The shifting burdens of going forward in actions involving alleged unlawful discrimination

The shifting burdens of going forward in actions involving alleged unlawful discrimination

2013 NY Slip Op 03617, Appellate Division, First Department

A complainant alleging unlawful discrimination must set out a prima facie case of such discrimination, shifting the burden of going forward to the employer to demonstrate a nondiscriminatory reason for its action. If the employer can successfully demonstrate a nondiscriminatory reason for its decision, the burden shifts back to the complainant to show that the reasons given by the employer were pretextual in an effort to excuse its unlawful action.

In other words, once a prima facie case of alleged unlawful discrimination is rebutted by the employer with “legitimate, independent and nondiscriminatory reasons” for its decision, the burden of going forward shifts to the aggrieved individual to demonstrate that the explanation offered by the employer was mere subterfuge for its unlawful discriminatory actions. 

This decision addressing charges of alleged unlawful discrimination and charges of alleged unlawful retaliation illustrate the “shifting of the burden of going forward.”

According to the decision, the plaintiff had presented a prima facie case of “age-based discrimination” for his failure to be selected for employment as a teacher by the New York City Department of Education for its New York City Teaching Fellows program.

However, the Appellate Division dismissed his petition explaining that the Department of Education met its burden of proffering legitimate, nondiscriminatory reasons for failing to hire the plaintiff in it’s Teaching Fellows program by showing that the plaintiff had made “stereotyping statement” that parents in a particular ethnic group are more successful in communicating the importance of education to their children, resulting in superior academic performance in the course of his being interviewed to the position.

That done, the court said that the plaintiff had failed to show that Department's proffered reasons were pretexts for unlawful discrimination.

With respect to the plaintiff’s allegations of retaliation, the Appellate Division said that while he again had made out a prima facie case of retaliation, the Department had met its burden of proffering legitimate, nondiscriminatory reasons for declining to accept plaintiff into its SMART teaching certification program, including reciting the plaintiff's “expressed intention to focus his teaching energies on students ‘willing and interested’ in learning.”

Again, said the court, the plaintiff failed to show that Department's reasons were pretextual in an effort to justify its acts of unlawful discrimination.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2013/2013_03617.htm

Ratification of the proposed contract for staff in the professional service of the State University of New York represented by United University Professions announced

Ratification of the proposed contract for staff in the professional service of the State University of New York represented by United University Professions announced

On June 4, 2013, Governor Andrew M. Cuomo and United University Professions (UUP) President Frederick Kowal announced the ratification of a collective bargaining agreement between the state and the union representing more than 35,000 SUNY employees in the professional service of the State University of New York.*

UUP members had been without a contract since 2011. The agreement won the approval of 77 percent of UUP members who cast ballots.

According to the State Budget Office, the agreement will save approximately $87 million in wages through a Deficit Reduction Program over the contract period. All changes to health benefits will save $99 million over the contract period.

Contract highlights:

· Zero percent General Salary Increases for the three years 2011-2013, and 2% General Salary Increase increases in 2014 and 2015.

· Deficit Reduction Program involving nine days.

· A two percentage point increase in the employee's health insurance premium contribution for employees earning less than $40,137, making the employee contribution 12% for individual coverage and 27% for dependent coverage.

· A six percentage point increase in the employee's health insurance premium contribution for employees earning $40,137 and above, making the employee contribution 16% for individual coverage and 31% for dependent coverage.

· Benefit design changes for use of out of network services in the Empire Plan, including deductible and coinsurance increases for out of network medical benefits.

· A health plan opt-out provision so employees can opt-out through a spouse/partner to a non-State health plan.

· Payments of $500, $500, and $250 to be awarded to employees by the Chancellor. UUP members receive no "step" increases or longevity payments but campus presidents may also make performance incentive lump sum payments of 0.5% annually (1% at end of the contract term).

* See Subdivision three of Section three hundred fifty-five-a of  the Education Law.

Misconduct conduct that results in the termination of employment may not necessarily constitute “disqualifying misconduct” for unemployment insurance benefit purposes

Misconduct conduct that results in the termination of employment may not necessarily constitute “disqualifying misconduct” for unemployment insurance benefit purposes
2013 NY Slip Op 03734, Appellate Division, Third Department

A Lieutenant with the Sheriff's Department was served with disciplinary charges pursuant to Civil Service Law §75 alleging misconduct, incompetence and insubordination.

One of misconduct charge resulted from an incident in which the Lieutenant was served with an order of protection obtained on ex parte* by his estranged wife. When two superior officers served the order of protection, which required that the Lieutenant surrender all firearms, he became upset, orally protested the surrender of his firearms and used profanity toward his superior officers. The Lieutenant eventually complied with the terms of the order of protection.

Found guilty of the disciplinary charged, the Lieutenant was terminated from his position. He challenged his termination but the Appellate Division sustained the penalty imposed [see 90 AD3d 1390).

At the time of his termination the Lieutenant applied for unemployment insurance benefits. Initially disqualified from receiving benefits on the ground that he lost his employment through misconduct, a Department of Labor Administrative Law Judge concluded otherwise after a hearing and awarded him unemployment insurance benefits.

Finding that the Lieutenant’s termination did not result from disqualifying misconduct, the Unemployment Insurance Appeal Board sustained the Administrative Law Judge’s ruling.

The Lieutenant’s former employer appealed the Board’s decision but the Appellate Division sustained the Board’s decision.

The court explained that as the Lieutenant “had a full and fair opportunity to litigate the issue of misconduct at the Civil Service Law §75 hearing,” the Board was correct in applying the Doctrine of Collateral Estoppel to the factual findings of the Hearing Officer. However, said the court, it was incumbent on the Board to draw its own conclusion as to whether such factual findings amounted to misconduct disqualifying the Lieutenant from receiving unemployment insurance benefits.

Significantly, said the Appellate Division, "[t]he same conduct that leads to a claimant being discharged for cause may not necessarily rise to the level of misconduct for unemployment insurance purposes," citing Matter of Wright [City of Syracuse—Commissioner of Labor], 101 AD3d 1198 and its decision will be sustained if supported by substantial evidence.

In this instance the Board found that although the Lieutenant had used vulgar and intemperate language toward his superior officers, it concluded that, given the context of his conduct, it was not so egregious as to disqualify him from receiving benefits. The Board relied on evidence of claimant's marital problems and his lack of knowledge of the order of protection prior to being served with it. Furthermore, the superior officers testified that they were not directly threatened by Lieutenant and that the Lieutenant fully complied with the terms of the order of protection by timely surrendering his firearms.

The Appellate Division dismissed the employer’s appeal, holding that “… substantial evidence supports the Board's finding that [the Lieutenant] did not engage in disqualifying misconduct, despite the existence of substantial evidence supporting the contrary conclusion.”.

* An ex parte proceeding is one in which only one side is present and the other side absent or unrepresented:  

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_03734.htm

Benefits available to certain dependents of a volunteer firefighter who died in the line of duty

Benefits available to certain dependents of a volunteer firefighter who died in the line of duty

Dickinson v Cape Vincent Volunteer Fire Dept., 2013 NY Slip Op 03723, Appellate Division, Third Department

The Lt. Michael E. Neuner/Timothy Goff Memorial Death Benefit Program [see Volunteer Firefighters' Benefit Law §7(46)], provides, among other benefits available to dependents of volunteer firefighters killed in the line of duty, for payments “for the support of each parent or grandparent of the deceased if dependent upon the deceased at the time of the injury.” *

Marsha Dickinson, the mother of a volunteer firefighter who died in the line of duty,* applied for benefits for herself and the volunteer firefighter's younger brother, contending that they were "dependent upon the deceased at the time of his death."

The Workers' Compensation Board ultimately agreed, whereupon the employer and its workers' compensation carrier appealed the Board’s determination.

The Appellate Division, noting that "The issue of dependency is a factual one for the Board to resolve and, if supported by substantial evidence, its decision will not be disturbed", affirmed the Board’s decision.

Noting that the record indicated that the volunteer firefighter lived with his mother, his stepfather and his younger brother and that the parents worked very little due to their physical limitations, and his brother, a high school student, worked part time at a grocery store and that the volunteer firefighter “was the primary breadwinner for the family,” the Appellate Division concluded that “Given these facts, the Board properly found ‘that the loss of . . . decedent's financial contribution had an adverse or detrimental effect on the claimant’ and decedent's brother thereby warranting an award of benefits.”

* $532 per week is payable during such dependency is payable pursuant to §7(46), but in no case may the aggregate amount payable under §7(46) exceed $887 per week.

** The volunteer firefighter was shot and killed by a patient in the course of his work as a volunteer firefighter/emergency medical technician.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_03723.htm

Teacher terminated after being found guilty of subjecting a student to corporeal punishment

Teacher terminated after being found guilty of subjecting a student to corporeal punishment

2013 NY Slip Op 03769, Appellate Division, First Department

A New York City schoolteacher filed a petition seeking to vacate a post-hearing award finding her guilty of administering corporal punishment on a kindergarten student and of directing students who witnessed the incident not to discuss what they had observed, and imposing the penalty of termination of her employment. The court granted her petition in part, vacating the penalty imposed and remanding the matter to a different hearing officer for a determination of the penalty based on the administrative record, “but taking no account of any evidence of uncharged wrongdoing.”

The Appellate Division modified that award and reinstated the penalty imposed – termination

The Appellate Division explained that Supreme Court had found that there was adequate evidence in the record made at the disciplinary hearing to support the hearing officer’s determination that the teacher was guilty of administering corporal punishment on the kindergarten student and directing the students who witnessed the incident not to discuss what they had observed.

The apparent basis for the Supreme Court’s remanding the matter to a different arbitrator was the teacher’s representation that she was denied due process because the Hearing Officer's decision to terminate her employment was based upon evidence of wrongdoing that was not charged.

The Appellate Division said that the allegation that the Hearing Officer's decision to terminate her employment was based upon evidence of wrongdoing that was not charged is unavailing, since the Hearing Officer “expressly based the penalty upon the charged misconduct.”

Finding that the record showed that the teacher “showed a lack of remorse for her actions,” the Appellate Division concluded that “the penalty of termination does not shock one's sense of fairness, in light of petitioner's egregious misconduct of kicking a kindergarten student with special needs and then directing her other impressionable students not to discuss what they had observed.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_03769.htm

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli

Issued during the week ending June 2, 2013 [Click on text highlighted in bold to access the full report] 


DiNapoli Calls For End To Discrimination At ExxonMobil

New York State Comptroller Thomas P. DiNapoli Wednesday took his case to ExxonMobil shareholders for the fourth consecutive year as the New York State Common Retirement Fund’s resolution (page 69) calling on the company to explicitly prohibit discrimination based on sexual orientation and gender identity heads to a vote.

DiNapoli: State Labor Department’s Failure to Collect Millions in Fees Masks Implications for Public Safety

The state Department of Labor’s failure to maintain records on building boilers and asbestos remediation projects needing inspection may jeopardize public health and safety, according to an audit released Friday by New York State Comptroller Thomas P. DiNapoli. The audit also found that DOL failed to collect $3.8 million from building owners who had boilers inspected, asbestos abatement contractors and employers who failed to comply with workplace safety rules.

DiNapoli Reaches Agreement With Ralph Lauren to Report on Labor Practices, Environmental Impacts

New York State Comptroller Thomas P. DiNapoli Monday announced an agreement with Ralph Lauren, a New York–based global apparel retailer, for the company to produce a report measuring and analyzing its labor practices, human rights and environmental impacts. As a result of the agreement, DiNapoli has withdrawn his shareholder resolution filed with the company.

DiNapoli Takes on Board Diversity at Urban Outfitters

Shareholders at Urban Outfitters Inc. vote Tuesday on a resolution requesting the company take steps to improve its poor record of accountability and diversity on its board of directors at the company’s annual meeting in Philadelphia. New York State Comptroller Thomas P. DiNapoli, trustee of the New York State Common Retirement Fund, noted that the nomination of Margaret Hayne, the spouse of Urban Outfitters Chairman, CEO and founder Richard Hayne, and an employee of the company for more than 30 years, to the board of directors failed to meet the resolution’s request for an open and inclusive candidate selection process.

DiNapoli Encourages New Yorkers To Participate In New York’s 529 College Savings Program

May 29 is College Savings Day, and New York State Comptroller Thomas P. DiNapoli is encouraging parents to enroll in New York’s 529 College Savings Program to help offset college costs. The program, available nationwide, is administered in New York State by DiNapoli in partnership with the New York State Higher Education Services Corporation. Comptroller DiNapoli oversees the investment function for the New York State 529 program.

Comptroller DiNapoli Releases Municipal Audits

New York State Comptroller Thomas P. DiNapoli announced Thursday that his office completed audits of:

the Village of Castleton–on–Hudson;

the Town of Davenport;

the Town of Fort Ann;

the Town of Huntington; and,

the Town of Wayne.

NYS Cyber Security Conference: June 4-5, 2013

This message was received from New York State's new, official system for press releases. NYS Cyber Security Conference: June 4-5, 2013 Conference to bring internationally-recognized cyber security experts to Albany

Brian Digman, Chief Information Officer Michelle McDonald, Public Information Officer 518-408-2475 The 16th Annual New York State Cyber Security Conference will be held on June 4-5, 2013 at the Empire State Plaza in Albany.  Recognized as the premier Northeast conference for cyber security education, the event is co-hosted by the NYS Office of Information Technology Services’ Enterprise Information Security Office, the New York State Forum, Inc., and the University at Albany's School of Business and College of Computing and Information. Each year the event draws approximately 1,000 attendees from government, the private sector, and academia to the Capital Region. This year’s conference theme is Helping Navigate Stormy Seas. Two full days of sessions are offered. "Given that we live in a world in which Internet-connected systems are relied upon in every aspect of our public and private lives and there are an increasing number of threats to the security of those systems, the State of New York focuses considerable attention on protecting the sensitive information entrusted to its care.  This focus includes initiatives such as the Governor’s Cyber Advisory Board and the Department of Financial Services’ efforts to review the security steps taken by insurance companies that do business in the state.  Another important aspect of this focus is the state’s longstanding commitment to outreach, training, and awareness in the area of cyber security. It is incumbent upon information security professionals to receive regular training and share information in order to maintain their ability to secure these systems," said Thomas D. Smith, New York’s Chief Information Security Officer.  “The 16th Annual Conference continues our efforts to provide a venue in which information security professionals, as well as members of the broader community, are afforded an opportunity to learn from leading experts from government, industry, and academia and to network with their peers." On June 4, the conference opens with a welcome by Fran Reiter, Executive Deputy Director of State Operations.  The conference continues with  featured  keynote speaker Michael Papay, Vice President of Information Security and Cyber Initiatives for Northrop Grumman’s Information Systems sector and Chief Information Security Officer, presenting “Recommended Cyber Actions for Large Enterprises: An Industry Perspective.”  Billy Rios of Cylance returns on June 5 to provide the Annual Symposium on Information Assurance’s keynote talk “Why every CSO needs to know Industrial Control Systems (ICS).” The Annual Symposium on Information Assurance (ASIA) runs concurrently with the main conference and presents academic papers on information security topics by academic experts. Other highlights of the conference include 48 training sessions featuring topics such as: threat landscape, mobile, legal and cloud security issues, incident response, public–private partnerships, IT solutions, and more. For more information, including conference agenda, keynote biographies, and registration information, visit the conference website at http://www.dhses.ny.gov/go/conference2013, follow the conference on Twitter @#nyscyber, and on Facebook at https://www.facebook.com/nystatecio.