible fashion'".

Concluding that Supreme Court should not have denied the petition and dismissed the proceeding, the Appellate Division reversed the lower court's judgment "on the law," reinstated Petitioner's action and remitted the matter to the Supreme Court  for further proceedings in accordance the Appellate Division's decision and directed Supreme Court promulgate "a new determination of the petition thereafter."

* FOIL is applicable to “agency” records, but FOIL's definition of “agency” expressly excludes New York State's Judiciary and the New York State Legislature as agencies within the ambit of FOIL. See Public Officers Law §86[3].

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

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New York Open Government Guide. Authored by Michael J. Grygiel, Esq., this study focuses on New York State's Freedom of Information Law [FOIL]. Click HERE to access this resource posted on the Internet.