The continuing wrong exception to a time limitation to perfecting an appeal to the Commissioner of Education

In this appeal to the Commissioner of Education the Commissioner found that the majority of the Petitioner’s claims must be dismissed as untimely, noting that an appeal to the Commissioner must be commenced within 30 days from the decision or act complained of, unless any delay is excused by the Commissioner for good cause shown (See 8 NYCRR 275.16). In this instance the Commissioner found that all but one of the claims advanced in Petitioner's appeal occurred "well over 30 days prior to the time the petition was served."  

Petitioner, however, argued that the New York City Department of Education's [Education] placement of a 'problem code' in Petitioner's personnel file constitutes a continuing wrong. The Commissioner concluded that the Petitioner's reliance on the "continuing wrong exception" was misplaced as the continuing wrong exception to the 30-day time limitation "does not apply where a petitioner challenges a single discrete action, inaction, or decision and the resulting effects, even if continuous, are not intrinsically unlawful"*. The Commissioner also noted that the assignment of a “problem code” by Education "was a discrete act that" and is not intrinsically unlawful", citing Kahn v City of New York, 186 AD3d 1159, and other judicial rulings.

As a petitioner is required to appeal within 30 days after he acquired actual knowledge of the problem code and the instant Petitioner admitted he learned of this designation approximately five months prior to commencement of his appeal to the Commissioner, the Commissioner held that each of Petitioner’s claims — except for his challenge to OPI’s denial of [security] clearance — must be dismissed as untimely.

Turning to the merits of Petitioner's appeal, the Commissioner of Education observed that boards of education are prohibited from acting in an illegal, arbitrary or capricious manner. However, in an appeal to the Commissioner the petitioner has the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which he or she seeks relief. Finding that Petitioner has not proven that Education's denial of Petitioner's request for security clearance was illegal, arbitrary, or capricious. 

Noting that Education advised Petitioner that his " ... prior adverse employment history with the NYC Department of Education is of grave concern when considering your application for security clearance ....  The nature of your reported misconduct is extremely concerning, as you will be expected to always maintain appropriate boundaries with the vulnerable population under your supervision .... Moreover, you seemed to prevaricate requests from ... investigators when asked to provide additional information and documentation throughout the investigatory process, which casts serious doubt on your candor and the veracity of the information you have provided during this investigation", the Commissioner concluded that although Petitioner denies the allegations of classroom impropriety, "he offers no explanation for his unwillingness to cooperate with [the Office of Personnel Investigation (OPI) or the Special Commissioner of Investigation for the New York City School District (SCI),] and found that Education "had a rational basis for denying [Petitioner’s] request for security clearance".**

Finally, considering Petitioner's argument that he has a "right to be employed" by the Board of Education, the Commissioner opined that "qualification for a position 'does not [create] a legal entitlement' thereto", and noted [Education], as does any employer, retains the discretion to refuse to hire an applicant for employment "as long as the refusal is not for a discriminatory or other unlawful reason”***.

The Commissioner opined that the Education's prior discontinuance of Petitioner's probationary employment, "which in turn was permissibly based on ... substantiated misconduct,” and “[Education] quite rationally may review [Petitioner’s] applications for employment more carefully than other applications, conduct investigations of his suitability for the positions he applies for, and deny him employment based on prior performance or conduct detailed in his record of employment with [Education]".

* See Application of Ayers, 48 Ed Dept Rep 350, Decision No. 15,883 and other decisions cited in the Commissioner's decision.

** To the extent petitioner suggested that his conduct was attributable to his disability, the Commissioner noted that any such claim of employment discrimination is outside the scope of an appeal to the Commissioner (See Appeal of Moss and Sealy, 60 Ed Dept Rep, Decision No. 18,001).

*** The Commissioner opined that the Department's prior discontinuance of Petitioner's probationary employment, "which in turn was permissibly based on ... substantiated misconduct,” and “[the Department] quite rationally may review [Petitioner’s] applications for employment more carefully than other applications, conduct investigations of his suitability for the positions he applies for, and deny him employment based on prior performance or conduct detailed in his record of employment with [the Department of Education]”.

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

Correction officer found guilty of disciplinary charges alleging using profanity during an altercation and activating two personal body alarms

New York City Office of Administrative Trials and Hearings Administrative Law Judge Joycelyn McGeachy-Kuls recommended a 50-day suspension for a Correction Officer [CO] who engaged in misconduct by using profanity during an altercation and activating two personal body alarms (PBA).

CO had requested to not work overtime due to her health conditions. Despite her request, CO was assigned to work overtime. When CO attempted to leave at the end of her shift, another correction officer refused to open the gate because Employee had not been relieved from her post.

Judge McGeachy-Kuls found that during the ensuing altercation CO used profanity toward another correction officer and a correction captain, activated two PBAs when there was no emergency, and left her post without proper relief.

However, the ALJ found that the Appointing Authority failed to prove that Employee refused an order to submit a report or that she refused to identify herself to a correction captain.

As the ALJ found that the Department did not prove all of the charges and specifications filed against Employee, Judge McGeachy-Kuls decided that a lesser penalty was appropriate and recommended a 50-day suspension without pay in lieu of recommending imposing a 60-day suspension without pay as requested by the Appointing Authority. 

Click HERE to access Judge McGeachy-Kuls decision posted on the Internet.

Advancing a "qualified immunity defense" in a motion for summary judgment

In this action the United States Court of Appeals, Second Circuit, considered the court's scope of jurisdiction in an appeal challenging a federal district court's denial of a defendant's motion for summary judgment that relied on the defendant's claim of qualified immunity. Further, citing Bolmer v. Oliveira, 594 F.3d 134*, the court noted that  such rulings "are immediately appealable under the collateral order doctrine".

In the event a plaintiff shows facts making out a violation of a constitutional right, the Circuit Court said a defendant may establish the affirmative defense of qualified immunity by demonstrating that [1] the right was not clearly established or [2] even if the right was clearly established, it was objectively reasonable for the [defendant] to believe the conduct at issue was lawful.”

In this action the relevant defendants did not dispute the first requirement — that the right was clearly established — and addressed only the second requirement, arguing that no reasonable jury could conclude that they acted unreasonably.

Confining its review to the question presented, the Circuit Court conclude that the federal district court properly denied the motion seeking qualified immunity at the summary judgment stage. The Circuit Court explained that viewing the pretrial record in the light most favorable to the nonmoving party, "there is a genuine factual dispute that bears on whether it was objectively reasonable for [the relevant respondents] to believe their actions were lawful."

In the words of the Circuit Court, “[W]here, as here, specific intent is actually an element of the plaintiff’s claim as defined by clearly established law, it can never be objectively reasonable for a government official to act with the intent that is prohibited by law.”

If the relevant defendants intended to dismiss Plaintiff in retaliation for allegedly participating in a political campaign, their actions were objectively unreasonable. Although the relevant defendants "argued before the district court, and argue again on appeal," that they believed that Plaintiff campaigned on Department time and that this was a legitimate reason for the firing, the Circuit Court opined that "even if there were a legitimate reason to fire [Plaintiff], in order to avoid liability for First Amendment retaliation, [the relevant defendants] would need to “show that [they] would have taken the same adverse action” — that is, they would have fired [Plaintiff] "in the absence of the protected speech."

The Circuit Court concluded that the district court did not err in its determination that the relevant defendants “ha[d] not met their burden of showing that a ‘reasonable jury would have to find by a preponderance of the evidence’ that they would have terminated [Plaintiff] even absent [her] protected speech ....” 

Further, the Circuit Court said "Nothing in the record suggests that [the relevant defendants] were required to fire an employee for campaigning during work hours; they had allegedly declined to do so on a prior occasion", opining that the relevant defendants "could not show that they would have taken the same decision regardless of an impermissible motive when the [relevant defendants] had the discretion not to take an adverse action". Accordingly, said the Circuit Court, a jury could conclude that the relevant defendants acted with retaliatory intent and fired [Plaintiff] when they would not otherwise have done so and in such a case, "they would not be entitled to qualified immunity."

* The Circuit Court, citing Dallas Aerospace, Inc. v. CIS Air 4 Corp., 352 F.3d 775, also observed that "[when] ruling on a summary judgment motion the district court must construe the facts in the light most favorable to the non-moving party and must resolve all ambiguities and draw all reasonable inferences against the movant.”

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

Judicial review of an arbitration award is limited

The Appointing Authority [Agency] served disciplinary charges on an individual [Employee] alleging Employee was guilty of three acts involving sexual misconduct. 

The arbitrator found the Respondent guilty of Disciplinary Charge 1 but not guilty with respect to Disciplinary Charges 2 and 3. The arbitrator imposed a penalty of a six-month suspension without pay and, because Employee had already been suspended in excess of six months of suspension without pay, ordered that Employee be reinstated to his position with back pay.

Employee initiated a CPLR Article 75 action to confirm the arbitration award after Agency failed to reinstate him to his position. The Agency's answer to Employee's petition sought to vacate the arbitration award as to Charges 2 and 3 and impose termination of the penalty with respect to Charges 2 and 3. 

Supreme Court confirmed the arbitration award with respect to Charge 1 but vacated the awards of not guilty with respect to charges 2 and 3 as "irrational and against public policy". Supreme Court and found Employee "guilty of these charges and remitted the matter to a different arbitrator for the imposition of a new penalty.

Employee appealed the Supreme Court's rulings.

The Appellate Division, referring to the provisions of CPLR §7511[b][1][iii], explained that judicial review of arbitral awards is extremely limited and may only be vacated in limited circumstances, including where the arbitrator "... exceeded his [or her] power", citing American Intl. Specialty Lines Ins. Co. v Allied Capital Corp., 35 NY3d 64 and other cases. The Appellate Division observed that "[A]rbitrators exceed their power within the meaning of the CPLR only when they issue an award that violates a strong public policy, is irrational or clearly exceeds a specifically enumerated limitation on the arbitrator's power". 

Further, the Appellate Division pointed out that "An arbitrator that 'imposes requirements not supported by any reasonable construction of the [contract]' has, 'in effect, made a new contract for the parties,' rendering the award subject to vacatur as irrational", citing Matter of Livermore-Johnson [New York State Dept. of Corr. & Community Supervision], 155 AD3d 1391, and other decisions.

The Appellate Division then addressed the arbitrator's evaluation of the charges served on Employee and concluded that the arbitrator "impermissibly exceeded her authority as she 'effectively modified the terms' of the sexual harassment policies in the manual and the handbook." 

Explaining courts can neither "substitute judicial opinion for the arbitrator's decision" nor "rule on either the merits of the underlying allegations or impose a remedy [that the court feels] is appropriate", the Appellate Division reversed those aspects of Supreme Court's order that did both and vacated the portions of the award that found Employee not guilty of disciplinary Charges 2 and 3. 

In the words of the Appellate Division, "we simply vacate the portions of the award finding [Employee] not guilty of sexual harassment under charges 2 and 3 and remit the matter to a new arbitrator for a new determination as to those charges and the imposition of an appropriate penalty".

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

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  http://booklocker.com/books/7401.html 

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Procedural issues raised for the first time "on appeal" are not properly before the appellate tribunal

A hearing officer, following a disciplinary hearing conducted pursuant to §75 of the Civil Service Law, found the Petitioner guilty of misconduct and insubordination. The appointing authority [Employer] adopted, in part and rejected in part, the findings and recommendation of the hearing officer and (1) demoted Petitioner  from his then higher salary grade position to a position in a lower salary grade and (2) suspended Petitioner without pay for 60 days.*

In this CPLR Article 78 action Petitioner appealed the Employer's decision. Supreme Court, however, granted the Employer's motion pursuant to CPLR §§3211(a) and 7804(f) to dismiss Petitioner's appeal, dismissing the proceeding on the ground that the Petitioner failed to exhaust his administrative remedies. Petitioner appealed the Supreme Court's ruling. 

The Appellate Division affirmed the Supreme Court's decision "insofar as appealed from, with costs." The Appellate Division observed that the only argument raised by the Petitioner in opposition to the Employer's motion to dismiss the petition before the Supreme Court was that the Employer's motion was untimely, an argument that was not raised on appeal. 

Citing Matter of Castillo v Town of Oyster Bay, 70 AD3d 939, the Appellate Division affirmed the Supreme Court's order and judgment "insofar as appealed from", explaining that "[because] the contentions raised by the [Petitioner] on appeal concerning the exhaustion of administrative remedies do not present pure questions of law appearing on the face of the record that could not have been avoided if raised at the proper juncture, they are improperly raised for the first time on appeal and are not properly before [the Appellate Division]" on appeal.

* A collective bargaining agreement may authorize the imposition of multiple disciplinary penalties in a disciplinary action. In contrast, in disciplinary actions pursuant to §75 of the New York State Civil Service Law the courts have held that "the imposition of multiple penalties was improper" as Civil Service Law §75.3 provides for a choice of penalties, thus prohibiting the imposition of more than one of the discrete penalties set out in the statute [see Matteson v City of Oswego, 186 AD2d 1017]. Imposing multiple penalties in a §75 disciplinary action, however, is possible where there are multiple offenses involved and the individual is found guilty of more than one of the charges alleged [see Wilson v Sartori, 70 AD2d 959].

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