Applying the doctrines of res judicata and collateral estoppel in administrative disciplinary actions

An Office of Mental Health [OMH] employee [Petitioner] was served with a notice of discipline [NOD] charging Petitioner with misconduct and, or, incompetency alleging that he struck and kicked a service recipient.*

Pursuant to the collective bargaining agreement between Petitioner's Collective Bargaining Organization and OMH, a disciplinary hearing was held before an arbitrator, during which hearing videos of the incident were shown. After the hearing, the arbitrator found that OMH failed to establish that Petitioner "either kicked or punched" the service recipient and concluded that the service recipient "was the sole aggressor during the ...  incident."

After the disciplinary hearing, Petitioner's requested New York StateJustice Center for the Protection of People With Special Need [Respondent] to amend report that was the basis for the disciplinary charges subsequently being filed against him to "unfounded and/or unsubstantiated" citing Social Services Law §494[1][a].** §494[1][a] provides for "Amendments to and appeals of substantiated reports of abuse or neglect.

Respondent denied Petitioner's request and untimely the matter was considered at a hearing before an Administrative Law Judge [ALJ].  The ALJ issued a recommended decision finding that Respondent had met its burden of establishing by a preponderance of the evidence that Petitioner  had committed the alleged physical abuse, finding that Petitioner had "pushed the service recipient, causing her to fall to the floor, and then he kicked her."

Respondent adopted the findings of the ALJ and denied Petitioner's request to amend the substantiated report. Petitioner then  commenced a CPLR Article 78 proceeding in Supreme Court seeking a court order annulling Respondent's  decision. Petitioner contended that [1] the ALJ erred in failing to apply the doctrines of res judicata and collateral estoppel with respect to the arbitrator's determination in adjudicating the matter and [2] Respondent's determination was not supported by substantial evidence. Supreme Court transferred the matter to the Appellate Division.

The Appellate Division commenced its review of Petitioner's appeal by noting that the parties concur that "the doctrines of res judicata and collateral estoppel apply to arbitration awards and preclude subsequent litigation of a claim or issue decided in a prior arbitration against a party or those in privity."

In this Article 78 action the Appellate Division said that the dispute between Petitioner and Respondent "centers on whether there was an identical claim or issue decided in the arbitration decisive of the administrative proceeding before the ALJ." Petitioner contended that the arbitrator addressed whether his conduct throughout the underlying incident amounted to physical abuse of the service recipient while Respondent argued that the arbitrator only resolved whether Petitioner struck and/or kicked the service recipient after she fell on the floor, but not whether he pushed her to the floor in the first instance.

In support of its argument, Respondent contended that [1] the NOD did not specify that Petitioner pushed the service recipient; [2] the arbitrator never decided that aspect of the underlying incident, which [3] left the issue open for resolution at the hearing before the ALJ.

The Appellate Division rejected Respondent's "factual parsing of the incident" and concluded that the doctrines of res judicata and collateral estoppel precluded the ALJ from deciding again whether Petitioner's conduct amounted to physical abuse of the service recipient.

Citing D'Arata v New York Cent. Mut. Fire Ins. Co., 76 NY2d 659, the court explained that the  underlying purpose of the doctrines of res judicata and collateral estoppel is to "prevent[] repetitious litigation of disputes which are essentially the same." The Appellate Division said that it found it significant that Respondent  issued its "Report of Substantiated Finding" — which included findings that Petitioner pushed, hit and/or kicked the service recipient — a week before OMH issued the NOD, which document referenced the case number from Respondent's report. Although there was no transcript of the arbitration, the court said that "certainly counsel for [Respondent], who [also had] represented OMH, was privy to the report."

The Appellate Division then opined that "[b]oth the report and the NOD specified that Petitioner's conduct amounted to 'physical abuse' pursuant to Social Services Law §493(4)(b), i.e., the claim was the same in the arbitration and in the administrative proceeding before the ALJ" conducted pursuant to §494[1][a] of the Social Services Law.

Indicating that the arbitrator reviewed the underlying event and determined that the service recipient fell to the floor and was the sole aggressor, the Appellate Division said it concluded that Respondent was precluded under principles of res judicata and collateral estoppel from relitigating the question of whether Petitioner physically abused the service recipient by pushing her to the floor in the course of the subsequent administrative hearing.

Thus, said the court "[i]t follows that [the] petition to annul Respondent's determination should be granted and the Respondent's determination annulled. Accordingly, the matter was remitted to Respondent for amendment of the findings to state that the report was unsubstantiated and for compliance with the requirements of Social Services Law §494.

* This conduct was also characterized as category three physical abuse within the meaning of Social Services Law §493(4)(c).

** Social Services Law §494[1][a] provides a means to process "Amendments to and appeals of substantiated reports of abuse or neglect.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_05364.htm

Employee’s guilty "plea bargain" does not preclude the appointing authority from citing the criminal charges originally filed against the employee in an administrative disciplinary action

A firefighter [Respondent] was charged with violating the Fire Department’s substance policy after he was arrested for criminal possession and sale of a controlled substance. The Respondent requested that the disciplinary charge regarding sale of a controlled substance be dismissed because the criminal charges were resolved with a reduced plea of criminal possession.

Office of Administrative Trials and Hearings Administrative Law Judge Kara J. Miller found that Respondent’s guilty plea to a reduced criminal charge does not preclude the Department from charging Respondent and presenting evidence of the underlying criminal conduct that led to the arrest.

Judge Miller recommended that Respondent be terminated from his position as a firefighter after finding him guilty of both criminal possession and sale of a controlled substance. 

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/19_cases/19-569.pdf

Litigating allegations of same-sex sexual harassment

In this action to recover damages for alleged employment discrimination on the basis of sex and unlawful retaliation in violation of Administrative Code of the City of New York §8-107, Plaintiff, a civilian employee of the New York City Police Department [NYPD], alleged that a same-sex fellow civilian employee [Co-worker] of NYPD sexually harassed her by making comments about her appearance and by touching her inappropriately.

Plaintiff further alleged, among other things, that her supervisors aided and abetted the alleged harassment and, or, retaliated against her for her complaints regarding Co-worker's conduct.

The New York City Human Rights Law prohibits discrimination in employment based upon gender, and prohibits aiding and abetting discrimination or retaliation for an employee's protected activity in response to discrimination. These protections include "prohibitions on harassment between members of the same sex," as alleged here by Plaintiff.

The Appellate Division explained that demonstrations of same-sex harassment include showing that:

(1) "the harasser was homosexual and motivated by sexual desire;"

(2) "the harassment was framed in such sex-specific and derogatory terms ... as to make it clear that the harasser [was] motivated by general hostility to the presence of a particular gender in the workplace;" or

(3) "direct comparative evidence about how the alleged harasser treated members of both sexes in a mixed-sex workplace."

Addressing a motion for summary judgment on behalf of NYPD and certain of its named staff members [City Defendants], the Appellate Division said that an action brought under the NYCHRL must be analyzed under both the framework of McDonnell Douglas Corp. v Green, 411 US 792, and under the newer mixed motive framework, which imposes a lesser burden on a plaintiff opposing such a motion," citing Persaud v Walgreens Co., 161 AD3d 1019.

The court also noted that a defendant's motion for summary judgment dismissing a claim under the NYCHRL "should be granted only if no jury could find [the] defendant liable under any of the evidentiary routes—McDonnell Douglas, mixed motive, direct evidence, or some combination thereof."

Here City Defendants demonstrated, prima facie, that "there was no evidentiary route" that could allow a jury to find that Co-worker was motivated by sexual desire or by general hostility to the presence of women in the workplace, or that City Defendants treated male and female coworkers differently. Further, observed the Appellate Division, evidence established that, in response to the Plaintiff's complaint, City Defendants took prompt remedial action and Plaintiff failed to raise a triable issue of fact.

Accordingly, said the court, it agree with the Supreme Court's granting certain branches of City Defendants' motions for summary judgment dismissing those causes of actions alleging harassment by City Defendants and that City Defendants abetted  harassment in violation of the NYCHRL insofar as asserted against each of the named City Defendants.

Addressing Plaintiff's claims of retaliation under the NYCHR, the Appellate Division indicated that "[T]o make out an unlawful retaliation claim under the NYCHRL, a plaintiff must show that (1) he or she engaged in a protected activity as that term is defined under the NYCHRL, (2) his or her employer was aware that he or she participated in such activity, (3) his or her employer engaged in conduct which was reasonably likely to deter a person from engaging in that protected activity, and (4) there is a causal connection between the protected activity and the alleged retaliatory conduct."

In this instance the Appellate Division said that "even assuming that the Plaintiff had engaged in a protected activity under the NYCHRL, City Defendants demonstrated, prima facie, ... that the Plaintiff could not establish that City Defendants were aware of such activity, or that there was a causal connection between that activity and the alleged acts of retaliation and Plaintiff failed to raise a triable issue of fact.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_05173.htm

Individuals seeking General Municipal Law §207-c disability benefits must prove a direct causal relationship between job duties and the resulting illness or injury

A deputy sheriff [Plaintiff] severed a nerve and tendon of a finger when, during his shift he used his pocket knife to release the blade of his partner's jammed pocket knife. These injuries required surgical repair and rendered him unable to return to work for a period of time. Petitioner applied for benefits available pursuant to General Municipal Law §207-c, but that application was denied. Ultimately a Hearing Officer recommended the denial of GML §207-c be sustained, finding Petitioner's injuries did not occur in the performance of his duties.*

The Respondent's Director of Risk Management [Respondent] issued a determination adopting the Hearing Officer's findings and recommendation in its entirety whereupon Petitioner commenced a CPLR Article 78 proceeding challenging the Respondent's determination. Supreme Court annulled the determination and Respondent appealed.

The Appellate Division, noting that the administrative determination was made after a hearing at which evidence was taken "pursuant to direction by law," said that the appropriate standard of review is whether the administrative  determination was "supported by substantial evidence."**

Explaining that the individual seeking §207-c benefits must prove a "direct causal relationship between job duties and the resulting illness or injury," the Appellate Division said that the unrebutted hearing evidence established that, although the pocket knives were personally owned by Petitioner and his partner and were not official equipment issued by the Sheriff's Office, "the officers were strongly encouraged to carry personal knives with them while they were on duty".

Further, said the court, the hearing testimony demonstrated that officers "were instructed during field training to obtain and carry a knife to assist them with various tasks, such as cutting seatbelts or cutting down people who attempted suicide by hanging" and that the officers were trained to use their personal knives "as a last-line of defense should they be stripped of their firearms or other weapons."

Noting that "most, if not all, officers" in the Respondent's Sheriff's Office regularly carried a personal knife, the Appellate Division said that the evidence "clearly established the utility of carrying a functioning knife while on duty and the necessity of fixing the jammed knife so that Petitioner and his partner could safely respond to their next call."

Under these circumstances, the Appellate Division found "a direct causal relationship" between Petitioner's job duties and the injuries he had suffered and that the Hearing Officer's findings to the contrary were not supported by the record.

Accordingly, the court granted Petitioner's application for General Municipal Law §207-c disability benefits.

* General Municipal Law §207-c provides law enforcement personnel with certain disability and other benefits, including full wages, while the officer is  temporarily unable to perform the duties of the position as the result of an injury suffered "in the line of duty."

** The Appellate Division said as matter of proper procedure Supreme Court should have transferred the matter to the Appellate Division and although it did not do so it would treat the matter as having been properly transferred and consider the substantial evidence issue de novo.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_05046.htm

Employee found guilty of violating time and leave policy terminated from the position

A New York City eligibility specialist [Respondent] was found guilty of violating time and leave policy when she left work 5-7 minutes early on 215 occasions over the course of one year. At trial, it was shown that the Respondent had been ordered to cease and desist from the practice of leaving early, but had failed to comply with supervisor warnings on multiple occasions.

Office of Administrative Trials and Hearings Administrative Law Judge Ingrid M. Addison recommended termination of Respondent’s employment, since respondent had previously been disciplined for similar misconduct. 

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/19_cases/19-1620.pdf

Exception to having to exhausting administrative remedies as a condition precedent to an employee initiating litigation against his employer

The Plaintiff in this action, a school teacher employed by the defendant City of New York Department of Education [DOE], sued DOE to recover damages for personal injuries she alleges she sustained at the high school where she worked. The Plaintiff claimed that she had been trapped inside a school elevator until she was extracted from it, "which required her to jump from the elevator to the third floor," and suffered an injury to her back as a result.

Prior to commencing this action, the Plaintiff applied to the DOE for "line of duty injury" paid medical leave pursuant to the terms of a collective bargaining agreement [CBA]. The DOE denied the application without providing the Plaintiff with a reason for its determination. Plaintiff decided not to challenge the DOE determination through a medical arbitration proceeding pursuant to the terms of the CBA, and commenced this action.

The DOE and the defendant City of New York [Defendants] moved to dismiss the complaint insofar as asserted against them on the basis that Plaintiff failed to exhaust her administrative remedies under the CBA. In the alternative, Defendants contended that dismissal was warranted under collateral estoppel and, or, res judicata. Supreme Court granted that branch of the motion seeking to have the court dismiss the complaint insofar as asserted against the Defendants, explaining that Plaintiff failed to exhaust her administrative remedies under the CBA. Plaintiff appealed the Supreme Court's decision and the Appellate Division reversed the lower court's ruling.

Although it is "black letter law" that an employee covered by a collective bargaining agreement which provides for a grievance procedure must exhaust administrative remedies prior to seeking judicial remedies or face dismissal of the action, in this instance the Appellate Division said that Plaintiff was seeking to recover damages against the Defendants for pain and suffering based upon a negligence theory of liability which is outside the scope of, and is not governed by, the CBA's "line of duty injury" paid leave grievance provisions.

Accordingly, opined the court, "[t]here is no need to exhaust administrative remedies when the cause of action by the plaintiff is not governed by the CBA," citing Bregman v East Ramapo Cent. Sch. Dist., 122 AD3d at 657; Matter of Van Tassel v County of Orange, 204 AD2d at 561.

With respect to the Defendants' argument that dismissal is also warranted on the basis of collateral estoppel and res judicata, the Appellate Division opined that the dismissal of the case by reason of the doctrine of collateral estoppel was without merit, explaining that the issue that Plaintiff seeks to pursue here was not shown to have decided by the DOE when it denied the plaintiff's "line of duty injury" paid leave application.  

Addressing the application of the doctrine of res judicata, or claim preclusion, in this action, the court ruled that this, also, is inapplicable to the Plaintiff's complaint "because the relief she seeks could not have been awarded within the context of the prior administrative proceeding," citing Lasky v City of New York, 281 AD2d at 599.

Thus, ruled the Appellate Division, Supreme Court should have denied that branch of the Defendants' motion to dismiss the complaint insofar as asserted against them.

The decision is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2019/2019_04745.htm

Justifications for a court to vacate an arbitration award are limited

As the result of unilateral changes in bus schedules that affected bus operators' ability to select their work hours and days off, the employee organization [Respondent] representing the bus operators filed a grievance on their behalf alleging that the employer [Petitioner] had violated the CBA by improperly altering the scheduling process without prior negotiation and agreement and requesting reinstatement of the prior scheduling procedure. After failing to reach a resolution during the three-step grievance process specified in the collective bargaining agreement [CBA], Respondent submitted the grievance to arbitration.

Following a hearing, the arbitrator issued an opinion and award finding that the new scheduling procedure adopted by Petitioners violated certain articles set out in the CBA and directed petitioners to resume use of the prior scheduling procedure that and, further, to negotiate with Respondent before implementing any changes to that procedure.

Petitioners commenced filed a petition pursuant to CPLR §7511 seeking to vacate the arbitration award on the basis that the arbitrator exceeded the scope of his authority under the CBA. Respondent answered and filed a cross petition seeking to confirm the arbitration award.

Finding that the CBA was reasonably susceptible to the construction applied by the arbitrator, Supreme Court denied Petitioners' application to vacate the arbitration award and granted Respondent's cross petition to confirm the award. Petitioners appeal.

The Appellate Division affirm the Supreme Court's ruling, explaining that " Judicial review of arbitral awards is extremely limited [and] a court may vacate an award when it violates a strong public policy, is irrational or clearly exceeds a specifically enumerated limitation on an arbitrator's power." In contrast, a court may not vacate an award based on its disagreement with the reasoning or outcome, even if the arbitrator made errors of law or fact.

Essentially an arbitrator's interpretation of contract language is generally beyond the scope of judicial review. The Appellate Division then opined that where a benefit not recognized under the governing CBA is granted, the arbitrator will be deemed to have exceeded his or her authority. On the other hand, if the contract is reasonably susceptible to different conclusions, including the one given by the arbitrator, courts will not disturb the award. Further, in the event the arbitrator imposes requirements not supported by any reasonable construction of the CBA, then the arbitrator's construction, in effect, made a new contract for the parties, which is a basis for vacating the award.

Essentially the arbitrator found that the work selection procedure that had existed for over 40 years was a well-established past practice that could not be unilaterally altered by petitioners but must be continued unless changed by mutual agreement.

Finding that the CBA was "reasonably susceptible of the interpretation given to it by the arbitrator," the Appellate Division held that Supreme Court properly dismissed Petitioners' application to vacate the arbitration award and properly granted Respondent's application to confirm the award.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_05045.htm