Selecting an individual for promotion because of a romantic relationship does not constitute discrimination of the basis of gender

Selecting an individual for promotion because of a romantic relationship does not constitute discrimination of the basis of gender

Fella v Rockland County, 297 AD2d 813

Rockland County Director of Hospitals Peter J. Fella was charged with sexual harassment. Found guilty, the County Executive imposed the penalty of suspension without pay for thirty days. Fella sued in an effort to have County Executive's action annulled.

The harassment charge had been filed by Jovita Catalan, a county employee. Her complaint alleged that Fella appointed Anne Gonzales, with whom he had a “romantic relationship,” to the position of Assistant Director of Nursing.

Catalan filed her complaint pursuant to the Rockland County Equal Employment Opportunity Policy [RCEEOP] alleging she was subjected to “discrimination, harassment or retaliation” on January 4, 2000, the day that the Fella told her that she would not be appointed to the Assistant Director position. Catalan contended that Gonzales was less qualified than she was and that Gonzales was appointed because she was Fella's girlfriend.

After an investigation, the Rockland County Director of Employee Rights and Equity Compliance concluded that Fella's promotion of an employee with whom he had a personal relationship created a hostile work environment.

Supreme Court Judge Nelson ruled that Fella’s conduct in promoting his paramour may have constituted poor judgment, and may subject him to discipline on other grounds, but did not constitute sexual discrimination prohibited by the RCEEOP. As the County failed to establish that this single instance of alleged favoritism based on a sexual relationship was punishable under the RCEEOP, Supreme Court annulled the determination and remitted the matter to the County for further proceedings.

The Appellate Division affirmed the lower court’s ruling, observing that the relevant provisions of the RCEEOP:

Prohibits discrimination in hiring and promotion on the basis of gender or sex or sexual orientation;

Encourages advancement for qualified individuals regardless of gender or sex or sexual orientation; and

Provides that employment decisions shall be made on the basis of merit, fitness, and equality of opportunity and without discrimination on the basis of gender or sex or sexual orientation.

The RCEEOP also states that sexual harassment is a form of employment discrimination based on gender.*

The Appellate Division said “that an isolated act of preferential treatment of another employee due to a romantic, consensual relationship” does not constitute sexual discrimination under either federal or State Law. In the words of the court, Preferential treatment, favoritism, and cronyism, while unjust and unfair, do not constitute sexual discrimination.

 

Noting that there was no evidence that Fella discriminated against employees on the basis of gender or that he made unwelcome sexual advances or demands on employees, the finding that Fella created a hostile work environment in violation of the RCEEOP was ruled arbitrary, capricious, and without a rational basis. The Appellate Division concluded that compliant was properly annulled by the Supreme Court Judge.

In another “favoritism case,” DeCintio v Westchester County Medical Center, 821 F2d 111, cert. denied, 484 U.S. 965, the U.S. Circuit Court of Appeals, 2nd Circuit, decided that the selection of a woman romantically involved with her supervisor for promotion did not constitute unlawful gender discrimination within the meaning of Title VII insofar as her male co-workers were concerned.

In DeCintio, male employees sued, complaining that their supervisor had tailored the job requirements for the position in such a way as only his woman friend could qualify. This, they argued, was discrimination on the basis of sex within the meaning of Title VII.

The Circuit Court decided that as any female employee interested in the job would have been in the same position as the male employees, there was no sex discrimination involved. It was the “special relationship” between the supervisor and his woman friend rather than sex discrimination that had resulted in the preferential treatment to which the male employees had objected. While unfair, said the Court, the supervisor's actions did not constitute a violation of Title VII.

* The RCEEOP defines sexual harassment as unwelcome sexual advances, requests for sexual favors, sexual demands or conduct of a sexual nature which "has the purpose or affect of unreasonably interfering with an [affected] person's work performance or creating an intimidating, hostile or offensive work environment."

Undertaking background investigations may be critical in defending “negligent hiring” claim

Undertaking background investigations may be critical in defending “negligent hiring” claim

Murray v SUNY Research Foundation, 283 AD2d 995

The Murray case illustrates some of the factors that courts consider in resolving cases involving allegations that the employer was guilty of “negligence” in selecting a particular individual for employment based on an allegation that the employer should have conducted a more intensive investigation of the individual's background than was actually made.

Teresa Murray sued the SUNY Research Foundation [Foundation] and the Rochester City School District [District] after she learned that her son was sexually assaulted over a period of months by an employee of the Foundation.

The Research Foundation had employed the individual to coordinate the Educational Talent Search program in the District's school that Murray's son attended. The alleged sexual abuse took place during regular school hours. Murray's son, however, was not enrolled in the Educational Talent Search program coordinated by the Research Foundation’s employee.

The Appellate Division, Fourth Department, sustained a Supreme Court justice's granting the Foundation's motion for summary judgment. It said that the Foundation satisfied its initial burden by establishing, as a matter of law, that it was not negligent in hiring or retaining the individual, and that Murray failed to raise any issue of fact.

According to the ruling, the Foundation introduced evidence demonstrating that it interviewed the employee extensively and obtained written references prior to its hiring him. Finding that the procedures followed by the Foundation revealed nothing that would lead a reasonably prudent person to suspect that he had “dangerous propensities” to sexually abuse children, the court concluded that the Foundation had “no duty to investigate further” before hiring” the employee. The Appellate Division based its conclusion on the fact that there was no evidence in the record to show that a routine background check would have revealed that the employee had a propensity to harm children.

Another defendant, the Rochester City School District, also asked the trial court to dismiss Murray's complaint against it. Its motion was denied. Sustaining the lower court's ruling, the Appellate Division said the Supreme Court justice properly denied the motion of the District seeking summary judgment dismissing the complaint against it.

The court explained that the District has “the duty to exercise the same degree of care and supervision over the pupils under its control as a reasonably prudent parent would exercise under the same circumstances.” The standard for determining whether this duty was breached: “would a parent of ordinary prudence placed in the identical situation and armed with the same information invariably have provided greater supervision.”

The court rejected the District's claim that it could not be held liable without actual or constructive notice of the employee's behavior. According to the ruling, “the criminal intervention of third parties may, however, be a 'reasonably foreseeable' consequence of circumstances created by the defendant.”

The operative factor here: Murray's son was permitted to meet alone with the coordinator of a program in which he was not enrolled, in a room with a closed door, in violation of school policy.

Employee terminated after ignoring an order to report for a “fit-for-duty” examination

Employee terminated after ignoring an order to report for a “fit-for-duty” examination

DiLauria v Town of Harrison, 285 AD2d 464

Town of Harrison police officer Steven DiLauria was terminated from his position after being found guilty of insubordination following a disciplinary hearing. The Appellate Division sustained his dismissal, finding that the department's determination that DiLauria had disobeyed two lawful orders given to him by Town of Harrison Chief of Police David Hall was supported by substantial evidence

The decision states that Chief Hall had directed DiLauria to report to Lieutenant Michael Kamensky for duty effective December 3, 1999, at 9:00 a.m. Although DiLauria “appeared outside of Lieutenant Kamensky's office on December 3 after 9:00 a.m., he did not report to Kamensky for duty as instructed.”

Kamensky and DiLauria then met with Chief Hall. During the meeting DiLauria if he could have the day off. Chief Hall denied the request and told Lieutenant Kamensky that DiLauria was assigned to him for duty. He then issued an order directing the DiLauria to report for a fit-for-duty examination at 2:00 p.m. that afternoon.

The decision reports that DiLauria responded to these directives by throwing the order on Chief Hall's desk and then “stormed out of the meeting.” Lieutenant Kamensky did not see the DiLauria again on December 3, 1999, nor did DiLauria appear for the fit-for-duty examination as directed.

Based on this record, the Appellate Division said that the penalty of dismissal “is not so disproportionate to the offenses as to be shocking to one's sense of fairness,” noting that DiLauria had previously been suspended for disobeying an order and “police departments are quasi-military organizations requiring strict discipline.

Jurisdiction to resolve an impasse in collective bargaining under the Taylor Law

Jurisdiction to resolve an impasse in collective bargaining under the Taylor Law

Police Benevolent Association v City of New York, 285 A.D.2d 52

In a unanimous ruling, the Appellate Division, Third Department, held that the New York State Public Employment Relations Board [PERB] has exclusive jurisdiction insofar as resolving Taylor Law impasse situations are concerned.

The New York City Police Benevolent Association [PBA] had objected to the New York City Office of Collective Bargaining [OCB] assuming jurisdiction to resolve an impasse in collective bargaining, contending that the Taylor Law, as amended by Chapter 641 of the Laws of 1998 gave the State's PERB exclusive jurisdiction in such cases.

The Taylor Law permits a political subdivision of the State to set up a “mini-PERB” to oversee Taylor Law matters and the City's OCB was established for this purpose. Chapter 641, however, gave PERB exclusive “impasse jurisdiction” with respect to all fire and police departments across the State. The City's attempt to have the courts declare Chapter 641 inconsistent with “home rule” has thus far proved unsuccessful.

The court's rationale: “Chapter 641 does not violate the home rule provision of the State Constitution” since it creates a law of general applicability serving a “substantial state concern” rather than constituting a “special law.” Section 212.3 provides as follows: Notwithstanding any other provision of law to the contrary, the resolution of disputes in the course of collective negotiations as provided by section two hundred nine of this article shall apply to any organized fire department, police force, or police department of any government subject to either subdivision one or two of this section.

Section 212.3, however, permits a recognized or certified employee organization representing law enforcement personnel or firefighters to “opt out” by electing “to continue dispute resolution procedures which existed on the day prior to the effective date of this subdivision” by notifying the appropriate mini-PERB* of this decision in writing.” The PBA did not elect to “opt out.”

The Appellate Division explained that in 1974 the Legislature amended Section 209 of the Civil Service Law to provide for binding impasse arbitration by PERB, but since OCB's procedures already provided for binding arbitration when an impasse was reached between the City and any of its public employee organizations, the City was specifically exempted from this requirement.

Although in 1996 the Legislature attempted to transfer jurisdiction to resolve impasses between the City and the PBA to PERB [Chapter 13, Law of 1996], the courts held that its action violated the “home rule” provision set out in the State Constitution. The Legislature's response to this ruling was to enact Chapter 641.

Observing that “[a]ll parties acknowledge that if Chapter 641 is constitutional, PERB has exclusive jurisdiction over impasse and negotiation issues and [OCB] has jurisdiction only over improper practice disputes under Civil Service Law Section 205(5)(d) and Section 209-a...,” the Appellate Division affirmed the Supreme Court's hold that Chapter 641 was constitutional.

* At one time there were 35 mini-PERBs; only four remain: New York City's Office of Collective Bargaining, and mini-PERBs for the Town of Hempstead; Suffolk County and Westchester County.

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Including the names of all “necessary parties” in an action is critical

Including the names of all “necessary parties” in an action is critical

Matter of Wheeler, CEd Decision 14,581

This ruling by the Commissioner of Education demonstrates the importance of naming all of the necessary parties in a proceeding before the Commissioner.

An elementary school principal announced that she was going to retire. Adirondack Central School Superintendent Marjorie Kelly transferred the principal then serving at another elementary school, Forestport, to fill the resulting vacancy. Kelly next appointed Ann Bush, a speech teacher, as principal at Forestport. Bush was simultaneously assigned to be the speech teacher, part-time, at Forestport.

Richard Wheeler, President of the Adirondack Central School Administrators' Association, objected to Bush's appointment as a principal with part-time teaching responsibilities rather than as a full-time principal. Wheeler's argument: the district created a new position of “Teaching Principal” at Forestport when it appointed Bush, thereby violating Section 100.2(a) of the Commissioner's regulations [8 NYCRR 100.2(a)].*

The Commissioner said he had to dismiss the appeal because Wheeler failed “to join a necessary party” -- Ann Bush. The Commissioner pointed out that a party whose rights would be adversely affected if the appeal was sustained must be clearly named as a respondent in the caption of the petition and “served with a copy of the notice of petition and petition, to inform the person that he or she should respond to the petition and enter a defense.”

Significantly, the Commissioner rejected the Association's contention that Bush was a party to the appeal because she was a member of the Association.

Were Wheeler to prevail in his appeal, said the Commissioner, Bush's employment as principal at Forestport would “clearly be affected.” Thus Bush is a necessary party to the proceeding and the failure to name her constituted a fatal procedural error.

* 4 NYCRR 100.2 “requires a board of education to employ and assign a full-time principal to each school under its supervision” unless the Commissioner approves a “variance.” 

Involuntary testing for drugs

Involuntary testing for drugs

DiCicco v Wyandanch Volunteer Fire Dept., 284 A.D.2d 459

The Appellate Division, 2nd Department, upheld the Wyandanch Volunteer Fire Department's [WVF] terminating Thomas DiCicco from membership in the Department because he refused to submit to a drug test within 24 hours of his being notified to undergo such a test pursuant to the WVF's random drug-testing policy.

Applying the Pell doctrine [Pell v Board of Education, 34 NY2d 222], the court said the penalty of dismissal is not so disproportionate to the offense as to be shocking to one's sense of fairness.

The Appellate Division also noted that DiCicco was told that he could reapply for membership in WVF in the future.

Concerning an individual's standing to challenge an appointment to a position in the public service in instances where the individual "is not personally aggrieved"

Concerning an individual's standing to challenge an appointment to a position in the public service in instances where the individual "is not personally aggrieved"

Matter of Seidel v Prendergast, 2011 NY Slip Op 06132, Appellate Division, Second Department

Michael Seidel and others [Seidel] joined in filing a petition pursuant of Article 78 of the Civil Practice Law and Rules challenging the action of the Town Board of the Town of Orangetown appointing Kevin Nulty to the position of the town's Chief of Police. Supreme Court of Orangetown, Rockland County, dismissed the petition on the grounds that Seidel “lacked standing” to pursue the action. Seidel appealed.

Essentially Seidel contended that Nulty’s appointment was unlawful because no competitive examination had been held for appointment to the position of Chief of Police.

The Appellate Division sustained the lower court’s dismissal of Seidel’s petition, explaining that “In general, persons seeking to challenge governmental actions must demonstrate that they are personally aggrieved by those actions in a manner ‘different in kind and degree from the community generally,'"

In this instance Seidel and his co-petitioners made no attempt to demonstrate they was aggrieved by Nulty’s appointment. Rather, said the Appellate Divisiont, they claim that they "have standing to challenge unlawful and unconstitutional civil service appointments regardless of whether they are personally aggrieved."

The Appellate Division rejected this theory, holding that while the doctrine of common-law taxpayer standing would excuse such lack of personal aggrievement, that doctrine requires the petitioner to establish that "the failure to accord such standing would be in effect to erect an impenetrable barrier to any judicial scrutiny of legislative action."

As Seidel failed to demonstrate that there was an "impenetrable barrier" to judicial scrutiny of the administrative determination resulting in the appointment of Nulty as the Town's Chief of Police, the Appellate Division concluded that the “Supreme Court properly granted the motions to dismiss the petition on the ground that the petitioners lacked standing.”