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 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

A correction officer employed by the New York State Department of Corrections and Community Supervision filed an action in the Court of Claims alleging that he had been subjected to retaliation and a hostile work environment in violation of Executive Law §296.

The officer had claimed that he was disciplined after engaging in an on-duty physical confrontation with another correction officer, contending that the other correction officer involved in the confrontation was not disciplined at all and that a different correction officer involved in a similar but unrelated incident received a lesser punishment. He contended that the disciplinary action taken against him was in retaliation of his having previously filed complaints against his supervisors alleging racism.

The Appellate Division affirmed the Court of Claims’ ruling that the correction officer had failed to establish either claim.

Citing Forrest v Jewish Guild for the Blind, 3 NY3d 295, the court explained that to establish a claim for retaliation, a claimant was required to prove the following four elements:

[1] he or she had engaged in protected activity;

[2] his or her employer was aware that he or she had engaged in such activity;

[3] he or she suffered an adverse employment action based upon his or her activity;

[4] there is a causal connection between the protected activity and the adverse action.

The Appellate Division noted although the first three elements of a retaliation claim were not disputed here, the Court of Claims concluded that there was no evidence of a causal connection between the protected activity and the discipline imposed on claimant.

The Court of Claims had [1] credited the version of events reported by the witnesses to the confrontation and determined that claimant was the aggressor and [2] the confrontation in which the officer had been involved “was more serious than the unrelated incident.”

As to the officer’s “retaliatory hostile work environment claim,” the Appellate Division said that the actions giving rise to such a claim “must be sufficiently severe or pervasive to constitute actionable harassment and stem from a retaliatory animus.”

The Appellate Division held that in determining if such a hostile work environment existed “All of the circumstances must be considered, including ‘the frequency of the [retaliatory] conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.'"  Further, said the court, "[T]he conduct must both have altered the conditions of the victim's employment by being subjectively perceived as abusive by the [claimant], and have created an objectively hostile or abusive environment — one that a reasonable person would find to be so."

Noting that the record supported the conclusion of the Court of Claims that the supervisor's conduct did not pervade claimant's work environment or rise to an actionable level, the court dismissed the correction officer’s appeal.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_03487.htm

Comptroller’s audit alleges that a former Village of Wolcott clerk-treasurer made unauthorized payments to herself

Comptroller’s audit alleges that a former Village of Wolcott clerk-treasurer made unauthorized payments to herself

An audit report issued by the State Comptroller's Division of Local Government and School Accountability  alleges that a former Village of Wolcott clerk-treasurer misappropriated more than $68,000 of the village's funds over a four-year period.

The village had contacted the Comptroller's office. After reviewing the village's financial records the auditors reported that the village’s accounting records indicated that unauthorized disbursements in the form of extra payroll payments, unauthorized overtime payments, excessive health insurance buyouts, unearned leave payouts, overpayment of vital statistics fees, and payments inappropriately charged to the village’s records management grant had been made.

The audit report recommended the village:

1. Ensure the village's clerk-treasurer maintains adequate, accurate and timely records and reports on an ongoing basis;

2.Require and review detailed monthly financial reports, which should include cash balances, cash receipts and disbursements made during the month, a comparison of actual revenue and expenditures to budget amounts, and bank reconciliations with copies of the bank statements.

3. Adopt and distribute a Code of Ethics, as required by law; and

4. Monitor cash disbursement records to ensure accuracy.

The Division's audit report is posted on the Internet at:

http://www.osc.state.ny.us/localgov/audits/villages/2012/wolcott.pdf

An internal investigation of a sexual harassment complaint prior to the filing of a complaint with EEOC not a protected activity within the meaning of Title VII

An internal investigation of a sexual harassment complaint prior to the filing of a complaint with the EEOC not a protected activity within the meaning of Title VII

In a case characterized by the U.S. Court of Appeals, Second Circuit, as one of “first impression,” the court ruled that internal investigations by conducted by an employee of alleged acts of unlawful discrimination in accordance with the employer's policy but initiated prior to the filing of a Title VII complaint does not qualify as a “protected activity.”

The genesis of the case was a complaint made to the employer’s Human Resources Director [HRD] by an employee alleging she had been sexually harassed by a corporate executive.

The HRD began to conduct an internal investigation of the allegations. However, before completing the investigation, the HRD was terminated by employer. Contending that her termination was in retaliation for her participation in the internal investigation, the HRD brought an action againt the employer claiming her investigation activities constituted a protected activity within the meaning of Title VII’s anti-retaliation provision.*

The federal district court granted the employer’s petition for summary judgment, holding that the  HRD’s participation in an internal employer investigation into the employee’s sexual harassment allegations, “an investigation that was not connected to any formal charge with the EEOC,” did not qualify as protected activity under the participation clause of Title VII’s anti-retaliation provision.

Citing Correa v. Mana Prods, Inc., 550 F. Supp. 2d 319, the district court said that “[i]n order to gain protection under the participation clause, the participation must be in an investigation or proceeding covered by Title VII, and thus not in an internal employer investigation.”  In this instance the court found that the HRD’s investigation was conducted pursuant to the employer’s internal procedures and were not  associated with any Title VII proceeding. 

The Court of Appeals agreed with the district court’s ruling.**

Noting that EEOC had submitted an amicus brief urging the court to adopt a  “contrary interpretation of the participation clause, one that embraces internal employer investigations,” the Circuit Court said that although EEOC’s views are entitled to deference to the extent they have the power to persuade, “it did not find the EEOC’s interpretation persuasive in this case and affirmed the district court’s granting of summary judgment dismissing the HRD’s Title VII retaliation claim. 

* Title VII's anti-retaliation provision extends protection both to employees who have "opposed any practice made an unlawful employment practice" under Title VII (the "opposition clause") and to employees who have "made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under" Title VII (the "participation clause)." On January 24, 2011 the United States Supreme Court unanimously supported a broad reading of Title VII’s anti-retaliation provision. The high court said that the alleged victim of retaliation has standing to sue even if he or she was not the person who engaged in protected activity [Thompson v. North American Stainless LP, 131 S.Ct. 863, 2011 U.S. LEXIS 913]. In Thompson the court ruled that, under certain circumstances, a third-party termination may constitute an unlawful reprisal under Title VII’s anti-retaliation provision and that “a person claiming to be aggrieved … by an alleged employment practice” and who 'falls within the zone of interests protected by Title VII' has standing to sue his employer." Second Circuit Judge Raymond Lohier, in a concurring opinion, cited Thompson and said that Congress should clarify whether the kind of investigation the HR conducted falls within the protective sweep of the participation clause.

** The court said that it expressed no opinion as to whether participation in an internal investigation that is begun after a formal charge is filed with the EEOC falls within the scope of the participation clause, noting that some courts “have answered this question in the affirmative noting that in Abbott v. Crown Motor Co., 348 F.3d 537, the USCA, 6th Circuit, held that “Title VII protects an employee’s participation in an employer’s internal investigation into allegations of unlawful discrimination where that investigation occurs pursuant to a pending EEOC charge.”

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/855b7c0d-e303-49c2-a5f6-399603d29346/1/doc/09-0197_complete_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/855b7c0d-e303-49c2-a5f6-399603d29346/1/hilite/

Average weekly wage based on concurrent employments may be used to determine Workers’ Compensation Law benefit

Average weekly wage based on concurrent employments may be used to determine Workers’ Compensation Law benefit

A “year-round” lifeguard employed by the Staten Island Developmental Disabilities Services Office was involved in an automobile accident in the course of his employment and applied for Workers’ Compensation Law benefits.

In determining the individual’s workers’ compensation benefits, the Workers’ Compensation Board’s administrative law judge included the employee's earnings “from concurrent seasonal employment as a lifeguard for the City of New York.” Staten Island appealed but the Workers’ Compensation Board ultimately sustained the administrative law judge’s determination.

The Appellate Division affirmed the Board’s ruling, noting that “The record demonstrates that the claimant was employed on weekends by Staten Island year round for 12 years and had been seasonally employed for the City of New York between the months of May and September since 1978.”

As the lifeguard had worked for both employers concurrently during the previous 12 summers, participated in training and received a promotion with respect to his seasonal employment during the off season and returned to his seasonal lifeguard position following the injury, the Appellate Division concluded that “substantial evidence supports the Board's finding that claimant was concurrently employed.”

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_03490.htm

Police officer found to have testified in his “official capacity” when he referred to his job as a police sergeant

Police officer found to have testified in his “official capacity” when he referred to his job as a police sergeant

The New York City Police Department's Patrol Guide Procedure No. 211-09 requires a police officers to give notice of his or her intention to testify at a criminal trial to the Police Commissioner or to the Department's Legal Bureau.

When a police officer testified at his cousin's criminal trial without complying with Procedure 211-09, he served with disciplinary charges and found was guilty of failing to notify the Police Commissioner and, or, the Legal Bureau that he intended to provide character testimony at a criminal trial and that he did in fact provide testimony, at a trial. The penalty imposed: a forfeiture of 15 days of vacation accruals.

The Appellate Division sustained the disciplinary determination, holding that it was rational and supported by substantial evidence.

The court said that the Assistant Deputy Commissioner of Trials had a rational basis for finding that the police officer had testified in his "official" capacity at the criminal trial given that he referred to his job as a Police Department Sergeant and the judge in the case referred to him as "Sergeant."

Further, said the Appellate Division, the Assistant Deputy Commissioner also had a rational basis for finding that, even if the police officer had not testified in his "official capacity," Patrol Guide Procedure No. 211-09 still applied because the police officer conceded that it was his understanding that he was going to provide character testimony, among other things.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_03561.htm

The physician-patient privilege and HIPPA both held to yield to a subpoena duces tecum issued by an administrative agency pursuant to its statutorily assigned functions

The physician-patient privilege and HIPPA both held to yield to a subpoena duces tecum issued by an administrative agency pursuant to its statutorily assigned functions
New York City Health & Hosps. Corp. v New York State Commn. of Correction,2012 NY Slip Op 03571, Court of Appeals

The New York State Commission of Corrections, on behalf of its Medical Review Board, served a subpoena duces tecum on Elmhurst Hospital, a health care facility operated by the New York City Health and Hospitals Corporation (HHC), seeking its records concerning its care and treatment of a deceased correctional inmate in the custody of the City of New York.

Initially the subpoena was quashed upon the ground that it sought material shielded from disclosure by the physician-patient privilege.* The Court of Appeals, however, ruled that the records sought were not properly withheld from the Commission by reason of the alleged physician-patient privilege and that the subpoena should be honored.

The court noted the Board has statutorily assigned functions, powers and duties in the "[i]nvestigat[ion] and review [of] the cause and circumstances surrounding the death of any inmate of a correctional facility."

However, HHC refused to turn over the sought records, contending that the inmate had been treated at Elmhurst in a non-prison unit, and, in view of that circumstance, HHC argued that the Commission had no special entitlement to the deceased inmate's medical records.

The Court of Appeals disagreed, holding that the Legislature intended for the Board to have plenary authority to "investigate and review the cause and circumstances surrounding the death of any inmate ofa correctional facility" and the “Legislature cannot be supposed to have allowed that the thoroughness of the Board's inquiry would vary with the site of an inmate's pre-mortem medical care — that the inquiry respecting the death of an inmate who in the period preceding his or her death was treated in a prison or a prison unit in a hospital would be conducted with the benefit of a full medical record, whereas one respecting an inmate who had received pre-mortem treatment in a non-prison unit would have to be performed without such a record in the event that a waiver of the physician-patient privilege could not be obtained.”

The Court of Appeals then considered an alternative argument advanced by HHC -- the HIPPA Privacy Rule. The court said that the Privacy Rule does not prohibit disclosure of the records sought by the Commission as HIPPA specifically allows for disclosures "required by law," citing 45 CFR 164.512 [a]. This, said the court, includes disclosures pursuant to "subpoenas . . . issued by . . . an administrative body authorized to require the production of information."

The subpoena HHC sought to be suppressed, which the court ruled was enforceable despite CCH’s claim of physician-patient privilege, was held to fall “comfortably within” 45 CFR 164.512 [a].

* On the issue of physician-patient privilege, CPLR 4504 (a) provides, in pertinent part: "[u]nless the patient waives the privilege, a person authorized to practice medicine, registered professional nursing [or] licensed practical nursing . . . shall not be allowed to disclose any information which he [or she] acquired in attending a patient in a professional capacity, and which was necessary to enable him [or her] to act in that capacity. The relationship of a physician and patient shall exist between a medical corporation . . . and the patients to whom [it] . . . render[s] professional medical services."

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_03571.htm

Emergency/proposed rule making relating to hearings on disciplinary charges filed against tenured school employees in the unclassified service

Emergency/proposed rule making relating to hearings on disciplinary charges filed against tenured school employees in the unclassified service

I.D. No. EDU-19-12-00004-EP; Filing No. 400; Filing Date: 2012-04-24; Effective Date: 2012-04-24

The State Department of Education has promulgated proposed rules to implement Education Law §3020-a, as amended by Part B of Chapter 57 of the Laws of 2012, relating to hearings on disciplinary charges filed against tenured school employees.

The full text of rule and any required statements and analyses may be obtained from: Mary Gammon, NYS Education Department, Office of Counsel, 89 Washington Avenue, Room 138, Albany, NY 12234, (518) 473-2183, email: mgammon@mail.nysed.gov

The basic elements underlying this proposed amendment are summarized below:

Amendment of Subpart 82-1 of Title 8 NYCRR. -- Statutory authority: Education Law,  §§207 (not subdivided), 305(1) and (2) and 3020-a, as amended by L. 2012, ch. 57, part B

Specific reasons underlying the finding of necessity: The proposed rule is necessary to implement Education Law §3020-a, as amended by Part B of Chapter 57 of the Laws of 2012, relating to hearings on charges against tenured school employees.

As part of its 2011 legislative agenda, the Board of Regents sought a number of modifications to the tenured teacher hearing process set forth in Education Law §3020-a to address spiraling costs and the extraordinary length of time arbitrators utilized to conduct hearings.

This legislation was introduced in the Assembly and Senate. The Governor's proposed 2012-13 State Budget incorporated some of these reforms, and the State Budget as adopted by the Legislature incorporated a number of important programmatic and fiscal reforms.

The changes take place immediately, and apply to all charges against tenured educators filed with the clerk or secretary of the school district or employing board on or after April 1, 2012.

The new amendments modify the manner in which an arbitrator is selected if the parties fail to agree on an arbitrator selection within 15 days of receipt of the list. Education Law §3020-a(3)(b)(iii) states that ‘‘[i]f the employing board and the employee fail to agree on an arbitrator to serve as a hearing officer from the list of potential hearing officers, or fail to notify the commissioner of a selection within such fifteen day time period, the commissioner shall appoint a hearing officer from the list.’’

This provision authorizes the Commissioner to select the arbitrator if the parties fail to agree within 15 days of receipt of the list. It does not apply to NYC where there is an alternative procedure.

The proposed amendment requires the Commissioner to establish a schedule for  “maximum rates of compensation of hearing officers based on customary and reasonable fees for service as an arbitrator and provide for limitations on the number of study hours that may be claimed” (emphasis added). The purpose of this amendment is to give the Commissioner the authority to control costs. Pursuant to Education Law §3020-a(3)(c)(i)(B), the proposed amendment authorizes the Department to monitor and investigate a hearing officer's compliance with the timelines set forth in the statute.

The Commissioner may exclude any hearing officer who has a record of continued failure to commence and conclude hearings within the timelines prescribed in the statute.

The proposed amendment continues the requirement that an accurate ‘‘record’’ of the proceedings be kept at the expense of the Department and furnished upon request to the employee and the board of education. However, in accordance with the new law, the proposed amendment permits the Department to take advantage of any new technology to transcribe or record the hearings in an accurate, reliable, efficient and cost effective manner.

In conformity with the new law, the amendment also imposes a one year limitation for the submission of claims for reimbursement for services rendered. The purpose of this amendment is to encourage timely submission of claims so that accurate budget assumptions can be made and claims can be paid for in a reasonable time.

The rule is being adopted as an emergency measure upon a finding by the Board of Regents that such action is necessary for the preservation of the general welfare in order to immediately revise Subpart 82-1 of the Commissioner's regulation to conform to and implement the provisions of  §3020-a of the Education Law, as amended by Chapter 57 of the Laws of 2012. Emergency action is also necessary to give employees and employing boards sufficient notice of the new requirements to timely implement them in accordance with the statute.

It is anticipated that the proposed rule will be presented for adoption as a Proposed Rule Making in the State Register and expiration of the 45-day public comment period prescribed in State Administrative Procedure Act §202(4-a).

This notice is intended: to serve as both a notice of emergency adoption and a notice of proposed rule making. The emergency rule will expire July 22, 2012.

Data, views or arguments may be submitted to: Peg Rivers, New York State Education Department, 89 Washington Avenue, Albany, New York 12234, (518) 408-1189, email: privers@mail.nysed.govPublic comment will be received until: 45 days after publication of this notice.

[N.B. This notice was published in the NYS Register dated May 9, 2012]

An individual’s failure to comply with drug test procedures implementing federal regulations cannot be deemed to have violated state or local discrimination laws

An individual’s failure to comply with drug test procedures implementing federal regulations cannot be deemed to have violated state or local discrimination laws

The individual was unable to provide the required urine sample to qualify eligibility for employment as an Assistant City Highway Repairer.

Although Supreme Court summarily granted the individual’s on the issue of liability, the Appellate Division unanimously reversed the lower courts ruling “on the law” and directed that the individual’s complaint be dismissed.

The court said that there was no competent evidence that the individual suffered from a disabling medical condition that prevented him from being able to produce a urine sample nor, assuming that issues of fact exist whether he suffered a medical impairment, the Appellate Division said that the had failed to make any showing that this impairment caused him to be unable to provide a 45-milliliter urine specimen within the required three-hour time period.

Noting that the employer, in determining that the individual failed to comply with its drug test procedures "implementing federal regulations" governing his eligibility for the position as set out in 49 CFR Part 40, the court said that the employer “cannot have violated state or local discrimination laws by [doing so]," citing Kinneary v City of New York, 601 F3d 151.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_03527.htm