Filing a claim alleging retaliation pursuant to New York State's Human Rights Law

Although Supreme Court granted the Defendant's motion to dismiss complaints of unlawful discrimination, the Appellate Division unanimously modified the decision, "on the law," and reinstated Plaintiff's cause of action alleging retaliatory termination.

The Appellate Division explained to state a claim for retaliation under the New York State Human Rights Law [Executive Law §296], the plaintiff must show:

1. He was engaged in a protected activity;

2. His employer was aware that he participated in such activity:

3. He suffered an adverse employment action based upon his activity; and

4. There is a causal connection between the protected activity and the adverse action.

Further, observed the Appellate Division, "plaintiffs in retaliation cases are held to a lenient pleading standard and are generally afforded deference at the pleading stage, citing Thomas v Mintz, 182 AD3d 490 and Petit v Department of Educ. of the City of N.Y., 177 AD3d 402. On appeal, the sole contested element is whether the plaintiff sufficiently pleaded a causal connection between the protected activity.

In the instant appeal the court found that Plaintiff corroborated sexual harassment allegations against his former and his allegedly retaliatory termination from his position later that year and a "causal connection needed for proof of a retaliation claim can be established indirectly by showing that the protected activity was closely followed in time by the adverse action".

Citing Summa v Hofstra Univ., 708 F3d 115 [quoting Cifra v Gen. Elec. Co., 252 F3d 205], the Appellate Division noted that federal courts have "'not drawn a bright line to define the outer limits beyond which a temporal relationship is too attenuated to establish a causal relationship between the exercise of a federal constitutional right and an allegedly retaliatory action."* This, opined the Appellate Division, has allowed the Second Circuit] to "exercise its judgment about the permissible inferences that can be drawn from temporal proximity in the context of particular cases".

In this case the Appellate Division opined that "the four-month period between [Plaintiff's] interview and termination easily falls within the acceptable temporal range to establish a causal connection."

Also noted by the Appellate Division was "when analyzing the timing and context of retaliatory actions, courts also consider whether the employer 'waited to exact [its] retaliation at an opportune time' in order to have an explanation for the action." Further, "[q]uestions regarding the time gap and causal connection of an alleged retaliatory termination may entail special consideration of the size and complexity of a defendant employer, where termination of employment may involve multiple levels of decisionmakers, as well as the nature of plaintiff's claims."

In this instance the Appellate Division opined that "The additional circumstances surrounding Plaintiff's termination support an inference that it was done in retaliation for [Plaintiff's] corroboration of allegations of sexual harassment against the former [Employee]."

In contrast, the Appellate Division held that "despite the lenient pleading standard governing employment discrimination cases, the complaint fails to state a cause of action for sex discrimination under the New York State Human Rights Law because it contains no factual allegations giving rise to an inference of discrimination," citing Brown v City of New York, 188 AD3d 518,.

* In a footnote in its decision, the Appellate Division said "Federal retaliation claims under Title VII are subject to the same standards as those of the New York State Human Rights Law and therefore highly instructive as to the claim at bar", citing Banks v General Motors, LLC, 81 F4th 242 and Collins v Indart-Etienne, 59 Misc 3d 1026.

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

New Attendance and Leave provisions affecting certain State employees of the State as the employer posted on the Internet

New Attendance and Leave provisions reflecting 2023–2026 State-PEF Negotiated Agreement and Update to the M/C Attendance Rules have been posted on the Internet.

Text of Policy Bulletin 2023-06 will be found at:
https://www.cs.ny.gov/attendance_leave/PolBull23-06.cfm

Policy Bulletin 2023-06 in PDF format is posted at:
https://www.cs.ny.gov/attendance_leave/PB2023-06.pdf

To view previous Attendance and Leave bulletins issued by the Department of Civil Service, visit: https://www.cs.ny.gov/attendance_leave/index.cfm

Recent decisions by New York City's Office of Office of Administrative Trials and Hearings' Administrative Law Judges

Administrative Law Judge Seon Jeong Lee recommended a 49-day suspension without pay be imposed on an assistant deputy warden who ordered a correction officer under her command to perform personal errands for her.

The ALJ found that an Assistant Deputy Warden [ADW] had directed a Correction Officer [CO] under her command to make health juice for her and her boyfriend, shop for and deliver items to her home, and scan and transfer files onto a USB drive to assist her boyfriend in his work.

The ALJ dismissed two additional charges filed against the ADW, one alleging she failed to report to work on time and a second that she coercing an officer to partake in and conceal her misconduct. The ALJ found that the record did not support those allegations and that they were time-barred.

Considering the ADW’s lack of disciplinary history and Appointing Authority’s failure to prove all charges filed against the ADW, the ALJ recommended that ADW  be suspended without pay rather than imposing the penalty requested by the  Appointing Authority, termination of employment.

The Appointing Authority modified the ALJ's recommendation of a 49-day suspension without pay as the penalty to be imposed for the ADW's misconduct and imposed the loss of 49 days of vacation or compensatory time credits as the penalty.

Click HERE to access Judge Seon Jeong Lee's decision posted on the Internet.

 

Administrative Law Judge Tiffany Hamilton recommended a five-day suspension without pay be imposed on a correction officer who used profane language toward a person in custody. 

The Appointing Authority had filed disciplinary charges against two correction officers, Officer A and Officer B, alleging that Officer B's had failure to properly escort a person in custody resulted in an altercation involving the person in custody in which Officer A used excessive force. The Judge Hamilton dismissed all charges, except for a charge against Officer A for using profane language.

The ALJ dismissed the improper escort charge filed against Officer B, finding the  Appointing Authority failed to establish Officer B's performance fell short of the  Appointing Authority's standards or that Officer B acted unreasonably. Judge Hamilton also recommended dismissal of false reporting charges filed against both officers.

The Appointing Authority adopted Judge Hamilton's findings and recommendations.

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

________

A Reasonable Disciplinary Penalty Under the Circumstances - an e-book focusing on determining an appropriate disciplinary penalty to be imposed on an employee in the public service of the State of New York and its political subdivisions in instances where the employee has been found guilty of misconduct or incompetence. For more information and access to a free excerpt of the material presented in this e-book, click here: http://booklocker.com/books/7401.html

 

Selected links to items focusing on government operations posted on the Internet during the week ending December 29, 2023

A new report offers the first baseline assessment of the systems in place using green infrastructure to manage stormwater. It’s a harbinger of how cities are learning to manage urban stormwater the way nature would. READ MORE

 

A report from the Urban Institute attempts to measure the impact of a broad array of zoning reforms on housing supply and cost. The effects are significant, but very small, researchers found. READ MORE

 

After decades of resistance, the Tennessee Legislature has voted to add toll lanes. The Transportation Modernization Act will bring “choice lanes” to the state for the first time. Dubbed by some as "Lexus lanes," they will let drivers pay to bypass traffic, but aren’t likely to reduce congestion overall. READ MORE

 

Already 3.2 Million Americans Are Climate Migrants Between 2000 and 2020, millions of Americans have moved away from high-flood-risk areas. When between 5 to 10 percent of properties in a census block are at risk of flooding, people start to move out of the area, even despite attractive amenities. READ MORE

 

Are Public Computers in Libraries Becoming Obsolete? Libraries once struggled to keep up with demand for public computers. Now branches are removing them as they move toward a future built on providing a wide array of technology to patrons. READ MORE

 

Are We Witnessing the Death of the Password? Long the front line of digital security, the humble password may be on its way out. Or maybe not. In a landscape packed with alternatives — and increasingly destructive cyberattacks — it’s complicated. READ MORE

 

Axon Aims to Reduce Police Shooting Deaths Via New Database The company, known for Tasers and body cameras, says detailed analysis of officer-involved fatal shootings could lead to better training and non-lethal technology. The database goes into minute detail about fatalities. READ MORE

 

Boston, Seattle Issue Interim Generative AI Guidance Does your local government need a stance on generative AI? Boston encourages staff’s “responsible experimentation,” Seattle’s interim policy outlines cautions, and King County begins considering what responsible generative AI use might be. READ MORE

 

California Mobile Driver’s License Availability Nears The Department of Motor Vehicles expects that its California DMV Wallet and mobile driver’s license will become available in late summer to Californians who carry smartphones. READ MORE

 

California Report Offers Potential GenAI Use Cases How might California government make use of generative artificial intelligence? Officials suggest several ways that could happen. READ MORE

 

Can Government Catch a Break? Traditionally, residents have seen government as slow-moving and hard to interact with, but that may be changing. While there’s more work to do, public-sector services are noticeably improving. READ MORE

 

Deploying Federal Broadband Funds in an Equitable Way Following the recent announcement of federal funding allocations from the $42.45 billion Broadband Equity, Access, and Deployment program, experts are weighing in on how to make the most of the opportunity. READ MORE

 

Digital Counties 2023: Top Counties Champion Data and Inclusion The leading jurisdictions in this year's Digital Counties Survey are redefining the boundaries of tech advancements with their agile adoption of new tools, commitment to digital equity and digitization of critical processes. READ MORE

 

Disaster Zone Podcast: ‘Deploying C-UAS to Protect the Homeland’ Becoming prepared for the next threat. READ MORE

 

Disjointed data systems are failing to identify and address disparities along the pre-K-to-work continuum. Two states are leading the way in building effective systems, and a new resource can help governments use data to inform student success strategies. READ MORE

 

Do Gov Tech Suppliers Need to Provide More AI Education? For some executives and other experts, the answer is "yes," and they are showing the way. Optibus and Motorola have set their own approaches to deepening understanding of artificial intelligence, with more to come. READ MORE

 

Flagship Public Universities Likely to Cut More Humanities, Staff — Especially in Rural States ‘Are we going to revert back to “normal?” No, we will have a new normal.’ READ MORE

 

Florida Hopes to Retain Medical Students With More Funds In the last decade, the state’s retention rate of physicians post-residency has declined. The Legislature hopes that funding 700 additional slots for medical school graduates, at $100,000 each, will incentivize the doctors to stay. READ MORE

 

Generative AI Hits Education, Ushering in a Sea Change for Schools Tools like ChatGPT are being heralded as a critical underpinning of a 21st-century education or feared as the death knell of creativity. Either way, educators increasingly realize they can’t ignore AI. READ MORE

 

Government Begins to Ask: When Do We Leave Twitter? The platform has undergone several changes since Elon Musk bought it and took it private late last year — especially when it comes to credibility and verification features, critical to government communications. READ MORE

 

Government Must Use Data to Drive Decision-Making Open data portals were a good first step toward putting the massive amount of information government holds to work. But now, experts say data should drive storytelling and decision-making across the enterprise. READ MORE

 

High School Innovators Take Center Stage in MedTech Documentary From inhaler watches to redesigned crutches: How a unique summer program in Birmingham is pushing boundaries in STEM education. READ MORE

 

High-Severity Wildfires Altering New Mexico for Generations The fires burn so hot and so thoroughly that they’ve altered the nature of New Mexico's forests, burning stands of trees and creating more of a forest of shrub fields and grasslands and leading to more fuel for fires. READ MORE

 

Hospital’s Cyber Attack Shows What Disruption Looks Like

 

Houston has created a real system to address homelessness, aligning city, county and nonprofit efforts. That innovative program is now under threat, due to changes in leadership and funding. READ MORE

 

How ChatGPT Could Help First Responders During a Disaster

 

How did Portland become a showcase of urban discontent? With its residents upset by crime, homelessness and high taxes, it’s become a depressed and discouraging place. Can Portland once again be a shining exemplar of modern urbanist success? READ MORE

 

How Hot Will Texas Get in 30 Years? Try 125 Degrees “It’s gotten hotter now than it was in the past, but we’re not done with the increasing exposure to extreme heat. It’s going to continue to increase into the future.” READ MORE

 

How Much Did Extreme Weather Cost Iowa This Year? The state’s Individual Disaster Assistance Grant Program has paid $227,675 in response to storm damage. FEMA estimated the state’s spring flood damage at $6.3 million. As of Dec. 4, crop insurers had paid out more than $248 million due to drought. READ MORE

 

How Often Do Inmates Actually Return To Prison? It’s Unclear.
States define recidivism differently, which can result in misleading interpretations of the statistics. READ MORE

 

How Should Government Regulate AI? We Asked a Robot  Artificial intelligence's potential in the public sector has grown exponentially, as have questions around appropriate guardrails. We interviewed the ChatGPT chatbot from OpenAI to see what it had to say. READ MORE

It's imperative for governments at all levels to up their game in the competition for good workers. Public servants have played a critical role in making America one of history’s great civilizations. But the work of America is not finished. To fully achieve its potential, our nation must have a strong and high-performing public sector. The stakes are far too high to settle for any other outcome. READ MORE

 

Lake Michigan’s Largest Island Explores Community Solar Beaver Island’s roughly 600 permanent residents are hoping to improve energy efficiencies of homes and buildings and figure out how to generate their own solar energy. Currently the island relies on mainland power and an oil-powered backup generator. READ MORE

 

Local government officials are sometimes overwhelmed by new and improved digital tools. But they need to be open to technology that can help residents and public employees deliver critical services. READ MORE

 

Major Progress on Cedar Rapids’ Intricate Flood Control System Millennial and Gen Z Americans will be the majority of the electorate in 2028. But predicting which party will benefit will be challenging. These young voters care more about policy than party, according to experts. READ MORE

 

New Jersey planned an ambitious offshore wind program as part of its effort to decarbonize its power grid. Some coastal residents didn’t want to see it. READ MORE

 

New Tool Designed to Blind Armed Shooters, Buy Time for Victims New York City’s Hudson Yards, the largest private real estate development in the country, is home to what has been dubbed a gigantic public art failure. Designed to be the crown jewel of the Hudson Yards development, a 150-foot-tall collection of 154 interconnected staircases known as the Vessel remains off limits. READ MORE

 

Oregon Road-Use Fee Program Ramps Up for Wider Deployment OReGO, Oregon’s road-usage charging program, is continuing to evolve with new technology partners that can deliver on a range of fronts like connected vehicle technologies and intelligent transportation systems. READ MORE

 

Philadelphia’s 90-year-old train station at 30th Street will anchor a $10 billion investment in urban development that could result in as much as 18 million square feet of new commercial and residential space over the next several decades. READ MORE

 

PNW Tribal Nation Goes Digital to Preserve Culture, Heritage For the Samish Indian Nation, the process of digitizing documents has helped to increase the resilience of some of the nation’s important records, helping preserve both language and culture. READ MORE

 

Proposed Maine Legislation Could Change State Gun Laws

 

Report Recommends Overhaul of Virginia’s Psych Hospital System The nine hospitals in the system increasingly find themselves short on beds and staff, with seven of the hospitals routinely exceeding 95 percent bed capacity. At least 20 percent of staff in the system did not believe their facility was a safe space for patients. READ MORE

 

Rural Health Care Providers Hit Hard by Doctor Drain Idaho ranked last in the country for physicians per capita before the pandemic and the doctor shortages and an aging workforce have only worsened the situation. READ MORE

 

Since the earliest days of the Internet, much of the world’s data flows through northern Virginia. But power limitations and environmental concerns could slow down the region's relentless pace of data center activity. READ MORE

 

Small Oregon Town Struggles With Urban Scale, Homelessness Tourist-dependent Clatsop County, population 41,000, has the highest rate of homelessness in Oregon. A project to convert a hotel into housing units for healthcare workers and the unhoused is a step in the right direction, leaders say. READ MORE

 

State Funding, Change Proposals Could Predict Upcoming Tech Spend Approved technology funding in the state’s enacted 2023-2024 fiscal year budget may offer a preview of what we’ll see in January, when Gov. Gavin Newsom releases his proposed FY 2024-25 state budget. READ MORE

 

States Will Need Millions to Protect Affected Wetlands After the U.S. Supreme Court stripped federal oversight of millions of acres of wetlands, the financial maintenance of those lands now falls to the states. It could take years for them to address the loss of federal standards, if they do it at all. READ MORE

 

Telehealth Revolutionizes Childhood Mental Health Care in Texas, N.Y. Health officials are focusing on how telehealth technology is transforming childhood mental health treatment, while also bridging the gap between mental health care, underserved populations and addiction treatment. READ MORE

 

Texas Training Prepares Police to Respond to Cyber Crime Residents and businesses often call 911 to report cyber crimes, yet officers in smaller jurisdictions aren’t always prepared to identify cyber incidents, collect digital evidence or identify the relevant laws involved. READ MORE

 

The Gen Z workforce makes up the smallest percentage of workers in state and local government. Despite being sought after, efforts to hire and retain them aren’t increasing those numbers. It’s time local governments learn how to recruit and retain the youngest generation of workers. READ MORE

 

The office recession is real, with downtowns in major cities still missing a majority of their pre-pandemic workforce. San Francisco offers a case study in terms of the consequences. READ MORE

 

The Wind Is in Hydrogen’s Sails; Politics Could Change That Major pieces of domestic policy like the Inflation Reduction Act and the Infrastructure Investment and Jobs Act are advancing hydrogen energy technology. A change to who occupies the White House could alter this course. READ MORE

 

The Year's Biggest Stories: Navigating Transportation Shifts, Cybersecurity Evolution and Digital Equity A recap of 2023's pivotal trends in gov tech: transportation transitions, cybersecurity challenges and strides in digital inclusivity. READ MORE

 

Thomson Reuters Takes on Houston's Anti-Human Trafficking Digital Toolkits The partnership with Houston enables continuation of large-scale work to disrupt human trafficking. READ MORE

 

To Buy AI, Government Needs to See Big Changes — Fast At a recent event bringing together public- and private-sector leaders in government technology, many spoke about how hiring struggles are making AI both more appealing and more difficult to adopt. READ MORE

 

Untapped Potential: States Turn to Non-Traditional Tech Hires Some states like Texas, Indiana and Colorado are filling their open positions with innovative programs that point people eager to learn in the direction of government IT. READ MORE

 

What Emergency Managers Learned from Deadly Hurricane Ian

 

What Kind of Open Records Data Do People Actually Want? Thousands of files have been uploaded to public data portals by local and state government agencies. Access data from San Francisco may hint at what the public actually wants to see. READ MORE

 

When You Change Social Platforms, Who Controls Your Data? Social media has a portability problem: When users leave one platform for another, none of their followers go with them. That's no small issue for governments that rely on networks to disseminate important information. READ MORE

 

Why Are Health Costs Soaring in Washington State? Health insurance premiums in the state have risen 49 percent in the last decade, which may be a result of industry business mergers. More than 80 percent of residents are worried about affording health care in the future. READ MORE

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