Reviewing a federal district court’s granting respondent's motion to dismiss a quid pro quo and related sexual harassment complaints

The Circuit Court of Appeals, Second Circuit, said in order to survive a motion to dismiss, a complaint’s “allegations must meet the plausibility standard set out in Ashcroft v. Iqbal, 556 U.S. 662. Citing Schiano v. Quality Payroll Sys., Inc., 445 F.3d 597, the Second Circuit then opined "to state a quid pro quo sexual harassment the plaintiff must show a tangible employment action, i.e., that an explicit alteration in the terms or conditions of employment resulted from her refusal to submit to [a] sexual advance.”

In this action the court concluded that Plaintiff's quid pro quo claim failed because she made only “conclusory allegations of implied sexual advances” in that Plaintiff's description of the Respondent's conduct creates no more than “a sheer possibility that [the Respondent] has acted unlawfully.” In the words of the court, Plaintiff's claim "is based on a single incident in which [Respondent] allegedly invited her to see a corporate apartment on their way to lunch, asked her repeatedly to join him in the apartment’s bedroom, and then inquired over lunch whether she was married or had a boyfriend." The Circuit Court also noted that Plaintiff's amended complaint "contains no allegations of any sexual comments or physical contact, never alleges that [Respondent] engaged in any other sexual conduct towards Reed or anyone else, and makes no other allegations sufficient to support an inference that [Respondent's] conduct was sexual.

Addressing Plaintiff's "Retaliation and Constructive Discharge" allegations, the Circuit Court opined that "[F]or a retaliation claim to survive ... a motion to dismiss, the plaintiff must plausibly allege that: ... defendants discriminated — or took an adverse employment action — against [her], (2) because [she] has opposed any unlawful employment practice.” As the Second Circuit held in Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, “[T]he plaintiff need only have had a good faith, reasonable belief that [she] was opposing an employment practice made unlawful by Title VII”.* Further, the Circuit Court noted “The reasonableness of the plaintiff’s belief is to be assessed in light of the totality of the circumstances.” "... mere subjective good faith belief is insufficient; the belief must be reasonable and characterized by objective good faith.”

Finding the Plaintiff "failed to allege adequately that she had a reasonable, good-faith belief that [Respondent's] conduct violated the law or that her conduct constituted opposition to unlawful conduct" and that in her formal complaint "[Plaintiff] failed to allege that [Respondent] took an adverse employment action against her for filing it.

Finally, the Circuit Court opined that Plaintiff's allegations that "new monitoring programs appeared on her computer" do not suffice for a claim of retaliation because Plaintiff does not plausibly allege that the monitoring was so severe that “it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination”. Accordingly, the Circuit Court affirmed the district court’s dismissal of Plaintiff's constructive discharge claims as well.

* See, also, Kessler v. Westchester County. Dep’t of Social Services, 461 F.3d 199.

Click HERE to access the opinion of the Circuit Court of Appeals posted on the Internet.

Correction officer terminated after being found guilty of "undue familiarity" with an incarcerated person

 

A New York City correction officer [CO] charged with "undue familiarity" after giving an incarcerated person [detainee] gifts and making false and, or, misleading statements to investigators about such alleged misconduct. New York City Office of Administrative Trials and Hearings' Supervising Administrative Law Judge Joan R. Salzman recommended that appointing authority terminate CO after finding CO guilty of such offenses.

CO was captured on surveillance video greeting the detainee in a friendly manner called “dapping”* and detainee giving CO three packages opaquely wrapped in brown paper, including one package CO then concealed inside his uniform shirt.

During the employer's investigation, CO told investigators in an MEO 16 interview that he could not recall what food he gave to this detainee, who that very day had headbutted another correction officer and was known to CO as the assaultive, highest-ranking gang member in an area referred as the North Infirmary Command, "even though one would expect the CO to recall what he gave to this notorious detainee" directly after a memorable assault by this very detainee on a colleague of CO.

Instead, CO told investigators and testified at trial that he gave two servings of extra chicken to the detainee (even though it was “Chicken Sunday,” and chicken had already been served that day), but CO could not recall whether the items in his uniform shirt consisted of a banana or packets of sugar or packets of mustard.

CO told investigators that he gave food items to this detainee in order to “keep the peace,” and that he had done so on a few occasions with this detainee previously. At hearing, however, CO deviated from his prior statements, and testified that he gave extra food because detainee was sick and hungry, and that he had never previously given this detainee any food.

The Supervising ALJ found CO’s testimony problematic, evasive, exceptionally vague, and incredible. Judge Salzman concluded that CO’s misconduct breached the good order and discipline required in a jail facility, and after weighing the mitigating and aggravating factors, recommended termination.

* "Dapping" is a term used to describe "two men tapped their opposite shoulders together in a half-hug and shaking hands".

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

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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

 

Appeal to the Commissioner of Education dismissed for lack of proper service

Petitioners appealed a Board of Education's determination that their child, a high school student, was "not entitled to a medical exemption" from the immunization requirements of Public Health Law §2164.*  The appeal also named the high school principal and a school nurse as “Individual Respondents”.  The Commissioner dismissed Petitioners' appeals "for improper service."

The Commissioner's decision notes that 8 NYCRR 275.8 [a] of the Regulations of the Commissioner of Education requires that such petitions be personally served upon each named respondent.  Further, if a school district is named as a respondent, service upon the school district is to be made personally by delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service of an appeal to the Commissioner of Education.

Although Petitioners’ affidavits of service indicated that they had served the Individual Respondents, the Individual Respondents denied this allegation, stating that they had received the petitions "from district employees who are not authorized to accept service on their behalf."  

Citing Appeal of Barrientos, 58 Ed Dept Rep, Decision of the Commissioner No. 17,450 and other Decisions of the Commissioner of Education and noting that Petitioners "did not submit a reply or otherwise respond" to the Individual Respondents’ claims of improper service, the Commissioner opined that "on this record" she could not conclude that Petitioners served a copy of the petition on any of the named Individual Respondents as required by §275.8 (a) of the Commissioner’s regulations and dismissed their appeals.

* Public Health Law §2164 address immunization against poliomyelitis, mumps, measles, diphtheria, rubella, varicella, Haemophilus influenzae type b (Hib), pertussis, tetanus, pneumococcal disease, meningococcal disease, and hepatitis B.

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

 

Former New York University finance director pays over $660,000 in restitution for role in multi-million dollar fraud

On April 26, 2024, State Comptroller Thomas DiNapoli and Manhattan District Attorney Alvin L. Bragg Jr. announced that Cindy Tappe, former director of finance and administration at New York University, paid full restitution of $663,209 after pleading guilty to grand larceny for orchestrating a $3.5 million, 6-year fraud relating to two NYU programs, announced today.

“Cindy Tappe executed a scheme to support her lavish lifestyle at the expense of children with special needs and young English Language learners. She is now a convicted felon and has paid back the money she stole,” DiNapoli said. “I thank District Attorney Bragg for his partnership in the investigation and in bringing her to justice.”

“Cindy Tappe has now been sentenced for diverting funds that were intended to benefit students for her own personal gain. Her fraudulent actions not only threatened to affect the quality of education for students with disabilities and multilingual students but denied our city’s minority- and women-owned business enterprises a chance to fairly compete for funding,” Bragg said. “I thank the New York State Comptroller’s Office for its partnership as we continue to root out fraud in Manhattan. Those who take advantage of our students and businesses will be held accountable.”

Tappe, 59, used her position as the director of finance and administration for NYU’s Metropolitan Center for Research on Equity and Transformation of Schools (the “Metro Center”) to divert approximately $3.5 million intended for minority- and women-owned businesses. She ultimately routed $3.3 million to bank accounts held by two shell companies she created by using subcontractors to serve as pass throughs. None of the subcontractors performed work on the contracts. Instead, they took between 3% and 6% of the invoice amounts as “overhead,” and sent the remainder of $3.352 million to Tappe’s fictitious shell companies.

Tappe used some of the funds for NYU payments and employee reimbursements but kept more than $660,000 to pay for personal expenses, including renovations to her home and an $80,000 swimming pool.

Tappe, of Westport, Conn., pleaded guilty to one count of grand larceny. She was sentenced to serve five years’ probation and paid full restitution in the amount of $663,209.07 at the time of sentencing. The subcontractors also repaid $150,000.

Since taking office in 2007, DiNapoli has committed to fighting public corruption and encourages the public to help fight fraud and abuse. New Yorkers can report allegations of fraud involving taxpayer money by calling the toll-free Fraud Hotline at 1-888-672-4555, by filing a complaint online at https://www.osc.state.ny.us/investigations, or by mailing a complaint to: Office of the State Comptroller, Division of Investigations, 8th Floor, 110 State St., Albany, NY 12236.

 

Selected links to items focusing on government operations posted on the Internet during the week ending April 26, 2024

A Simple Way to Make the Suicide Hotline More Effective The 988 Suicide and Crisis Lifeline provides comprehensive support for Americans who face acute mental health challenges. Congress is considering ways to tailor services more strategically. READ MORE

 

AI as a Stress Test for Government Data The rise of generative artificial intelligence is a stress test for data governance and management. And an opportunity for data stewards to shine. READ MORE

 

AI Places New Demands on Government-Held Data, But It Is Still the Data That Counts The rise of generative artificial intelligence is a stress test for data governance and management, and an opportunity for data stewards to shine. READ MORE

 

AI-Infused Software Looks to Quicken Police Report Writing A new tool from public safety tech supplier Axon can automatically transcribe audio from the company’s body cameras. Arriving as law enforcement nationwide confronts a hiring crisis, it could free up officers for other duties. READ MORE

 

Are We Ready for a Cyber Attack on Food and Farming? Authorities are working to prepare for one by, for the first time, conducting a massive federal tabletop exercise focused on food and agriculture cybersecurity resilience. READ MORE

 

AVs May Not Have Taken Over, but Their Tech Is Here to Stay Urban technologists at the recent 2024 Bipartisan Tech Policy Conference discussed the various ways emerging tech like autonomous vehicles have evolved. READ MORE

 

Best Practices For Strengthening Mobility and Connectivity With A Public-private Approach For agencies focused on service delivery, getting the right connectivity approach in place is essential to meet current and future demands of public service. LEARN MORE

 

Colorado Tech Office Plucks New COO from Private Sector The Colorado Governor’s Office of Information Technology on Monday announced the appointment of Sridevi Ramaswamy as chief operations officer. She has more than two decades’ private-sector experience and this is her first government role. READ MORE

 

Congress Asks How to Prevent Another Change Healthcare Crisis After a ransomware attack recently caused major issues for medical providers as well as their patients, lawmakers are looking for policy moves that can protect against a repeat. READ MORE

 

Congressional Framework Would Address Extreme AI Risks A bipartisan group of U.S. senators has introduced a congressional framework, in a letter to Senate artificial intelligence working group leaders, that would establish federal oversight on extreme risks related to AI. READ MORE

 

Cyber Attack Shutters New York State Bill Office As suspected Wednesday, bad actors are to blame for taking computers in the state’s Bill Drafting Commission offline. The incident is further delaying production of the already-late state budget. READ MORE

 

Double-Parked? Hayden AI’s New Platform Will Find You The San Francisco company has released a new tool aimed at helping make streets safer for bicyclists and buses. It relies on visual artificial intelligence and cameras mounted on buses. READ MORE

 

DWI Arrestees: Unexpected Partners in Public Safety Innovation With driving while intoxicated arrests rising, Minnesota is turning to tech for solutions. The state is piloting cutting-edge roadside drug testing devices with unexpected participants: people arrested for DWI. READ MORE

 

Feds Help Shreveport, La., and Las Vegas Modernize Transit Combined, the cities received nearly $1.5 million in grants through a U.S. Department of Transportation program. They will use it to maintain and plan the expansion of zero-emissions vehicles, and to enhance pedestrian safety. READ MORE

 

Florida Ethics Commission Waives Fine for Its Own Member Ethics Commissioner Freddie Figgers didn’t submit his 2021 financial disclosure statement until the day after Gov. Ron DeSantis appointed him to the Ethics Commission. The commission voted 4-1 to waive the $1,500 fine. READ MORE

 

Four Stages of Communications for a Successful Government Customer Experience This guide outlines four critical communication stages that best enable government to communicate with customers and improve outreach, enrollment and engagement around public services. DOWNLOAD

 

From Legacy to Leading Edge: Butte County's Modernization Journey This case study details how Butte County, California, modernized its 35-year-old legacy system for payroll, timekeeping, accounting, and benefits management. DOWNLOAD

 

Georgia Police Use Artificial Intelligence to Solve Cases The Warner Robins Police Department is using software to aggregate information that could help it close criminal cases. It is a help to the department, which does not have a cyber crime division. READ MORE

 

Hispanics Make Up Nearly Half the Nation’s Uninsured A variety of factors make Latinos less likely to have health insurance, including language barriers, types of occupations and immigration status. Coverage problems extend well beyond undocumented individuals. READ MORE

 

How a Modular Business Solutions Strategy Addresses Workforce Gaps State and local governments face ongoing workforce challenges, including budget constraints and difficulty competing with the private sector. Often, antiquated technology and outdated processes make it even harder to attract and retain new employees. READ MORE

 

How California Governor’s Budget Shortfall Action Impacts IT Gov. Gavin Newsom signed legislation Monday on an early action budget agreement among legislative leaders that will cut the shortfall by about $17.3 billion — and return millions for tech to the general fund. READ MORE

 

How Procurement Can Support IT Sustainability Energy consumption has become an important concern for both environmental impact and cost controls as governments store more data, use more applications and create more digital services. DOWNLOAD

 

How to Tackle Cyber Crime Ecosystems, Teen Extortionists At an event held by the Institute for Security and Technology, experts discussed why simply arresting ransomware developers isn’t enough to effectively combat this cybersecurity problem. READ MORE

 

How Will the Advent of GenAI Impact State IT Workforces? A new report from NASCIO explores the impact that generative artificial intelligence will have on state government tech employees, as states move independently with regulation and implementation. READ MORE

 

Insights for Faster Incident Response Transit agencies are flooded with real-time data from social media feeds, sensor alerts and more. Event detection platforms help them find the most relevant information and take action. DOWNLOAD

 

Keeping Food Scraps Out of Landfills Is a Bigger Problem Than You Think Organic waste in landfills is a major source of methane emissions. Orange County, Calif., is making progress in diverting it. READ MORE

 

Legislation Would Allow NYC to Set Its Own Speed Limits Currently, the state controls the local speed limits but a proposal folded into the state budget would change that. The current speed limit in New York City was set in 2014, the first citywide reduction in a half-century. READ MORE

 

Millions Could Soon Lose Internet Access if Program Expires The Affordable Connectivity Program, which was created after the pandemic forced many Americans to turn to the Internet to connect with work and school, has 23 million enrollees nationwide. READ MORE

 

New Mexico to Consider Sanctuary City Ban in Special Session Though Gov. Michelle Lujan Grisham has said she wants to keep the July special session narrowly focused on public safety, a group of Republican state senators has proposed packages that aim to secure a porous border. READ MORE

 

Opinion: Massachusetts Has a Groundbreaking Cybersecurity Network CyberTrust Massachusetts is launching new cyber assessment and monitoring services, which will give the state's cities and towns access to new capabilities to help reverse the trend of escalating cyber attacks. READ MORE

 

Oregon Obscures Effectiveness of Paid Leave Program A public dashboard shows only some of the numbers pertaining to the state’s family and medical leave program that launched in September, furthering distrust in a system that has already faced a variety of issues. READ MORE

 

Overflowing Water Tank Linked to Russian Cyber Attack A report released Wednesday connects a Texas cyber attack to hacker groups with Russian government ties, per CNN. The incident, in January, caused no injuries and did not affect drinking water. READ MORE

 

Philly’s Plan to End Open-Air Drug Market Part of Larger Crime Crackdown Earlier this month, Mayor Cherelle Parker announced her administration’s plan to end the Kensington neighborhood’s open-air drug markets by arresting people for low-level offenses that the city hadn’t targeted in years. READ MORE

 

Quick Survey on AI What information about generative AI would be most helpful to you? Please take our 5-minute survey and shape content and data from the Center for Public Sector AI. Take Survey Now

 

Red States Push Back Against Income Payments to Residents Republicans in at least six states are looking to ban basic income programs as Democrats seek to expand the no-strings-attached payments. Some state lawmakers are seeking to ban local communities from enacting similar programs. READ MORE

 

Review: ‘Artificial Intelligence — A Primer for State and Local Governments’ A new book by Alan Shark offers an excellent guide and an AI road map for state and local governments. He answers basic questions that public-sector leaders are asking in 2024. READ MORE

 

Shouldn’t Access to Healthy Food Be Considered a Human Right? It’s a problem in urban and rural areas alike, but the greatest impact is in cities where it amounts to “food apartheid.” Our best chance of solving it is to get our communities engaged in creating solutions. READ MORE

 

St. Paul Revisits Snow Emergencies After Two Extreme Winters This year’s relatively snowless winter followed the record-setting season last year, when 93 inches of snow fell onto the city. The city budgets based on average snowfall, but the average is changing, forcing officials to revisit plans. READ MORE

 

Starting Smart with Generative AI Generative AI can transform government by enhancing operational efficiency and the constituent experience. READ MORE

 

State Government Guide to Managing Grants To ensure your state is best managing grant dollars received and allocated, check out this guide for some best practices that address the most common challenges states face. DOWNLOAD

 

States Consider Mandating AI Labels for Political Ads After more than 20,000 voters in New Hampshire received a deepfake phone call asking them to skip the state’s January primary, at least 39 states are considering measures to ensure transparency of artificial intelligence used in political ads. READ MORE

 

Staying Agile in the Changing World of Government Social Media At the 2024 Government Social Media Conference, officials shared their insight on how to operate in the changing landscape of social media. They also discussed what to expect as AI comes onto the scene. READ MORE

 

The Key to Attracting Public Workers? Pay, Not Pensions. Research shows that traditional defined-benefit retirement plans aren’t a path to improved recruitment or retention. When it comes to younger workers in particular, policymakers need to accept the new reality. READ MORE

 

The Nonexistent Link Between Mailed Ballots and Voter Fraud Election deniers may not believe it, but the most extensive national study, covering 20 years of data, showed that illegal voting is exceptionally rare. READ MORE

 

The Troubling Proliferation of Universal Basic Income Programs A lot of communities are experimenting with this costly, ineffective approach to fighting poverty that disincentivizes work. Iowa lawmakers are right to ban localities from creating guaranteed income programs. READ MORE

 

Three State Leaders Offer AI Governance Strategies Artificial intelligence and data leaders from Georgia, Maryland and Vermont shared their perspectives on successful AI governance in a GOVChats panel discussion. The environment, they said, is still in development. READ MORE

 

Tips for Overcoming IT Resource Drain in the Public Sector Here are five things you can do to help eliminate IT resource drain within your organization and provide improved IT service to employees and citizens. READ MORE

 

Tribal Communities Await Federal Cybersecurity Grants The federal government is slated to distribute $18.2 million of Tribal Cybersecurity Grant Program funds as soon as the spring, and experts say the funds will help address important needs. READ MORE

 

Two New Justices Make Minnesota Supreme Court Majority Women Gov. Tim Walz appointed Theodora Gaïtas and Sarah Hennesy to the state’s highest court on Monday. When Gaïtas and Hennesy join the court, Walz will have selected four of the seven justices. READ MORE

 

What’s New in Digital Equity: NTIA Accepts Digital Equity Plans for All 50 States Plus, new legislation aims to increase digital skills training opportunities, two Ohio initiatives aim to increase digital equity, a new grant program for digital services was announced in Colorado, and more. READ MORE

 

With the ACP Winding Down, Advocates Tout Its Value April is the last month of full funding for the federal Affordable Connectivity Program, which helps subsidize monthly Internet service for low-income households. Advocates hope it will be reauthorized. READ MORE