Examination for Fire Lieutenant prepared by the New York State Department Civil Service held job related

Examination for Fire Lieutenant prepared by the New York State Department Civil Service held job related

M.O.C.H.A. Soc'y, Inc. v. City of Buffalo, US Circuit Court of Appeals, Second Circuit,  No. 11-2184 – [The following case summary was prepared by Findlaw]

In a Title VII suit against the City of Buffalo (City) claiming race discrimination in the administration of the 1998 and 2002 promotional examinations for the position of fire lieutenant, district court's judgment in favor of the defendants is affirmed where:

1. On plaintiffs' disparate impact challenge to the 1998 examination, the district court did not clearly err in finding that the defendant carried its burden to demonstrate that the examination's job relatedness by showing that the test derived from a valid statewide job analysis indicating the fire lieutenants across New York performed the same critical tasks required the same critical skills and in finding that the [New York State] Civil Service Department exercised reasonable competence in designing the examination and that the examination was both content related and representative;

2. On plaintiffs' disparate treatment challenge, the district court correctly concluded that plaintiffs could not re-litigate questions of job relatedness and business necessity decided against them at the bench trial of their disparate impact claims and that plaintiffs had not established a genuine material of fact that the City intentionally discriminated against African Americans by using the 1998 test results; and

3. On plaintiffs' Title VII challenge to the 2002 examination, the district court correctly relied on collateral estoppel to grant summary judgment in favor of the City because the only matters in dispute had been resolved in the earlier challenge to the 1998 examination and there was sufficient identity between the plaintiffs in both suits.

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/cbf9a517-2698-41d9-a045-210a717001bc/1/doc/11-2184_10-2168_complete_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/cbf9a517-2698-41d9-a045-210a717001bc/1/hilite/

An individual may not rely on the actions of another party to toll the running of the Statute of Limitations for filing a timely Article 78 petition

An individual may not rely on the actions of another party to toll the running of the Statute of Limitations for filing a timely Article 78 petition
Portnoy v Board of Educ. of City School Dist. of City of N.Y., 20 Misc.3d 1119(A)

This decisions sets out some of reasons that a court may consider in rejecting arguments that actions by another party served to toll the relevant statute of limitations.

Noting that the four-month period of the statute of limitations begins to run when the determination made by the agency becomes final and binding, Judge Madden said that:

[1] A request for reconsideration of an administrative determination does not toll or revive the statute of limitations, even when the agency reconsiders its determination or negotiates with individual regarding modification of the administrative decision.

[2] A statute of limitations is not tolled should the individual seeks redress through a procedure that subsequently turns out to be unavailable.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/pdfs/2008/2008_31933.pdf

Judicial review of disciplinary determination of guilt is limited to considering whether the determination is supported by substantial evidence

Judicial review of disciplinary determination of guilt is limited to considering whether the determination is supported by substantial evidence

Barthel v Town of Huntington, 2012 NY Slip Op 05738, Appellate Division, Second Department

The Director of the Department of Human Services of the Town of Huntington adopted the findings of a hearing officer, made after a hearing pursuant to Civil Service Law §75, which the employee guilty of certain disciplinary charges and terminated the individual's employment with the Town.

The Appellate Division dismissed the individual’s appeal on the merits, explaining that the standard of judicial review of an administrative determination made after a trial-type hearing required by law, at which evidence is taken, “is limited to considering whether the determination was supported by substantial evidence.”

In this instance, said the court, there is substantial evidence in the record to support the determination that the individual was guilty of the subject disciplinary charges.

As to the penalty imposed, termination, the Appellate Division found that dismissal “was not so disproportionate to the offense as to be shocking to one's sense of fairness,” citing Ellis v Mahon, 11 NY3d 754; Rutkunas v Stout, 8 NY3d 897, Waldren v Town of Islip, 6 NY3d 735 and Pell v Board of Education, 34 NY2d 222.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_05738.htm

Using employer’s computer to store sexually explicit files results in recommendation the employee be terminated

Using employer’s computer to store sexually explicit files results in recommendation the employee be terminated

Human Resources Admin. v. Vila, OATH Index No. 1578/08

OATH Administrative Law Judge Julio Rodriguez recommended termination for a paralegal aide who used the agency computer to store thousands of unauthorized images and video clips, many of which were sexually explicit, as well as other programs and files.

The evidence also showed that the individual was insubordinate and committed multiple time and leave violations.

 

School district not liable for losses suffered by employees participating in its Tax Deferred Annuity Plan

School district not liable for losses suffered by employees participating in its Tax Deferred Annuity Plan
Elmira Teachers' Assn. v Elmira City School Dist., 53 AD3d 757

The Elmira City School District offered its employees an opportunity to participate in a Tax Deferred Annuity Plan pursuant to Section 403(b) of the Internal Revenue Code. The District designated Horizon Benefits Administration, Inc. to act as the third-party administrator of the District's plan. Employees electing to participate in the program, which was voluntary, entered into a salary reduction agreement (SRA) with the District authorizing moneys to transferred to a custodial bank where the funds were then distributed to various vendors of investment products selected by the participants.

In addition to serving as the Plan’s administrator, Horizon offered an “investment option” known as ChoicesUnlimited to participants that gave them access to various mutual funds.

As the result of an investigation by the Ohio Attorney General, Horizon's assets were frozen and the company was eventually liquidated. District employees who had elected to participate in Horizon's ChoicesUnlimited investment account lost money while those electing other investment vehicles processed by Horizon did not suffer any similar loss.

The Teachers’ Association and four teachers that had lost money then sued the District for “breach of contract and breach of the implied covenant of good faith and fair dealing, breach of fiduciary duty, negligent retention, negligent supervision and negligent misrepresentation.”

The School District moved to have the lawsuit dismissed, contending that the “hold harmless provision” in the SRA controlled. The “hold harmless” provision relied upon by the District provided that "[t]he Employee agrees that the Employer shall have no liability whatsoever for any loss suffered by the Employee with regard to his [or her] selection of an insurance company or mutual fund, or the solvency of, operation of, or benefits provided by said insurance company or mutual fund company".*

The Appellate Division agreed with the District, noting that the “hold harmless” provision was clear and unambiguous, and clearly intended to encompass a situation where the plan participants who lost money did so because they selected a particular investment option offered by Horizon in its capacity as a vendor of investment products rather than some other investment vehicle.

The court found it significant that “there is no evidence that the plan participants who selected alternative investment options and deposited their money in funds offered by other vendors suffered losses as a result of Horizon's liquidation even though it was the overall plan administrator.” Accordingly, the Appellate Division concluded that “the hold harmless provision is applicable and precludes [the Teachers’ Association] from asserting causes of action against [District] arising from Horizon's ultimate liquidation.

* See, also, Meirowitz v Bayport-Bluepoint Union Free School Dist., 57 AD3d 858, in which the Appellate Division that a “save harmless clause” barred employees and retirees from recouping Tax Deferred Plan investment losses from the school district.

Comment: Education Law Article 8-c, Special Annuity, addresses tax deferred annuity programs available to certain employees of the State and political subdivisions of the State. Section 299.2, in pertinent part, provides: Neither the state, or a political subdivision thereof, nor an employer shall be a party to any annuity contract purchased or custodial account established in whole or in part with payments pursuant to said agreement, and no retirement, death or other benefit shall be payable by the state, or political subdivision thereof, or by an employer under such agreement or such annuity contract or custodial account.”

The Elmira Teachers’ Association decision is posted on the Internet at:

http://nypublicpersonnellawarchives.blogspot.com/2008/07/school-district-not-liable-for-losses.html

The Meirowitz decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2008/2008_10136.htm