ARTIFICIAL INTELLIGENCE IS NOT USED, IN WHOLE OR IN PART, IN THE SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS PREPARED BY NYPPL

September 23, 2011

Section 75 statute of limitations for initiating administrative disciplinary action does not apply when the charges would otherwise constitute a crime


Section 75 statute of limitations for initiating administrative disciplinary action does not apply when the charges would otherwise constitute a crime
El Bey v New York City Dept. of Corrections, 294 A.D.2d 164

In the El Bey case, the exception to the statute of limitations for filing disciplinary action pursuant to Section 75 of the Civil Service Law where the charge would otherwise constitute a crime was applied by the Appellate Division in sustaining disciplinary action taken against Yashua Amen Shekhem El Bey.

El Bey was served with disciplinary charges pursuant to Section 75 of the Civil Service Law alleging, among other misconduct, that he falsely claimed exemption from Federal income taxation. El Bey's defense to this particular charge: it was barred by the 18-month Statute of Limitations in Civil Service Law Section 75(4) as it was filed more than 18 months after the alleged act.

The Appellate Division rejected El Bey's claim that the charge was untimely, ruling that the alleged misconduct constituted a crime under 26 USC 7205 (fraudulent withholding exemption certificate or failure to supply information) and under New York State's Penal Law Section 175.30 (offering a false instrument for filing in the second degree). Accordingly, said the court, the filing of such a charge is expressly excluded from time limitations for filing administrative disciplinary charges set out in Section 75(4) as the allegation "described in the charges would, if proved in a court of appropriate jurisdiction, constitute a crime."

The Appellate Division then sustained El Bey's being found guilty of charges of submitting false information on a Certificate of Exemption and Withholding in Lieu of IRS Form W-4; and violating Department rules concerning excessive absences and by his (1) leaving his residence without authorization while on sick leave; (2) failing to log in and out with the Health Management Division; (3) failing to comply with an instruction to present his firearms to the Health Maintenance Division; and (4) attending an administrative hearing in another matter without authorization while on sick leave.

El Bey also challenged the penalty imposed -- termination -- as a result of his being found guilty of these charges. The court said that it found no basis to disturb the imposition of such a penalty as "[t]he penalty of dismissal does not shock our sense of fairness," citing the Pell Doctrine [Pell v Board of Education, 34 NY2d 222].

Claiming damages for alleged unlawful discrimination

Claiming damages for alleged unlawful discrimination
DiLauria v Town of Harrison, 32 AD3d 490

A police officer brought two lawsuits against the Town of Harrison in an effort to recover damages for alleged unlawful discrimination based upon disability.

The first was an Article 78 action for “economic benefits derivable from his status as a police officer” that DiLauria claimed he had lost.

DiLauria’s second action sought damages resulting from the termination of his employment as a police officer for alleged unlawful discrimination under the New York State Human Rights Law (Executive Law Article 15). The Town argued that DiLauria’s second lawsuit was barred by the doctrine of Collateral Estoppel.

The Appellate Division said that because the issues concerning the damages recoverable under the Human Rights Law -- economic loss and emotional distress -- were not actually litigated in the prior Article 78 proceeding, DeLauria could not be collaterally estopped from litigating these claims in his second action.

The court noted that restoration of any economic benefits he lost in connection with his employment as a police officer was the only monetary relief that was available in his prior CPLR article 78 proceeding, citing Civil Service Law §77.

In contrast, in his second lawsuit, DiLauria was seeking damages for economic loss and emotional distress available under the State’s Human Rights Law he claimed he suffered because of the Town’s alleged discriminatory action.

Termination of an employee serving in an acting capacity

Termination of an employee serving in an acting capacity
Appeal of Johnston and the Board of Education of the Hempstead Union Free School District, Commissioner of Education Decision No. 15,443,

Education Law §1711(3) provides that a board of education of a union free school district may appoint a superintendent of schools and enter into a contract of employment with that individual for a period of not less than three and not more than five years.

After the school board unilaterally terminated its then Superintendent, Nathaniel Clay, in October 2004, the board appointed Johnston to the position of Superintendent and she and the board signed a five-year contract of employment.

However, the board’s action with respect to its termination of Clay was determined to constitute an unlawful breach of his contract with the district. As a result, Clay was reinstated to his former position by the board’s adopting resolutions providing for his reinstatement to his former position. The board then adopted a resolution suspending Clay from the position pending “a hearing.” It next appointed Johnston to serve as acting superintendent. Ultimately, the board approved a resolution terminating Johnston from her position of acting superintendent effective July 12, 2005.

The Commissioner ruled that the board’s action reinstating Clay to his former position nullified Johnston’s appointment as superintendent as well as the five-year contract of employment the board and she had signed. Finding that there was never any subsequent resolution by the board appointing Johnston as superintendent, nor any corresponding new employment agreement, the Commissioner ruled that Johnston served as acting superintendent without a contract until her termination and thus was not entitled to “contractual due process prior to termination.”

In addition, the Commissioner concluded that based on the record before him, Johnston failed to demonstrate that she had a clearly implied promise of continued employment.

The Commissioner noted that the board had appointed Johnston to serve as the school district’s acting superintendent by resolution. This resolution specifically indicated that she was to serve as acting superintendent “pending the rendition of a decision by the Board of Education on the charges [brought against Clay], or the expiration of the period of [Clay’s] Employment Agreement on February 28, 2005, whichever shall occur earlier.”

In view of this, the Commissioner concluded that the resolution appointing Johnston to the position as “acting superintendent” did not provide her with any assurance of continued employment once either one of conditions set out in the resolution was satisfied.

Johnston continued to serve as the district’s acting superintendent for a period of time beyond the terminal dates or events set out in the resolution appointing her to the position. Her continuing to serve as acting superintendent, in the words of the Commissioner, “does not clearly evince an expectation of continued employment that would invoke the fundamental principles of due process prior to termination.”

September 22, 2011

The application of the doctrine of governmental immunity in the context of acts of terrorism


The application of the doctrine of governmental immunity in the context of acts of terrorism
Matter of World Trade Ctr. Bombing Litigation, 2011 NY Slip Op 06501, Court of Appeals

In this appeal addressing litigation arising from the 1993 terrorist bombing incident in the parking garage of the World Trade Center complex, the Court of Appeals held that the New York-New Jersey Port Authority is entitled to the protection of "governmental immunity."

The court explained that “…….our precedent dictates that the provision of security for the benefit of a greater populace involving the allocation of police resources constitutes the performance of a governmental function [and] the governmental immunity doctrine requires [the court] to find the Port Authority insulated from tortious liability.”

The court’s rationale: “Our courts simply cannot ignore that this policy-based doctrine is intended to afford deference to the exercise of discretion by the officials of municipalities and governmental entities, especially with respect to security measures and the deployment of limited police resources. Governmental entities cannot be expected to be absolute, infallible guarantors of public safety, but in order to encourage them to engage in the affirmative conduct of diligently investigating security vulnerabilities and implementing appropriate safeguards, they must be provided with the latitude to render those critical decisions without threat of legal repercussion.”

The decision is posted on the Internet at:

Subpoena Duces Tecum


Subpoena Duces Tecum
Bd. of Educ. v Hankins, 294 A.D.2d 360

From time to time one reads about a case involving the serving of a subpoena duces tecum.

The purpose of a subpoena duces tecum is to compel the production of documents that are relevant and material to facts at issue in a pending judicial or administrative proceeding.

On occasion a hearing officer may be asked to issue a subpoena duces tecum in the course of a disciplinary action. Sometimes an attorney will attempt to obtain such information by serving an "attorney's subpoena" on the employer.

To obtain state documents, however, a judicial subpoena duces tecum -- i.e., a subpoena issued by a court having jurisdiction -- is required if the State entity holding the documents sought by the employee declines to provide them when requested to do so.

Alfred Hankins, a New York City schoolteacher, was served with disciplinary charges pursuant to Section 3020-a of the Education Law. In the course of the disciplinary hearing, Hankins served a subpoena duces tecum on the New York City Board of Education requiring it to produce the names and addresses of certain students. The Board asked Supreme Court to quash the subpoena duces tecum served upon it by Hankins, The court granted the motion to quash.

The Appellate Division affirmed the Supreme Court's decision quashing Hankins' subpoena. The problem here, said the Appellate Division, is that Hankin attempted to use the subpoena duces tecum improperly. Such a subpoena, said the court, "may not be used for purposes of discovery or to ascertain the existence of evidence."

In this instance, said the court, Hankins wanted the subpoena in order "to discover the names, addresses, and telephone numbers of the students in the class on the day or days when his misconduct allegedly occurred." Accordingly, concluded the court, the subpoena was properly quashed by Supreme Court.

Authority of the arbitrator to fashion a remedy

Authority of the arbitrator to fashion a remedy
CCNY v Aiello, 295 A.D.2d 163

In the Aiello case, the significant issue concerned the authority of the arbitrator to fashion a remedy. The Appellate Division said that all limitations on the authority of the arbitrator set out in the collective bargaining agreement had to be observed by the arbitrator.

The case arose after the City University of New York decided not to reappoint Professor Rita Aiello for the 1999-2000 academic year. Aiello filed a grievance in accordance with the collective bargaining agreement. Ultimately the arbitrator ruled in her favor and directed that:

1. City University reappoint Aiello for one academic year if so recommended by a select faculty committee; and

2. All future reappointment decisions concerning Aiello be made by a select faculty committee.

The Appellate Division sustained a State Supreme Court decision that vacated that part of the arbitration award directing that all future reappointment decisions concerning Aiello be made by a select faculty committee.

The Appellate Division pointed out that although relevant provision of the collective bargaining agreement -- Section 20.5(c)(1) -- authorized the arbitrator to direct that a grievant's reappointment be decided, in effect, by a select faculty committee, "the same section also limits any such substitute decision making to "the action from which the grievance arose."

Here the grievance was triggered solely by University's decision not to reappoint Aiello for the 1999-2000 academic year. Thus, said the court, by directing that any future reappointments of Aiello had to be decided by a select faculty committee, the arbitrator exceeded the authority as set out in Section 20.5(c)(1) of the agreement.

Were this not sufficient, the Appellate Division also commented that the arbitrator had violated another contract provision -- Section 20.6. Section 20.6 provides that the arbitrator may not modify or amend the collective bargaining agreement.

In addition, the decision notes that the fact that there was some "arbitral precedent for an award like that rendered" by the arbitrator in Aiello's case cannot be relied on by her, citing New York City Transit Authority v Patrolmen's Benevolent Association, 129 AD2d 708, appeal dismissed 70 NY2d 719.

Also rejected was Aiello's argument that "the decision-making process resulting in the denial of her reappointment for the academic year 2001-2002 was so tainted as to demonstrate the truth of the arbitrator's forecast that [the University] was incapable of making fair academic judgments in her case." The appropriate course of action, said the court, would be for Aiello to again resort to the contract grievance procedure if she believed she was improperly denied reappointment in the future. 

School Board review of personnel records

School Board review of personnel records
Matter of Meyer and Pavalow and the Katonah-Lewisboro Union Free School, Commissioner of Education Decision No. 15,436

Two members of the Katonah-Lewisburg School Board asked to have personnel records of certain employees and former employees of the District brought to a Board meeting in order "to enable the Board to carry out its legal responsibilities under the Education Law." When the full board declined to go into executive session to discuss these files, the two board members appealed to the Commissioner.

The Commissioner denied the appeal, observing that “The record is devoid of any evidence that petitioners articulated specific reasons to the superintendent or the board, at any time prior to the board's vote denying their requests to review the records.” 

As the two board members failed to state specifically how reviewing these records would enable to the board to carry out its legal responsibilities, the Commissioner determined that the board's refusal to adjourn into executive session was neither arbitrary nor capricious and thus there was no violation of Part 84 by the Board.

September 21, 2011

Limiting an employee’s elegibility of overtime when he or she becomes eligible for retirement

Limiting an employee’s elegibility of overtime when he or she becomes eligible for retirement  
MacKinnon v City of New York HRA, USCA, 2nd Circuit, 08-1171-cv
[N.B. This is a Summary Order by the Second Circuit Court of Appeals. Second Circuit rulings by summary order do not have precedential effect.]

John A. MacKinnon alleged that the New York City Human Resources Administration had unlawfully discriminated against him in violation of the federal the Age Discrimination in Employment Act of 1967 (“ADEA”), as amended, 29 U.S.C. § 621. MacKinnon contended that Human Resources had unlawfully discriminated against him because of his age when it (1) decided to reduce his overtime hours because of "concern over his age" and (2) because he was "singled out for such treatment."

A federal district court judge dismissed his complaint and the Circuit Court of Appeals affirmed the lower court’s ruling, observing that the factual record did not support any of MacKinnon’s claims.

Rejecting MacKinnon theory of unlawful discrimination, the Court of Appeals said that the record indicated that the City's Human Resources Administration had reduced his "overtime hours" for two reasons:

1. “because [MacKinnon] appeared on a list of New York City’s top fifty overtime earners (a politically unpopular distinction),” and

2. “because [MacKinnon] had become eligible for retirement and his pension benefits would be based on his compensation for his last twelve months of work.”

The court held that “An employment decision motivated by pension costs, even when strongly correlated with age, is not an ADEA violation,’ citing Hazen Paper v. Biggins, 507 U.S. 604.

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


Termination for disruptive behavior claimed to violate the State’s Human Rights Law
Robinson v NYC Dept. of Corrections277 A.D.2d 76

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

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

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

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

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

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

The Appellate Division explained, "[t]here is ample evidence of [Robinson's] erratic and hostile conduct to warrant subjecting him to physical and psychological evaluation.

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

The court concluded that considering DOC's "responsibility for the safety of its officers as well as the inmates they oversee and its exposure to liability for any injury that might result ... its precautions cannot be viewed as unreasonable or discriminatory."

Electronic surveillance


Electronic surveillance
The Electronic Communications Privacy Act

Employers may find themselves being sued and held liable for unlawful harassment as a result of employees using e-mail and other electronic means of communications which others find offensive or discriminatory.

For example:

1. African-American employees sued, charging that their employer, Morgan Stanley and Company [Owens v Morgan Stanley & Co., USDC, SDNY], denied them promotions because of racial discrimination in violation of Title VII and introduced as evidence racially insensitive e-mail messages transmitted via Morgan Stanley's computers.

2. In Schwenn v Anheuser-Busch, Inc., USDC, NDNY, Schwenn introduced as evidence of a hostile work environment claim "sexually explicit e-mail messages she had received."

3. Postings on the employer's electronic bulletin board were part of the basis for suing the Continental Airlines in federal district court [Blakey v. Continental Airlines Inc., NJ Supreme Court].

As a general rule, courts impose a duty to stop such forms of harassment and discrimination on employers. Employers can take steps to prevent such misuse of its electronic data equipment, or at least be able to claim it tried to do so, by instructing its workers that the use of e-mail and electronic bulletin boards under its control:

1. Cannot be used for distributing discriminatory jokes, statements or other unlawful purposes; and

2. Employees who do so will be disciplined.

Does this mean that employer's may monitor its employees' use of its computer equipment to guard against such misuse?

The Electronic Communications Privacy Act of 1986 [18 USC 2071], prohibits the unlawful intentional interception of e-mail among other forms of protected communication. However, there are a few exceptions to this general rule.

Among the exceptions relevant to the monitoring of e-mail by employers is that the employee may give "consent" to such monitoring. This exception may encourage employers to attempt to negotiate the inclusion of a "consent to monitoring e-mail" in a collective bargaining agreement.

In DuPont and Co., 301 NLRB 12, the National Relations Board ruled that the employer has a duty to bargain with the union over the monitoring of employee e-mails.

CAUTION

Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the decisions summarized here. Accordingly, these summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.
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New York Public Personnel Law Blog Editor Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
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