Failure to name a necessary party dooms an appeal to the Commissioner of Education to dismissal

Failure to name a necessary party dooms an appeal to the Commissioner of Education to dismissal

Appeal of Jules J. Comeau, Decisions of the Commissioner of Education, Decision No. 17372

Jules J. Comeau [Petitioner] appealed the adoption of a resolution by the Board of Education of the Long Lake Central School District approving a "side letter of understanding with the Long Lake Faculty Association" that  relieved District retirees who retired prior to July 1, 2014 from the obligation to pay health insurance premiums.

The genesis of this appeal was resignation of board member Christine Blumberg effective January 29, 2015 and the Board's appointing Ms. Lorrie Hosley to fill the vacancy left by Ms. Blumberg’s resignation until an election scheduled for May 2015. Ultimately Brian Penrose was elected to fill Ms. Blumberg's unexpired term.

The record before the Commissioner indicated that a "draft agenda indicated that Mr. Penrose would be sworn in early in the meeting while, in fact, the Board at its June 11, 2015, distributed a revised agenda indicating that Mr. Penrose’s swearing in had been moved to the end of the meeting. Also stated in the record before the Commissioner was the fact that prior to Mr. Penrose taking the oath of office, the board approved a side letter of understanding with the union described above in a 3-2 vote and Ms. Hosley was one of the three board members who voted to approve the resolution. This appeal followed.

Mr. Comeau alleged that the Board "improperly postponed Mr. Penrose’s swearing in so that Ms. Hosley could provide the necessary vote to approve the side letter" and further contends that the Board's "inappropriately moved Mr. Penrose’s swearing in from the beginning of the June 11, 2015 board meeting to the end of the meeting to prohibit him from voting on the side letter resolution."

The Commissioner dismissed Mr. Comeau's appeal for a number of reasons, including the failure to join necessary parties. A necessary party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such and joinder requires that an individual be clearly named as a respondent in the caption and served with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense.

Here necessary parties included the retired teachers that would be adversely affected were Mr. Comeau's efforts to invalidate a side letter were successful as if the side letter annulled approximately 18 retired teachers would be required to contribute money in order to maintain their health insurance. The Commissioner found the failure to name these teachers in the caption in the appeal and serve them with a copy of the notice of petition and petition warrants dismissal of the appeal.

Notwithstanding this procedure omission, the Commissioner noted that Mr. Comeau's appeal would have been dismissed on the merits as in an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief.

Mr. Comeau, said the Commissioner, failed to allege or prove that the timing of Mr. Penrose’s swearing in violated any law or policy. The Public Officers Law requires that every officer shall take the required oath of office and Mr. Penrose satisfied that requirement. Further, the Commissioner noted that "there is no legal basis for a finding that Mr. Penrose’s failure to take his oath of office at the beginning of a board meeting as opposed to the end of a board meeting, especially where this meeting was well within the 30-day timeframe imposed by the Public Officers Law, was in any way improper."

In addition, the Commissioner's decision indicates that while Mr. Comeau alleged that the Board delayed Mr. Penrose’s swearing in so that the Board "could utilize Ms. Hosley’s vote to pass the side letter resolution," Mr. Comeau failed to allege or prove that the vote would have been different had Mr. Penrose participated.

While Mr. Comeau asserts that he spoke with Mr. Penrose on June 12, 2015 but does not allege or establish that Mr. Penrose would have voted against the side letter had he been sworn in at the start of the meeting. Accordingly, said the Commissioner, Mr. Comeau failed to meet his burden of proving that, but for the allegedly improper conduct, the outcome of the vote would have been different.

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume57/d17372

Determining the employer of a workers' compensation benefit claimant is critical to determining if a respondent may be sued by the claimant

Determining the employer of a workers' compensation benefit claimant is critical to determining if a  respondent may be sued by the claimant

Dube v County of Rockland, 2018 NY Slip Op 02597, Appellate Division, Second Department

New York State's Workers' Compensation Law provides that:

1. An employee who is entitled to receive workers' compensation benefits may not sue his or her general employer or special employer for injuries occurring during the course of employment.

2. A special employee is "one who is transferred for a limited time of whatever duration to the service of another" and a determination as to whether a special employment relationship exists is generally an issue of fact requiring consideration of many factors, including:

            [a] who controls and directs the manner of the employee's work,

           

            [b] who is responsible for payment of wages and benefits,

            [c] who furnishes equipment,

            [d] who has the right to discharge the employee, and

            [e] whether the work being performed was in furtherance of the special employer's or the general employer's business.

3. General employment is presumed to continue, and that presumption can only be rebutted by a "clear demonstration of [the] surrender of control by the general employer and assumption of control by the special employer."

The workers' compensation claimant in this action, Richard Dube, a police officer employed by the Town of Ramapo, was selected as a candidate for the Rockland Regional Rescue, Entry and Counter-Terrorism Team [REACT], a part-time SWAT team comprised of specially trained police officers from participating law enforcement agencies in Rockland County.

During a physical fitness test in connection with his candidacy for REACT, Dube suffered heat stroke and sustained personal injuries. Dube and his wife, suing derivatively, [Plaintiffs] commenced an action against the County, the Rockland County Sheriff's Department, and REACT [County Defendants]. Subsequently the action was consolidated with an action commenced by Plaintiffs against USPLabs, LLC.

County Defendants moved for summary judgment dismissing Plaintiff's complaint asserted against them, contending that Dube was their special employee and therefore barred from commencing an action against them. The County Defendants also contended that they were entitled to summary judgment dismissing the complaint based upon governmental immunity, the "firefighter's rule," and the doctrine of primary assumption of risk.

The Supreme Court granted the County Defendant's motion, determining that Dube was a special employee of the County Defendants, but did not address addressing the other grounds claimed by the County Defendants in support of its motion for summary judgment. The Plaintiffs appealed the Supreme Court's decision.

The Appellate Division reversed the lower court ruling, explaining that the County Defendants "failed to meet their initial burden of submitting sufficient evidence demonstrating the absence of any triable issues of fact" in that the County Defendants failed to submit sufficient evidence to rebut the presumption that Dube remained a general employee under the control of the Town at the time of the incident.

The Appellate Division pointed out that Dube was under the control of the County Defendants for the limited purpose of the physical test to evaluate his ability to join REACT. In contrast, Dube's general employer, the Town of Ramapo, paid his wages, gave him permission to attend the REACT test on his regular work day, paid his workers' compensation benefits premiums, and retained the authority to discharge or discipline him.

Addressing the County Defendants claim of "governmental immunity," the Appellate Division said the County Defendants "failed to establish, prima facie, that there was a set procedure for administering the physical test and that they did not violate accepted practices.

Further, said the court, the County Defendants reliance on the "firefighter's rule" is misplaced in light of the court's determination that the County Defendants  failed to establish, prima facie, that Dube was their special employee.

Finally, the Appellate Division noted that as the County Defendants "failed to establish, prima facie, that the doctrine of primary assumption of risk is applicable under the circumstances of this case."

As the County Defendants failed to meet its prima facieburden, Supreme Court was required to deny its motion for summary judgment "regardless of the sufficiency of the [Plaintiffs'] papers submitted in opposition. Accordingly, the Appellate Division reversed the lower court's decision, on the law, and awarded one bill of costs to the Plaintiffs.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_02597.htm

Seeking to dismiss a lawsuit on the basis of collateral estoppel, also know as issue preclusion

Seeking to dismiss a lawsuit on the basis of collateral estoppel, also know as  issue preclusion

Razzano v Remsenburg‐Speonk Union Free Sch. Dist., et al., USCA, Second Circuit, Docket 17-775-CV

Janice Razzano, acting pro se,* appealed a federal district courtʹs ruling in favor of  the Remsenburg‐Speonk Union Free School District [District] dismissing her complaint alleging discrimination and retaliation in violation of the Americans with Disabilities Act of 1990, 42 U.S.C. §1983, and the New York State Human Rights Law.

The district court, in an oral ruling dismissing the Razzano's petition and subsequently clarified its decision, explaining that a New York State Appellate Divisionʹs decision precluded Razzanoʹs complaint ʺunder the doctrines of res judicata and collateral estoppel."

The Circuit Court initially considered the following components of the lower court's decision.

I. Failure to Prosecute - The Circuit Court explained that a district court may dismiss an action "[i]f the plaintiff fails to prosecute or to comply with [the Federal Rules of Civil Procedure] or a court order" and reviews Rule 41(b) dismissals for abuse of discretion. Although review for abuse of discretion ʺsuggests great deference,ʺthe Circuit Court said it recognizes that ʺdismissal is a harsh remedy and is appropriate only in extreme situations" and in reviewing a Rule 41(b) dismissal, consider the following five factors:

(1) the duration of the plaintiffʹs failure to comply with the court order;

(2) whether plaintiff was on notice that failure to comply would result in dismissal;

(3) whether the defendants are likely to be prejudiced by further delay in the proceedings;

(4) a balancing of the courtʹs interest in managing its docket with the plaintiffʹs

interest in receiving a fair chance to be heard; and

(5) whether the judge has adequately considered a sanction less drastic than

dismissal.

In this instance the Circuit Court said it could not make a determination concerning the application of Rule 41(b) by the district court as the record was   incomplete and the district court was better situated than the Circuit Court to develop the record and assess the propriety of dismissal in the first instance.

II. Collateral Estoppel (Issue Preclusion) - Collateral estoppel, or issue preclusion, bars the re-litigation of an issue that was previously decided, regardless of whether the two lawsuits are based on the same cause of action.

The district court had invoked the doctrines of collateral estoppel and res judicata to support its dismissal of Razzano's action but the Circuit Court again noted "record deficiencies."

Although the §3020-a proceeding resulting in Razzanoʹs termination was ʺan administrative adjudication that must be given [issue] preclusive effect,ʺissue applies only if ʺ(1) the identical issue necessarily was decided in the prior action and is decisive of the present action, and (2) the party to be precluded from relitigating the issue had a full and fair opportunity to litigate the issue in the prior action.ʺ The District, as the party asserting issue preclusion, ʺbears the burden of showing with clarity and certainty what was determined by the prior judgment,ʺthe Appellate Division's decision** is given issue preclusive effect ʺonly if it is quite clear that this requirement has been met.ʺ

Addressing the application of the doctrine of res judicata, the Circuit Court said that New York uses a ʺtransactional approachʺsuch that ʺonce a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transaction are barred.ʺ

In rejecting Razzanoʹs termination challenge, the Appellate Division held that the hearing officer ʺproperly rejected [Razzanoʹs] defense that the disciplinary proceedings were retaliatory in natureʺand that the ʺevidence of specific incidents of inappropriate, unprofessional, or insubordinate conduct . . . demonstrate[d] a separate and independent basis for the action takenʺ such that ʺa defense under Civil Service Law §75-b cannot be sustained.ʺ

The Circuit Court found that Razzanoʹs state court ʺclaimʺwas her CPLR §7511 petition challenging the §3020-a hearing officerʹs decision. Razzanoʹs defense to the disciplinary charges was that they were retaliatory in violation of Civil Service Law § 75-B(2)(a), a State "Whistleblower Statute but Razzano did not assert the claims she raised in her federal district court complaint with respect to the Americans with Disabilities Act, 42 USC 1983, and New York State's Human Rights Law for which she sought monetary damages, equitable relief, and attorneyʹs fees and costs.

As it appeared that neither the administrative hearing officer nor the Appellate Division had the power to rule on the discrimination claims, as Razzano had not raised them in the disciplinary proceeding or in her petition challenging the decision the Circuit Court concluded that dismissal on res judicata grounds was unwarranted.

The Circuit Court vacated the judgment of the district court and remanded the matter to the lower court "for further proceedings consistent with this order."

* An individual acts "pro se" by serving as his or her own attorney in a judicial or quasi-judicial proceeding.

** Razzano v Remsenburg-Speonk UFSD, 41 N.Y.S.3d 72

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/19590bd6-7c4a-43be-82e8-0d96d8dd64f5/1/doc/17-775_so.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/19590bd6-7c4a-43be-82e8-0d96d8dd64f5/1/hilite/

Setting the number of justices on the United States Supreme Court and judges on the New York State Court of Appeals

Setting the number of justices on the United States Supreme Court and judges on the New York State Court of Appeals

Response to an inquiry from a NYPPL reader

The short answer to your question concerning determining the number of justices on the United States Supreme Court is the number of justices is set by Act of Congress as the Constitution of the United States does not provide for the number of justices sitting on the Court.

§1 of the Judiciary Act of 1789 provided that "That the supreme court of the United States shall consist of a chief justice and five associate justices, any four of whom shall be a quorum", i.e., six justices. 

From time to time the number of justices on the Supreme Court has been modified by Acts of Congress to reflect the growth of the United States and the increasing number of judicial circuits. 

For example, the "Seventh Circuit Act of 1807" statutorily increased the size of the Court from six Justices to seven. 

Subsequently the number of justices was increased to 9 in 1837 and then to 10 in 1863. In 1869, however, the Circuit Judges Act set the number of justices of the Supreme Court back to 9, and it has since remained 9 notwithstanding former President Franklin D. Roosevelt's attempt to increase the number of justices to "not to exceed 15."

In contrast, §2 of Article VI - Judiciary - of the Constitution of the State of New York, in pertinent part, provides:

a. The court of appeals is continued. It shall consist of the chief judge and the six elected associate judges now in office, who shall hold their offices until the expiration of their respective terms, and their successors, and such justices of the supreme court as may be designated for service in said court as hereinafter provided. The official terms of the chief judge and the six associate judges shall be fourteen years.

Five members of the court shall constitute a quorum, and the concurrence of four shall be necessary to a decision; but no more than seven judges shall sit in any case. In case of the temporary absence or inability to act of any judge of the court of appeals, the court may designate any justice of the supreme court to serve as associate judge of the court during such absence or inability to act. The court shall have power to appoint and to remove its clerk. The powers and jurisdiction of the court shall not be suspended for want of appointment when the number of judges is sufficient to constitute a quorum.

b. Whenever and as often as the court of appeals shall certify to the governor that the court is unable, by reason of the accumulation of causes pending therein, to hear and dispose of the same with reasonable speed, the governor shall designate such number of justices of the supreme court as may be so certified to be necessary, but not more than four, to serve as associate judges of the court of appeals.

Seeking interim relief in the course of a disciplinary action brought pursuant to §3020-a of the Education Law

Seeking interim relief in the course of a disciplinary action brought pursuant to §3020-a of the Education Law

Appeal of Educator, Decisions of the Commission of Education, Decision #17,507

Educator,* a tenured teacher, was suspended by the School Superintendent pending the service of disciplinary charges pursuant to Education Law §3020-a, requested that the Commissioner of Education grant Educator interim relief  in the form of “an immediate stay of [Educator's] suspension” permitting [Educator] to return to teaching.

Educator contended that following the suspension by the Superintendent the appointing authority, the school board [Board], failed to initiate charges at its next regular Board meeting thus violating Educator's tenure rights.  Educator also denied being involved in any in improper conduct and that any potential §3020-a charges would be without merit. Finally Educator asked the Commissioner to direct the Board  to expunge of any mention of the suspension from Educator's personnel file.

The Board asked that Educator's petition be dismissed as, indicating that:

1. It had voted to initiate charges against Educator pursuant to Education Law §3020-a and the Board's attorney had submitted an affidavit asserting that Educator "will be reassigned to duties ... during the pendency of the §3020-a proceeding;" 

2. Educator's personnel record contains no reference to the challenged suspension that could be expunged; and

3. The suspension of Educator by the Superintendent was appropriate because a  reasonable time between suspension and the filing of §3020-a disciplinary charges "is allowed."

Addressing the Educator's seeking the "expungement of the Superintendent’s suspension" from Educator's  personnel record, the Commissioner said such appeal must be dismissed as moot as the Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest.

The Commissioner noted that with respect to Educator's request for interim relief seeking expungement of any mention of the suspension from the date on which it commenced "until the present," the appointing authority answer indicated that no letter, memorandum or other written document referencing Educator's suspension was prepared and placed in Educator's personnel file, which assertions were set out in the Board's verified answer and its attorney’s affirmation. The Commissioner declined to issue an order based on speculation that such a record might exist. 

Considering the alleged suspension of Educator, the Commissioner noted that in a reply affirmation, Educator's attorney acknowledged that the Board has the authority to suspend a tenured teacher such as [Educator] once it has filed §3020-a charges, but claimed that when the Board filed the disciplinary charges against Educator it took no action to suspend Educator and that Educator's continued suspension remained pursuant to actions taken by the Superintendent and thus was "illegal."** 

The Commissioner, citing Education Law §1711(2)(e), commented that the superintendent has statutory authority "to suspend ... [a] teacher or other employee until the next regular meeting of such board, when all facts relating to the case shall be submitted to such board for its consideration and action." Accordingly, said the Commissioner, "A suspension by a superintendent that extends beyond the next regular meeting of the board of education would be ultra vires."***

However, although the reply affirmation alleges that appointing authority did not take action to suspend Educator, Educator had not provided any evidence to corroborate that allegation.  The Commissioner said that she could not determine whether the appointing authority had taken any action on another date to suspend Educator with pay until a final resolution of the §3020-a proceeding.

 

Declining to order Educator's reinstatement "under these circumstances," the Commissioner observed that should Educator wish to continue to challenge the suspension, Educator's  recourse is to bring another appeal in an appropriate forum in which both parties would have a full and fair opportunity to address the legality of the suspension of the Educator after §3020-a charges were served upon him or her.

The Commissioner also explained that to the extent Educator seeks to challenge the merits of the suspension linked to a pending §3020-a proceeding, Educator's  claims must be dismissed for lack of subject matter jurisdiction.  The Commissioner explained that Education Law §3020-a, as amended by Chapter 691 of the Laws of 1994, divested the Commissioner of jurisdiction to review §3020-a determinations of hearing officers, both final and non-final, implying that the issue of whether Educator was lawfully suspended by the Board was a matter for the §3020-a hearing officer[s] to determine .

For these reasons the Commissioner ruled that Educator's appeal to the Commissioner must be dismissed.

* As this disciplinary action pursuant to Education Law §3020-a is currently pending and it has not be determined whether any eventual hearing will be public or private, the individual upon whom the disciplinary charges were filed is herein identified as “Educator” to preserve his or her confidentiality.

** Addressing a procedural issue, the Commissioner’s regulations do not contemplate submission of a reply affidavit or affirmation in lieu of a reply, as Educator has done in this proceeding. However the Commissioner said that she "nevertheless accepted it for consideration in this appeal, noting that the reply affidavit is in the nature of a reply, as it responded to the appointing authority's affirmative defenses.

*** An action in excess of the authority or power possessed by an entity or an official or officer of that entity.

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume58/d17507

Audits and reports were issued by New York State Comptroller Thomas P. DiNapoli during the week ending September 28, 2018

Audits and reports were issued by New York StateComptroller Thomas P. DiNapoli during the week ending September 28, 2018

Source: Office of the State Comptroller

Click on text highlighted in color to access the full report

 
City University of New York (CUNY): Controls Over CUNY Fully Integrated Resources and Services Tool (Follow-Up) (2018-F-4)
An initial audit released in September 2016 found that CUNY’s processes and controls did not adequately ensure that users had access only to functions that were necessary to meet their needs. In a follow-up, auditors found CUNY officials have made progress in addressing the issues identified in the initial report. Of the nine prior audit recommendations, one was implemented, six were partially implemented, and two were not implemented.

Department of Labor (DOL): Examination of Unemployment Insurance Willful Overpayments (2016-BSE1-02)
DOL did not consistently assess penalties in accordance with law and/or DOL procedures resulting in the failure to assess up to $311,775 in penalties—more than 10 percent of the penalty amount examined. This includes up to 1,679 penalties valued at $307,753 that were not assessed at all and up to 71 penalties valued at $4,022 that were under-assessed by DOL.

State Education Department: Programs for Little Learners (PFLL): Compliance With the Reimbursable Cost Manual (2017-S-87)
For the three fiscal years ended June 30, 2015, auditors identified $66,597 in ineligible costs that PFLL reported for state reimbursement, including $58,481 in personal service costs and $8,116 in other than personal service costs.

Department of Health (DOH) and the Office of Temporary and Disability Assistance (OTDA): Oversight of Hotels and Motels Used for Homeless Mixed-Use Temporary Residency (Follow-Up) (2018-F-12)
An initial audit report released in June 2017 concluded that, of the 80 hotels and motels auditors visited, 24 (30 percent) were in generally unsatisfactory condition, exhibiting problems such as mold; water damage; structural damage; and fire safety issues, such as exposed wiring and missing smoke detectors. Further, OTDA had not provided local Social Services Districts (SSDs) with sufficient guidance about corrective action plans to address unsatisfactory conditions. In a follow-up, auditors found that OTDA and DOH have implemented the joint recommendation contained in the original audit report, while OTDA has implemented two of its three recommendations.

Department of Health: Examination of Island Peer Review Organization (IPRO) (2018-BSE03-01)
DOH entered into a $79 million contract with IPRO to provide services related to Medicaid activities.  This contract and its amendments were not subject to approval by the Comptroller’s Office. IPRO entered into subcontractor agreements with five firms to help perform the services. Auditors found DOH approved payments to IPRO for subcontractor expenses that were not allowable under the contract. As a result of the audit, DOH prevented or recovered more than $133,000 in unallowable expenses. DOH has since strengthened their review of similar contract payments.

Department of Health (DOH): Medicaid Payments to Medicare Advantage Plan Providers (2016-S-54)
Auditors reviewed selected Medicare Advantage plan contracts offered by Fidelis and WellCare and, based on judgmental sampling, determined certain providers reported inflated Medicare Part C cost-sharing liabilities on 7,072 Medicaid claims resulting in overpayments of $770,935. Auditors determined three of the providers were overpaid 58, 74, and 79 percent of the total Medicaid payments they received for claims in the review. Auditors analyzed the remaining Part C cost-sharing claims billed by these providers during the audit period and found – if the rate of overpayment is consistent with the initial review – Medicaid potentially overpaid an additional $562,356 to these providers.

Find out how your government money is spent at Open Book New York. Track municipal spending, the state's 150,000 contracts, billions in state payments and public authority data. 

 

The availability of General Municipal Law §50-e(1)(b) rights to "defense and indemnification" to a municipal employees in an action brought in federal court

The availability of General Municipal Law §50-e(1)(b) rights to "defense and indemnification" to a municipal employees in an action brought in federal court

Richard Hardy  v Daley et. al., [New York City police officers in their personal rather than their official capacities], United States Court of Appeals, Second Circuit, C.V. 17‐2906

The United States District Court, Southern District, dismissed Richard Hardy's amended complaint alleging sexual assault, intentional infliction of emotional distress, and failure to intervene federal civil rights claims with prejudice for failure to state a cause of action.

The Circuit Court sustained the district court's ruling with respect to the federal civil rights claims explaining that such a complaint must plead "enough facts to state a claim to relief that is plausible on its face ... and allow the court to draw the reasonable inference that the defendant is liable for the misconduct alleged."

Hardyʹs federal complaint, however, included New York State law claims, which the district court dismissed "failure to serve a timely notice of claim." The Circuit Court ruled that the district court had err in so doing.

Under New York law, explained the Circuit Court, service of a notice of claim is a condition precedent to tort actions against a municipal entity or its employees and these provision apply "to state law claims even when they are brought in federal court." In contrast, in actions commenced against a municipal employee but not against the employing municipal corporation,* the service of a notice of claim upon the corporation is "required only if the corporation has a statutory obligation to indemnify [the employee]" pursuant to §50-e(1)(b) of the General Municipal Law.

A municipality, however, is required to indemnify its employee only if his or her liability arose as the result of an act or omission constituting conduct "within the scope of his [or her] employment and in the discharge of his [or her] duties." Noting that Hardyʹs state law tort claims against defendants in their individual capacities are founded on alleged conduct that would be well beyond the scope of employment the Circuit Court explained that such allegations "would, by definition, have constituted 'intentional wrongdoing' [whereby] defendants would not have a right to indemnification by their public employer" otherwise available to such employees pursuant to §50-e(1)(b) of the General Municipal Law.

Accordingly, the Circuit Court found that Hardyʹs state law tort claims were not procedurally barred for failure to file a notice of claim and remanded the case is "for further proceedings consistent with this ruling."

* Service of the notice of claim upon an officer, appointee or employee of a public corporation shall not be a condition precedent to the commencement of an action or special proceeding against such person. If an action or special proceeding is commenced against such person, but not against the public corporation, service of the notice of claim upon the public corporation shall be required only if the corporation has a statutory obligation to indemnify such person under this chapter or any other provision of law. The defendants are New York City police officers being sued in their personal rather than their official capacities and the City of New York is not a defendant in this action.

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/ed1af089-8cc6-4bef-b0d9-6a58e44cfc23/4/doc/17-2906_so.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/ed1af089-8cc6-4bef-b0d9-6a58e44cfc23/4/hilite/

Appealing summary judgment in favor of the employer in an action involving alleged a racially hostile work environment and retaliation claims

Appealing summary judgment in favor of the employer in an action involving alleged a racially hostile work environment and retaliation claims

Berrie v. Bd. of Educ. of the Port Chester-Rye Union Free Sch. Dist. et al., USCA, Second Circuit, 17-2045-cv

Gregory Tyrone Berrie, the Plaintiff in Action I, alleged that the Port Chester-Rye Union Free School District [Board] had subjected him to a racially hostile work environment and retaliated against him following his filing complaints pursuant to Title VII of the Civil Rights Act of 1964 (“Title VII”) and the New York State Human Rights Law (“NYSHRL”), and against all named defendants pursuant to 42 U.S.C. §§1981 and 1983.

Sustaining the district court's granting the employer's motion for summary judgment dismissing Berrie's action, the Circuit Court of Appeals indicated that, with respect to the issues presented to it on appeal, it would address them "only as necessary to explain [its] decision to affirm" the lower court's disposition of the matter. Among the issues address by the Circuit Court were the following:

1. Consideration to be given to hearsay statements in the record. Although certain statements are hearsay as presented in the record, the court observed that such evidence could be presented in admissible form as live testimony from the students. Thus, said the court, it "could consider them on summary judgment."

2. Failure to address certain references in the record. The court noted that there were references in the record concerning certain incidents that Berrie did not discuss in his briefing and the Circuit Court concluded that "it appears" they are not part of Berry's claims.

3. Hostile work environment claims. As to Berrie’s hostile work environment claims, the Circuit Court said that district court reasoned that Defendants’ conduct was not sufficiently severe or pervasive to constitute a hostile work environment. With respect to the Board, the district court concluded that the Board had met its burden to establish the Faragher/Ellerth affirmative defense.*

As to Berrie’s retaliation claims, the district court concluded that Berrie had shown no adverse employment action against him that was causally related to Berrie’s complaints of discrimination.

Reviewing the district court’s grant of summary judgment de novo, the Circuit Court said that it would “resolve all ambiguities and draw all permissible factual inferences in favor of the non-moving party, and will affirm summary judgment only if the moving party shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Further, the Circuit Court, citing Lyons v. Lancer Ins. Co., 681 F.3d 50, said “[t]he mere existence of a scintilla of evidence in support of the [non-movant’s] position will be insufficient” to defeat summary judgment."

With respect to Barry's "hostile work environment claims, the court explained:

a. “To establish a hostile work environment claim . . . a plaintiff must . . . show that 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” and such mistreatment must have occurred “because of [the] employee’s protected characteristic, such as race or national origin,” although the protected characteristic need not be “the only motivating factor.”

b. “A hostile environment claim must be evaluated on the basis of the cumulative effect of the abusive conduct” by examining the totality of the circumstances, including: the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with the victim’s job performance.”

c. The hostile and abusive conduct alleged must be severe or pervasive both subjectively to the plaintiff and objectively to a “reasonable person.”

d. In considering the totality of the circumstances, there must be “some circumstantial or other basis for inferring that incidents [race-]neutral on their face were in fact discriminatory."

The Circuit Court found that "several of Berrie’s most substantial allegations are unsupported by the record evidence, or else not attributable to discriminatory animus."

Accordingly, the court held that summary judgment was warranted on Berrie’s hostile work environment claims.

With respect to Barry's retaliation claims, the Circuit Court said it evaluates retaliation claims under the burden-shifting framework articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792.

4. Unlawful retaliation claims. To establish a prima facie case of unlawful retaliation, “an employee must show that (1) he was engaged in protected activity; (2) the employer was aware of that activity; (3) the employee suffered a materially adverse action; and (4) there was a causal connection between the protected activity and that adverse action.”

A materially adverse action is one that “produces an injury or harm” in that it “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination” and "retaliatory actions need not be a “materially adverse change in the terms and conditions of employment.”

In contrast, the court observed that “trivial harms—i.e., those petty slights or minor annoyances that often take place at work and that all employees experience—are not materially adverse.” Further, “[m]aterial adversity is to be determined objectively, based on the reactions of a reasonable employee.”

To establish causation, a plaintiff may rely on evidence “that the protected activity was followed closely by discriminatory treatment, or [use] other circumstantial evidence such as disparate treatment of fellow employees who engaged in similar conduct” and/or “evidence of retaliatory animus directed against the plaintiff by the defendant.” However, said the Circuit Court, "[t]emporal proximity alone is generally insufficient after about three months."

Accordingly, the Circuit Court, Berrie did not establish a prima facie case of retaliation, and summary judgment was warranted on Berrie’s retaliation claims.

5. Evidentiary ruling by the federal district court. With respect to Barry's objections to certain evidentiary rulings made by the lower court underlying its granting the Defendant's motion for summary judgment as constituting an "abuse of discretion" the Circuit explained that "[a] district court abuses its discretion when it bases its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence, or renders a decision that cannot be located within the range of permissible decisions.”

Under the controlling local rule, Local Rule 56.1(c), a fact asserted in the moving party’s statement “will be deemed admitted unless controverted . . . by the opposing party.”

As the district court noted, Berrie had the opportunity "to take discovery and his counterstatement failed to impugn the motives and counter the testimony of witnesses whose testimony defeated his claims."

Accordingly, the Circuit Court ruled that the district court did not abuse its discretion in deeming admitted facts that Berrie failed to properly dispute.

* This defense takes its name from the two US Supreme Court decisions that created it: Faragher v. City of Boca Raton, 524 U.S. 775 (1998) and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998). Typically Faragher-Ellerth has been relied upon by defendants in action involving claims of hostile work environment sexual harassment but has cited in defending against claims of hostile work environment harassment not alleged to constituted sexual harassment.

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/ad835c46-7c98-435f-8b11-09d6d90547f6/1/doc/17-2045_SO.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/ad835c46-7c98-435f-8b11-09d6d90547f6/1/hilite/

How much privacy do public employees actually have?

How much privacy do public employees actually have?

Source: WORKFORCE, a publication of Governing.com

The digital age, new laws and recent events have created tension between government's transparency and the privacy of the people who work for it.

The full text of the article is posted on the Internet at:

http://www.governing.com/topics/workforce/gov-government-public-employee-privacy.html?utm_term=How%20Much%20Privacy%20Do%20Public%20Employees%20Actually%20Have&utm_campaign=LGBT%20Rights%27%20Longtime%20Leader%20Becomes%20Transgender%20Battleground%20State&utm_content=email&utm_source=Act-On+Software&utm_medium=email

Appealing summary judgment in favor of the employer in an action involving alleged a racially hostile work environment and retaliation claims

Appealing summary judgment in favor of the employer in an action involving alleged a racially hostile work environment and retaliation claims

Berrie v. Bd. of Educ. of the Port Chester-Rye Union Free Sch. Dist. et al., USCA, Second Circuit, 17-2045-cv

Gregory Tyrone Berrie, the Plaintiff in Action I, alleged that the Port Chester-Rye Union Free School District [Board] had subjected him to a racially hostile work environment and retaliated against him following his filing complaints pursuant to Title VII of the Civil Rights Act of 1964 (“Title VII”) and the New York State Human Rights Law (“NYSHRL”), and against all named defendants pursuant to 42 U.S.C. §§1981 and 1983.

Sustaining the district court's granting the employer's motion for summary judgment dismissing Berrie's action, the Circuit Court of Appeals indicated that, with respect to the issues presented to it on appeal, it would address them "only as necessary to explain [its] decision to affirm" the lower court's disposition of the matter. Among the issues address by the Circuit Court were the following:

1. Consideration to be given to hearsay statements in the record. Although certain statements are hearsay as presented in the record, the court observed that such evidence could be presented in admissible form as live testimony from the students. Thus, said the court, it "could consider them on summary judgment."

2. Failure to address certain references in the record. The court noted that there were references in the record concerning certain incidents that Berrie did not discuss in his briefing and the Circuit Court concluded that "it appears" they are not part of Berry's claims.

3. Hostile work environment claims. As to Berrie’s hostile work environment claims, the Circuit Court said that district court reasoned that Defendants’ conduct was not sufficiently severe or pervasive to constitute a hostile work environment. With respect to the Board, the district court concluded that the Board had met its burden to establish the Faragher/Ellerth affirmative defense.*

As to Berrie’s retaliation claims, the district court concluded that Berrie had shown no adverse employment action against him that was causally related to Berrie’s complaints of discrimination.

Reviewing the district court’s grant of summary judgment de novo, the Circuit Court said that it would “resolve all ambiguities and draw all permissible factual inferences in favor of the non-moving party, and will affirm summary judgment only if the moving party shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Further, the Circuit Court, citing Lyons v. Lancer Ins. Co., 681 F.3d 50, said “[t]he mere existence of a scintilla of evidence in support of the [non-movant’s] position will be insufficient” to defeat summary judgment."

With respect to Barry's "hostile work environment claims, the court explained:

a. “To establish a hostile work environment claim . . . a plaintiff must . . . show that 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” and such mistreatment must have occurred “because of [the] employee’s protected characteristic, such as race or national origin,” although the protected characteristic need not be “the only motivating factor.”

b. “A hostile environment claim must be evaluated on the basis of the cumulative effect of the abusive conduct” by examining the totality of the circumstances, including: the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with the victim’s job performance.”

c. The hostile and abusive conduct alleged must be severe or pervasive both subjectively to the plaintiff and objectively to a “reasonable person.”

d. In considering the totality of the circumstances, there must be “some circumstantial or other basis for inferring that incidents [race-]neutral on their face were in fact discriminatory."

The Circuit Court found that "several of Berrie’s most substantial allegations are unsupported by the record evidence, or else not attributable to discriminatory animus."

Accordingly, the court held that summary judgment was warranted on Berrie’s hostile work environment claims.

With respect to Barry's retaliation claims, the Circuit Court said it evaluates retaliation claims under the burden-shifting framework articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792.

4. Unlawful retaliation claims. To establish a prima facie case of unlawful retaliation, “an employee must show that (1) he was engaged in protected activity; (2) the employer was aware of that activity; (3) the employee suffered a materially adverse action; and (4) there was a causal connection between the protected activity and that adverse action.”

A materially adverse action is one that “produces an injury or harm” in that it “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination” and "retaliatory actions need not be a “materially adverse change in the terms and conditions of employment.”

In contrast, the court observed that “trivial harms—i.e., those petty slights or minor annoyances that often take place at work and that all employees experience—are not materially adverse.” Further, “[m]aterial adversity is to be determined objectively, based on the reactions of a reasonable employee.”

To establish causation, a plaintiff may rely on evidence “that the protected activity was followed closely by discriminatory treatment, or [use] other circumstantial evidence such as disparate treatment of fellow employees who engaged in similar conduct” and/or “evidence of retaliatory animus directed against the plaintiff by the defendant.” However, said the Circuit Court, "[t]emporal proximity alone is generally insufficient after about three months."

Accordingly, the Circuit Court, Berrie did not establish a prima facie case of retaliation, and summary judgment was warranted on Berrie’s retaliation claims.

5. Evidentiary ruling by the federal district court. With respect to Barry's objections to certain evidentiary rulings made by the lower court underlying its granting the Defendant's motion for summary judgment as constituting an "abuse of discretion" the Circuit explained that "[a] district court abuses its discretion when it bases its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence, or renders a decision that cannot be located within the range of permissible decisions.”

Under the controlling local rule, Local Rule 56.1(c), a fact asserted in the moving party’s statement “will be deemed admitted unless controverted . . . by the opposing party.”

As the district court noted, Berrie had the opportunity "to take discovery and his counterstatement failed to impugn the motives and counter the testimony of witnesses whose testimony defeated his claims."

Accordingly, the Circuit Court ruled that the district court did not abuse its discretion in deeming admitted facts that Berrie failed to properly dispute.

* This defense takes its name from the two US Supreme Court cases that created it: Faragher v. City of Boca Raton, 524 U.S. 775 (1998) and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998). Typically Faragher-Ellerth has been relied upon by defendants in action involving claims of hostile work environment sexual harassment but has cited in defending against claims of hostile work environment harassment not alleged to constituted sexual harassment.

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/ad835c46-7c98-435f-8b11-09d6d90547f6/1/doc/17-2045_SO.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/ad835c46-7c98-435f-8b11-09d6d90547f6/1/hilite/