Preclusion bars an individual from relitigating the findings of a disciplinary hearing officer in a subsequent involving the same parties in a different tribunal

Preclusion bars an individual from relitigating the findings of a disciplinary hearing officer in a subsequent involving the same parties in a different tribunal

USCA, Second Circuit, Docket  Nos. 11- 1234 (L), 11-1618 (XAP)

An employee [Plaintiff] was dismissed from his position after a disciplinary hearing conducted pursuant to Civil Service Law §75. He subsequently sued his former employer alleging, among other things, that he was the victim of unlawful discrimination in violation of the federal Civil Rights Act of 1871, 42 USC 1983.

One of the issues addressed by the U.S. Circuit Court of Appeals in the civil rights action was the question of whether the §75 disciplinary hearing officer’s finding that there was a sufficient and legitimate basis for Plaintiff’s termination precluded* the Plaintiff from relitigating those issues in federal district court.

The Circuit Court said that State law governs the preclusive effects of a state administrative agency’s quasi-judicial findings in a federal court and New York courts give quasi-judicial administrative fact-finding preclusive effect where there has been a full and fair opportunity to litigate the issue. This, said the court, applies to findings made by administrative officers after conducting §75 disciplinary hearings.

As is the case with respect to a prior judicial finding of fact, in order to have preclusive effect over a subsequent fact-finding or legal analysis, the prior administrative determination must have resolved the identical issue and the issue must have been actually and finally decided in the prior administrative adjudication.

The appointing authority had adopted the recommendations of the hearing officer, which became the official decision of the agency and Plaintiff decided not to challenge the determination by appealing the decision to a state court or to the responsible Civil Service Commission

However, even if an identical issue was necessarily decided in the prior proceeding, issue preclusion does not apply unless there was a full and fair opportunity for the party against whom preclusion is sought to contest the decision now said to be controlling.** The Court then noted that Plaintiff’s civil rights claims were not considered in the course of his §75 hearing*** and thus that decision did not did not preclude the jury from finding discriminatory conduct on the part of the employer in Plaintiff’s federal civil rights action.

The issue decided by the hearing officer after the §75 hearing concerned the appointing authority’s articulated basis for seeking to terminate Plaintiff. The hearing officer’s ultimate conclusions was that Plaintiff had committed disciplinable misconduct and was incompetent were guided by the particular legal framework and standards applicable in §75 proceedings.

Turning to Plaintiff’s civil rights complaint, the Circuit Court explained that the §75 framework differs substantially from the legal framework for state and federal employment discrimination law applicable to Plaintiff’s federal jury trial.

 
Although the hearing officer’s findings and conclusions concerning the charges of alleged misconduct and incompetence for purposes of §75 filed against Plaintiff precluded him from arguing otherwise at trial, they are not preclusive of any findings that the jury could have made in the course of its deliberations with respect to Plaintiff’s allegations of unlawful discrimination on the part of his former employer being the reason for his termination.

Therefore, in the course of deciding Plaintiff’s §1983 claims regarding whether the appointing authority terminated Plaintiff for legitimate or illegal reasons, the jury was required to accept the hearing officer’s finding that Plaintiff had failed to perform satisfactorily, if at all, some of his duties and responsibilities.

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The bottom line: Applying these principles to this case, the Circuit Court conclude that the jury was precluded from finding that Plaintiff had not actually engaged in the conduct charged against him in the §75 hearing.

As to Plaintiff’s civil rights action, the jury found in his favor and awarded him $304,775 in back pay.

* Essentially preclusion bars the relitigation of the same issue that was the basis of a finding or verdict in an action involving the same parties in subsequent lawsuits involving the same parties.

** In contrast, citing Leventhal v. Knapek, 266 F.3d 64, the Circuit Court said that there is no preclusion in the event there was no “final decision” both because the parties settled before the hearing officer had taken all of the evidence and because the appointing authority had not adopted any recommendation of the hearing officer.

*** The decision notes that Plaintiff “never expressly argued to the hearing officer that he was treated adversely” within the meaning of 42 USC 1983.

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/2013a850-216d-4ede-93b6-36484b07172f/4/doc/11-1234_complete_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/2013a850-216d-4ede-93b6-36484b07172f/4/hilite/
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Summary of the Governor Cuomo’s 2014 State of the State address

Summary of the Governor Cuomo’s 2014 State of the State address

Source: Office of the Governor

In the past three years, under Governor Cuomo’s leadership, the state has reversed decades of dysfunction to become a model for the nation, and demonstrated the impact an effective and responsive government can have on the lives of its people.  The state has established real fiscal discipline by limiting spending to 2% and passing on-time budgets, added over 380,000 new private sector jobs since 2010, and reduced taxes for middle class New Yorkers to the lowest rates in 60 years. Additionally, we have made significant reforms in our state’s education system and made New York a fairer and safer state for our citizens.

On January 8, 2014, Governor Andrew M. Cuomo delivered his 2014 State of the State address – a sweeping agenda that builds on the immense success we have achieved over the past three years.  To read the full plan, click here.

The State of the State highlighted the Governor’s efforts to:

Continue New York’s successful job growth strategy through property tax relief, business tax cuts, and innovative job creation initiatives;

Transform New York’s schools to provide the highest quality education for all of our children;

Create more progressive, safer, cleaner and fairer communities; and

Reimagine New York State in the wake of recent disastrous storms by improving our disaster response capabilities and hardening our infrastructure to protect against future severe weather.

Under the Governor’s leadership, we have gone from a $10 billion deficit to a $2 billion surplus. Rather than using this revenue to increase spending, the Governor instead proposed to provide additional tax relief for New Yorkers, including significant property tax relief for homeowners and a tax credit for renters; reduced taxes on businesses to make our state more competitive and create jobs; and additional tax cuts designed to help New Yorkers.  Click here to read details of the Governor’s tax relief plan.

The number one priority for New York State continues to be jobs. Through the Governor’s tax relief plan, New York will become more competitive to attract business and investment. The Governor will also continue to encourage targeted investment in New York businesses through key industry initiatives and our Regional Economic Development Councils. Additionally, he proposed to host the Global NY Summit on World Trade and Investment to reach foreign investors to increase investment in New York.  His agenda will also further revitalize upstate communities by continuing to invest in tourism, bringing world-class destination resorts to Upstate NY, and eliminating the corporate income tax rate for Upstate manufacturers.  He also outlined a plan to quickly and efficiently modernize LaGuardia and JFK airports – these gateways to New York are major economic engines and New York deserves globally-renowned, 21^st century airports.

Our next step in transforming our schools is to reinvent our classrooms with new technology – to do this, the Governor proposed launching a $2 billion “Smart Schools” bond referendum to help bring all of New York schools into today’s high-speed, high-tech world.  Additionally, the Governor will build on his programs to reward our most effective teachers, encourage students to study in math, science and engineering, and make full-day pre-K universal in NYS.

The Governor also understands there is more to do to make New York communities more progressive, safer, cleaner, and fairer. The NY Youth Works program has helped 13,000 inner city youth find work, and for 2014, the Governor has proposed increasing the program to further combat the unacceptable unemployment levels in our communities. To ensure New Yorkers have safe, clean, and decent housing, the Governor’s agenda includes preserving or creating 3,000 more units of affordable housing. New York remains one of only two states in which the age at which youths are treated as adults in the justice system is 16 – nearly 40,000 16- and 17-year-olds had their cases handled in adult or criminal court in 2012, which is why the Governor proposed establishing the Commission on Youth, Public Safety & Justice to provide concrete, actionable recommendations regarding youth in New York’s criminal and juvenile justice systems.

Medical research suggests that medical marijuana may help manage the pain and treatment of cancer and other serious illnesses, which is why the Governor has proposed launching a medical marijuana research program at 20 hospitals to evaluate the effectiveness and feasibility of a medical marijuana system. 

To further protect New Yorkers against drunk drivers, the Governor is proposing a three-strikes-and-you’re-out rule. He will also continue to crack down on youth texting while driving.

New York means justice for ALL, which is why the Governor will continue to fight for the Women’s Equality Act.  His agenda also includes protection for students against discrimination and harassment, because New York’s tolerance for racism and discrimination is ZERO.

The Governor has also made restoring New Yorkers’ trust in state government a top priority. This year, he will continue to fight for reforms to ensure New Yorkers have confidence that their elected officials are serving them faithfully. He proposed new anti-bribery and corruption laws, public financing of elections, independent enforcement and oversight at the Board of Elections, and disclosure of outside clients with business before the State.

Understanding that extreme weather is the new reality, we need to reimagine New York for a new reality. Vice President Biden credited the Governor’s storm plan as a model for future recovery efforts. The Governor proposed a $17 billion strategy that will transform New York’s infrastructure, transportation networks, energy supply, coastal protection, weather warning system, and emergency management to better protect New Yorkers from extreme weather. Click here to read more about the Governor’s broad strategy to protect New Yorkers from future extreme weather.

To read the Governor’s full plan, click here. 
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An individual leaving his or her employment in anticipation of being laid-off is ineligible for unemployment insurance benefits

An individual leaving his or her employment in anticipation of being laid-off is ineligible for unemployment insurance benefits

2013 NY Slip Op 07242, Appellate Division, Third Department

The claimant [Claimant] was informed that his department would be downsized. The employer, however, advised the employees in Claimant’s department that a “voluntary separation package” was available but that if an insufficient number of employees did not accept the package, the remainder of the reduction would then be accomplished by involuntary separation.

The employer also advised the employees in the department that were involuntarily separated that they would receive the same benefit package as those accepting the voluntary separation. Although Claimant knew that there was still work available with the employer, he elected to accept the voluntary separation package.

When Claimant applied for unemployment insurance benefit, the Unemployment Insurance Appeal Board ruled that he had voluntarily left his employment without good cause and was therefore disqualified from receiving unemployment insurance benefits.

Claimant appealed but the Appellate Division sustained the Board’s determination, explaining that "Voluntary separation from employment in order to accept an early retirement or separation incentive package when, as here, continuing work is available has been held not to constitute good cause for leaving employment."

Although Claimant testified that he accepted the separation package out of fear of losing his job, Claimant was never informed that he was going to be laid off during the workforce reduction and, in any event, he was told that those that were to be laid off would receive the same benefits package as those that accepted the voluntary separation.

In addition, the court noted that leaving employment in the anticipation of losing one's job in the future is not a departure for good cause.

The decision is posted on the Internet at

http://www.nycourts.gov/reporter/3dseries/2013/2013_07242.htm

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Recent postings on the U.S. Department of Labor’s website

Recent postings on the U.S. Department of Labor’s website

Source: U.S. Department of Labor

The following updates to the U.S. Department of Labor, Office of Administrative Law Judges' website are now available:

:

Decisions of the Administrative Review Board - November 2013

Decisions of the Administrative Review Board - December 2013

Summary of Federal Court Decisions for Calendar Year 2013
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Injured police officer sues persons alleged to have caused her injury pursuant to General Municipal Law §205-e

Injured police officer sues persons alleged to have caused her injury pursuant to General Municipal Law §205-e
2014 NY Slip Op 00077, Appellate Division, First Department

A New York City police officer alleged she was injured in a motor vehicle accident while she was a passenger in an unmarked police car that was being driven by another New York City police officer. She sued under color of General Municipal Law §205-e.

Essentially §205-e of the General Municipal Law gives certain injured police officers the right to sue the person or persons alleged to be guilty of “causing any accident, causing injury, death or a disease which results in death, that occurs directly or indirectly as a result of any neglect, omission, willful or culpable negligence” because of the person’s or persons’ failing to comply with the relevant of any law, rule or regulation. The person or persons guilty of said neglect, omission, willful or culpable negligence at the time of such injury is liable to pay damages to the injured officer.

Supreme Court, New York County*denied the defendant’s motion for summary judgment dismissing the General Municipal Law §205-e claims predicated upon their alleged violation of the Vehicle and Traffic Law. The Appellate Division affirmed the Supreme Court’s ruling.

According to the Appellate Division’s decision, the injured officer testified that the officer driving the unmarked vehicle had double-parked the vehicle in order to observe two suspects and that they were sitting at the accident location approximately 15 to 20 minutes before they were struck from behind by a codefendants' minivan.

In addition, said the court, the police officer driving the vehicle had testified that he had double-parked the police vehicle in order to investigate a suspect, which is not an "emergency operation" as defined by Vehicle and Traffic Law § 1104(a).

* The Supreme Court’s decision, setting out the fact in this action, is posted on the Internet at http://www.nycourts.gov/reporter/pdfs/2012/2012_32185.pdf

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_00077.htm
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An employee organization’s duty of fair representation

An employee organization’s duty of fair representation

2013 NY Slip Op 33186(U), Supreme Court, New York County, Judge Donna M. Mills [Not selected for publication in the Official Reports.]

A New York City Department of Education high school teacher [Member], represented for the purposes of collective bargaining by the United Federation of Teachers [UFT], was served with disciplinary charges  pursuant to Education Law §3020-a alleging that she was incompetent.

Member was found guilty of the charges of incompetency following an administrative hearing held pursuant to 3020-a of the Education Law. The penalty imposed: termination from her position.

Following her termination, Member sued the Department of Education, seeking a court order nullifying the hearing officer’s decision to terminate her. Her petition was dismissed on procedural grounds and for lack of merit.*

A year later Member filed a federal lawsuit alleging that her termination was discriminatory. She lost that lawsuit after a jury trial.

Two years later Member sued UFT and several “union lawyers,” blaming them for her termination. This complaint was dismissed as well.

Next Member commenced this action, pro se. 

According to the decision, Member’s complaint appeared to be in the nature of an allegation that UFT breached its duty of fair representation. UFT filed a motion to dismiss for failure to state a cause of action.

NYS Supreme Court Judge Donna M. Mills, in considering UFT’s motion, applied the following guidelines in considering the merits of UFT’s motion:

1. The court must determine whether from the four corners of Member’s pleading “factual allegations are discerned which taken together manifest any cause of action cognizable at law.”

2. While the allegations in Member’s complaint are to be accepted as true when considering UFT’s motion to dismiss, “allegations consisting of bare legal conclusions, as well as factual claims flatly contradicted by documentary evidence, are not entitled to any such consideration.”

3. New York case law recognizes the existence of a duty of fair representation on the part of public sector unions predicated on their role as exclusive bargaining representatives of its members in the negotiating unit.

4. An employee organization breaches its duty of fair representation “only when a union’s conduct toward a member of the collective bargaining unit is arbitrary, discriminatory, or in bad faith.”

Judge Mills explained that whether that duty has been breached in a particular case is “essentially a factual determination.” Here, said the court, Member’s complaint fails to set forth facts establishing that Member‘s alleged injury arose out of UFT‘s role as the exclusive bargaining representative of the collective bargaining unit in which Member is a member. 

In the words of the court, “Member‘s allegations are conclusory, and lack a factual basis to state a cause of action.”Accordingly, Judge Mills dismissed Member‘s complaint for failure to state a cause of action.

Granting UFT’s motion for summary judgment dismissing Member’s petition, Judge Mills noted that the allegations in the complaint that preceded 2012 were disposed of in a decision by State Supreme Court Justice, Eileen A Rakower, dated December 23, 2011, and reported in 26 Misc.3d 1208(A); 93 A.D.3d 534

The decision is posted on the Internet:

http://www.nycourts.gov/reporter/pdfs/2013/2013_33186.pdf
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