Concerning allegations of having been subjected to libel and, or, slander as the result of a coworker's statements

Plaintiff, a firefighter [and a Commissioner] of the Respondent fire district [FD], alleging that another FD firefighter [Commissioner] accused him of being involved in criminal activities, commenced this action against the Commissioner for libel and slander and against the FD alleging FD created a hostile work environment by failing to enforce (a) its whistle blower policy, (b) its workplace violence policy, and (c) its relevant personnel policy  and (d) by failing to initiate an appropriate response to Commissioner's behavior. 

FD and Commissioner submitted motions for summary judgment dismissing Plaintiff's complaint. 

Supreme Court granted the motions, finding that FD's and Commissioner's statements were substantially true and that the statements were protected by the "common interest" qualified privilege. Supreme Court also determined that Plaintiff "did not articulate a statutory or private cause of action" against FD.

 Plaintiff appealed Supreme Court's dismissal of his complaint, which ruling the  Appellate Division affirmed, explaining:

1. "On a motion for summary judgment, it is the movant's initial burden to establish prima facie entitlement to judgment as a matter of law by submitting proof in admissible form demonstrating the absence of any material issues of fact. Upon such a showing, the burden shifts to the nonmovant to raise a triable issue of fact, again through the submission of competent evidence" and evidence produced by the movant must be viewed in the light most favorable to the nonmovant, affording the nonmovant every favorable inference.

2. "A claim of defamation requires proof that the respondent made a false statement, published that statement to a third party without privilege, with fault measured by at least a negligence standard, and the statement caused special damages or constituted defamation per se".

3. "It is for the court to decide whether the statements complained of are reasonably susceptible of a defamatory connotation, thus warranting submission of the issue to the trier of fact. This determination is made by looking at the context and circumstances surrounding the entire communication".

4. "Even where a derogatory statement has been made, it remains well established that truth is an absolute, unqualified defense to a civil defamation action. As a defense, truth need not be established to an extreme literal degree. Provided that the defamatory material on which the action is based is substantially true (and minor inaccuracies are acceptable), the claim to recover damages must fail".

5. Additionally, "[c]ourts have long recognized that the public interest is served by shielding certain communications, though possibly defamatory, from litigation, rather than risk stifling them altogether".

6. The "common interest" privilege "arises when a person makes a good-faith, bona fide communication upon a subject in which he or she has an interest, or a legal, moral or societal interest to speak, and the communication is made to a person with a corresponding interest".

The Appellate Division's decision notes the Supreme Court properly determined that [alleged offending] statements made during the heated exchange that took place between Plaintiff and [Commissioner] in the course of a public meetings of the FD were not actionable as, giving every favorable inference to Plaintiff, Plaintiff "failed to meet his burden." 

Further, the Appellate Division opined that the Commissioner's statements are subject to the common interest qualified privilege and pursuant to FD's personnel policy, as  the Commissioner had a duty to report ethical or illegal conduct by other FD commissioners. The court also noted that Commissioner's statements "were made in his capacity as a [FD] firefighter and commissioner and referenced legitimate issues related to [FD's] personnel policy and code of ethics".

Noting FD investigated Plaintiff's complaint against Commissioner and is vested with discretion to determine if disciplinary action should be taken or if the matter should be closed, the Appellate Division said official acts involving the exercise of discretion may not serve as a basis for liability nor does an order in the nature of mandamus lie to compel FD to reopen its investigation or arrive at a particular conclusion.

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

 

Protection for employees of the State of New York as the employer serving in non-competitive and labor class positions in the event of the abolition of positions or reductions in force

On October 22, 2024, the New York State Department of Civil Service published Advisory Memorandum 24-07, Protection for Employees in Non-Competitive and Labor Class Positions in the Event of Abolition of Positions or Reductions in Force.

The text of Advisory Memorandum 24-07 is posted on the Internet at: https://www.cs.ny.gov/ssd/Manuals/SPMM/2300ReductionsInForce/AdvisoryMemo24-07.htm.

If you wish to print Advisory Memorandum 24-07, the Department offers a version in PDF format on the Internet at: https://www.cs.ny.gov/ssd/pdf/AM24-07.pdf.

To view previous Advisory Memoranda issued by the Department of Civil Service, visit: https://www.cs.ny.gov/ssd/Manuals/SPMM/

Distinguishing between disciplinary proceedings and employment conditions for employees entitled to statutory civil service protections in placing a tenured employee on leave without pay for failing to submit proof of satisfying COVID-19 vaccination requirements

The Plaintiffs in this action, tenured public school teachers employed by the Board of Education of the City School District of the City of New York [BOE], challenged their placement on leave without pay status after they failed to submit proof of COVID-19  vaccination in accordance with the vaccination requirement imposed on BOE employees by the Commissioner of the New York City Department of Health and Mental Hygiene [Commissioner].

Ultimately the United Federation of Teachers [UFT], the union representing a majority of teachers in NYC public schools, began negotiations with the BOE over implementation of this requirement and the impact on its members. When those negotiations failed, the parties filed a declaration of impasse in accordance with Civil Service Law §209, typically referred to as the Taylor Law, and entered into mediation. Unable to resolve the matter through mediation, the issue was submitted to arbitration.

The arbitrator issued an Impact Award setting out the mechanisms for satisfying the COVID-19 vaccine requirement's implementation which provided as follows:

1. Any unvaccinated employee who had not requested an exemption or who had requested an exemption which has been denied, "may be placed by the BOE on leave without pay" and "[p]lacement on leave without pay for these reasons shall not be considered a disciplinary action for any purpose."

2. While on such leave without pay, the employee would remain eligible for health insurance; and

3. Employees on such leave without pay "who become vaccinated while on such leave without pay and provide appropriate documentation to the BOE prior to November 30, 2021, shall have a right of return to the same school."

The Plaintiffs then filed CPLR Article 75 and 78 petitions challenging their placement on leave without pay status after they failed to submit proof of vaccination in accordance with the vaccination requirement imposed on BOE employees by the arbitration award. Holding that the Appellate Division "properly affirmed dismissal of these petitions", the Court of Appeals affirmed the Appellate Division's dismissal of the petitions filed by the Plaintiffs.

In the words of the Court of Appeals:

"In terms of process, the UFT negotiated with the BOE over every aspect of the imposition of the mandate, which in the first instance was imposed by the Health Commissioner. As set out in Civil Service Law § 209, the UFT and the BOE negotiated, then engaged in mediation, and finally entered into arbitration over the implementation of the mandate and its impact on UFT's members. Indeed, one of the points of contention between the parties leading to the filing of an impasse declaration concerned the placement of teachers who failed to submit proof of vaccination on leave without pay. The UFT subsequently agreed to be bound by the Impact Award established by the arbitrator, and once the arbitrator issued the award, teachers received ample notice of the Impact Award's provisions. Under these circumstances, petitioners were not entitled to hearings in accordance with Education Law §§ 3020 and 3020-a (see Beck-Nichols v Bianco, 20 NY3d at 558-559), nor were their due process rights violated (see id. at 559, citing Matter of Prue v Hunt, 78 NY2d 364, 368 [1991]). Accordingly, their requests for article 78 relief were properly denied."

The text of the Court of Appeals' decision is set out below.

 

Matter of O'Reilly v Board of Educ. of the City Sch. Dist. of the City of N.Y.

2024 NY Slip Op 05130

Decided on October 17, 2024

Court of Appeals

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on October 17, 2024

No. 77

In the Matter of Christine O'Reilly, Appellant,

v

Board of Education of the City School District of the City of New York, et al., Respondents. (And Three Other Proceedings.)


No. 78

In the Matter of Athena Clarke, Appellant,

v

Board of Education of the City School District of the City of New York, et al., Respondents. (And Three Other Proceedings.)

Case Nos. 77 & 78:

Jimmy F. Wagner, for appellant.

Jesse A. Townsend, for respondents.

MEMORANDUM.:

On each appeal, the Appellate Division order should be affirmed, with costs, and the certified question not answered as unnecessary.

Petitioners, tenured public school teachers employed by the Board of Education of the City School District of the City of New York (BOE), brought CPLR article 75 and 78 petitions challenging their placement on leave without pay status after they failed to submit proof of vaccination in accordance with the vaccination requirement imposed on BOE employees by the Commissioner of the New York City Department of Health and Mental Hygiene (the Health Commissioner). Because the Appellate Division properly affirmed dismissal of these petitions, we affirm.

In August 2021, during the public health emergency caused by COVID-19, the Health Commissioner determined "that it is necessary for the health and safety of the City and its residents" to require vaccination, and so issued a mandate requiring all BOE staff to provide proof of vaccination by a date certain. The Health Commissioner explained that "the CDC has recommended that school teachers and staff be vaccinated as soon as possible because vaccination is the most critical strategy to help schools safely resume full operations," noting that DOE "serves approximately 1 million students across the City, including students in the communities that have been disproportionately affected by the COVID-19 pandemic and students who are too young to be eligible to be vaccinated." This mandate was later expanded to include employees of other city agencies, as well as individuals entering certain indoor dining, entertainment, and commercial venues. The United Federation of Teachers (UFT), the union representing a majority of teachers in NYC public schools, began negotiations with the BOE over implementation of the requirement and the impact on its members. When those negotiations failed, the parties filed a declaration of impasse in accordance with Civil Service Law § 209, and entered into mediation, followed by arbitration.

In September 2021, the arbitrator issued the Impact Award, which established mechanisms for the vaccine requirement's implementation. The award provided that "[a]ny unvaccinated employee who has not requested an exemption . . . , or who has requested an exemption which has been denied, may be placed by the BOE on leave without pay" and "[p]lacement on leave without pay for these reasons shall not be considered a disciplinary action for any purpose." While on leave without pay, employees would remain eligible for health insurance, and "[e]mployees who become vaccinated while on such leave without pay and provide appropriate documentation to the BOE prior to November 30, 2021, shall have a right of return to the same school." The award outlined separation options for those employees who remained on leave without pay, and advised employees on leave who had not chosen any of the proffered separation options that by December 1, 2021, the BOE "shall seek to unilaterally separate" these employees.

Petitioners were placed on leave without pay after failing to submit proof of vaccination by the deadline. They each filed nearly identical petitions under article 75, seeking to vacate the Impact Award, and under article 78, seeking to annul their placement on leave without pay and alleging that the BOE violated Education Law §§ 3020 and 3020-a by doing so without providing hearings under those provisions. Four separate Supreme Court judges denied the petitions, generally holding that the article 78 petition was meritless because petitioners were not entitled to Education Law §§ 3020 and 3020-a hearings and that petitioners lacked standing to bring article 75 petitions and failed to join UFT as a necessary party. On appeal, the Appellate Division affirmed the determinations and dismissed the petitions in two separate decisions (213 AD3d 560 [1st Dept 2023]; 213 AD3d 548 [1st Dept 2023]). The Appellate Division held that "petitioners' placement on leave for failure to prove vaccination, a condition of employment, is 'unrelated to job performance, misconduct or competency' and does not constitute 'teacher discipline' " subject to the procedures mandated by "Education Law §§ 3020 (Discipline of teachers) and 3020-a (Disciplinary procedures and penalties)" (213 AD3d at 566, quoting Matter of Beck-Nichols v Bianco, 20 NY3d 540, 558-559 [2013]; 213 AD3d at 550). We now affirm.

Petitioners were not entitled to the hearing procedures outlined in Education Law §§ 3020 and 3020-a before being placed on leave without pay. These statutory provisions establish a detailed and comprehensive system for conducting disciplinary hearings for tenured teachers. While tenured teachers have a right to these statutory hearings when faced with disciplinary proceedings, these provisions are not applicable to petitioners, who were placed on leave without pay for failure to comply with the vaccine mandate, a condition of employment.

This Court has long distinguished between disciplinary proceedings and employment conditions for employees entitled to statutory civil service protections, and has held that statutory hearings are not warranted when employment eligibility conditions are enforced (see Matter of Felix v New York City Dept. of Citywide Admin. Servs., 3 NY3d 498, 505 [2004]; see also Matter of New York State Off. of Children & Family Servs. v Lanterman, 14 NY3d 275, 282-283 [2010]). We have explicitly applied this distinction in the context of tenured teachers, holding that a teacher terminated for failure to comply with a requirement that "defines eligibility for employment" is not entitled to Education Law §§ 3020 and 3020-a hearings (Beck-Nichols, 20 NY3d at 558). Petitioners, who do not challenge imposition of the vaccine mandate here, did not face disciplinary proceedings, but instead failed to comply with "a condition of employment" that was "unrelated to job performance, misconduct or competency" (Felix, 3 NY3d at 501, 505).

In terms of process, the UFT negotiated with the BOE over every aspect of the imposition of the mandate, which in the first instance was imposed by the Health Commissioner. As set out in Civil Service Law § 209, the UFT and the BOE negotiated, then engaged in mediation, and finally entered into arbitration over the implementation of the mandate and its impact on UFT's members. Indeed, one of the points of contention between the parties leading to the filing of an impasse declaration concerned the placement of teachers who failed to submit proof of vaccination on leave without pay. The UFT subsequently agreed to be bound by the Impact Award established by the arbitrator, and once the arbitrator issued the award, teachers received ample notice of the Impact Award's provisions. Under these circumstances, petitioners were not entitled to hearings in accordance with Education Law §§ 3020 and 3020-a (see Beck-Nichols v Bianco, 20 NY3d at 558-559), nor were their due process rights violated (see id. at 559, citing Matter of Prue v Hunt, 78 NY2d 364, 368 [1991]). Accordingly, their requests for article 78 relief were properly denied.

Finally, we agree with the Appellate Division that the requests for article 75 relief were properly rejected because petitioners lacked standing and failed to join UFT as a necessary party, as required for petitioners to allege that UFT violated its duty of fair representation.

In each case:

Order affirmed, with costs, and certified question not answered as unnecessary, in a memorandum. Chief Judge Wilson and Judges Garcia, Singas, Cannataro, Troutman, Halligan and Taylor concur. Judge Rivera took no part.

Decided October 17, 2024

Former educator alleges breach of the duty of fair representation, breach of contract and other wrongdoings by her former employer and her former union

In an action to recover damages for alleged breach of contract and fraud, the Plaintiff in the instant action appealed an order of the Supreme Court granting the motions of a Teachers Association. and a School District [Respondents] and other education entities dismissing Plaintiff's complaint's insofar as asserted against each of them. The Appellate Division affirmed the Supreme Court's ruling "with one bill of costs to the [Respondents] appearing separately and filing separate briefs".

The superintendent of schools for the defendant Union Free School District [District] had reassigned the Plaintiff, a tenured elementary school teacher, from teaching duties to administrative duties. Subsequently the District found that probable cause existed to file disciplinary charges against the Plaintiff pursuant to Education Law §3020-a alleging professional misconduct. Pursuant to a stipulation of settlement of the disciplinary action, Plaintiff agreed to retire and "to release any and all claims against the district defendants in consideration for, among other things, continued receipt of her salary and certain benefits".

Thereafter the District and the Teachers Association [Association] entered into a "memorandum of agreement" providing a retirement incentive of payment of unused sick leave to certain full-time teaching faculty members. The Plaintiff applied for the retirement incentive.

The District rejected her request and in her notice of claim Plaintiff alleged the District's denial of her application constituted a breach of the stipulation of settlement. Plaintiff then commenced the instant action seeking to recover damages for "breach of contract, fraud in the inducement, and negligent misrepresentation".

Plaintiff alleged that prior to the execution of the stipulation of settlement, the Respondents "fraudulently misrepresented, in substance, that no further negotiations affecting the collective bargaining agreement governing the [Plaintiff's] benefits were pending; that the stipulation of settlement entitled her to the retirement incentive offered in the memorandum of agreement; and that the district defendants breached the stipulation of settlement by denying her application".

The Association and the District separately moved to dismiss the complaint insofar as asserted against each of them. Supreme Court granted these motions and Plaintiff appealed.

Sustaining the Supreme Court's rulings, the Appellate Division explained:

1. To state a cause of action to recover damages for a breach of contract, the plaintiff's allegations must identify the provisions of the contract that were breached and here no provision in the stipulation of settlement entitles the Plaintiff to the retirement incentive. The decision further notes that Plaintiff "was not a party to the memorandum of agreement." Thus, opined the Appellate Division, Supreme Court "properly directed dismissal of the cause of action to recover damages for breach of contract";

2. To establish fraud, a plaintiff must prove a misrepresentation or a material omission of fact which was false and known to be false by the defendant and when a plaintiff brings a cause of action based upon fraud, the circumstances constituting the wrong must be stated in detail. Here the Plaintiff's complaint failed to properly plead all of the requisite elements of fraud against the Respondents with sufficient particularity and the complaint, taken at face value, "failed to support the allegation that the defendants misrepresented any facts. For the same reason, the complaint failed to state a cause of action to recover damages for negligent misrepresentation". Accordingly, the Appellate Division found "the Supreme Court properly directed dismissal of the causes of action to recover damages for fraud in the inducement and negligent misrepresentation";

3. Supreme Court, said the Appellate Division, properly directed dismissal of the cause of action sounding in breach of the duty of fair representation as a "Breach of the duty of fair representation occurs only when a union's conduct toward a member of the collective bargaining unit is arbitrary, discriminatory, or in bad faith". Plaintiff's complaint failed to set forth such conduct. On its face, the exclusion of union members who had previously retired or submitted a letter of resignation for purposes of retirement from the retirement incentive was rational; and

4. To the extent that the Plaintiff's complaint asserted causes of action to recover damages for breach of the implied covenant of good faith and fair dealing or breach of fiduciary duty, the Appellate Division held "Supreme Court properly directed dismissal of those causes of action".

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

 

New York State's Commissioner of Education dismissed an appeal challenging election of certain individuals to a board of education for failure to join necessary parties

Petitioner, an unsuccessful candidate in an election to a school board, sought a "review and disqualification of paper ballots and a new election" by New York State's Commissioner of Education.

The Commissioner dismissed Petitioner's appeal, explaining Petitioner failed to name the successful candidates for election to the school board in the caption of the appeal or personally served those candidates with a copy of the petition. 

As the successful candidates for election to the school board could be adversely affected by the Commissioner's decision in this matter, the Commissioner ruled that "the appeal must be dismissed".

In the words of the Commissioner of Education: 

"A person or entity whose rights would be adversely affected by a determination in favor of a petitioner is a necessary party and must be joined as such (Appeal of Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of Murray, 48 id. 517, Decision No. 15,934).  Joinder requires that a party be clearly named as a respondent in the caption and served with a copy of the notice of petition and petition, informing the party to appear in the appeal and to answer the allegations contained in the petition (Appeal of Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of Murray, 48 id. 517).  

"In an appeal regarding a school district election, the petitioner must join the district’s board of education as well as “each person whose right to hold office is disputed” (8 NYCRR 275.8 [d]; see Appeal of Bonelli, 59 Ed Dept Rep, Decision No. 17,795; Appeal of Duffy, 47 id. 86, Decision No. 15,634)."

Respondent held its annual budget vote and election on May 21, 2024.  Petitioner, an unsuccessful candidate, requests a thorough review and disqualification of paper ballots and a new election.  This could adversely affect the candidates elected to the board, who were not named in the caption of this appeal or personally served with a copy of the petition.  As such, the appeal must be dismissed (Appeal of Arroyo Rodriguez and Figurasmith, 63 Ed Dept Rep, Decision No. 18,372; Appeal of Puskuldjian, 61 id., Decision No. 18,048).

In addition, the Commissioner noted New York State's Court of Appeals recently sustained the validity of New York’s early mail voter statute, citing Stefanik v Hochul, 2024 NY Slip Op 04236.

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