Post-hearing conduct of the employee not considered by the hearing officer in making an administrative decision

Post-hearing conduct of the employee not considered by the hearing officer in making an administrative decision

OATH Index No. 1233/14

OATH Administrative Law Judge Tynia D. Richard presided at a Civil Service Law §72 disability proceeding initiated by the appointing authority. The employer alleged that the individual was “mentally unfit to perform the duties of his position.” The employee denied the allegation.

Judge Richard found the evidence supported the medical opinion of a board certified psychiatrist that the individual was unfit to perform the duties of his position due to a psychotic condition, known as delusional disorder of a persecutory nature, that impeded his ability to make basic engagements with reality and recommended that the employee be placed on leave pursuant to Civil Service Law §72.

The employer subsequently submitted an e-mail requested an “expedited decision” based on the employee’s conduct after the hearing had been closed. The employee’s attorney sent an e-mail objecting to the employee’s post hearing conduct being made a part of the record in this case so as to form the basis for expediting a decision.

The ALJ advised the parties that “it was not proper to put additional facts before me as the record of the case is closed.”  Judge Richard also noted the procedure that the parities were to use in seeking an expedited decision. However, said Judge Richard, a formal request for an expedited decision was never filed.

Although Judge Richard entered the e-mails into the record, she advised the parties that she had not taken the new allegations into account in her analysis of the case nor in making her determination.

The determination: Judge Richard found that the employee was unfit to remain in his position and recommended that he be placed on leave pursuant to §72 of the Civil Service Law, which recommendation was adopted by the appointing authority.

The decision is posted on the Internet at:

 http://archive.citylaw.org/oath/11_Cases/14-1233.pdf
.

Filing fraudulent documents to obtain a benefit

Filing fraudulent documents to obtain a benefit

OATH Index No. 229/14

A New York City correction officer was charged with tendering fraudulent documents to obtain subsidized housing benefits, establishing residency in another state for purposes of engaging in unauthorized outside employment, and engaging in unauthorized outside employment.

OATH Administrative Law Judge Astrid B. Gloade found that the officer underreported her income to obtain Section 8 housing benefits*and that although this misconduct   occurred when the employee was “off-duty” an employer may discipline an employee for off-duty misconduct where there is sufficient nexus between the conduct to be

sanctioned and the employee’s job position, citing Villanueva v. Simpson, 69 N.Y.2d 1034.

Judge Gloade also found the the employee had an unauthorized job while on a leave of absence from the Department.

The residency charge was dismissed by the ALJ, who found that the employer failed to prove that the correction officer established residency in another state for purposes of engaging in outside employment..

Judge Gloade, however, recommended that the correction officer be terminated from her position on the basis of charges that were proven by the agency.

* The employee “plead guilty to disorderly conduct (Penal Law §240.20) and agreed to pay restitution in the amount of $19,127 to the federal government within one year” with respect to her obtaining Section 8 housing benefits.

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/11_Cases/14-229.pdf

.

The doctrine of respondeat superior

The doctrine ofrespondeat superior

Selmani v City of New York, 2014 NY Slip Op 02764, Appellate Division, Second Department

In this action the Appellate Division sets out the basics regarding the doctrine of respondeat superior.

Essentially, said the court, the doctrine of respondeat superior will hold an employer vicariously liable for torts committed by an employee acting within the scope of the individual’s employment. Pursuant to this doctrine, the employer may be liable when the employee acts negligently or intentionally, so long as the tortious conduct is generally foreseeable and a natural incident of the individual’s employment.

The Appellate Division indicated that:

1. "An employee's actions fall within the scope of employment where the purpose in performing such actions is to further the employer's interest, or to carry out duties incumbent upon the employee in furthering the employer's business'.”

2. "An act is considered to be within the scope of employment if it is performed while the employee is engaged generally in the business of the employer, or if the act may be reasonably said to be necessary or incidental to such employment."

3. “Where, however, an employee's actions are taken for wholly personal reasons, which are not job related, the [employee’s] actions cannot be said to fall within the scope of employment.”

4. “In instances where vicarious liability for an employee's torts cannot be imposed upon an employer, a direct cause of action against the employer for its own conduct, be it negligent hiring, supervision, or other negligence, may still be maintained.”

In this actions certain patrons at restaurant alleged that the individual defendants named in their compliant, who were members of the employer’s Fire Department, entered the restaurant with coworkers, including supervisors. The group of firefighters had allegedly come from a Fire Department annual dinner held at another location and continued celebrating and drinking at the restaurant.

One of the injured plaintiffs allegedly accidentally spilled a drink on a firefighter and was allegedly attacked and assaulted by the named defendant-firefighters. The employer moved for summary judgment dismissing the complaint insofar as asserted it. The Supreme Court granted the motion.

The Appellate Division modified the Supreme Court’s order by deleting the provision granting that branch of the employer’s motion for summary judgment dismissing the causes of action alleging negligent hiring, supervision, training, and retention insofar as asserted against them. The court, instead, substituted a provision denying that branch of the motion; as so modified, affirmed the Supreme Court’s order.

The Appellate Division explained that although Supreme Court properly granted” the employer’s motion for summary judgment dismissing the causes of action alleging vicarious liability, as the employer had established its prima facie entitlement to judgment as a matter of law by demonstrating that the tortious conduct of named defendant-firefighters was not within the scope of their employment,* it failed to rebut the plaintiffs’ claims of alleged “negligent hiring, supervision, training, and retention,” and thus the employer did not establish its entitlement to summary judgment as a matter of law on that branch of the plaintiffs' complaint.

The employer, said the court, failed to submit any evidence demonstrating that it did not know or have reason to know of defendant-firefighters’ alleged “propensity for assaultive conduct” nor did the employer submit evidence demonstrating that any such alleged negligence was not a proximate cause of the injured plaintiffs' injuries.

* This finding suggests that the defendant–firefighters can neither claim “defense nor indemnification” from their employer.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_02764.htm

.

Civil Service Commission's decision in an appeal to the employer's disciplinary determination is reviewable by the court

Civil Service Commission's decision in an appeal to the employer's disciplinary determination is reviewable by the court

City School District of Lockport v. Cappola, 83 A.D.2d 751, motion for leave to appeal denied, 57 N.Y.2d 607

An employee appealed the employer’s finding that the individual was guilty of certain disciplinary charges it filed against the worker pursuant to §75 of the Civil Service Law and the penalty it imposed, suspension without pay for two days, to the Civil Service Commission as provided by §76.1 of the Civil Service Law.

§76.1, in pertinent part, provides as follows:  “Any officer or employee believing himself aggrieved by a penalty or punishment of demotion in or dismissal from the service, or suspension without pay, or a fine, or an official reprimand, unaccompanied by a remittance of said officer or employee's prehearing suspension without pay, imposed pursuant to the provisions of section seventy-five of this chapter, may appeal from such determination either by an application to the state or municipal commission having jurisdiction, or by an application to the court in accordance with the provisions of article seventy-eight of the civil practice law and rules.”

The Commission vacated the employer’s determination, ruling that there was insufficient evidence in the record to support the findings of the hearing officer.

The Employer appealed the Commission’s determination.

Noting that although the text of the Civil Service Law §76.3 states, in pertinent part, “The decision of such [state or municipal] civil service commission shall be final and conclusive, and not subject to further review in any court.” the Appellate Division ruled that the Commission’s decision was, indeed, reviewable by the court, explaining that “Despite the language which seems to preclude judicial review, a CPLR article 78 proceeding will lie where it is alleged that the Commission's decision was ‘purely arbitrary’ or where the penalty imposed by the Commission is challenged as an abuse of discretion.”

The court then sustained the Commission’s decision as reasonable.

===================

The Discipline Book, - a concise guide to disciplinary actions involving public employees in New York State. This more than 2,100 page e-book is now available from the Public Employment Law Press. Click on http://booklocker.com/books/5215.html for additional information concerning this electronic reference manual.

=======================

.

Complaint alleging violations of the State’s and New York City’s Human Rights Laws dismissed for failure to establish a prima facie case of unlawful discrimination

Complaint alleging violations of the State’s and New York City’s Human Rights Laws dismissed for failure to establish a prima facie case of unlawful discrimination

2014 NY Slip Op 02696, Appellate Division, First Department

State Supreme Court Judge Arthur F. Engoron granted the employer’s motion to dismiss the unlawful discrimination, hostile work environment, and retaliation claims under the State and City Human Rights Laws (HRL) (Executive Law §290 et seq.; Administrative Code of City of NY §8-101 et seq.), filed by one of its employees, [Plaintiff].

Construing the complaint liberally, presuming its factual allegations to be true, and according it the benefit of every possible favorable inference, the Appellate Division sustained the lower court’s ruling explaining that Plaintiff failed to adequately plead that she was subjected to an adverse employment action as none of the allegations set out in her complaint rises to the level of an actionable adverse employment action.

In addition the court found that Plaintiff failed to adequately plead discriminatory animus, which is fatal to both her discrimination and hostile environment claims as her complaint does not contain any allegations of any comments or references to Plaintiff's age or race made by any employee of employer.

Further, said the Appellate Division, Plaintiff’s petition does not contain any factual allegations demonstrating that similarly situated individuals who did not share Plaintiff's protected characteristics were treated more favorably than Plaintiff and her “conclusory allegations of a hostile environment are insufficient to state a claim under either the State or City Human Rights Laws.

Plaintiff’s allegations of “retaliation” faired no better as she failed to plead any facts regarding when the alleged retaliatory incidents occurred or how those incidents were causally connected to any protected activity, nor did she state the substance of her alleged complaints, to whom she allegedly complained, or when such complaints were made.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_02696.htm
. 

Security of government computer records

Security of government computer records

State Technology Law and other provisions of law

A town recently reported that its accounting program was the victim of hacking and a number of “payroll checks” were processed and presented for payment. Although the town’s bank “caught” the fraudulent checks, the town expressed concern that personal information in its system may have been compromised and asked its attorney to advise it as to its possible liability to individuals who may suffer as a result of the theft of personal data.

To assist public agencies to cope with the increasing number of attempts to breach computer security efforts, the New York State Office of Cyber Security has issued its Cyber Security Policy P03-002, Information Security Policy, posted on the Internet at http://www.dhses.ny.gov/ocs/resources/documents/cyber-security-policy-p03-002-v3.4.pdf, while the State Comptroller’s Division of Local Government and School Accountability has issued a “Local Government Information Security” statement that is posted on the Internet at http://www.osc.state.ny.us/localgov/pubs/research/snapshot/cybersecurity0811.pdf

A “Cyber Security Citizen’s Notification Policy” has been adopted by municipalities to deal with a breach of its computer security protocols. For example, the Village of North Hills has such a policy it has posted on the Internet [ http://ecode360.com/6309491] as has the Town of Massena [see http://ecode360.com/11058454]. 

In addition, General Business Law §899-aa, the Security Breach and Notification Act, addresses situations resulting from persons without valid authorization having acquired private information stored on an business  entity's computer..

Also relevant is §208(8) of the State Technology Law captioned “Notification; person without valid authorization has acquired private information,” requiring counties, cities, towns, villages and other governmental entities to adopt a computer security “breach notification policy.”

In addition, §308.1 of the act provides as follows with respect to personal privacy protection:

"Any information reported to the electronic facilitator by a government entity in connection with the authorization of an electronic signature shall continue to be withheld from public disclosure if such information was withheld from public disclosure by such government entity. Electronic records shall be considered and treated as any other records for the purposes of the freedom of information law as set forth in article six of the public officers law and the personal privacy protection law as set forth in article six-A of the public officers law.

“2. A person or an entity that acts as an authenticator of electronic signatures shall not disclose to a third party any personal information reported to it by the electronic signatory other than the information necessary to authenticate the signature unless the disclosure is made pursuant to a court order or statute, or if the information or data is used solely for statistical purposes in aggregate form. For purposes of this section, "personal information" shall mean data that identifies a specific person, including but not limited to home and work addresses, telephone number, e-mail address, social security number, birthdate, gender, marital status, mother's maiden name, and health data.”
.

An employee who becomes unavailable for work as a result of other employment may be terminated from his or her position

An employee who becomes unavailable for work as a result of other employment may be terminated from his or her position

2014 NY Slip Op 02644, Appellate Division, Third Department

A part-time police officer [Plaintiff] serving with a police department was appointed to a full-time position with another police department. Plaintiff’s appointment with the new police agency was subject to his satisfactorily completing a probationary period. In addition, the decision of the Appellate Division notes that Plaintiff’s new employment precluded him from engaging in outside employment for at least one year.

When Plaintiff was notified by his former employer that his employment was terminated because his new position rendered him unavailable for work, he filed a petition pursuant to CPLR Article 78 contending that his former employer’s action violated Civil Service Law §80 [sic].* Plaintiff asked Supreme Court to annul his termination and an order directing that his former employer immediately reinstate him.

Supreme Court dismissed the petition and plaintiff appealed.

Petitioner argued that his former employer improperly abolished his position and that he is entitled to remain employed despite being unavailable to perform any services for his employer for at least a year. The Appellate Division disagreed and affirmed the lower court’s ruling.

The court explained Civil Service Law §80 applies where a  “where a civil service position is eliminated due to ‘economy, consolidation or abolition of functions, curtailment of activities or otherwise,’ then suspension, demotion or termination must occur ‘in the inverse order of original appointment.’”

Here, however, the Appellate Division said that §80 “is entirely inapplicable here” as Plaintiff’s former employer did not eliminate or abolish petitioner's position. Rather, as the termination letter sent to Plaintiff indicates, Plaintiff was simply terminated so that his former employer could fill the position with someone who was available to work.

* Civil Service Law §80 applies in situations where a permanent employee of the State or a political subdivision of the State in the competitive class of the classified service is laid off as the result of the abolishment of his or her position. Civil Service Law §80-a applies to an employee of the State as the employer serving in a position in the noncompetitive class of classified service if the event his or her position is abolished.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_02644.htm

=========================

The Layoff, Preferred List and Reinstatement Manual - a 645 page e-book reviewing the relevant laws, rules and regulations, and selected court and administrative decisions is available from the Public Employment Law Press. Click On http://nylayoff.blogspot.com/ for additional information about this electronic reference manual.

=========================

 .

Extending a probationary period

Extending a probationary period

76 AD2d 973

An individual was permanently appointed to a position with the State subject to his satisfactorily completing a 52-week probationary period.

As a result of his being absent from work 24 days due to job-related injury, he was told that his probationary period was extended “24 days”. The employee was subsequently dismissed from his position “for failure to satisfactorily complete the probationary period.”

The individual sued, seeking a court order directing his reinstatement to the position. The Appellate Division, however, rejected his argument that he became permanent at the end of 52 weeks, holding that the Rules for the Classified Service* for employees of the State as the employer, provided that the “Maximum period of probationary term of any employee shall be extended by the number of work days of his absence which ... are not counted as time served in the probationary term."

The court explained that the "rationale of the regulation is to add to the expiration date of the probationary period the same period of time that the (employee) had missed during his probationary period, so that his performance of duty could be fully observed and evaluated for an entire 52 week period."

* See 4 NYCRR 4.5(g). A number of municipal civil service commissions and personnel officers have adopted similar rules.
.

State voters may amend a state's constitution to prohibit consideration of racial preferences with respect admission to colleges and universities if it does not reflect a racially discriminatory purpose

State voters may amend a state's constitution to prohibit consideration of racial preferences with respect admission to colleges and universities if it does not reflect a racially discriminatory purpose

Schuette v. Coal. Defend Affirmative Action, Integration & Immigration Rights, USSC, Docket 12-682

The summary of the decision set out below was prepared by Justia. The text of the decision, the several concurring opinions and the dissent are posted on the Internet at: http://www.law.cornell.edu/supremecourt/text/12-682

After the Supreme Court decided that the University of Michigan’s undergraduate admissions plan’s use of race-based preferences violated the Equal Protection Clause, but that its law school admission plan’s limited use did not, Michigan voters adopted a new section of the state constitution (Proposal 2), prohibiting use of race-based preferences in the admissions process for state universities.

The district court upheld Proposal 2, but the Sixth Circuit reversed, concluding that it violated Supreme Court precedent.

The Supreme Court reversed. Justice Kennedy, with Chief Justice Roberts and Justice Alito, reasoned that the principle that consideration of race in admissions is permissible when certain conditions are met was not challenged; the issue was whether, and how, state voters may choose to prohibit consideration of such racial preferences. The decision by Michigan voters reflects an ongoing national dialogue; there was no infliction of a specific injury of the type at issue in cases cited by the Sixth Circuit. Individual liberty has constitutional protection, but the Constitution also embraces the right of citizens to act through a lawful electoral process, as Michigan voters did. Justices Scalia and Thomas stated that the question here, as in every case in which neutral state action is said to deny equal protection on account of race, is whether the challenged action reflects a racially discriminatory purpose. Stating that it did not, the Justices stated that the proposition that a facially neutral law may deny equal protection solely because it has a disparate racial impact “has been squarely and soundly rejected.”

Justice Breyer agreed that the amendment is consistent with the Equal Protection Clause, but reasoned that the amendment only applies to, and forbids, race-conscious admissions programs that consider race solely in order to obtain the educational benefits of a diverse student body; the Constitution permits, but does not require, the use of that kind of race-conscious program. The ballot box, not the courts, is the instrument for resolving debates about such programs. This case does not involve a diminution of the minority’s ability to participate in the political process.

A press release advising of the publication of Professor John D. Skrentny’s latest book, AFTER CIVIL RIGHTS, [Princeton University Press, 2013] notes that this year marks the 50^th anniversary of the landmark Civil Rights Act of 1964, but talking about race at work remains as difficult as ever.

Professor Skrentny brings together the latest social science studies and evidence to provide a comprehensive picture of how employers manage racial difference in the 21^st century—and sets out his views as to why the Civil Rights Act of 1964 is no longer in sync with that picture.

For additional information about this book, click on:

http://press.princeton.edu/titles/10095.html
. 

Loss of a required license or permit to perform the duties of the position

Loss of a required license or permit to perform the duties of the position

2014 NY Slip Op 50585(U),  Supreme Court, Dutchess County, Judge James D. Pagones (Not selected for publication in the Official Reports.)

In this Article 78 action a former employee of a State agency [Petitioner] challenged his summary dismissal from his position on the grounds that he did not possess a valid driver’s license to operate a motor vehicle in New York State. Petitioner asked Supreme Court to (1) annulling the Employer’s terminating him from his position, (2) directing his reinstatement to his position with back pay, benefits, service time, seniority and other fringe benefits; and (3) award him the costs and disbursements of this proceeding, together with reasonable attorney's fees.

Petitioner’s employer had notified Petitioner that his employment would be terminated because he did not meet the "minimum qualifications" of his position as he had not secured and/or maintained a valid New York State driver's license.” Alleging that the Employer’s determination was arbitrary, capricious and made in bad faith, Petitioner argued that:

(1) he should have been afforded the protections mandated by Civil Service Law Section 75, and as outlined in Article 33 of the Collective Agreements between the State of New York and the New York State Civil Service Employees Association;

(2) while minimum qualifications of employment may not rise to acts of misconduct that would invoke disciplinary procedures mandated by the Civil Service Law, a driver's license was not a minimum qualification at the time of his appointment; and

(3) the class specification for his position does not clearly identify a valid driver's license as a minimum qualification.

Judge Pagones said that it is well settled that the failure to maintain a minimum qualification for employment is not an act of misconduct nor one related to job performance that would invoke the disciplinary procedures mandated by Civil Service Law §75, citing Matter of NYS Office of Children and Family Services v Lanterman, 14 NY3d 275. 

Courts have viewed employees who lack licenses as being “unqualified,” in contrast to being “incompetent,” to perform the duties of the position. Common examples include the revocation of a truck driver’s permit to operate a motor vehicle on public roads, loss of an attorney’s license to practice law and the expiration of a temporary permit to teach. All that appears to be necessary in such cases is for the appointing authority to make some reasonable inquiry to determine if the employee may lawfully perform the duties of the position.*

Thus, explained the court, "an employee charged with failing to possess a minimum qualification of his or her position is only entitled to notice of the charge and the opportunity to contest it" and dismissed Petitioner’s action.

* See, for example: Fowler v City of Saratoga Springs, 215 A.D.2d 819 (City Engineer lawfully dismissed for failure to obtain Professional Engineer’s license by a specified date); Meliti v Nyquist, 53 AD2d 951, affirmed 41 NY2d 183 (immediate suspension of teachers was lawful because their teaching licenses had expired); and O’Keefe v Niagara Mohawk Power Corp, 714 FSupp 622, (traveling company demonstrator was not discriminated against when a private employer terminated him after his driver’s license was suspended)

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_50585.htm
.