The court’s fact-review power of an administrative agency's determination is limited to whether substantial evidence supports the determination

The court’s fact-review power of an administrative agency's determination is limited to whether substantial evidence supports the determination 

Matter of Jenkins v Israel, 2011 NY Slip Op 03604, Appellate Division, Second Department

The Westchester Medical Center filed disciplinary charges against Lisa Jenkins alleging insubordination and misconduct pursuant to §75 of the Civil Service Law. The disciplinary hearing officer found Jenkins guilty of the charges and Westchester adopted the hearing officer’s findings. It then imposed the penalty of dismissal and terminated her employment as a nursing aide.

In response to Jenkin’s appeal challenging her termination, the Appellate Division said that its fact-review powers of an administrative agency determination “are limited to whether substantial evidence supports the determination"

In this instance the court found that there was substantial evidence in the record to support a finding that Jenkins committed insubordination and misconduct.

Further, said the Appellate Division, “we cannot conclude that the penalty of dismissal imposed by the hospital was ‘so disproportionate to the offense as to be shocking to one's sense of fairness’ so as to constitute an abuse of discretion as a matter of law,” citing Matter of Kelly v Safir, 96 NY2d at 32.

The decision is posted on the Internet at: 

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_03604.htm

Employee organization's duty of fair representation

Employee organization's duty of fair representation

Ayazi v United Federation of Teachers, 32 PERB 3069

From time to time, a member of a negotiating unit will file an unfair labor practice claim with PERB contending that his or her union has breached its duty of fair representation. The Ayazi decision by PERB sets out the standards used by PERB in resolving such claims.

Maryam J. Ayazi, a former teacher of English as a Second Language employed by the New York City School District’s Grover Cleveland High School, filed charges with PERB alleging that her union, the United Federation of Teachers [UFT]:

1. Failed to properly represent her by declining to appeal an adverse “probation discontinuance appeal hearing” that sustained her termination for unsatisfactory service effective June 1997.

2. Refused to file a grievance for back pay based on the school district’s refused to hire her as a full time teacher following her termination as a probationer.

UFT responded to the charges indicating that:

1. It declined to challenge Ayazi’s termination for unsatisfactory performance during her probationary period because “her appeal raised no legal issues;” and

2. It did not file a grievance seeking back pay because “it did not believe that the grievance would be successful.”

Citing CSEA v PERB, 132 AD2d 430, PERB said that “[i]n order to establish a claim for breach of the duty of fair representation against a union, there must be a showing that the activity, or lack thereof, which formed the basis of the charge against the union was deliberately invidious, arbitrary or founded in bad faith.”

In contrast, PERB said that there is no violation of Section 209-a.2(c) if the union’s action, or inaction, was caused by “an honest mistake resulting from misunderstanding” or its lack of familiarity with matters of procedure.

PERB sustained its administrative law judge’s decision dismissing Ayazi’s complaint, commenting that the fact that Ayazi disagreed with UFT’s position and believed that her probationary termination should have been further appealed “is not sufficient to establish a violation of the Act.”

Another element in this action was Ayazi’s allegation that UFT said that it would no longer represent her because she had filed the unfair labor practice charge.

UFT conceded that it had told Ayazi that it would not communicate with her about matters that were the subject of this improper practice charge. Ayazi, on the other had, admitted that “UFT has continued to communicate with her about matters unrelated to those that are subject to this proceeding.”

PERB said that under the circumstances UFT’s action, without more, did not rise to a level of a violation of the Act.

An employee’s personnel record may be considered in determining an appropriate penalty, which record could include “counseling memoranda.”

An employee’s personnel record may be considered in determining an appropriate penalty, which record could include “counseling memoranda.”
Dundee Central School District v Douglas Coleman, Supreme Court Yates County, Index 2011-0011, Judge W. Patrick Falvey

In an earlier action involving the same parties in which Dundee challenged the hearing officers determination, Judge Falvey directed the Hearing Officer to reconsider certain disciplinary charges and specifications filed against Douglas Coleman, commenting that in the event the Hearing Officer "finds the aforementioned charges are substantiated, the same may impact the Hearing Officer's determination of the appropriate penalty."

The hearing officer sustained, in whole or part, a number of the charges and specification remanded to him for reconsideration but did not modify the penalty has originally imposed.

Dundee, while not challenging the hearing officer’s findings with respect to the charges and specifications he considered upon remand, appealed the hearing officer’s determination that no additional penalty should be imposed.*

The decision indicates that “after reviewing the … counseling memoranda, the Hearing Officer noted that there was no proof any of the warned offenses were repeated by Coleman.” The Hearing Officer concluded, “As such, I find and conclude that these Counseling Memoranda are a critical preface to the progressive disciplinary scheme inherent in the just cause protocol under [Education Law] §3020-a.

The school district contended that the Hearing Officers decision with respect to the penalty to be imposed was “excessively lenient, against public policy and was arbitrary and capricious. In addition, argued Dundee, the decision was irrational because the Hearing Officer did not impose any additional penalty against Coleman despite the fact that he had been found guilty of additional charges and specifications.

The Hearing Officer explained “It would be inherently unfair and totally contrary to the just cause protocol to issue further discipline to [Coleman] for actions that were never repeated and I will not do so.”

Dundee asked the court to remand the matter to a different hearing officer for a new determination as to the appropriate penalty to be imposed, contending that, in effect, the Hearing Officer’s ruling is that should a school district issue a counseling memorandum, and there is not repetition of the offending conduct, it cannot seek any additional penalty within the context of subsequent disciplinary action take against the employee. This interpretation, Dundee claimed, “violates and gives an irrational construction to existing law.

Judge Falvey said that Dundee’s argument was will taken and confirmed that his previous ruling that the underlying conduct described in the counseling memoranda can be the sole basis for formal disciplinary action pursuant to §3020-a of the Education Law.

The court concluded that the Hearing Officer’s decision with respect to the penalty to be imposed “lacks a rational basis due to his improper reliance on the premise that Dundee had to prove Coleman repeated the misconduct that gave rise to the counseling memoranda before he would consider Dundee’s request for a penalty” and remanded the matter to a new hearing officer for the purpose of determining the penalty to be imposed.

It should be noted that case law indicates that the individual’s personnel record may be considered in determining an appropriate penalty, which record could include “counseling memoranda.”

In Scott v Wetzler, 195 AD2d 905, the Appellate Division, Third Department rejected Scott’s argument that he was denied due process because the Section 75 hearing officer allowed evidence concerning his performance evaluations to be introduced during the disciplinary hearing. The court said that “such evidence was relevant to the determination of an appropriate penalty,” noting that Scott was allowed an opportunity to rebut these records and to submit favorable material contained in his personnel file.

Similarly, in Bigelow v Village of Gouverneur, 63 NY2d 470, the Court of Appeals said that such records could be used to determine the penalty to be imposed if:

1. The individual is advised that his or her prior disciplinary record would be considered in setting the penalty to be imposed, and

2. The employee is given an opportunity to submit a written response to any adverse material contained in the record or offer “mitigating circumstances.”

In a sense, Coleman’s theory with respect to using “counseling memoranda” in a formal disciplinary hearing is in the nature of double jeopardy. A claim of double jeopardy is sometimes encountered in efforts to suppress a disciplinary action in situations were the charges reflect the same acts or omissions that were the subject of counseling memoranda or performance evaluations.The courts have rejected this theory.**

In Patterson v Smith, 53 NY2d 98, the Court of Appeals said that including charges concerning performance that were addressed in a counseling memorandum was not “double jeopardy. ”The court explained that a “proper counseling memoranda” contains a warning and an admonition to comply with the expectations of the employer. It is not a form of punishment in and of itself. Accordingly, case law indicates that giving the employee a counseling memorandum does not bar the employer from later filing disciplinary charges based on the same event or events.

The employer, however, may not use the counseling memorandum or a performance evaluation to avoid initiating formal disciplinary action against an individual as the Fusco and Irving decisions by the Commissioner of Education demonstrate [Fusco v Jefferson County School District, CEd, 14,396 and Irving v Troy City School District, CEd 14,373].

The point made in Fusco and Irving is that comments critical of employee performance do not, without more, constitute disciplinary action. On the other hand, counseling letters may not be used as a subterfuge for avoiding initiating formal disciplinary action against a tenured individual.

What distinguishes lawful “constructive criticism” of an individual’s performance by a supervisor and supervisory actions addressing an individual’s performance that are disciplinary in nature?

In Holt v Board of Education, 52 NY2d 625, the Court of Appeals decided that performance evaluations and letters of criticism placed in the employee’s personnel file were not “disciplinary penalties” and thus could be placed there without having to first hold a disciplinary proceeding. In other words, the act of placing correspondence critical of the employee’s conduct or performance in his or her personnel file did not constitute discipline.

The basic rule set out in Holt is that a statutory disciplinary provision such as Section 75 of the Civil Service Law does not require that an employee be given a hearing or permitted to grieve every comment or statement by his or her employer that he or she may consider a criticism. In contrast, alleged “constructive criticism” may not be used to frustrate an employee’s right to due process as set out in Section 75 of the Civil Service Law, Section 3020-a of the Education Law or a contract disciplinary procedure. In other words, an appointing authority may not frustrate an employee’s right to due process as set out in Section 75 of the Civil Service Law, Section 3020-a of the Education Law or a contract disciplinary procedure by claiming its action was merely “constructive criticism.”

In the Fusco and Irving cases, the Commissioner of Education found that “critical comment” exceeded the parameters circumscribing “lawful instruction” concerning unacceptable performance.

In Fusco’s case, the Commissioner said that “contents of the memorandum” did not fall within the parameters of a “permissible evaluation” noting that the memorandum “contains no constructive criticism or a single suggestion for improvement.” Rather, said the Commissioner, the memorandum focused on “castigating [Fusco] for prior alleged misconduct.”

In Irving’s case, a school principal was given a letter critical of her performance and the next day reassigned to another school where she was to serve as an assistant principal. The Commissioner ruled that these two actions, when considered as a single event, constituted disciplinary action within the meaning of Section 3020-a of the Education Law. 

* The original penalty that was imposed provided for a suspension without pay for six months but directed Dundee to continue Coleman’s participation in the school district’s health insurance plan. In his earlier ruling, Judge Falvey struck the requirement that Dundee continue to provide Coleman with health insurance at the school district’s expense. 

** "Double jeopardy" is essentially a bar to retrying an individual for the same crime in a criminal court. The doctrine, however, does not bar filing administrative disciplinary charges against an individual against whom criminal charges have been filed involving the same event or events. Indeed, an individual who has been found guilty of criminal conduct cannot be found not guilty of the same offense[s] in a subsequent administrative disciplinary action [see Kelly v Levin, 440 NYS2d 424]. Nor is the filing of criminal charges a bar to proceeding with administrative disciplinary action while the criminal action is pending [see Levine v New York City Transit Authority, 70 AD2d 900, affirmed 49 NY2d 747; Chaplin v NYC Department of Eduction, 48 A.D.3d 226; and Haverstraw-Stony Point CSD, 24 Ed. Dept. Rep. 466].  

Termination of police officer for falsifying official reports affirmed

Termination of police officer for falsifying official reports affirmed

Sweeney v Safir, App. Div., 267 AD2d 99

New York City police officer Kevin Sweeney lost his job after being found guilty of giving false testimony and falsifying official reports.

Sweeney appealed only to have Appellate Division affirm the findings of the police commissioner as to guilt and the penalty imposed -- dismissal.

The commissioner found that Sweeny was guilty of “knowingly” making false statements in police reports and in his testimony before a Grand Jury.

Sweeny testified that “he was the victim of a gunpoint robbery of his fiancée’s car when, in fact, the car was simply stolen from the street when [Sweeney] left it double-parked with the keys in the ignition and the engine running.”

Employee dismissed because of habitual lateness

Employee dismissed because of habitual lateness

Dept. of Corrections v Gardner, OATH 1096/99

Disciplinary charges were filed against Darell Gardner, a New York City corrections officer, alleging various time and leave violations such as failing to call in to report illness as required and reporting to work late 17 times in a one-year period.

Administrative Law Judge [ALJ] Donna R. Merris found Gardner guilty of failing to call in sick one hour before his scheduled tour of duty, failure to report for duty following a grant of personal emergency leave, and of excessive lateness.

Judge Merris then reviewed Gardner’s personnel record. Noting that Gardner had been previously disciplined for infractions involving time and attendance, the ALJ recommended that he be terminated.

According to Judge Merris, “the charges here reflect a seemingly incorrigible pattern of thirty-four proven instances of lateness over a period of fifteen months.” As to the justification for her recommendation that Gardner be dismissed, Judge Merris said:

Thus, by his conduct, [Gardner] continues to demonstrate an inability to conform his behavior to the Department’s standards. In light of the continued history of excessive lateness demonstrated here, the only appropriate penalty is that [Gardner] be terminated from his position.

Applying the Doctrine of Absolute Privilege

Applying the Doctrine of Absolute Privilege*
Van Donsel v Schrader, 2011 NY Slip Op 03698, Appellate Division, Third Department

Richard Van Donsel, the then Cortland County Attorney, sued Scott Schrader, the then Cortland County Administrator, alleging causes of action for defamation and intentional infliction of emotional distress.

The genesis of this action was characterized by the Appellate Division as “part of an ill-fated plan to construct a County facility.” The County contracted to acquire real property owned by one Steven Lissberger. The County then reneged on the contract and Lissberger sought damages. Subsequently Lissberger sold the parcel to a third party, and was represented in that sale by Ronald Walsh. Walsh, at the time, was also serving as an Assistant County Attorney.

Van Donsel negotiated a settlement of the Lissberger claim. Schrader conducted a pre-audit of the proposed settlement and recommended its rejection in a memorandum to the relevant Cortland County legislative committee. In the words of the Appellate Division, “Noting Lissberger's sale of the property for only $500 less than the price set out in his contract with the County and Walsh's connections with [Van Donsel] — points that [Von Donsel] had neglected to disclose in requesting approval of the settlement — [Schrader] further recommended that [Van Donsel’s] office be investigated 'for a possible criminal conspiracy and unethical behavior.'"

The Appellate Division held that Schrader’s statements to the legislative committee were protected by an absolute privilege and thus Schrader's motion for summary judgment should have been granted by Supreme Court.

The Appellate Division explained that "A privileged communication is one which, but for the occasion on which it is uttered, would be defamatory and actionable," citing Park Knoll Assoc. v Schmidt, 59 NY2d 205. Further, said the court, “As a matter of public policy, an absolute privilege protects ‘communications made by individuals participating in a public function, such as executive, legislative, judicial or quasi-judicial proceedings,'” citing Rosenberg v MetLife, Inc., 8 NY3d 359.

The comments objected to, however, must have been made in the context of official communications by "a principal executive of State or local government [or] those entrusted by law with considerable administrative or executive policy-making responsibilities." In contrast, merely participating in such proceedings is insufficient to trigger the privilege.

There is little question, said the court, that Schrader, the County's chief administrative officer and executive, constituted a high official to whom the absolute privilege doctrine applies. Further, the Appellate Division noted that both Schrader's memorandum and the statements therein were prepared in furtherance of his official duties, which included reviewing claims submitted for payment by the County, supervising its department heads, and making appropriate recommendations to the County Legislature.

Van Donsel did not dispute that public disclosure of Schrader’s memorandum was "required by law" but, said the court, contrary to Van Donsel's argument, the fact that it received attention in the news media did not remove Schrader's comments from falling within the ambit of the privilege.

While the Appellate Division noted that a claim for intentional infliction of emotional distress “is not flatly barred by absolute privilege,” it said that Van Donsel “failed to raise a [question] of fact as to whether [Schrader's] conduct was so extreme, outrageous, and beyond the bounds of human decency as to constitute" that tort. 

* See, also, a summary addressing the Doctrine of Qualified Immunity posted on the Internet at: http://publicpersonnellaw.blogspot.com/2011/05/qualified-immunity-from-civil-lawsuits.html

The decision is reported on the Internet at: 

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_03698.htm 

See, also, Leonard v Schrader, 2011 NY Slip Op 03699, decided with this action and posted on the Internet at http://www.courts.state.ny.us/reporter/3dseries/2011/2011_03699.htm 

In Leonard Supreme Court held “the defenses of absolute and qualified privilege in abeyance.” The Appellate Division ruled that “for the reasons stated in Van Donsel v Schrader (supra), we agree with Schrader that he is entitled to summary judgment dismissing the complaint.”

Employees of a state as an employer may not sue their employer for alleged violation of the ADEA or similar acts of Congress

Employees of a state as an employer may not sue their employer for alleged violation of the ADEA or similar acts of Congress

Kimel v Board of Regents, 528 U.S. 62

Section 58 of the Civil Service Law sets out minimum and maximum age qualifications for initial appointment as a police officer by political subdivisions of New York State other than the City of New York.

Sometimes this “maximum age” for appointment as a police officer was held to be a violation of Age Discrimination in Employment Act [ADEA]. At other times, the “maximum age” for appointment to law enforcement positions was “exempted” from the provisions of the ADEA by Congress.

Now the U.S. Supreme Court has said that federal courts do not have jurisdiction to consider “age discrimination” law suits filed under the ADEA, dismissing appeals in cases involving:

1. 36 current and former Florida State University faculty members who complained that they were denied salary increases in violation of ADEA;

2. A Florida corrections officer, Wellington Dick, who contended that his age was one of the considerations that resulted in his being denied a promotion; and

3. Faculty members of an Alabama state-run college who claimed that they were denied promotions and other benefits such as sabbatical leaves and committee assignments because of their age.

The Supreme Court held that state workers cannot sue their employer in federal court for alleged violations of ADEA.

This is consistent with the high court’s rulings in other recent cases limiting Congress’ efforts to subject states to federal law under statutes adopted pursuant to the “commerce clause” such as Alden v Maine, 527 U.S. 706, a case involving suing states in federal court for alleged violations of the Fair Labor Standards Act.*

The high court said that the 11th Amendment bars a state employee from suing his or her employer in federal court without its consent.

In effect, the court held that the federal courts do not have any jurisdiction to consider suits brought against states by its workers pursuant to legislation enacted by Congress under color of the commerce clause.

Another element in these cases: allegations that actions by the states involved violated the 14th Amendment.

The majority’s response to these 14th Amendment claims in this 5 to 4 decision may have a significant impact in resolving pending and future law suits involving public personnel law and employment in the public sector brought in federal court.

In response to arguments concerning these 14th Amendment claims Justice Sandra Day O’Connor said that "States may discriminate on the basis of age without offending the 14th Amendment if the age classification in question is rationally related to a legitimate state interest."

The Supreme Court probably will continue to apply this rationale in cases involving tests of other federal civil rights laws such as the Americans with Disabilities Act.

However, in Alden, the Supreme Court pointed out that the 11th Amendment applies only to states, commenting that political subdivisions of a state could not claim such immunity.

Thus, the Alden ruling indicates that there is an “important limit” to the principle of sovereign immunity barring suits against States -- such immunity does not extend to suits brought against a municipal corporation or other governmental entity that is not an arm of the State.

In each of these three cases, a state was the defendant. As Section 58 is a “state-wide” law adopted by the State Legislature, it could be argued that the Supreme Court’s rulings concerning both the 11th Amendment and the 14th Amendment apply should the age limitations set by Section 58 be challenged.

In any event, the court’s views with respect to the impact of the 14th amendment in cases of alleged discrimination may prove significant insofar as both the state as an employer and a political subdivision of a state as an employer, is concerned.

* The Commerce Clause has been traditionally used by Congress to adopt laws in order to regulate “interstate commerce.” 

Veteran's rights upon the abolishment of positions for economy or other lawful purpose

Veteran's rights upon the abolishment of positions for economy or other lawful purpose

Fromer v Commissioner of Labor, 268 AD2d 707

An individual’s status as veteran within the meaning of Section 75 of the Civil Service Law may provide an individual with rights and benefits beyond the “disciplinary due process rights” usually claimed, as the Fromer case demonstrates.

Howard A. Fromer was serving as the general counsel to the State Energy Office when the agency was abolished on March 31, 1999. Fromer’s application for unemployment insurance was rejected by the Unemployment Insurance Appeal Board.

The Board ruled that Section 565 of the Labor Law barred Fromer from receiving benefits because he served in a major nontenured policymaking or advisory position that was statutorily excluded as employment for the purpose of qualifying for benefits.”

Fromer appealed, claiming that:

1. The exclusion in Labor Law Section 565 (2) (e) should be construed as containing an exception where the individual is terminated as the result of the abolition of his or her position;

2. Section 75(1)(b) of the Civil Service Law gave him “limited tenure” rights by reason of his status as a veteran.

The Appellate Division rejected Fromer’s first argument, commenting that “the statutory exclusion focuses “solely on the nature of claimant’s position in the governmental agency,” not on the reason for a claimant’s termination.

The court said that the Board decided that Labor Law Section 565(2)(e) does not include the abolishment-of-position exception Fromer claimed. As this conclusion is “neither irrational nor unreasonable in light of the absence of language in the statute to suggest that the Legislature intended any such exception,” the Appellate Division ruled that the Board’s statutory interpretation must be upheld since it was “rational and reasonable.”

The alternative argument presented by Fromer did better as it raised an issue not previously considered by the Board -- Section 75(b)(1) of the Civil Service Law provided him with a “a limited grant of tenure” sufficient to qualify him for benefits.

The Appellate Division said that the Board’s determination had to be reversed and remitted reconsideration, rejecting the Attorney General’s argument that the record provided a rational basis for the Board’s determination.

Why? Because, said the court, the Board had not based its determination, much less considered his claim of “limited tenure status,” in deciding Fromer’s eligibility for unemployment insurance benefits.

Commenting that it is well settled that “judicial review of an administrative determination is limited to the grounds invoked by the agency,” the court said that this issue had to be addressed by the Board as to “its determination of [Fromer’s] entitlement to the limited tenure afforded by Section 75(b)(1).”

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The Layoff, Preferred List and Reinstatement Manual - a 645 page e-book reviewing the relevant laws, rules and regulations, and selected court and administrative decisions is available from the Public Employment Law Press. Click On http://nylayoff.blogspot.com/ for additional information about this electronic reference manual.
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Qualified immunity from civil lawsuits

Qualified immunity from civil lawsuits 

Doninger v. Niehoff, USCA, Second Circuit, Docket Nos. 09–1452–cv (L), 09–1601–cv (XAP), 09–2261–cv (CON) 

Avery Doninger, a high school student, claimed that school administrators violated her First Amendment rights to free speech by (1) preventing her from running for Senior Class Secretary as a direct consequence of her off-campus internet speech, and (2) prohibiting her from wearing a homemade printed t-shirt at a subsequent school assembly.

The United States Court of Appeal, Second Circuit, said that in adjudicating Doninger’s claims it had to determine if the school administrators involved were entitled to qualified immunity.* 

Concluding that the First Amendment claimed by Doninger was not clearly established, the Second Circuit affirmed Federal District court's decision that administrators were entitled to qualified immunity.

Addressing Doninger’s First Amendment claims at issue with respect to the defense based on the “doctrine of qualified immunity” advanced by the school administrators, the court said the in deciding whether to grant a government official's motion for summary judgment on qualified immunity grounds, a court conducts a two-part inquiry.

The first test: considering “the facts" in the light most favorable to the plaintiff, do they show that the [official's] conduct violated a constitutional right.”

If the plaintiff’s cause survives that test, the court then applies a second test: whether the right at issue was ‘clearly established’ at the time of [the official's] alleged misconduct.”

If the court finds that the public officer’s conduct did not violate a clearly established constitutional right, or if it was objectively reasonable for the officer to believe that his or her conduct did not violate such a right, then the official is protected by qualified immunity.

In determining if a right is clearly established, the Second Circuit said that it looks to whether (1) it was defined with reasonable clarity, (2) the Supreme Court or the Second Circuit has confirmed the existence of the right, and (3) a reasonable defendant would have understood that his conduct was unlawful. Significantly, the court said that “The question is not what a lawyer would learn or intuit from researching case law, but what a reasonable person in [the official’s] position should know about the constitutionality of the conduct.”

Further, said the court, “when faced with a qualified immunity defense, a court should consider the specific scope and nature of a defendant's qualified immunity claim. That is, a determination of whether the right at issue was ‘clearly established’ must be undertaken in light of the specific context of the case, not as a broad general proposition.”

Citing Harlow v. Fitzgerald, 457 U.S. 800, the Second Circuit concluded that “it would gravely distort the doctrine of qualified immunity to hold that a school official should fairly be said to ‘know’ that the law forb[ids] conduct not previously identified as unlawful.” In Harlow the U.S. Supreme Court held that “government officials performing discretionary functions are generally shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known."

Another area in which a qualified privilege may be asserted involves communication. For example, an employee's conduct or behavior may be the subject of oral or written communications between administrators or administrators and employees. If the employee objects to the content of such communications, he or she may sue the employer and the individuals involved for defamation, claiming the contents of the communications concerning his or her behavior constitutes slander [if oral] or libel [if written].

The individuals being sued for defamation in such cases will often respond that the statements they made in such communications are privileged and thus they are immune from liability for their actions.

In Herlihy v Metropolitan Museum of Art, 214 A.D.2d 250, the Appellate Division considered such a case.

Summarized below are the views of the Appellate Division, First Department, concerning an administrators' or an employees' claim that their statements are privileged or that they are protected by some form of immunity in making such statements.

The issue arose when a number of individuals serving as volunteers with the Metropolitan Museum of Art complained that their supervisor, Cecile Herlihy, directed racial or ethnic epithets towards them. Herlihy denied the charges.

After what the Appellate Division characterized as "some sort of investigation," Herlihy was directed to "apologize for her remarks."

Ultimately Herlihy was dismissed by the Museum. She sued, claiming, among other allegations, that she had been slandered when charged with directing racial or ethnic epithets towards the volunteers making the complaint.

The defendants, on the other hand, argued that their statements were protected by an absolute or qualified immunity for the following reasons:

1. State and federal human rights laws gave them absolute immunity from retaliation for filing complaints alleging unlawful discrimination.

2. A "common-law privilege absolutely protected them from defamation suits" based on their communicating these allegations to Museum officials.

3. The statements that made concerning Herlihy were protected by a qualified privilege.

A state Supreme Court justice dismissed the action filed by Herlihy against the Museum but denied the volunteers' motion to dismiss Herlihy's action against them in its entirety. The volunteers appealed the Supreme Court's decision. The Appellate Division addressed each of their arguments in turn, holding that the following guidelines apply:

1. Statutory provisions prohibiting retaliation for filing civil rights complaints do not protect "bad faith complainants making false discriminatory related charges" from defamation actions that might arise following the filing of such complaints.

2. Common-law provides absolute immunity from defamation actions "only to those individuals participating in a judicial, legislative or executive function and is based on the personal position of status of the speaker."

3. Under New York law, a "qualified privilege" or a "qualified immunity" applies only in situations involving "good faith communications by a party having an interest in a subject, or a moral or societal duty to speak, ... made to [another] party having a corresponding interest."

With respect to claims of absolute immunity under common-law, the Appellate Division noted a ruling by the Court of Appeals concluded that a private citizen speaking at a public hearing "was not conferred with absolute privilege because, unlike members of the ... Board, the [individual] had no office at the hearing [see 600 West 115th St. Corp. v Von Gutfeld, 80 NY2d 130].

The Appellate Division ruled that the defendants in this action did not enjoy absolute immunity under common-law because "they did not make their statements in an official capacity while discharging a governmental duty, nor were the statements made during, or for, a judicial, quasi-judicial or administrative hearings."

In considering the defendant's claim to a qualified privilege, the Appellate Division said that "the underlying rationale behind a qualified privilege is that so long as the privilege is not abused, the flow of information between parties sharing a common interest should not be impeded." A qualified privilege will be lost, however, if the statements claimed to be defamatory were "published with malice or with knowledge of their falsity or reckless disregard as to their truth or falsity...." 

The decision indicates that "common interest warranting a qualified privilege" has been found to exist between employees of an organization [Loughry v Lincoln First Bank, 67 NY2d 369], members of a faculty tenure committee [Stukuls v State of New York, 42 NY2d 272], and employees of a board of education [Green v Kinsella, 36 AD2d 677].

How did the Appellate Division resolve this case? First it upheld the lower court's ruling dismissing Herlihy's action against the Museum for "emotional distress." It then held that "it would be inconsistent to deny an action for emotional distress caused by [being charged] with the use of ethnic slurs while allowing one for being falsely labeled as a user of such slurs." Accordingly, the Appellate Division concluded that Herlihy's action for slander should be dismissed as well.

The Court said that although the racial or ethnic epithets attributed to Herlihy were "deplorable and ... evidence of a certain narrow-mindedness and mean-spiritedness ... [it] ... does not rise to the level of outrage required to recover under a cause of action that is limited to only the most egregious acts." In other words, the allegations of the defendants were not so egregious as to be sufficient to allow Herlihy to recover for being falsely labeled a user of such slurs.

* In contrast to the Doctrine of Qualified Immunity,” the Doctrine of Absolute Immunity insulates certain public officials from civil lawsuits involving the performance of their official duties. Included among those protected by “absolute immunity” are legislators in connection with their legislative duties and judicial and quasi-judicial officers performing judicial or quasi-judicial functions. 

The Doninger decision is posted on the Internet at: 

http://www.ca2.uscourts.gov/decisions/isysquery/c811c4ed-2d34-4a20-91ca-3c5ccf044757/1/doc/09-1452_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/c811c4ed-2d34-4a20-91ca-3c5ccf044757/1/hilite/ 

The Herlihy decision is posted on the Internet at: 

http://weblinks.westlaw.com/result/default.aspx?cfid=1&cnt=DOC&db=NY-ORCS-WEB&eq=search&fmqv=c&fn=_top&method=TNC&n=1&origin=Search&query=%22CECILE+HERLIHY%22&rlt=CLID_QRYRLT464015158845&rltdb=CLID_DB449175058845&rlti=1&rp=%2Fsearch%2Fdefault.wl&rs=NYOFF1.0&service=Search&sp=NYOFF-1000&srch=TRUE&ss=CNT&sskey=CLID_SSSA579175058845&sv=Split&tempinfo=word&vr=2.0

Discipline penalties

Discipline penalties

Nicastro v Safir, App. Div., First Dept, 266 AD2d 167

Queally v Safir, App. Div., First Dept, 266 AD2d 167
Dillon v Safir, App. Div., First Dept., 265 AD2d 196

Penalties imposed following disciplinary action taken pursuant to Section 75 of the Civil Service Law are frequently challenged by appealing either to the civil service commission having jurisdiction or to the courts pursuant to an Article 78 proceeding [Article 78, Civil Practice Law and Rules].

Although the penalty of dismissal is the one most frequently appealed, lesser penalties are also subject to challenge as the Nicastro, Queally and Dillon cases demonstrate.

In Nicastro case, New York City police officer Ann Nicastro challenged her being found guilty of having been discourteous to individuals in the course of effecting an arrest.

The penalty imposed: the loss of 15 days of vacation time. The Appellate Division sustained both the disciplinary determination and the penalty imposed.

In Queally, decided with Nicastro, the court affirmed the imposition of the penalty of the loss of 10 days of vacation time after New York City police officer Robert Queally was found guilty of using excessive force to effect an arrest.

The Appellate Division referred to Pell v Board of Education, 34 NY2d 222, in support of these rulings.

A similar penalty, 10 days suspension without pay, was imposed on a New York City police officer found guilty of directing ethnically offensive epithets to a garage attendant while off-duty [Police Department v Murray, OATH #111/00, 11/26/99].

The third case, Dillon v Safir, also involved allegations of the use of excessive force.*

Here New York City police officer Bradley Dillon contested his being guilty of using excessive force in effecting an arrest and the penalty imposed: “dismissal probation for one year” and the forfeiture of 30 days of annual leave credit.

The Appellate Division dismissed his petition, holding that the disciplinary determination was supported by the records and that the penalty imposed by the Commissioner was reasonable under the circumstances.

* Dillon was subsequently terminated during his disciplinary probationary period [see 270 AD2d 116 – Here the Appellate Division upheld Dillon’s termination without a hearing and without a statement of reasons while he was serving a one-year disciplinary probation imposed pursuant to Administrative Code of the City of New York § 14-115 (d). This penalty was the one affirmed by 265 AD2d 196, above.