Plaintiffs allege their employer, by failing to adequately investigate their claims of employee misconduct, created a racially hostile work environment in violation of Title VII

Plaintiffs brought an action in federal district court alleging that their employer, the New York State Department of Corrections and Community Supervision [DOCCS], "negligently created a racially hostile work environment in violation of Title VII" by failing to adequately investigate their allegations of misconduct by certain coworkers. The federal district court had granting summary judgment in favor of DOCCS after finding Plaintiffs failed to show:

1. Liability for the alleged misconduct could be imputed to the DOCCS;

2. The alleged misconduct was severe or pervasive enough to alter the conditions of their employment; and 

(3) The alleged misconduct was based on their race. 

Plaintiffs appealed each of the district court's ruling to the U.S. Circuit Court of Appeals, Second Circuit.

Citing Rasmy v. Marriott Int’l, Inc., 952 F.3d 379, the Circuit Court said “An employer violates Title VII when the ‘workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment so long as there is a basis for imputing the conduct that created the hostile environment to the employer." In addition, the Court noted that the plaintiff must demonstrate that the conduct occurred because of the plaintiff's protected status, citing Agosto v. N.Y.C. Department of Educ., 982 F.3d 86, and Desardouin v. City of Rochester, 708 F.3d 102.

Opining that "It is insufficient for a plaintiff to allege that he or she is a member of a protected class, experienced a hostile workplace, and therefore that the hostility must have been because of his or her protected class", the Circuit Court of Appeals said it agreed the district court that "there is no evidence from which a reasonable jury could conclude that these acts of harassment were directed at [Plaintiffs] because of their race".

In the words of the Circuit Court, "the only evidence referencing any reason for the alleged abuse, including the [Plaintiffs’] own testimony, tended to indicate that [Plaintiffs] were harassed because they were perceived to be disloyal* and the evidence offered nothing to suggest that the treatment of Plaintiffs was based on their race.**

Nor, said the Court, could a reasonable jury infer that the supervisors discriminated against Plaintiffs because of their race. Although Plaintiffs argued that they were assigned to “less desirable” posts more often than white officers, the record indicates that (1) “[t]here are no inferior posts,” (2) other officers were assigned to the posts that were subjectively considered "less desirable" at least as much as [Plaintiffs] and (3) [Plaintiffs] "were assigned to posts that were consistent with their job responsibilities" and Plaintiffs did not submit any evidence "to support the assertion that the posts they requested were assigned to white officers."

Concluding that the federal district court correctly granted summary judgment to DOCCS on the ground that no reasonable jury could find that Plaintiffs were harassed because of their race, the Circuit Court of Appeals affirmed the judgment of the district court.

* One Plaintiff said "that other officers believed Plaintiff was a 'rat' because Plaintiff had testified on behalf of an inmate in a disciplinary hearing" while the second Plaintiff said  "other officers regarded him [quoting derogatory language] because he had testified against a fellow corrections officer at another institution where he had worked". 

**The Court said that the evidence is consistent with the theory that [Plaintiffs] experienced “workplace bullying completely detached from any discriminatory motive.” 

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

An employee's submitting a resignation letter and, or, requesting to be removed from the employer's payroll held critical to effecting a bona fide retirement

As noted by the Appellate Division in a Footnote in its decision dated April 10, 2025, set out below, members of the New York State and Local Retirement System [NYSLRS] who retire as correction officers are entitled to benefits under Article 14 of the New York State Retirement and Social Security Law whereas members of NYSLRS employed by certain other participating public employers, including school districts, are entitled to benefits pursuant to Article 15 of such Law. 

Further, if a former correction officer retires from service with an Article 15 employer, that individual's years of service under Article 14 is considered in the Article 15 retirement benefit calculation and, in some instances, the benefits available under Article 15 may be more advantageous. 

Significantly, an employee's submitting a letter of resignation letter and, or, being removed from the employer's payroll is critical to effecting his or her retirement.

In the second footnotes in the decision set out below, the Appellate Division said "Given the similar failure to submit a resignation letter and/or seek to be removed from the school district's payroll, we find that [NYSLRS'] determination that the break in petitioner's employment attributable to the COVID-19 pandemic did not constitute a bona fide retirement is also supported by substantial evidence", citing Matter of Strzepek v DiNapoli, 227 AD3d at 1356-1357.

The text of the Appellate Division's decision in the instant appeal is set out below:

In the Matter of Daniel Radwan, Petitioner,

v

Thomas P. DiNapoli, as State Comptroller, Respondent.

Calendar Date: February 10, 2025
Before: Aarons, J.P., Pritzker, Reynolds Fitzgerald, Ceresia and Powers, JJ.

Creighton, Johnsen & Giroux, Buffalo (Jonathan G. Johnsen of counsel), for petitioner.

Letitia James, Attorney General, Albany (Frederick A. Brodie of counsel), for respondent.

Pritzker, J.

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of respondent denying petitioner's application for Retirement and Social Security Law article 15 service retirement benefits.

Petitioner worked as a correction officer for the Department of Corrections and Community Supervision (hereinafter DOCCS) for over 30 years until April 15, 2019. In December 2018, petitioner also began working as a part-time laborer on an as-needed basis for the Frontier Central School District. Less than one year later, petitioner filed an application with the New York State and Local Retirement System seeking service retirement benefits under Retirement and Social Security Law article 15 and listing the effective date of his retirement as April 27, 2019.^[FN1] Significantly, however, petitioner did not submit a resignation letter to the school district until April 2021. In response to petitioner's application for retirement, the Retirement System sent a letter to the school district indicating that petitioner had applied for retirement, that the effective date thereof would be April 27, 2019 and that the day prior thereto would be the last day that petitioner could receive a salary. Despite this, petitioner continued working for the school district and collecting a salary.

Beginning in May 2019, the Retirement System's pension integrity bureau began investigating retirement applications of correction officers who predominately worked under Retirement and Social Security Law article 14 but were seeking benefits under Retirement and Social Security Law article 15. In a September 2021 letter, the pension integrity bureau informed petitioner that, upon reviewing his application, petitioner "did not have a bona fide termination from employment prior to the effective date of [his] retirement." Upon petitioner's request, a hearing ensued, at the conclusion of which the Hearing Officer denied petitioner's application and found, among other things, that there was no genuine termination of petitioner's employment with the school district in 2019 and, as a result, petitioner would need to return payments that he had been receiving but to which he was not entitled. Respondent upheld the Hearing Officer's decision, prompting petitioner to commence this CPLR article 78 proceeding to challenge respondent's determination, which was transferred to this Court (see CPLR 7804 [g]).

Petitioner argues that respondent's interpretation of Retirement and Social Security Law article 15 as requiring an applicant to actually stop working for a public employer in order to obtain retirement benefits is unreasonable. In light of this Court's recent decision in Matter of Strzepek v DiNapoli (227 AD3d 1353, 1356 [3d Dept 2024]), we disagree. Respondent "is vested with the exclusive authority to determine all applications for retirement benefits and the determination must be upheld if the interpretation of the controlling retirement statute is reasonable and the underlying factual findings are supported by substantial evidence" (Matter of Tamucci v DiNapoli, 133 AD3d 960, 961 [3d Dept 2015] [internal quotation marks, brackets and citations omitted]; see Matter of Graziose v DiNapoli, 137 AD3d 1452, 1453 [3d Dept 2016]). To that end, as we held in Matter of Strzepek v DiNapoli, "we have no quarrel with the proposition that, in order to qualify for benefits under Retirement and Social Security Law article 15, an applicant such as petitioner indeed must demonstrate that he or she actually retired from public service employment in the first instance. We are similarly persuaded that it is entirely rational and reasonable for respondent to require that such retirement be genuine, i.e., the applicant must demonstrate that there has been a legitimate cessation or termination of employment. . . . [S]imply filing an application for benefits, selecting a retirement date and abstaining from performing services for the employer on the effective date thereof does not constitute a legitimate retirement — particularly where . . . the applicant in question remains on the employer's payroll and subsequently continues to perform services for the employer" (227 AD3d at 1356 [footnote omitted]). In light of the foregoing, we also find that respondent's determination that petitioner did not actually retire on April 27, 2019 is supported by substantial evidence (see id. at 1357). Specifically, the evidence demonstrates that, although claimant informed the school district that he would be retiring on said date, he did not submit a resignation letter nor ask to be removed from the payroll. And, when the school district contacted him to work again only days after his purported retirement date, claimant agreed to work, and then continued working, albeit with some breaks,^[FN2] until he submitted a resignation letter in April 2021. As such, we decline to disturb respondent's determination.

We now turn to petitioner's argument that his right to due process was violated. Petitioner's contention that his due process rights were violated by respondent's adoption of a new policy is without merit as respondent acted within the purview of his authority when he provided an interpretation of the relevant statutory text to determine whether petitioner had actually retired (see id. at 1355). Nor do we find that an edit made to an information booklet in 2021 suggests the imposition of a new standard as the main purpose of the edit appears to be to inform applicants that "a bona fide termination" of employment must occur before an applicant is considered retired. However, inasmuch as petitioner failed to effectively terminate his employment with the school district, he did not have a legitimate claim of entitlement to the retirement benefits that had accrued on his behalf (see generally Matter of Montgomery v New York State Dept. of Corr. & Community Servs., 192 AD3d 1437, 1440 [3d Dept 2021], lv denied 37 NY3d 908 [2021]; Matter of Soriano v Elia, 155 AD3d 1496,1501 [3d Dept 2017], lv denied 31 NY3d 913 [2018]). In this regard, his due process rights as to those benefits could not have been violated (see id.).

Finally, petitioner contends that respondent should be estopped from recouping monies paid to petitioner during the period respondent now says he was not retired. Petitioner's assertion in this respect centers around alleged erroneous advice given by one of respondent's employees who advised petitioner that, in order to retire from the school district, he could not work on the day of retirement or the day after. However, "[a]s a general rule, estoppel may not be invoked against a governmental body with regard to the exercise of its governmental functions or its correction of an administrative error" (Matter of Taranto v City of Glen Cove, 212 AD3d 826, 828 [2d Dept 2023]; see Matter of Smith v DiNapoli, 167 AD3d 1208, 1211 [3d Dept 2018]). Contrary to petitioner's contention, we do not find his case to be one of "the rarest of cases" in which an exception to the general rule applies (Matter of Taranto v City of Glen Cove, 212 AD3d at 828 [internal quotation marks and citation omitted]; see Matter of Smith v DiNapoli, 167 AD3d at 1211). Moreover, "[u]nder settled principles, the doctrine of estoppel will not provide eligibility [to retirement benefits] where by statute a person clearly does not qualify" (Matter of Price v New York State & Local Employees' Retirement Sys., 107 AD3d 1212, 1216 [3d Dept 2013] [internal quotation marks, brackets and citation omitted]; see Matter of Schuyler v New York State & Local Employees' Retirement Sys., 158 AD3d 909, 912 [3d Dept 2018]), "even if the advice of the administrative employees was erroneous" (Matter of Burns v Regan, 87 AD2d 944, 946 [3d Dept 1982], appeal dismissed 57 NY2d 954 [1982]; see Matter of Lane v DiNapoli, 179 AD3d 1267, 1269-1270 [3d Dept 2020]). Additionally, to the extent that petitioner was provided with incorrect information, it was not his reliance on this information that was ultimately the source of his problems; rather, it was his failure to properly retire by submitting a resignation letter to the school district and/or seeking to be removed from its payroll. Thus, despite the erroneous advice of the Retirement System's administrative officials, the doctrine of estoppel cannot provide petitioner eligibility to retirement benefits for which he did not qualify (see Matter of Lane v DiNapoli, 179 AD3d at 1269-1270; Matter of Schuyler v New York State & Local Employees' Retirement Sys., 158 AD3d at 912; Matter of Price v New York State & Local Employees' Retirement Sys., 107 AD3d at 1215-1216; Matter of Burns v Regan, 87 AD2d at 946). We have reviewed petitioner's remaining contentions and, to the extent not specifically addressed herein, find them to be lacking in merit.

Aarons, J.P., Reynolds Fitzgerald, Ceresia and Powers, JJ., concur.

ADJUDGED that the determination is confirmed, without costs, and petition dismissed.

Footnotes

Footnote 1: Retirement System members who retire as correction officers are entitled to benefits under Retirement and Social Security Law article 14, whereas members employed by certain other public employers, including school districts, are entitled to benefits under Retirement and Social Security Law article 15 (see Retirement and Social Security Law §§ 504 [e]; 600 [2] [a]). However, and according to respondent, if a former correction officer retires after service with an article 15 employer, that individual's years of service under article 14 are considered in the article 15 retirement benefit calculation and, in some instances, the benefits available under article 15 may be more advantageous.

Footnote 2: Given the similar failure to submit a resignation letter and/or seek to be removed from the school district's payroll, we find that respondent's determination that the break in petitioner's employment attributable to the COVID-19 pandemic did not constitute a bona fide retirement is also supported by substantial evidence (See Matter of Strzepek v DiNapoli, 227 AD3d at 1356-1357).

N.B.: See Matter of Petricca v DiNapoli, 2025 NY Slip Op 02121, also decided on April 10, 2025, by the Appellate Division, Third Department. 

A New York City Office of Administrative Trials and Hearings Administrative Law Judge recommended dismissal of disciplinary charges filed against a New York City Probation Officer

OATH Administrative Law Judge Kevin F. Casey found a probation officer guilty of insubordination and conduct prejudicial to good order and discipline as the result of her wearing business attire to work "instead of a polo shirt required by a new dress code" and other clothing required by the Employer's new dress code. 

The probation officer, whose duties included regular courtroom appearances, was charged with misconduct for not wearing a Department-issued polo shirt with the agency’s logo. In addition, the new dress code required the probation officers required to provide, at their own expense, "blue cargo pants, black shoes, and lightweight jackets with the Department’s logo" that was to be worn. 

Citing Ferreri v. NYS Thruway Authority, 62 N.Y.2d 855, the ALJ's observed that employees "were required to obey a supervisor’s order; if the employee believes that an order is improper, the employee can later grieve it through appropriate channels". Judge Casey also noted that the Probation Officer "failed to show that the order to wear the shirt was unlawful, clearly beyond management’s authority, or imminently threatening to health or safety."

However, Judge Casey also found that the Department improperly retaliated against the officer for complaining about the new "dress code" to the Commissioner’s representative and the Department’s General Counsel. 

The ALJ said that the record, the Probation Officer’s credible testimony and other evidence indicated that less than one week after complaining about the new policy, the Department took adverse employment action against the officer by transferring her to another unit, in a different borough, without following Department procedures for involuntary transfers and imposing an unlawful 30 work-day pre-trial suspension without pay.

The ALJ recommended the that the Appointing Authority dismiss all of the disciplinary charges filed against the Probation Officer.

Click HERE to access Judge Casey's findings and recommendation posted on the Internet.

Fiscal Stress reports for some New York State cities and villages issued by New York State's Comptroller Thomas P. DiNapoli

On April 17, 2025, New York State Comptroller Thomas P. DiNapoli announced that nine villages were designated as being in fiscal stress under his office’s Fiscal Stress Monitoring System (FSMS) for their fiscal year ending in 2024. 

DiNapoli’s office evaluated all non-calendar year local governments that filed their financial reports in time to be scored and designated three villages in “significant fiscal stress,” two in “moderate fiscal stress,” and four as “susceptible to fiscal stress.”

The Village of Island Park (Nassau County), the Village of Saugerties (Ulster County) and the Village of Cambridge (Washington County) were classified in “significant fiscal stress.” 

The two villages designated in “moderate fiscal stress” were: Coxsackie (Greene County) and Washingtonville (Orange County). 

The four villages classified as “susceptible to fiscal stress” were: Huntington Bay (Suffolk County), Kaser (Rockland County), Chateaugay (Franklin County) and Liberty (Sullivan County).

“The number of local governments with a fiscal stress designation remains low following several years of emergency federal pandemic aid that helped stabilize their finances.” DiNapoli said: “With that aid coming to an end and uncertainty coming out of Washington on state and local funding cuts, local officials should closely monitor their financial condition so they can be prepared for any financial challenges that lie ahead. I encourage local governments to use our self-assessment tool to help them budget and avoid potential pitfalls.”

The latest round of fiscal scores reported for local governments cover those ending between Feb. 28, 2024, and July 31, 202, and included 518 villages, most of which have a fiscal year ending on May 31. 

The scores, which are based on self-reported data, also cover 17 cities with non-calendar fiscal years, including the “Big 4”: the cities of Buffalo, Rochester, Syracuse and Yonkers, each of which have fiscal years ending on June 30, 2024.

Local governments are statutorily required to file an Annual Financial Report (AFR) with the Office of the State Comptroller following the close of their fiscal year. In total, 108 local governments did not file their data in time to receive a FSMS score, a date that is at least three months past their statutory filing deadline. This represents approximately 20% of the local governments evaluated in this period. Over 482,000 New Yorkers reside in these municipalities.

The Comptroller's office continues to remind local officials of both the statutory filing deadlines, as well as the critical filing dates for receiving a fiscal stress score. His office recently launched a webpage that highlights the importance of the AFR and the concerning increase in the number of non-filers. The webpage includes a tool to check the filing status of any local government.

FSMS, which DiNapoli launched in 2012, assesses levels of fiscal stress in local governments using financial indicators including year-end fund balance, cash position, short-term cash-flow borrowing, and patterns of operating deficits. It generates overall fiscal stress scores, which ultimately determine designations. The system also analyzes separate environmental indicators to help provide insight into the health of local economies and other challenges that might affect a local government’s or school district’s finances. This information includes population trends, poverty, and unemployment.

DiNapoli’s office has a self-assessment tool that allows local officials to calculate fiscal stress scores based on current and future financial assumptions. Officials can use this tool to assist in budget planning, which is especially helpful during periods of revenue and expenditure fluctuations.

In January, 2024, DiNapoli released fiscal stress scores for school districts. In September, his office will release scores for municipalities with a calendar-year fiscal year, which includes counties, towns, most cities and a few villages.

List of Villages and Cities in Fiscal Stress
Municipalities in Fiscal Stress

List of Villages and Cities that Failed to File Financial Information
Municipalities that Failed to File or Inconclusive List

Complete List of Fiscal Stress Scores
Data Files

FSMS Search Tool
Tool

AFR Non-Filers
Webpage
Tracker Tool

 

Join/Renew 1.0 Areas of Professional Practice; 1.0 Diversity, Inclusion & Elimination of Bias; 2.5 Ethics and Professionalism Friday, May 2, 2025 12:30 p.m. – 5:00 p.m. Free to All Three Registration Options Available Albany, NY In-Person and Zoom Available Buffalo, NY In-Person and Zoom Available New York, NY In-Person and Zoom Available Join the Local and State Government Law Section and the Committee on Diversity, Equity, and Inclusion on May 2 for our annual Spring Forum. This year’s forum examines key legal issues shaping equity, governance, and technology. Topics include: Government-Sponsored Segregation in Housing & Finance – The legal history and ongoing impact of discriminatory policies. Tribal Sovereignty & Cultural Restitution – Legal frameworks supporting Indigenous rights and repatriation. Government Ethics & Morality – Navigating ethical dilemmas in public service. AI & Legal Practice – Addressing bias and ensuring fairness in legal tech. Gain insights from experts on past injustices and emerging legal challenges to promote a more just future. This program offers valuable insights for legal professionals seeking to understand the historical and ethical foundations of current legal challenges while exploring innovative approaches for a more just future.                                                         Posted by NYPPL Pro Bono Sponsors Local and State Government Law Section Committee on Diversity, Equity, and Inclusion Committee on Continuing Legal Education