Union official removed from elected and appointed positions after being found guilty of "disloyalty to the organization" by a disciplinary hearing officer

Union official removed from elected and appointed positions after being found guilty of "disloyalty to the organization" by a disciplinary hearing officer

Abbitt v Carrube, 2018 NY Slip Op 01394, Appellate Division, First Department

Supreme Court denied Serena Abbit'spetition to annul the Subway Surface Supervisors Association [SSSA] decision sustaining the recommendation of SSSA's trial committee that Abbitt be removed from her elected position as Section Vice President. The court then dismissed the proceeding and granted SSSA's motion to dismiss Abbitt's libel claims.

The Appellate Division affirmed the Supreme Court's decision, explaining that SSSA's removal of Abbitt from her elected position was "consistent with its constitution and is rational and not arbitrary and capricious.

The court said that Abbitt persistent using her personal business cards, her personal email address, and her personal cell phone number notwithstanding directions to use those provided by SSSA, constituted a disregard of SSSA's direction and disloyalty to the organization.

The Appellate Division also noted the Abbitt [1] was provided with the requisite notice of the charges and an opportunity to be heard; [2] fully participated in the hearing, at which she was represented by counsel; and [3] at which hearing the charges were clarified. Abbitt, said the court, failed to identify anything in SSSA's constitution that supports her contention that she is entitled to the same due process protections with respect to her appointed position.

As to Abbitt's claim of libel,  the Appellate Division held the such claim against SSSA was correctly dismissed "since absolute immunity from liability for libel attaches to [a] the trial committee's charges initiating the quasi-judicial proceedings against her and [b] to the hearing officer's decision.

As to Abbitt's libel claim against SSSA's president, Michael Carrube, this claim was correctly dismissed as the alleged libelous statement that Abbitt "violated the chain of command," was at least substantially true and Carrube's description of Abbitt's behavior as "unethical" and "detrimental to the members [of SSSA]" was an expression of pure opinion and "supported by a factual predicate."

The Appellate Division then ruled that libel claim against the New York City Transit Authority [NYCTA] Senior Vice President of Labor Relations Johnson based on statements in an email to Carrube about the nature of the relationship between NYCTA's Office of Labor Relations and SSSA and the need for "mutual cooperation" and "respect" between them in which the Senior Vice President use of words such as "inappropriate," "disrespect," and "intimidation" to characterize Abbitt's conduct was also an expression  opinion regarding her performance and its effect on SSSA's relationship with NYCTA, and, considering the context of the entire email, including its tone and purpose, is not actionable.

Finally, the Appellate Division held that the only factual statement in Senior Vice President's  email challenged by Abbitt was made to someone "with a common interest in the subject matter" and was therefore protected by a qualified privilege and Abbitt's allegation of malice on the Senior Vice President's part "is conclusory and therefore insufficient to overcome the privilege."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_01394.htm

Supreme Court correctly applied the Doctrine of Collateral Estoppel to the hearing officer's determinations as to the reasons for the employee's termination

Supreme Court correctly applied the Doctrine of Collateral Estoppel based on the hearing officer's determinations as to the reasons for the employee's termination

Johnson v Department of Educ. of City of N.Y., 2018 NY Slip Op 01179, Appellate Division, Second Department

Linda C. Johnson  sought to recover damages for alleged unlawful employment discrimination on the basis of age and unlawful retaliation in violation of Administrative Code of the City of New York §8-107. Supreme Court granted the New York City Department of Education's motion pursuant to CPLR 3211(a) to dismiss Johnson's complaint.

The Appellate Division affirmed the Supreme Court's determination.

The Department of Education of City of New York had filed disciplinary charges pursuant to §3020-a of the Education Law against Johnson alleging "absenteeism, failure to prepare lesson plans, and verbal abuse and corporal punishment of students." Rejecting Johnson's defense that the main reason the charges were brought against her was "personality," in that the administration did not like her "for personal reasons," and that the administration failed to offer her remediation because it did not want "to deal with her," the New York State Department of Education's Hearing Officer sustained most of the specifications, and Johnson's employment was terminated by the New York City Department of Education. The Hearing Officer found that there was no evidence that certain members of the administration had treated Johnson unfairly, or that she was "targeted or discriminated against because of her personality or for any other reason."

The Appellate Division explained that the findings of a hearing officer after a hearing pursuant to Education Law §3020-a are entitled to collateral estoppel effect and, in this context, collateral estoppel applies if "[1] the issue sought to be precluded is identical to a material issue necessarily decided by the administrative agency in a prior proceeding; and [2] there was a full and fair opportunity to contest this issue in the administrative tribunal."

However, cautioned the Appellate Division, a termination of employment for cause does not necessarily preclude the possibility of termination being motivated by unlawful animus. Indeed, a court or a jury could find that the plaintiff's employment was terminated for discriminatory reasons, even if there were other, and legitimate, reasons for terminating the individual's employment.

Where such "mixed motives" are involved, a plaintiff need only demonstrate that discrimination was one of the motivating factors for the defendants' conduct. Accordingly, said the court, "even where the reason for termination is legitimate, the plaintiff may state a cause of action based upon allegations of disparate treatment or that the explanation for the termination of the plaintiff's employment was pretextual.

In Johnson's case the Appellate Division decided that the reasons advanced for the termination of the Johnson's employment were not pretextual, and that her termination was not motivated by age discrimination, explaining that "[t]he Hearing Officer further found that there was no evidence that [Johnson] 'was targeted or discriminated against because of her personality or for any other reason.'" Further, noted the Appellate Division, the reason why Johnson "was not offered more remediation efforts" was attributed to Johnson's "resistance to such efforts" by the Hearing Officer.

Thus, concluded the Appellate Division, the Hearing Officer's findings were entitled to collateral estoppel effect and Supreme Court correctly directed the dismissal of so much of Johnson's complaint as alleged unlawful employment discrimination on the basis of age.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_01179.htm

Applying the Doctrine of Res Judicata [claim preclusion] and, or, the Doctrine of Collateral Estoppel [issue preclusion] in federal actions alleging unlawful discrimination

Applying the Doctrine of  Res Judicata [claim preclusion] and, or, the Doctrine of Collateral Estoppel [issue preclusion] in federal actions alleging  unlawful discrimination

Mohamed Abdelal v Police Commissioner Raymond W. Kelly, City Of New York, USCA, 2nd Circuit, Docket #17-1166-cv

Mohamed Abdelal, a naturalized United States citizen who was born in Egypt and is Muslim, who served as a police officer with the New York Police Department [NYPD] from 2006 until he was terminated in 2013 after having been found guilty of misconduct "after notice and hearing."

1. The hearing officer found Abdelal guilty of nine charges, dismissed two charges, and recommended the imposition of a penalty of a "one-year dismissal probation" and forfeiture of 45 vacation days.

2. The Police Commissioner adopted the factual findings of the hearing officer but rejected the hearing officer's proposed penalty and, instead, offered Abdelal a "negotiated penalty" that would require Abdelal to immediately file for vested retirement.

Abdelal rejected the penalty proposed by the Commissioner and was terminated from his position.

Abdelal subsequently filed a lawsuit in federal district court alleging that he had been unlawfully discriminated against him and subjected him to a hostile work environment because of his (1) Egyptian national origin, (2) Arab ancestry, and (3) Muslim religion. Abdelal appealed the district court dismissed Abdelal's  complaint, ruling that (1) Abdelal's disparate treatment claims based on his termination were ʺbarred by res judicataʺ; and (2) his hostile work environment claims were time-barred.

The Circuit Court of Appeals vacated the lower court's judgment, explaining:

1. To the extent the district court relied on the doctrine of res judicata [claim preclusion], which "bars an action if the plaintiff could have raised the claim in a prior proceeding," even a plaintiff failed to do so, the Circuit Court, citing Colon v. Coughlin, 58 F.3d 865, said the lower court's decision was in error because the doctrine of res judicata ʺgenerally does not operate to bar a §1983 suit following the resolution of an Article 78 proceeding, since the full measure of relief available in the former action is not available in the latter.ʺ

2. Abdelal's federal claims were not barred by collateral estoppel [issue preclusion] as the doctrine of issue preclusion only applies ʺ(1) the issue in question was actually and necessarily decided in a prior proceeding, and (2) the party against whom the doctrine is asserted had a full and fair opportunity to litigate the issue in the first proceeding.ʺ

The Circuit Court held that the Police Department failed to meet its burden of showing that the identical issues had been decided in the Article 78 proceeding, noting that the district court explicitly pointed out that that Abdelal had not raised his race and religion claims of discrimination in the Article 78 proceeding nor did the Appellate Division, First Department, mention of any discrimination claim in its decision dismissing the Article 78 petition.

The fact that the First Department concluded that the administrative record contained ʺsubstantial evidence to support the finding that [Abdelal] engaged in conduct prejudicial to the good order, efficiency and discipline of the NYPD,ʺ does not mean that the court considered and rejected Abdelal's claims that he was subjected to harassment and disproportionate punishment for discriminatory reasons.

Accordingly, Circuit Court conclude that the district court erred in holding that Abdelal's discrimination claims are precluded by the Article 78 proceeding.

Finally, disagreeing with the district court finding that Abdelal's hostile work environment claims were untimely, the Circuit Court noted that "[t]he express cause of action for damages created by §1983 constitutes the exclusive federal remedy for violation of the rights guaranteed in §1981 by state governmental units." Whether construed as a stand-alone §1981 claim or a §1983 claim that vindicates the rights guaranteed in §1981, the Circuit Court opined that Abdelal's claim "is timely either way."

The Circuit Court then remand the case to the district court "to consider, in the first instance, the merits of the claims, as to which [it expressed] no view."

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/659e649b-9250-48d8-8ac5-e87a10f46b6e/7/doc/17-166_so.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/659e649b-9250-48d8-8ac5-e87a10f46b6e/7/hilite/

AELE case notes, publications, and seminars alert for March 2018

AELE case notes, publications, and seminars alert for March 2018

Posted March 1, 2018

1. Monthly Law Journal 
Article: U.S. Supreme Court Revisits the Basics of Probable Cause and Qualified Immunity.

View at http://www.aele.org/law/2018all03/2018-03MLJ101.pdf

2. Seminars:  
AELE's next seminar is on Use of Force in Las Vegas on April 30-May 3, 2018. For more information and to register click here:

http://www.aele.org/menu-lethal.html

Next is AELE's seminar on Discipline and Internal Investigations. Join us in Las Vegas on Oct. 29-Nov. 1, 2018. For more information and to register click here: http://www.aele.org/menu-disc.html

 3. AELE periodicals 
Three  AELE periodical have been uploaded. The current issues, back issues since 2000, and case digests since 1975 are FREE. Everyone is welcome to read, print or download AELE publications without charge. The main menu is at: http://www.aele.org/law

4. Law Enforcement Liability Reporter
This issue has cases on assault and battery: physical, defenses: qualified immunity, domestic violence and child abuse, Federal Tort Claims Act, firearms related: intentional use, firearms relations: Second Amendment issues, First Amendment, and search and seizure: home and business.

View at http://www.aele.org/law/2018all03/LR2018MAR.html

5. Fire, Police & Corrections Personnel Reporter

This issue has cases on Family and Medical Leave Act, First Amendment related, pensions, privacy rights, political discrimination, retaliatory personnel action, retirement rights and benefits, sexual harssment, whistleblower protection, and U.S. Supreme Court employment decisions.

View at http://www.aele.org/law/2018all03/FP2018MAR.html

6. Jail and Prisoner Law Bulletin
This issue has cases on access to courts/legal info, DNA testing, false imprisonment, filing fees, immigration detainees, medical care, medical cost recovery, prison and jail conditions: general, prisoner assault: by officers, and religion.
View at http://www.aele.org/law/2018all03/JB2018MAR.html

7. The current issues, back issues since 2000, and case digests since 1975 are FREE. 
Everyone is welcome to read, print or download AELE publications without charge. The main menu is at: http://www.aele.org/law

8. Selected criminal law and procedure cases are at three other free websites.
https://www.fletc.gov/the-informer
http://www.kenwallentine.com/Xiphos.html
http://le.alcoda.org/publications/point_of_view/

Supreme Court correctly applied the Doctrine of Collateral Estoppel based on the hearing officer's determinations as to the reasons for the employee's termination

Supreme Court correctly applied the Doctrine of Collateral Estoppel based on the hearing officer's determinations as to the reasons for the employee's termination

Johnson v Department of Educ. of City of N.Y., 2018 NY Slip Op 01179, Appellate Division, Second Department

Linda C. Johnson  sought to recover damages for alleged unlawful employment discrimination on the basis of age and unlawful retaliation in violation of Administrative Code of the City of New York §8-107. Supreme Court granted the New York City Department of Education's motion pursuant to CPLR 3211(a) to dismiss Johnson's complaint.

The Appellate Division affirmed the Supreme Court's determination.

The Department of Education of City of New York had filed disciplinary charges pursuant to §3020-a of the Education Law against Johnson alleging "absenteeism, failure to prepare lesson plans, and verbal abuse and corporal punishment of students." Rejecting Johnson's defense that the main reason the charges were brought against her was "personality," in that the administration did not like her "for personal reasons," and that the administration failed to offer her remediation because it did not want "to deal with her," the New York State Department of Education's Hearing Officer sustained most of the specifications, and Johnson's employment was terminated by the New York City Department of Education. The Hearing Officer found that there was no evidence that certain members of the administration had treated Johnson unfairly, or that she was "targeted or discriminated against because of her personality or for any other reason."

The Appellate Division explained that the findings of a hearing officer after a hearing pursuant to Education Law §3020-a are entitled to collateral estoppel effect and, in this context, collateral estoppel applies if "[1] the issue sought to be precluded is identical to a material issue necessarily decided by the administrative agency in a prior proceeding; and [2] there was a full and fair opportunity to contest this issue in the administrative tribunal."

However, cautioned the Appellate Division, a termination of employment for cause does not necessarily preclude the possibility of termination being motivated by unlawful animus. Indeed, a court or a jury could find that the plaintiff's employment was terminated for discriminatory reasons, even if there were other, and legitimate, reasons for terminating the individual's employment.

Where such "mixed motives" are involved, a plaintiff need only demonstrate that discrimination was one of the motivating factors for the defendants' conduct. Accordingly, said the court, "even where the reason for termination is legitimate, the plaintiff may state a cause of action based upon allegations of disparate treatment or that the explanation for the termination of the plaintiff's employment was pretextual.

In Johnson's case the Appellate Division decided that the reasons advanced for the termination of the Johnson's employment were not pretextual, and that her termination was not motivated by age discrimination, explaining that "[t]he Hearing Officer further found that there was no evidence that [Johnson] 'was targeted or discriminated against because of her personality or for any other reason.'" Further, noted the Appellate Division, the reason why Johnson "was not offered more remediation efforts" was attributed to Johnson's "resistance to such efforts" by the Hearing Officer.

Thus, concluded the Appellate Division, the Hearing Officer's findings were entitled to collateral estoppel effect and Supreme Court correctly directed the dismissal of so much of Johnson's complaint as alleged unlawful employment discrimination on the basis of age.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_01179.htm

Summarily terminating a federal officer holding a term appointment from his or her position

NYPPL earlier summarized the decision in PHH Corporation v Consumer Financial Protection Bureau, a decision in which the United States Circuit Court of Appeals,  District of Columbia Circuit  considered the issue of summarily removing a public officer holding a term appointment from his or her position.*

In PHH the Circuit Court concluded that a federal administrator appointed for a fixed term of office may only be removed for cause after notice and hearing. In particular the court ruled that the structure of the Consumer Financial Protection Bureau [CFPB] is constitutional and that its director can be terminated by the President only for cause.

In the words of the majority of the Circuit Court, sitting en banc: "Applying binding Supreme Court precedent, we see no constitutional defect in the statute preventing the President from firing the CFPB Director without cause."

Is the PHH decision relevant with respect to an effort by the President to summarily remove Special Counsel Robert Mueller from his position?

In this reviewer's opinion, PHH probably would not control as the Special Counsel currently so serving has not been appointed for a fixed term of office. 

However, 28 CFR 600.7(d) provides as follows:

"(d) The Special Counsel may be disciplined or removed from office only by the personal action of the Attorney General [or under the present circumstances, Deputy Attorney General Rod J. Rosenstein]. The Attorney General may remove a Special Counsel for misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmental policies. The Attorney General shall inform the Special Counsel in writing of the specific reason for his or her removal."

Deputy Attorney General Rosenstein's letter to Mr. Mueller** setting out the terms and conditions of his appointment as Special Counsel states that §§600.4 through 600.10 of the Code of Federal Regulations are applicable to the Special Counsel.

Further, 28 CFR 600.9 Notification and Reports by the Attorney General, in pertinent part, provides:

"(a) The Attorney General will notify the Chairman and Ranking Minority Member of the Judiciary Committees of each House of Congress, with an explanation for each action -

"(2) Upon removing any Special Counsel."

Although not specifically so stated in 28 CFR 600.7(d), "due process of law" may require that the removal of a Special Counsel be effected only upon his or her  being found guilty of "misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmental policies" after notice and hearing.

*The PPH decision is posted on the Internet at:

https://www.cadc.uscourts.gov/internet/opinions.nsf/B7623651686D60D585258226005405AC/$file/15-1177.pdf

** The appointment letter is posted on the Internet at:

https://www.documentcloud.org/documents/3726408-Rosenstein-letter-appointing-Mueller-special.html