Where substantial evidence exists, a reviewing court may not substitute its judgment for that of the administrative agency, even if the court would have decided the matter differently

The New York City Office of Administrative Trials and Hearings [OATH] reversed the decision of an OATH hearing officer made after a hearing what dismissed charges filed against Plaintiff and:

[1] reinstated charges filed against Plaintiff alleging two violations of the Administrative Code of the City of New York; and

[2] imposed $50,000 in civil penalties against Plaintiff. Contending OATH's action was arbitrary and capricious and not based upon substantial evidence in the record.

Plaintiff filed a petition pursuant to Article 78 of the CPLR challenging OATH's action. Supreme Court granted Plaintiff's petition and OATH, and the New York City Department of Buildings [Buildings], appealed the Supreme Court's ruling.

The Appellate Division vacated the lower court's judgment and, confirming OATH's ruling, dismissed Petitioner's Article 78 action and awarded OATH and Buildings one bill of costs.

Citing Matter of Doran v Town of Babylon, 219 AD3d 832, the Appellate Division explained that "Pursuant to CPLR 7804(g), when a petition filed in the Supreme Court seeks relief pursuant to CPLR Article 78 and raises a question of whether an administrative determination is supported by substantial evidence, the proceeding should be transferred from the Supreme Court to the Appellate Division to address that issue" although "[before] transferring the matter, the Supreme Court 'shall first dispose of such other objections as could terminate the proceeding, including but not limited to lack of jurisdiction, statute of limitations and res judicata, without reaching the substantial evidence issue'".

In this instance Plaintiff's petition raised the issue of whether OATH's determination was supported by substantial evidence, and the parties did not raise, and the Supreme Court did not address, any objection that could have terminated the proceeding within the meaning of CPLR 7804(g). 

Although Supreme Court should have transferred the proceeding to the Appellate Division, the Appellate Division decided that "because the record is now before us, [it would] review the administrative determination de novo" and observed:

1. "Judicial review of an administrative determination made after a hearing required by law, and at which evidence was taken, is limited to whether that determination is supported by substantial evidence";

2. "Substantial evidence is related to the charge or controversy and involves a weighing of the quality and quantity of the proof; the term means such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact" ....  "Stated otherwise, "[s]ubstantial evidence is 'less than a preponderance of the evidence' and 'demands only that a given inference is reasonable and plausible, not necessarily the most probable'"; and

3. "When there is conflicting evidence or different inferences may be drawn, the duty of weighing the evidence and making the choice rests solely upon the administrative agency".  In other words, "[w]here substantial evidence exists, the reviewing court may not substitute its judgment for that of the agency, even if the court would have decided the matter differently".

Finding that OATH's determination was supported by substantial evidence and that "the civil penalties imposed for maintaining the illegal conversion ... was not so disproportionate to the offense as to be shocking to one's sense of fairness", the Appellate Division sustained OATH's and Building's appeal.

Click HERE to access the Appellate Divisions decision posted on the Internet.

Appeal concerning alleged violations of New York State's Open Meetings Law dismissed by the Commissioner of Education for "lack of jurisdiction"

Although the Respondent's admitted that it failed to hold public meetings that complied with New York State's Education Law §2590-e(14) and New York State's Open Meetings Law [Public Officers Law §§100, et seq.], the Commissioner of Education ruled that the allegations that the Respondent violated New York State's Open Meetings Law must be dismissed as New York State's Open Meetings Law [Public Officers Law §107] "vests exclusive jurisdiction over alleged violations of the  Open Meetings Law in the Supreme Court of the State of New York", citing Appeal of Flippen, 57 Ed Dept Rep, Decision No. 17,296 and other Decisions of the Commissioner of Education. 

In the words of the Commissioner: The Commissioner of Education "has no jurisdiction to address the Open Meetings Law allegations raised in this appeal."

Addressing the Petitioners' efforts to have a member of the Respondent's Board removed from their respective positions, the Commissioner pointed out that one  individual had been earlier been removed from the position by the then Chancellor for the remainder of that individual's current term of office and thus this element of the appeal "must be dismissed as moot."

With respect to merits' of the Petitioners' application, the Commissioner said a school officer or member of a board of education may be removed from office "when it is proven to the satisfaction of the Commissioner that the officer or board member has engaged in a willful violation or neglect of duty under the Education Law or has willfully disobeyed a decision, order, rule, or regulation of the Board of Regents or the Commissioner".

Citing 8 NYCRR 275.10, the Commissioner said to be considered willful the action of the individual act or omission "must have been intentional and committed with a wrongful purpose" and 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".

In this instance the Commissioner concluded that the "Petitioners have failed to prove that the actions of the remaining members ... warrant removal" as one member had been earlier removed and evidence was submitted that the Respondent "is complying with the terms of the preliminary injunction". Accordingly, the Commissioner declined to award the relief requested by Petitioners, including removal of the remaining members of the Respondent's board.

The Commissioner's decision concluded by observing that this "outcome should not be interpreted as an endorsement of [the Respondent's] conduct [as it serves] families holding a variety of political, social, and religious beliefs." 

Further, opined the Commissioner, "It did them a disservice by engaging in viewpoint discrimination and seeking to silencing those who disagreed.  This contravened [the Respondent's] internal guidelines, which acknowledge that '[p]eople can disagree' and that '[d]ifferences in perspectives foster our learning'”, noting "Further conduct like this will be considered a neglect of duty within the meaning of Education Law §306(1)".

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

New York City Fire Department's process for resolving requests for accommodations to its COVID-19 vaccine mandate found to comply with relevant requirements of law

The New York City Uniformed Firefighters Association, et. al. [Petitioners] initiated a CPLR Article 78 proceeding contending the New York City Fire Department's [NYFD] "reasonable accommodation process related to the Citywide vaccine mandate" did not provide for "engaging in cooperative dialogue or providing reasons for exemption denials". Supreme Court dismissed the proceeding and the Association appealed the Supreme Court's decision.

The Appellate Division affirmed the lower court's ruling, holding:

1. The Association did not "established that the City's process for resolving requests for accommodations to the vaccine mandate fell short of the requirements" of either the City Human Rights Law or the State [Human Rights Law];

2.  Petitioners were informed about how to apply for religious and medical accommodations and how to appeal denials, and they availed themselves of this process;

3.  FDNY explained why their applications did not qualify for an accommodation, and the parties further engaged in the administrative appeals process;

4. FDNY also provided evidence that it received "over 2,000 religious and medical accommodation requests that needed to be resolved under a constrained timeline during an evolving public health emergency"; and

5. Under the circumstances, Petitioners have not established that New York City's Human Rights Law "required a more robust or individualized dialogue than the process they received."

Citing Matter of Ryskiejko v City of New York, 232 AD3d 432 and other decisions, the Appellate Division rejected the Petitioners' argument that a summary dispensation [was] warranted because an order dated August 1, 2022 held that Petitioners "had a likelihood of success on the merits concerning the alleged failure to engage in cooperative dialogue" in that such an argument ignored an Appellate Division precedent in which the procedures being challenged in the instant proceeding were sustained. 

In the words of the  Appellate Division, "Nor do we agree with [Petitioners] that the denials by the FDNY finding both insufficient proof and undue hardship and, later, the denials of their administrative appeals by the City of New York Reasonable Accommodation Appeals Panel, provided insufficient explanations," citing Matter of Bryan, 222 AD3d at 473; Matter of Lee v City of New York, 221 AD3d 505 at 506.

Click HERE to access the Appellate Divisions decision posted on the Internet.

N.B. See, also, Goolsby v City of New York, 2025 NY Slip Op 01189, decided by the Appellate Division and posted on the Internet on March 4, 2025

Employee's requested COVID-19 accommodations held to result in an undue hardship on the employer

Plaintiff appealed the judgment of a United States Federal District Court granting summary judgment in favor of the Defendant [School District]. Plaintiff had alleged that the School District [1] "did not provide a reasonable accommodation for her religious beliefs when she refused to receive a COVID-19 vaccination or submit to weekly COVID-19 testing" and [2] retaliated against her based upon those beliefs by placing her on unpaid leave in violation of §3020-a of New York State's Education Law.

The United States Circuit Court of Appeals concluded that the Federal District Court did not err in granting summary judgment in favor of the School District and in declining to exercise supplemental jurisdiction over Plaintiff’s New York state law claims and affirmed the judgment of the district court.

The district court held that the School District did not violate Title VII because Plaintiff's requested accommodations were not reasonable, concluding that granting Plaintiff the requested exemption [1] would have caused the District to violate state law; [2] permitting Plaintiff to work remotely would have prohibited [Plaintiff] from performing necessary in-person job functions; and [3] caused the District to incur substantial costs by hiring a replacement to cover [Plaintiff's] in-person tasks."

Addressing Plaintiff's religious discrimination claim, the Circuit Court concluded that "Even assuming arguendo that [Plaintiff] stated a prima facie religious discrimination claim, the district court correctly determined that summary judgment in the District’s favor was warranted based upon the undue hardship posed by the requested exemption from the vaccine or testing mandate and by the proposed accommodation to allow her to work remotely".

Referring to Second Circuit precedent, the Circuit Court, citing Bey v. City of New York, 999 F.3d 157 and Cassano v. Carb, 436 F.3d 74, noted "an accommodation that would require an employer to violate the law imposes an undue hardship".  Accordingly, the Circuit Court opined that summary judgment in the School District’s favor was warranted "based upon the undue hardship posed by the requested exemption from the vaccine or testing mandate and by the proposed accommodation to allow [Plaintiff] to work remotely"  

With respect to Plaintiff's claim asserted pursuant to the Genetic Information Nondiscrimination Act [GINA], the district court had concluded that personal and family vaccine history did not constitute genetic information within the meaning of the statute and thus Plaintiff failed to show that the questions asked by the School District concerning her family’s medical history violated GINA. The Circuit Court of Appeals agreed.

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

Adjudicating allegations of bullying and harassment of a student by a teacher

Petitioner in this appeal to the New York State Commissioner of Education challenged the decision of the Board of Education concerning alleged bullying and harassment of a student by a teacher employed by the Board and sought to have the teacher dismissed because of the teacher alleged to having bullied and harassed a  student. The Commissioner ruled that the appeal must be dismissed and the application denied.

The Commissioner's decision stated the school district’s Dignity Act coordinator had investigated the alleged wrongdoing and determined that there was insufficient evidence of a Dignity Act violation having occurred.  An appeal to school district was denied by letter and this appeal to the Commissioner filed.

The School District contended that the appeal should be dismissed because of a number of procedural errors made by Petitioner, because the Petitioner failed to meet her burden of proof, and because the appeal had become moot as the teacher resigned had from the position at the end of the relevant school year.

Addressing procedural omissions alleged by the School District, the Commissioner said Petitioner’s application for removal must be denied for lack of the required notice, explaining §277.1 (b) of the Commissioner’s regulations requires "specific notice" with respect to removal applications pursuant to Education Law §306,* which is distinct from the notice required under §275.11(a) for appeals filed pursuant to Education Law §310 and proper notice is required to secure jurisdiction over the intended respondent and alerts the respondent that he or she must appear in the removal proceeding and answer the allegations contained in the application". 

In addition, the Commissioner observed that "a removal application that does not include the specific notice required by 8 NYCRR 277.1 (b) is fatally defective and must be denied." 

As the Petitioner 's removal application lacked the required notice the Commissioner denied the  Petitioner's application seeking removal of the teacher.

Addressing the merits of Petitioner's appeal, the Commissioner said the Dignity Act defines “harassment” and “bullying,” as “the creation of a hostile environment by conduct or by threats, intimidation or abuse, including cyberbullying ....” and may be created where bullying or harassment:

(a) has or would have the effect of unreasonably and substantially interfering with a student's educational performance, opportunities or benefits, or mental, emotional or physical well-being; or

(b) reasonably causes or would reasonably be expected to cause a student to fear for his or her physical safety; or

(c) reasonably causes or would reasonably be expected to cause physical injury or emotional harm to a student .... **

Further, the Commissioner's decision states that a district’s Dignity Act determination will only be reversed upon a showing that it was arbitrary or capricious and 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.

The Commissioner determined that the record demonstrated that the School District appropriately responded to Dignity Act complaint submitted by Petitioner and the School District's Dignity Act coordinator "promptly investigated by interviewing the student and reviewing the complaint and supporting materials" and ultimately determined that the complaint “was not based on harassment, bullying, or discrimination as defined in [the Dignity Act], but rather [Petitioner’s] conflict with [the teacher’s] general teaching/advising style.”

With respect to the Petitioner’s evidence, the Commissioner said it consisted "of hearsay statements and [the Petitioner's] subjective interpretation of correspondence from the teacher". 

Weighing the probative value of the parties’ submissions in the record, the Commissioner found that Petitioner [1] "failed to prove that the school district's decision was arbitrary or capricious" and the Petitioner had [2] "not identified any relief that can be awarded at this juncture as the teacher has resigned" and dismissed Petitioner's appeal. 

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* The Commissioner observed that Education Law §306 only applies to “school officers,” and not school employees such as a teacher.

** In a footnote to the Commissioner's decision the Commissioner indicated that a "fourth and final definition, subsection (d), concerns the circumstances under which off-campus conduct may constitute bullying or harassment" (See Education Law §11 [7] [d]).

Click HERE to access this decision of the Commissioner posted on the Internet.