Links to NYPPL summaries of selected decisions alleging unlawful discrimination in violation of state and federal civil rights laws

Selected summaries of decisions alleging unlawful discrimination in violation of state and, or, federal civil rights laws posted by New York Public Personnel Law.

Click on text to access the summary.

A court’s review of a decision of the Commissioner of Human Rights is not whether the court would have reached the same result but was the Commissioner's determination rational in light of the evidence presented

 

A court's review of a college’s or university’s disciplinary action against a student limited to whether it complied with its own rules in the process

 

A public school district is not an "education corporation or association" within the meaning of the State’s Human Rights Law §296(4)

 

A school board must comply with its own rules and regulations, which have the force and effect of law

 

An award of back pay plus $200,000 in compensatory damages, plus interest, sustained as reasonably related to the wrongdoing and comparable to other awards for similar injuries

 

An employee's unreasonable failure to use an employer-provided preventive or remedial apparatus bars the consideration of his or her complaints of unlawful discrimination

 

An employer is not liable for an employee's discriminatory acts targeting a co-worker unless the employer encouraged, condoned or approved such misconduct

 

An employer's personnel policies may be operative with respect to its employees' conduct while its employees are "off-duty"

 

Appeal pursuant to New York State's Dignity for All Students Act submitted to the Commissioner of Education

 

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

 

Applicant denied unemployment insurance benefits after being terminated for sexual harassment after a disciplinary hearing

 

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

 

Arbitration award exonerating an employee the employer found guilty of sexually harassing a co-worker overturned as reflecting a "blame the victim" mentality

 

Arbitrator’s award baring disciplining an employee charged with sexual harassment while the employee was on “union leave” vacated as violative of public policy

 

Arbitrator's award in a disciplinary arbitration of alleged sexual harassment charges vacated as violative of public policy

 

Basics in processing claims of unlawful discrimination and, or, unlawful retaliation

 

Claimant's willful misrepresentation on his or her application for unemployment insurance results in the imposition of both a recoverable overpayment and forfeiture penalty

 

Commissioner of Education has primary jurisdiction to consider allegations that a school district failed to implement adequate policies and procedures

 

Complying with New York State mandatory sexual harassment training requirements

 

Constructive termination

 

Court dismissed employee's petition seeking reinstatement to her former employment in the absence of her showing "irreparable harm"

 

Courts annul appointing authority's termination of a probationary employee finding that the appointing authority failed to demonstrate a legitimate, nondiscriminatory purpose for probationer's termination

 

CPLR Article 86, the Equal Access to Justice Act, applies in cases brought against the State for alleged unlawful discrimination within the meaning of the Human Rights Law

 

Determining if a complaint alleging sexual harassment based a claim of a continuing violation of New York State's Human Rights Law is timely

 

Determining the amount of an award by the Division of Human Rights following its finding that an employee suffered discriminatory retaliation

 

Determining the economic damage suffered by a victim of unlawful discrimination

 

Duty of fair representation

 

EEOC alleges female employee “pressured to enter into a sham marriage” constitutes sexual harassment

 

Electronic surveillance

 

Employee alleges employer ignored her sexually hostile work environment and the negligent supervision claims

 

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

 

Employee dismissed for alleged sexual harassment disqualified for unemployment insurance benefits Matter of Ferro, 283 AD2d 828

 

Employee’s claims of disparate treatment on the basis of gender, sexual harassment and retaliation by the employer dismissed for lack of sufficient evidence

 

Employee’s loss of employment as a result of his or her “off-duty” misconduct disqualifies the individual for unemployment insurance benefits

 

Employee's conduct following an acrimonious end of a romantic relationship with a coworker basis for disciplinary action and termination

 

Evaluating a defendant's motion for summary judgment in the course of Title VII litigation

 

Failure to allege any adverse employment action fatal to unlawful age discrimination complaint

 

Failure to establish a prima facie case of unlawful discrimination or retaliation within the meaning of Executive Law §296 requires the dismissal of the complaint

 

Failure to establish due diligence in ascertaining the limitations period for commencing the action fatal to complainant’s untimely petition

 

Failure to exhaust administrative remedies fatal to employee's efforts for judicial review an alleged unfair practice charge filed with the Public Employment Relations Board

 

Failure to file prehearing statements required by the reviewing agency’s rules held to constitute a “waiver of defenses”

 

Filing an employer application for involuntary ordinary disability retirement on behalf of the employee

 

From the Blogs - Focusing on Unlawful Discrimination - Posted by Employment Law News

 

Imposing a reasonable disciplinary penalty under the circumstances

 

Individual must prove four elements to prevail in a claim that he or she was subjected to retaliation for having filed a complaint alleging unlawful discrimination

 

Individual terminated based on a defective disciplinary decision by the appointing authority entitled to reinstatement with back pay

 

Initiating litigation in federal court under a pseudonym

 

It is legally possible to find "accidental results" flowing from "intentional causes" for the purposes of indemnification pursuant to the terms of an insurance policy

 

Lack of standing and failure to name a necessary party dooms an appeal to the Commissioner of Education

 

Leaving employment without good cause will disqualify an applicant for unemployment insurance benefits

 

Litigating allegations of same-sex sexual harassment

 

New York City’s Special Commissioner of Investigation may not compel a tenured educator to testify in the course of an investigation it is conducting

 

New York State's Human Rights Law bars discrimination against heterosexual individuals

 

Opportunity to cross-examination witnesses a critical element to due process in quasi-judicial administrative proceedings

 

Postings on Employment Law Notes

 

Procedural considerations when suing for alleged violations of free speech, unlawful employment discrimination and unlawful retaliation complaints

 

Public employees speech concerning matters of a personal interest is not “protected speech” within the ambit of the First Amendment

Qualified privilege may be claimed in defending statements made for a supervisory purpose in an employment context alleged to be defamatory

 

Quid pro quo sexual harassment

 

Rather than relying on selective information supplied by the employer, the court itself should review the challenged investigative report relied on by the employer

 

Religious Accommodations in the Workplace

 

Representation and indemnification of public officers and employees sued in connection with official duties

 

Requirements for stating a justiciable claim alleging the employer intentionally inflicted emotional distress on the distressed employee

 

Responsibility of employers in cases of sexual harassment

 

Retaliatory dismissal

 

Revealing a public employee's home ZIP code held to be an unwarranted invasion of personal privacy for the purposes of New York State's Freedom of Information Law

 

Second Circuit rules failure to investigate discrimination complaint not adverse employment action

 

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

 

Settlement of disciplinary arbitration must be in writing to be enforced by a court

 

Sexual harassment and discrimination

Sexual harassment complaints

 

Showing a non-retaliatory purpose for its actions and the absence of evidence that the employer’s explanation was “mere pretext” defeats employees’ Title VII complaint

 

Signing a general release of all claims accruing up to the settlement date

 

Social Media - its use by employers in pre-employment, employment and post-employment situations

 

Students sue school district alleging school district administrators violated their civil rights

 

Syllabus for the United States Supreme Court's ruling in Bostock v Clayton County, Georgia addressing unlawful discrimination targeting gay and transgender employees

 

Teacher claims his harassment by students violates Title VII and the Civil Rights Act

 

Teacher the target of sexual harassment complaints

 

Termination for disruptive behavior claimed to violate the State’s Human Rights Law

 

Termination for violating workplace rules defeats a claim for unemployment insurance benefits

 

Test used by courts to resolve a former employee's constructive dismissal claim

 

The anatomy of a civil rights action involving allegations of failure to accommodate a disability, unlawful discrimination, a hostile work environment, and retaliation

 

The Commissioner of Education will not render an advisory opinion on an issue before it becomes justiciable

 

The essentials elements of processing a complaint alleging retaliation constituting unlawful discrimination

 

The Plausibility Standard

 

Unlawful discrimination on the basis of gender identity

 

Using e-mail as evidence in disciplinary actions

 

Workfare with a public agency not public employment

 

Seeking credit for non-police service toward eligibility for Police Pension Fund retirement benefits

At issue here is whether Tier 3 police officers in the New York City Police Pension Fund (PPF) who otherwise might be eligible for retirement credit under the statutory provisions discussed in the decision may use those provisions to apply prior non-police service toward their eligibility for retirement. 

The Court of Appeals held that they may not. The court noted that plain language of Retirement and Social Security Law §513(c)(2) limits eligible prior service for those officers to police service.

Accordingly the Court of Appeals concluded the proceeding should be dismissed.

Click HERE to access the Court of Appeals' decision posted on the Internet.

Negotiating "for cause" termination protection for officers and employees serving in positions in the Exempt Class

Certain civil service positions in the classified service are placed in the "exempt" class reflecting the duties of the position are of a confidential nature and requires personal qualities that cannot practicably be tested by an examination. Subject to certain exceptions set out in §75.1(b) of the Civil Service Law, incumbents of positions in the Exempt Class are terminable at will. 

The issue before the court: A challenge to a provision in the relevant collective bargaining agreement that, in the words of the Court of Appeals, "purports to provide for-cause termination protection to certain exempt class employees."*

The Court held that provision in the agreement unenforceable to the extent it granted such protections to officers and employees in the Exempt Class except as otherwise provided by §75.1(b) of the Civil Service Law.

*Although not all exempt class employees are officers of the entity, all exempt class officers of the entity are employees of the entity.

 Click HERE to access the decision of the Court of Appeals posted on the Internet.

Accidental Disability Retirement application rejected

 

Supreme Court denied Plaintiff's petition to vacate a determination of Respondents, which denied Plaintiff's application for World Trade Center Accidental Disability Retirement (WTC ADR) benefits, and dismissing the proceeding brought pursuant to CPLR article 78. The Court of Appeals unanimously affirmed the lower court's ruling, without costs.

The Court of Appeals noted this was the third CPLR Article 78 proceeding brought by Plaintiff' seeking to vacate the denial of her application for WTC ADR benefits, based on her failure to demonstrate that she engaged in rescue, recovery and cleanup operations at the statutorily defined WTC site during the statutory period. The Court of Appeals had affirmed the denial of those benefits by Respondents in connection with the evidence submitted on her first two applications, Matter of Salerno v Kelly, 139 AD3d 516.

In support of her third attempt, Plaintiff submitted the affidavit of a retired colleague, stating that at the time of the terrorist attack, he was stationed with Plaintiff at the offices of the Internal Affairs Bureau. However, the location so identified "was outside the qualifying area." 

Accordingly, said the Court, Respondents had a rational basis for denying Plaintiff's application, and for concluding that the colleague's affidavit was not persuasive, in light of the other contrary evidence, including overtime slips signed by Plaintiff indicating that she worked at IAB and/or command and control during the relevant period.

Click HERE to access the decision of the Court of Appeals posted on the Internet.

Applying the ""inherent risk" principle in evaluating an employee's application for accidental disability retirement benefits

The Comptroller denied a State Trooper's [Petitioner] application for accidental disability retirement benefits. Petitioner had filed an application for accidental disability retirement alleging that he was permanently disabled due to, among other things, posttraumatic stress disorder resulting from an incident in which Petitioner shot a suspect who was driving a car at a high rate of speed towards the Petitioner.

Citing Matter of McGoey v DiNapoli, 194 AD3d 1296, the Appellate Division noted that the applicant, here the Petitioner, bore the burden of establishing that his disability was the result of an accident within the meaning of the Retirement and Social Security Law, and the Comptroller's determination on that point will be sustained "if supported by substantial evidence in the record as a whole substantial evidence."

In this instance, said the court, substantial evidence supports the Comptroller's determination that Petitioner's use of deadly force to protect himself from imminent danger, "although not typical, and certainly a traumatic experience, was inherent in his duties and training."

Applying the "inherent risk" principles set out by the Court of Appeals in Kelly v DiNapoli, 30 NY3d 674 and applied in Matter of Kowal v DiNapoli, 145 AD3d 1152, the Appellate Division opined that the Comptroller's determination that the incident at issue "did not constitute an accident within the meaning of Retirement and Social Security Law §63-bb will not be disturbed."

Click HERE to access the Appellate Division's decision posted on the Internet.

 

Selected bills introduced in the New York State Senate addressing certain public personnel situations on or before May 19, 2023

S23 by Daniel G. Stec 45th Senate District : Concerning the villages of Malone, Saranac Lake and Tupper Lake, in the county of Franklin, employing retired former members of the division of state police as part-time village police officers

 

S4087 by Pamela Helming 54th Senate District : Authorizes Michael Telesca to take the competitive civil service examination and be placed on the eligible civil service list for employment as a full-time police officer for the county of Livingston

 

S4811B by Andrew Gounardes 26th Senate District : Relates to increasing certain special accidental death benefits

 

S5015 by Andrew Gounardes 26th Senate District : Addresses the appointment and promotion of certain personnel of the sanitation department of the city of New York

 

S5361 by John W. Mannion 50th Senate District : Grants retroactive membership with Tier IV status in the New York state teachers' retirement system to Peter Guarino

 

S5494 by Robert Jackson 31st Senate District : Provides for crediting of probationary service

 

S5605 by Lea Webb 52nd Senate District : Authorizes the city of Binghamton to offer an optional twenty-five year retirement plan to firefighter Scott Pavlick

 

S6054 by Robert Jackson 31st Senate District : Relates to retirement benefits for certain employees

 

S6188 by Steven D. Rhoads 5th Senate District :Would provided for retroactive Tier V membership in the NY State and Local Employees' Retirement System to Daniel Miller

 

S6343 by Andrew Gounardes 26th Senate District : Relates to the limitation of overtime compensation in final average salary calculations

 

S6477 by Robert Jackson 31st Senate District : Provides home addresses of certain employees to employee organizations

 

S6482A by John W. Mannion 50th Senate District : Allows an individual with disabilities or a disabled veteran to hold full-time or part-time positions for purposes of eligibility for recruitment for state employment

 

S6861 by Robert Jackson 31st Senate District : Would provides for the automatic enrollment of employees of the City of New York eligible to join the New York City Board of Education Retirement System other than individuals provisional appointed

 

S6862 by Robert Jackson 31st Senate District : Provides for a line of duty presumption for disabilities of fire alarm dispatchers in certain cities

 

 S6976 by Robert Jackson 31st Senate District : Would grant eligibility of certain participants in the New York City Employees Retirement System to opt into the twenty-five year retirement program for EMT members

 

Imposing a reasonable disciplinary penalty under the circumstances

Petitioner was served with a notice of discipline setting out six charges of misconduct alleging violations of the agency's rules, regulations and code of conduct. Petitioner denied the charges and demanded a hearing pursuant to Civil Service Law §75. The Employer withdrew one of the six charges after the §75 disciplinary hearing. The Hearing Officer subsequently found Petitioner guilty of the five remaining charges and recommended that the Petitioner be terminated from his position. The Appointing Authority reviewed the record and Hearing Officer's recommendation, found Petitioner guilty of the five remaining charges of misconduct and terminated his employment. Petitioner appealed the Appointing Authority's decision.

The Appellate Division, opining that the five charges were supported by substantial evidence, explained:

1. New York State's Civil Service Law §75(1) provides an employee in the classified service of a public employer covered by the statute "shall not be removed or otherwise subjected to any disciplinary penalty except for incompetency or misconduct shown after a hearing upon stated charges"; and

2. "The standard of review of such a determination made after a disciplinary hearing is whether it is supported by substantial evidence."

Turning to Petitioner's challenging the penalty imposed, of termination of his employment, as "excessive", the Appellate Division said in determining whether an imposed disciplinary penalty is excessive, "this Court must consider whether, in light of all the relevant circumstances, the penalty is so disproportionate to the charged offenses as to shock one's sense of fairness",* citing Matter of Scuderi-Hunter v County of Delaware, 202 AD3d at 1317.

The court, recognizing that Petitioner had been employed by the Appointing Authority "for nearly 25 years with no prior disciplinary issues and that he submitted 15 letters by individuals acclaiming their belief in his good character," said "sexual harassment in the work place is among the most offensive and demeaning torments an employee can undergo.'"

Noting that the record "establishes numerous incidents of sexual harassment" by Petitioner, the Appellate Division said: it "cannot conclude that the penalty of termination was so disproportionate to the offense, in the light of all the circumstances, as to be shocking to one's sense of fairness".

* A Reasonable Disciplinary Penalty Under the Circumstances.  The text of this NYPPL e-book focuses on court decisions addressing disciplinary penalties imposed on employees in the public service in instances where the individual has been found guilty of misconduct and, or, incompetence. For more information click HERE. 

Click HERE to access the full text of the Appellate Division's ruling summarized above.