Employee disciplined for disruptive behavior alleges charges were based on the employer's perception of a disability

Employee disciplined for disruptive behavior alleges charges were based on the employer's perception of a disability
Robinson v NYS Division of Human Rights, 277 AD2d 76

The appointing authority orders an employee who is exhibiting disruptive behavior to report for a drug test or for a physiological evaluation. Does such a directive constitute unlawful discrimination on the grounds that the employer has a perception that the employee has a disability? Such directives were the basis for New York City corrections officer Michael Robinson filing discrimination complaints against the New York City Department of Corrections.

According to the decision by the Appellate Division, First Department, Michael Robinson had a number of disciplinary problems over a period of time. In 1984 he accepted a command discipline penalty of two pass days for being absent without leave. This disciplinary action was followed by a pattern of lateness, unexcused absences and volatile behavior, including use of excessive force against inmates and verbal abuse of superiors and fellow officers.

Robinson was ordered to submit to urinalysis and to undergo psychiatric evaluation in connection with charges of attendance and conduct deficiencies during 1984 and 1985, as well as the investigation of an automobile accident on December 19, 1984.

As a result, Robinson filed a complaint with the New York State Division of Human Rights [DHR] contending that DOC had discriminated against him on the basis of perceived disabilities. Robinson subsequently filed additional allegations of unlawful discrimination, claiming that DOC had retaliated against him in response to Dorr’s finding of probable cause by first suspending and then terminating him.

The New York State Division of Human Rights found that DOC had unlawfully discriminated against Robinson by creating a hostile work environment based upon a belief that Robinson was mentally unstable or under the influence of drugs. It awarded Robinson $75,000 in compensatory damages and directed DOC to reinstate him to his former position.

Although the Appellate Division vacated Dorr’s decision for technical reasons based on timeliness, it commented that were it to have to decide on the case on its merits, it would find Robinson’s allegations of harassment to be baseless.

The Appellate Division explained that “[t]here is ample evidence of [Robinson’s] erratic and hostile conduct to warrant subjecting him to physical and psychological evaluation.”

The fact the test results were negative were apparently not considered relevant as the court commented that it noted that Robinson’s behavior continued to be erratic.

The court concluded that “considering DOC’s responsibility for the safety of its officers as well as the inmates they oversee and its exposure to liability for any injury that might result ... its precautions cannot be viewed as unreasonable or discriminatory.”
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New York State Register

New York State Register
Source: New York State Department of State

The New York State Register provides notice of proposed new administrative rules and amendments to existing administrative rules. It also posts emergency rules and other information.

Also available is the revised Rule Making in New York manual. The manual outlines the procedures for preparation of SAPA notices for the New York State Register and for Filing adopted rules for publication in the official NYCRR. You may download PDF version of the manual by clicking here (218kb 74 pages).

To access the New York State Register on the Internet, go to: http://www.dos.state.ny.us/info/register.htm

The Department of State’s site also provides a fully searchable "rule making" database starting with postings from 2007. Postings are provided in a PDF format.

You may subscribe to a free weekly State Register email alert using a link provided on the site. that will notify subscribers when new postings are available.

An administrative agency must follow the rules and regulations applicable to it in making its final administrative decision

An administrative agency must follow the rules and regulations applicable to it in making its final administrative decision
Matter of Hasberry v New York City Dept. of Educ., 2010 NY Slip Op 08792, decided on November 30, 2010, Appellate Division, First Department

The Department of Education (DOE) rejected applications for certification as New York City school bus drivers or bus escorts filed by a number of individuals on the basis of “criminal convictions that purportedly rendered them unsuitable to perform the duties associated with the transportation of school age children.”

While Supreme Court dismissed the petitions challenging this action, the Appellate Division reinstated the petitions with respect to DOE and remitted the matter to DOE for further proceedings.

Although the applicants were all denied certification on the basis of criminal convictions, the Appellate Division noted that the New York City Chancellor's Regulation C-105 provides that "If, prior to the conclusion of any background investigation, information of a derogatory nature is obtained which may result in denying the application for license, certification or employment, an applicant will be given an opportunity to review such information with the [Office of Personnel Investigation] and to include in the investigatory file, any written statements or documents which refute or explain such information."

In this instance, said the court, DOE did not provide the applicants with such an opportunity prior to making its determinations.

Conceding DOE’s concerns and “the need to protect the safety of children to be transported,” the Appellate Division said that DOE is bound by its own rules and regulations, including its procedural rules. Here the applicants were not given an opportunity to review the information that DOE relied upon in making its determination prior to its making its decision.

The court directed DOE to provide the applicants with an opportunity to review the information upon which DOE's determinations were based and to submit such statements and documents they wish in explanation or rebuttal of such information as required by Chancellor’s Regulation C-105.

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_08792.htm
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Appointing authority’s threat to take action against an employee that is otherwise lawful to attain a desired result does not constitute duress

Appointing authority’s threat to take action against an employee that is otherwise lawful to attain a desired result does not constitute duress
Matter of Buric v Kelly, 2010 NY Slip Op 08786, Decided on November 30, 2010, Appellate Division, First Department

John Buric challenged the Police Commissioner’s determination that he be retired with ordinary disability retirement benefits.

Essentially Buric complained that his decision to file for a service retirement was involuntary and the result of fraud, duress, coercion, or other misconduct by New York City Police Commissioner Raymond Kelly.

Supreme Court rejected Buric’s claim that he was told that “he had to make an immediate decision with respect to his pension election, that he could not indicate on his election letter that his decision was made under duress, or that it would be futile to consult an attorney prior to making such an election.”

In affirming the lower court’s decision the Appellate Division observed that Supreme Court’s “findings of fact, based in large measure on its assessment of the credibility of the witnesses,” were supported by a fair interpretation of the record evidence.

Addressing Buric allegations that “he was given two unpalatable choices,* or that he chose the service retirement due to financial considerations,” the Appellate Division said that neither constituted duress, citing two decisions; Wolfe v Jurczynski, 241 AD2d 88, and Matter of Donato v Mills, 6 AD3d 966.

* In Rychlick v Coughlin, 63 NY2d 643, the Court of Appeals ruled that an appointing authority’s threat to undertake certain action that it otherwise had the legal right to take did not constitute duress.

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_08786.htm
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Assumption of risk in a work-related activity

Assumption of risk in a work-related activity
Rios v Town of Colonie, 256 AD2d 900

Public safety agencies often sponsor athletic events or authorize members to participate in them. The Rios case involved Ramon Rios, a Town of Colonie corrections officer, who was injured while participating in “Department Olympics.”

Rios alleged that he was injured when he entered an obstacle course, which included a three-foot diameter black plastic culvert pipe and grazed his head on the “sharp and jagged edge of the pipe.” The cut to the top of his head required 21 sutures to close. He sued the town for his injuries.

Colonie objected and asked a Supreme Court judge to dismiss Rios’ complaint, contending that the doctrine of assumption of risk applied in this case.*

When the court dismissed the town’s motion, it appealed. The Appellate Division sustained the lower court’s ruling, indicating that Rios’ allegations had raised “genuine factual issues” as to whether the “sharp, razor-like and serrated edge” of the culvert pipe posed an open and obvious risk to him, or whether it constituted an “unassumed, concealed or unreasonably increased risk” to Rios.

Noting that Rios’ time to inspect the course was limited to a brief “walk-through” prior to the race, the Appellate Division returned the matter to the lower court for further action.

* The doctrine of assumption of risk holds that a participant in an athletic event of this type “assumed the risks that are generally inherent and flow from his [or her] participation” in these events. The participant in such events, however, does not assume risks that are unique and resulted from dangerous conditions.
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Challenging a disciplinary penalty

Challenging a disciplinary penalty
Mantione v Levin, 277 AD2d 952

Ever wonder why some disciplinary action appeals are transferred to the Appellate Division by a State Supreme Court Judge? The Mantione decision sets out guidelines followed by the Appellate Division courts in determining whether a petition seeking to vacate or modify the penalty imposed in a disciplinary proceeding should be transferred to it.

Essentially, cases filed in Supreme Court that turn on whether or not the determination of guilt is supported by substantial evidence are to be transferred to the Appellate Division.

Salvatore S. Mantione was disciplined by the Commissioner of Insurance. Mantione admitted that he committed the acts alleged in the charges. Although neither party raised the issue whether the determination of guilt is supported by substantial evidence, a State Supreme Court judge decided that it was necessary to independently analyze the case to decide whether the substantial evidence test is properly applicable.

As any issue concerning substantial evidence is to be determined by an Appellate Division tribunal, the Supreme Court Judge sua sponte [on its own motion] determined that transfer was mandated by Civil Practice Law and Rules Sections 7803(4) and 7804(g) and sent it to the Fourth Department.

The Fourth Department said that the lower court was incorrect as a matter of law in finding an issue of substantial evidence and that the proceeding should not have been transferred.

It vacated the order transferring the action and returned the case to Supreme Court to review the penalty imposed. In other words, questions involving whether or not an administrative determination is supported by substantial evidence are to be resolved by the Appellate Division.

In contrast, questions concerning the reasonableness of the penalty imposed by an administrative tribunal after it finds a party guilty are to be initially considered by a State Supreme Court Judge.

As then State Supreme Court Judge Walter J. Relihan, Jr. stated in Eckstrom v City of Ithaca, [not officially reported], since the issue before him was not whether the administrative decision was supported by substantial evidence but rather whether the resolution violated Eckstrom’s rights as a matter of law, it should not be transferred to the Appellate Division.

Employee claims termination was in retaliation and that her employer defamed her

Employee claims termination was in retaliation and that her employer defamed her
Employee claims termination was in retaliation and that her employer defamed her
Gilligan v Town of Moreau, CA2, 2000 U.S. App. LEXIS 27198

In the Gilligan case the major issues involved allegations by a former employee of the Town of Moreau (a) that she was dismissed from her position with the Town in retaliation for her testifying before a grand jury and (b) that she had been defamed by Town officials.

Among the events that resulted in this litigation was a New York State Police investigation of the activities of the Town Supervisor, Michael Sullivan, and Frank Burt, a contractor hired to haul sand to the town’s landfill. Danielle Gilligan, an equipment operator at the landfill, and the other landfill employees, together with other Town employees, testified before the grand jury impaneled to consider criminal charges leveled against Burt and Sullivan.

During the summer and fall of 1995, Sullivan reportedly made vulgar, derogatory comments about Gilligan and told Board members of a rumor that Gilligan had been caught having sex on town property, even though he believed the rumor nonsensical. Gilligan was terminated from her position in February, 1996.

Gilligan sued, alleging that her terminations, and other adverse employment actions taken against her, were in retaliation for her grand jury testimony and that she had been defamed by Town officials.

Concerning retaliation

The Second Circuit, noting that [i]t is well settled that a public employer cannot discharge or retaliate against employees for the exercise of their First Amendment right to free speech, indicated that Gilligan’s grand jury testimony is such a protected activity. Further, said the court, it is well settled that discharge is an adverse employment decision.

In order to win a retaliatory discharge claim, however, the employee must, by a preponderance of the evidence, prove:

1. he or she engaged in a protected activity;

2. suffered an adverse employment decision; and

3. there was a causal link between her protected activity and the adverse employment decision.

The test to be met in order to demonstrate a causal connection between the protected activity and the retaliatory discharge: sufficient evidence to support an inference that the protected speech was a substantial motivating factor in the adverse employment action. Stated another way: the adverse employment action would not have been taken absent the employee’s protected speech.

The employee may prove such a casual connection by showing (a) the retaliatory action occurred close in time to the protected activities; (b) disparate treatment compared to similarly situated employees or (c) direct proof of retaliatory animus against the individual.

Here the Circuit Court concluded that Gilligan failed to show a causal connection between her grand jury testimony and her eventual discharge. Why? Because, said the court, Gilligan did not prove that the Town and the other defendants were aware of the substance of her protected speech before discharging her.*

Further, the Circuit Court decided that the defendants offered several legitimate, non-retaliatory reasons for its dismissing Gilligan which she failed to rebut -- there was not enough work at the landfill to justify employing three people; Gilligan was laid off because she lacked seniority; and she did not have the commercial driving license necessary to perform an essential job.

While Gilligan established a prima facie case, raising a presumption of retaliatory discharge, the Town overcame this presumption by offering legitimate, non-retaliatory reasons for her termination. Gilligan was then required to rebut this by demonstrating that the Town’s explanation was pretextual.

In the opinion of the court, Gilligan failed to produce sufficient evidence to support a rational finding that the legitimate, nondiscriminatory reasons proffered by the employer were false.... Accordingly, it affirmed the district court’s granting the Town’s motion for summary judgment in its favor.

Concerning defamation

Another aspect of the case involved Gilligan’s complaint that she had been defamed. Here the court ruled that “an employee may have a protectable liberty interest [w]here a person’s good name, reputation, honor, or integrity is at stake because of what the government is doing to him.”

Such an interest is implicated if [he or] she is dismissed based on charges that impose a stigma, or other disability, that prevent her from taking advantage of other employment opportunities. Such a stigma may be shown by proving that the statements will result in public opprobrium and damage to the employee’s reputation.

The circuit decided that the district court correctly found statements and rumors underlying Gilligan’s complaint did not satisfy the “stigma plus standard” followed in the Second Circuit. This standard requires a concurrent temporal link between the defamation and the dismissal.

In dismissing this element of Gilligan’s appeal, the court said that the statements were required to have been made close proximity to Gilligan’s separation and Gilligan failed to establish the statements were made concurrent with her layoff or the failure to rehire her.

While apparently not an issue in this appeal, if there was publication of the statements Gilligan alleged were stigmatizing by the Town, she probably could have demanded a name-clearing hearing.

A name-clearing hearing is available to a person, typically a temporary, provisional or probationary employee, who although lawfully terminated from his or her public employment, claims that the action disparaged his or her reputation in the community or adversely affected his or her ability to secure alternative employment.

In Donato v Plainview-Old Bethpage School District, 96 F.3d 623, the Second Circuit Court of Appeals held that a name-clearing hearing is available to the individual when he or she is terminated along with a contemporaneous public announcement of stigmatizing factors, including illegality, dishonesty, immorality, or a serious denigration of the employee’s competence.

Prevailing at a name-clearing hearing, however, would not have resulted in the employee’s having any claim to reinstatement or damages.

* Gilligan testified she told no one of the substance of her grand jury testimony prior to her testifying in open court at the Burt trial in April 1996. Gilligan was discharged in February 1996, two months before her in-court testimony.
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