Failure to allege discriminatory animus fatal to an individual’s claims of unlawful discrimination under State and New York City Human Rights Laws

Failure to allege discriminatory animus fatal to an individual’s claims of unlawful discrimination under State and New York City Human Rights Laws 

2014 NY Slip Op 05037, Appellate Division, First Department

The Appellate Division affirmed State Supreme Court granting the New York City Department of Citywide Administrative Service’s motion to dismiss an employee’s [Employee] Human Rights complaint.

The court, construing the complaint liberally and presuming its factual allegations to be true, gave Employee the benefit of every possible favorable inference and yet found that the Employee had not adequately plead or established a recognized disability under either the State or City Human Rights Law.

The Appellate Division explained that Employee’s medical proof only established that he was extremely anxious and stressed because of his daughter's medical condition.

Further, citing McEniry v Landi, 84 NY2d 554, the court said that Employee failed to adequately plead discriminatory animus. This, it pointed out, was fatal to Employee’s discrimination claims under the State and City Human Rights Laws.

New Language Proficiency Testing Advisory Memorandum, Policy Bulletin 14-01, issued by the New York State Department of Civil Service

New Language Proficiency Testing Advisory Memorandum, Policy Bulletin 14-01, issued by the New York State Department of Civil Service

Source: New York State Department of Civil Service

N.B.The State Personnel Management Manual addressing language proficiency testing for testing language proficiency for appointment to positions by entities for which the State Department of Civil Service administers the Civil Service Law has been revised. Policy Bulletin 14-01, which supercedes Advisory Memorandum #97-05, is set out below.

OVERVIEW

Effective July 9, 2014, the Department of Civil Service (DCS) will be utilizing Language Line Services, Inc. to provide additional resources and support for language proficiency test administration. For the over 200 classified titles that require language proficiency, Language Line Services will ensure the availability of test examiners in such languages as Spanish, Haitian Creole, Korean, Polish, Russian, and Chinese (Mandarin and Cantonese). If there are additional languages for which you require testing, please contact LanguageProficiency@cs.ny.gov.

Testing should be conducted on an as-needed basis and should be limited to reachable candidates. Language Line Services will schedule and administer language proficiency tests remotely or locally, by phone or in person, within three weeks of receiving a request. Candidates’ performance will be scored using the established New York State Proficiency Levels within five business days after test administration. Language Line Services will report test results to the requesting agency and to the DCS. The fee to use Language Line Services will be paid by the DCS. Language Line Services staff have been trained to administer the tests consistent with administration by State agencies.

USING LANGUAGE LINE SERVICES

Agencies who wish to use Language Line Services must designate a staff member from their Human Resource/Personnel Office to serve as the administrator for language proficiency testing. Administrators may access the Language Line Online Registration System User Guide for NYS at http://www.cs.ny.gov/ssd/Manuals/SPMM/1200Examinations/NYS%20Online%20Registration%20System%20User%20Guide%20with%20NYS%20OPT.pdf.

It is recommended that administrators print this guide for convenient referral. After reviewing the Guide, the Language Line Registration System may be accessed at: https://my.languageline.com/llu/go/login/.

USING IN HOUSE EXAMINERS

Agencies who have a ready pool of in house examiners may continue to use them. The honorarium for an in house examiner must be paid by the hiring agency. The DCS will not be certifying or training new in house examiners as the expectation is, over time, that agencies will transition to Language Line Services.

Agencies using in house examiners must contact LanguageProficiency@cs.ny.govto obtain revised Monitor Instructions, Candidate’s Booklet, Examiner’s Booklet, and Sample Letters/Forms. Please destroy existing language proficiency examination materials in a manner consistent with your agency’s elimination of secure and confidential material.

Agencies must designate a staff member from their Human Resource/Personnel Office to serve as the administrator for language proficiency testing. As necessary, the administrator may designate other monitors to conduct language proficiency testing. Test results should be reported to LanguageProficiency@cs.ny.gov. The test materials are designed to be reused and are considered confidential and secure and must be maintained in a confidential and secure manner in the agency Human Resource/Personnel Office.

PRIOR TESTING OF CANDIDATES

Whether you are using Language Line Services or in house examiners, before scheduling a test, the administrator should contact LanguageProficiency@cs.ny.govto determine if the candidate has already passed the proficiency test at the established proficiency level, or higher. Please provide the candidate’s name and last four digits of the Social Security number. If the candidate has already passed the language test at the established proficiency level, or higher, the test will be waived and the candidate may be considered for appointment. The DCS will continue to maintain a database of candidates who have been tested and the level of proficiency achieved so that repeated testing is not required.

DETERMINING LEVELS OF PROFICIENCY

The process for determining levels of proficiency remains unchanged. Agencies are responsible for providing the information necessary to determine the level of language proficiency that will ensure a candidate’s ability to properly perform the duties of the position at the examination planning scope conference. The level of proficiency must be the same for all positions within a title.

LEVELS OF PROFICIENCY

The levels of proficiency remain unchanged:

Level 1: This skill level requires relatively limited proficiency to conduct simple routine social conversations in an understandable manner making introductions, providing basic information about the surroundings, handling routine calls, or assisting others in filling out routine English language forms. Entry-level clerical titles with language parenthetics are designated as Level 1.

Level 2: This skill level requires proficiency in conducting smooth understandable conversation, reading correspondence, official documents, and forms to obtain accurate information, composing relatively simple and brief letters and memos for a variety of purposes, to explain rules or regulations, or to discuss a problem. Some higher level clerical, paraprofessional, and safety and security titles with language parenthetics are designated as Level 2.

Level 3: This skill level requires advanced proficiency evidenced by good control of grammar, a relatively large and diverse vocabulary, accurate communication in a variety of professional and social contexts, leading group activities, conducting meetings or training classes; administering tests, inventories or questionnaires including evaluating responses, preparing reports explaining relatively complex rules, regulations and procedures, conduct interviews, evaluate resources, or decide on a course of action. Some journey level personnel titles, social work, and psychologist titles with language parenthetics are designated as Level 3.

The names of candidates who fail to demonstrate the level of proficiency determined for the title will remain restricted on the language parenthetic eligible list. A retest may be granted six months after the candidate was last tested. Agencies may conduct a retest if and when they are actively canvassing the eligible list. Candidates who do not achieve the proficiency level required for the title may, upon request, receive a copy of the examiners rating of their performance. Appeal of ratings is not allowed as the opportunity for retest exists.

Questions regarding the information contained in this advisory may be directed to LanguageProficiency@cs.ny.gov.

Recent decisions by OATH Administrative Law Judges

Recent decisions by OATH Administrative Law Judges

Source:  New York City Office of Administrative Trials And Hearings

Physical altercations: A special officer was charged with engaging in an off-duty fight with a co-worker, making harassing phone calls to that co-worker, and striking a handcuffed homeless shelter resident in the face. ALJ Kevin F. Casey found that respondent was a willing participant in a fight with a co-worker at an off-duty event where many current and former agency employees were present. He recommended dismissal of the harassment charge because the Department did not prove that harassing phone calls were made or that special officer was the caller. As for the charge that the officer hit a resident, ALJ Casey found the testimony from the employer’s witness that he saw the officer strike a seated resident with a closed fist, more credible than the employee's claim that she pushed the resident after he charged at her with a head-butt motion. For the misconduct proven, ALJ Casey recommended a 60-day suspension. Dep't of Homeless Services v. Smith, OATH Index No. 518/14.

Excessive Absences: A computer programmer analyst was charged with misconduct, incompetence, and leaving her work station early on at least 165 occasions. ALJ Ingrid M. Addison found that the Agency condoned respondent’s practice of scanning out at 4:53 p.m., and recommended dismissal of that charge, but she sustained the charge that on each occasion that she scanned out at 4:53 p.m., respondent left her work station without authorization at least 18 minutes prior, in order to scan out on a different floor. ALJ Addison found that petitioner proved that respondent is incapable of performing the duties of her title. Although the Agency sought termination of respondent's employment, ALJ Addison found that petitioner must assume some responsibility for its failure to evaluate and assess respondent’s qualifications before assigning her to her position. She recommended demotion of respondent to her previous title. Financial Information Services Agency v. Leung, OATH Index No. 2115/13.

Failure to perform duties: A correction officer was found to have been excessively absent for missing 198 days of work in a nine-month period. Although the employee provided valid documentation for her continued absence, she still may be disciplined for failure to perform the duties of her position because of excessive absence. The employee was also found to have disobeyed orders on two occasions and to having filed a false report. Based on the high number of absences and the other misconduct proven, ALJ Alessandra F. Zorgniotti recommended the officer's termination from employment. Dep't of Correction v. Vives, OATH Index Nos. 1162/14, 1163/14 & 1164/14.

Leaving training class early: ALJ Faye Lewis found that an assistant civil engineer committed misconduct by leaving a training class early without authorization and by failing to participate in the class and instead reviewed other work material. The ALJ recommended the employee be suspended without pay for two days, finding that the Agency's proof failed to establish that employee was disruptive in class or that he committed misconduct because he had absented himself from class for two hours to attend a scheduled meeting with a supervisor. Dep't of Environmental Protection v. Frenzel, OATH Index No. 611/14.

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Providing assistance to an employee in the negotiating unit served with disciplinary charges

Providing assistance to an employee in the negotiating unit served with disciplinary charges

Source: Inquiry from a NYPPL reader

A reader asks “what kinds of assistance may a union provide a member served with disciplinary charges?”

Most Taylor Law agreements include a multi-step disciplinary grievance procedure in lieu of, or as an alternative to, a statutory disciplinary procedure. Included in the employee organization’s duty of fair representation is the duty to assist an individual in the collective bargaining unit in the event the individual is served with disciplinary charges by the appointing authority.

If, after evaluating the disciplinary action initiated by the appointing authority against the employee, the employee organization determines that it has a duty to assist the employee in the defense of the disciplinary charges filed against the individual, its representative or an attorney designated by the employee organization can assist the employee by representing him or her in the disciplinary grievance procedure and represent the individual in an administrative disciplinary hearing as well as advising the individual in the following areas:*

1. Evaluate the charges and possible defenses available to the employee. The union representative or attorney typically has the experience and training to advise the individual of the potential for successfully defending the disciplinary action, in whole or in part, and the disciplinary penalties that may be imposed if the individual is found guilty of one or more of the charges filed against him or her.

2. Negotiate with the employer's representative or attorney. A union’s representative or attorney can discuss possible settlement or withdrawal of the charges with employer or its representative to negotiate the best settlement possible to attain a mutually satisfactory resolution of the disciplinary charges. 

3. Evaluate settlement offers. If an offer to settle the disciplinary action is made by the employer, the union’s representative or attorney can advise the individual about things that might be prove significant such as the impact of a resignation from the position in lieu of the employer going forward with prosecuting the charges. Likewise the union’s representative or attorney may initiate settlement discussions with the employer's representative or the employer's attorney.

4.Consider the economic impact of the settlement under consideration.  The settlement offer could have an adverse impact on the individual’s career, other job opportunities, retirement benefits and other elements involving his or her financial future that the union’s representative or attorney could explain.

5.Anticipate legal issues the individual may not have considered. The union’s repetitive or attorney can explain the plethora of legal issues that could arise as a result of finding that the individual guilty of one or more of the charges filed against the employee in a disciplinary action or, in the alternative, the potential difficulties that might arise in the event the matter is settled or the employee’s submits his or her resignation or an application for retirement in an effort to avoid a disciplinary hearing.

*These same general observations would apply in the event the disciplinary charges are filed against a member of the negotiating unit pursuant to Civil Service Law §75, Education Law §3020-a or a similar statutory disciplinary procedure.

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Violating the employer’s prohibition against its employees associating with an individual associated with criminal activity

Violating the employer’s prohibition against its employees associating with an individual associated with criminal activity

Dillin v Waterfront Commn. of N.Y. Harbor, 2014 NY Slip Op 05036, Appellate  Division, First Department

Supreme Court granted a longshoreman’s [Petitioner] motion seeking to annul the determination of the Waterfront Commission of New York Harbor (Commission) revoking Petitioner's longshoreman's certificate and remanded the matter for a new hearing before a different hearing officer. The Appellate Division reinstated the Commission’s determination.

The Appellate Division explained that the Commission’s finding that Petitioner “violated a prohibition against association with an identified member of an organized crime family is supported by substantial evidence,” noting that the prohibition was imposed by a federal court* pursuant to a provision* of the Waterfront and Airport Commission Act.** “prohibiting such association under circumstances rendering a person's continued participation in any activities requiring registration pursuant to the WCA to be ‘inimical to the policies of’ the WCA (Uncons Laws § 9913[6]).” The policies of the WCA, said the court, include countering organized crime and corruption which have been found to be endemic in waterfront labor practices.

In this case there was testimony that Petitioner attended two parties that were also attended by an associate of an organized crime group. The Appellate Division said that there was “sufficient evidence to refute Petitioner's claim that her attendance at the same parties as the person in question was accidental or inadvertent.” Petitioner, said the court, also admitted to making remarks to coworkers about being "best friends" with this person and "hanging out" with him, and insofar as petitioner suggested that she was not serious about such remarks, the ALJ was not required to credit her testimony.

The Appellate Division then said that it did not find that the penalty of revocation of Petitioner's registration shocking to one's sense of fairness in that by associating with individuals with connections to organized crime and boasting about such associations to other longshoremen, Petitioner “engaged in conduct which potentially undermines the Commission's continuing efforts to ensure public safety by reducing corruption on the waterfront.”

Noting that Petitioner “does not have a perfect record” in that she was suspended by the Commission for 15 days for filing a false application for longshoreman registration and  was also previously found guilty of theft by deception for continuing to receive food stamps after she had become ineligible, the court said that “In light of Petitioner's behavior in connection with the instant misconduct and on previous occasions, revocation of petitioner's registration does not shock our sense of fairness.”

An employer, particularly one engaged in law enforcement, may prohibit its employees from associating with certain individuals.

For example, the Suffolk County Police Department's rules prohibit members of the Department from "associating or fraternizing" with any person known (by the employee) to have been convicted of any misdemeanor or felony under (any) state or federal law”. A police officer, after being advised that "a close friend" was a convicted felon, decided his continued association with him would not violate Department rules because the individual's "conviction was nearly 20 years old" and he had a "certificate of relief from civil disabilities." Eventually the officer was charged pursuant to §75 of the Civil Service Law with violating Department Rules, found guilty, and had to forfeit 10 days of vacation credit as a penalty. The Court of Appeals rejected the officer's argument that the rule was unconstitutionally overbroad,*** noting that the State could regulate the off-duty conduct of its police officers even though it involved a constitutionally protected right (1st Amendment, Right of Association), the regulation was held to serve a valid governmental concern the public's perception of a police department as perceived through the conduct of the individual officers.

Indeed, in Fludd v Sielaff, 184 A.D.2d 362 (1992), the Appellate Division sustained the termination of a New York City correction officer who, when police officers seeking to execute a warrant for the arrest of her estranged husband, asked her if she knew his whereabouts, denied having seen him for three or four weeks, knowing that he was hiding in another room in her apartment. A few moments later police discovered her estranged husband and arrested him. Fludd  was charged with official misconduct for "harboring a fugitive," and for lying about her knowledge of his presence in her apartment when confronted by police seeking to arrest him. The court explained that "the commissioner was free to find that the choice [Fludd] made was utterly incompatible with her position as correction officer."

Further, the U.S. Supreme Court has refused to review an appeal of a California State Court decision, Bailey v National City, Calif., 277 Cal Rptr 427, which had sustained the termination of a police officer who was found to have violated department rules concerning outside work, used his position as a police officer for personal gain and refused to discontinue a personal association with a known felon.

* See United States v ILA Local 1588, 2003 WL 221851, 2003 US Dist LEXIS 1229 [SD NY, Jan. 30, 2003], affd 77 Fed Appx 542 [2d Cir 2003].

** Unconsolidated Laws of New York, §9801, et seq.

*** Morrisette v. Dilworth, 59 N.Y.2d 449 (1983).

Commissioner of Education lacks jurisdiction to consider an appeal from a person dismissed from a position in the Classified Service

Commissioner of Education lacks jurisdiction to consider an appeal from a person dismissed from a position in the Classified Service

Decisions of the Commissioner of Education, Decision No. 16,620

An Education Analyst [EA] filed an appeal with the Commissioner of Education challenging the New York City Department of Education’s terminating her employment and sought an order by the Commissioner directing the Department to reinstate her to her "former job status and title with full benefits."

The Department claimed that EA “was a probationary employee appointed to a civil service position [i.e., a position in the classified service] who failed to meet its expectations, that she was terminated from her position during her probationary period, and that its actions were legal, proper and reasonable.”*

The Commissioner said that the appeal must be dismissed for lack of subject matter jurisdiction explaining that Civil Service Law §17 vests jurisdiction to administer the provisions of the Civil Service Law with respect to the offices and employments in the classified service in the applicable civil service commission, personnel officer or other form of civil service administration.

In case of the City of New York, the City is empowered to administer the Civil Service Law through whatever form of administration it chooses to prescribe in its City Charter. Further, said the Commissioner, Civil Service Law §102(3) vests jurisdiction to address alleged violations of the Civil Service Law in State Supreme Courts.

In contrast, the Commissioner noted that under of the Civil Service Law §35(g), the Commissioner of Education has jurisdiction over positions certified as positions involving teaching and the supervisory staff of school districts and BOCES,  i.e., positions in the Unclassified Service.

The position of Education Analyst, however, is not among the positions that have been certified by the Commissioner of Education pursuant to §35 (g) of the Civil Service Law as a position involving teaching or being a member of the supervisory staff of a school district or a BOCES. To be considered a pedagogical position for which certification by the Commissioner is required the position must involve teaching or “the function of administration of teaching, i.e., supervision and direction of supervisors, principals and all other members of the teaching and supervisory staffs.”

Finding that there was no evidence in the record that EA’s job duties involved teaching or the supervision of pedagogical staff, the Commissioner said that “It is well settled that the termination of a classified [service] employee is not the proper subject of an appeal brought pursuant to §310 of the Education Law" and dismissed EA’s appeal.

*The Civil Service of the State of New York consists of positions jurisdictionally classified as being in the Unclassified Service and positions jurisdictionally classified as being in the Classified Service. In addition, there are a number of positions in the Military Service of the State.

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Dismissal of a teacher rated satisfactory for 18 consecutive years until assigned to a special education class overturned as “shocking to the court’s sense of fairness”

Dismissal of a teacher rated satisfactory for 18 consecutive years until assigned to a special education class overturned as “shocking to the court’s sense of fairness”

2014 NY Slip Op 05032, Appellate Division, First Department

A licensed common branches and special education teacher [Teacher] had been employed by the New York City Department of Education for more than 21 years when he was terminated in 2011. He had received satisfactory ratings for 18, Teacher was then assigned to a self-contained special education class comprised of 12 students who were chronologically fourth, fifth, sixth, graders, but who were functioning at two and three years below grade level. The principal of the school rated Teacher unsatisfactory. Teacher's request to be assigned to another class or, in the alternative, be assigned an aide or assistant, was denied.

Teacher was again assigned the same class with the same group of students for three consecutive years, until the older students completed the eighth grade. He was rated as unsatisfactory all three years he taught this class based in part on his inability to control the classroom and his inability to plan and effectively execute certain lessons. His requests to be assigned to a different class were repeatedly denied, although various teachers and administrators were purported to advise him as to how to improve his performance. Teacher was also criticized for “failing to follow the Teacher's College Workshop Model lessons, even though the Workshop Model made no provisions for students with learning disabilities.”

Served with disciplinary charges, the Hearing Officer determined that Teacher was guilty of seven out of nine of the specified charges spanning a three-year period. Although the Hearing Officer acknowledged that Teacher had attempted to improve his performance by working with a mentor and participating in the Peer Intervention Plus Program (PIP Plus), the Hearing Officer deemed his performance to be unsatisfactory.

Teacher contended that the remediation efforts were inadequate as he never received organized or consistent lessons from his peers and that they usually consisted of rushed, disorganized, and informal hallway meetings. He also contended that the assistance he received from the assistant principals was uncoordinated and often contradictory. As an example, Teacher said that he had sought help designing a lesson from one assistant principal but when a different assistant principal observed the lesson that the first assistant principal had prepared with him, the second one rated it as unsatisfactory “because the lesson failed to follow a specific structure established by written guidelines.”

Although the Appellate Division said that it did not dispute the specific findings of the Hearing Officer concerning Teacher's deficiencies in the management of this one special education class, it found that under the circumstances presented here the penalty of termination shocked its sense of fairness.

The court said that it was troubled “to see [the Department of Educations] apparent determination to terminate [Teacher], a 21-year veteran with 18 years of satisfactory ratings, because of his difficulty with one class in which he was kept for three years.

Finding that the Hearing Officer's decision to dismiss Teacher to be manifestly disproportionate to his conduct, the Appellate Division remand the matter “for the imposition of a lesser penalty.”

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A Reasonable Disciplinary Penalty Under the Circumstances - a 442-page volume focusing on determining an appropriate disciplinary penalty to be imposed on an employee in the public service in instances where the employee has been found guilty of misconduct or incompetence. Now available in two formats - as a large, paperback print edition, and as an e-book. For more information click on http://booklocker.com/books/7401.html

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Filing age discrimination complaints in federal courts

Filing age discrimination complaints in federal courts

Hildebrand v Allegheny [Pennsylvania] County, USCA, 3^rdCircuit, Docket 13-1231

The U.S. Court of Appeals for the Third Circuit ruled that a state or local government employee may not maintain an age discrimination in employment action pursuant to the Civil Rights Statute, 42 U.S.C 1983, but may only proceed under the Age Discrimination in Employment Act [ADEA], 29 U.S.C. §§621-634.

The court agreed with Allegheny County’s argument that the ADEA “is the exclusive remedy for claims of age discrimination in employment” and thus its employee was precluded from bring a  §1983 cause of action alleging age discrimination, explaining that §1983 is a statutory remedy* and Congress retains the authority to repeal it or replace it with an alternative remedy, in this instance the ADEA.

The Circuit Court also held that the plaintiff in this action was not obligated to plead exhaustion of administrative remedies with particularity but may, instead, allege in general terms that the required administrative process had been completed.

* The Circuit Court also noted that The Supreme Court has held that §1983 suits are precluded by statute in a case where a plaintiff sought vindication of a constitutional – rather than a statutory – right, citing Smith v Robinson, 468 U.S. 992.

NYS State Department of Civil Service has established a resource center to assist in the recruitment persons with disabilities for appointment to State positions

NYS State Department of Civil Service has established a resource center to assist in the recruitment persons with disabilities for appointment to State positions
Source: NYS Department of Civil Service General Information Bulletin 14-01

Civil Service Law §55-b provides for the employment of persons with disabilities by the State. The Civil Service Commission may determine up to 1,200 that may be performed by persons with a physical or mental disability who are found otherwise qualified to perform satisfactorily the duties of any such position. Upon such determination the position is placed in the noncompetitive class and may be filled only by persons who have been certified by the Department’s Employee Health Service as being a person with either a physical or mental disability.

Civil Service Law §55-c provides for the employment of veterans with disabilities by the State. 500 such positions may be designated by the State Civil Service Commission as positions with duties that may be performed by disabled veterans and veterans with disabilities who are found otherwise qualified to perform satisfactorily. Such positions are also placed in the noncompetitive class and may be filled only by veterans of the armed forces of the United States who served during time of war as defined in Civil Service Law §85.1(c).*

Employees appointed to positions pursuant to §55-b or §55-c are eligible to compete promotional examinations.

The Department of Civil Service has established a “55-b/c Recruitment Resources Center.” The Center’s Internet site is www.cs.ny.gov/rp55 and will serve as the central online location through which individuals currently approved for the Governor’s Program to Hire Individuals and Veterans with Disabilities (55-b or 55-c Program) will submit up-to-date employment and contact information for consideration by State agencies filling entry-level positions. This site is designed to make it quicker and easier for State agencies to find qualified 55-b/c job seekers. The Department encourages State Departments and Agencies to begin using the 55-b/c Recruitment Resources Center when filling entry-level positions.

Questions regarding the 55-b/c program or use of the 55-b/c Recruitment Resources Center, may be emailed SSDRecruitServices@cs.ny.gov or call: (518) 473-8961 for questions regarding the Governor’s Program to Hire Persons with Disabilities (55-b Program); or(518) 473-9733 for the Governor’s Program to Hire Veterans with Disabilities (55-c Program).

The text of the Department’s General Information Bulletin 14-01 is posted on the Internet at:
http://www.cs.ny.gov/ssd/Manuals/SPMM/GIBS/GIB14-01.cfm

*N.B. There are two “§55-c” set out in the Civil Service Law. The second “§55-c" provides for the acceptance of a high school individualized education plan diploma granted to a child with handicapping conditions whenever a high school diploma is required by the State Civil Service Department or a municipal civil service commission or personnel officer as a minimum qualification in any competitive examination. 

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Essential considerations in a court’s review of an administrative decision after an administrative hearing required by law

Essential considerations in a court’s review of an administrative decision after an administrative hearing required by law
Willis v New York State Liq. Auth., 2014 NY Slip Op 04776, Appellate Division, Second Department

In this CPLR Article 78 action challenging a determination of the New York State Liquor Authority adopting the recommendation of an administrative law judge the Appellate Division succinctly sets out the essential elements in a court’s review of a challenge to the determination as follows:

1. "Judicial review of an administrative determination made after a hearing required by law, and at which evidence was taken, is limited to whether that determination is supported by substantial evidence;

2. “Substantial evidence is "such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact;

3. Substantial evidence is "[m]ore than seeming or imaginary, it is less than a preponderance of the evidence, overwhelming evidence or evidence beyond a reasonable doubt;

4. "The standard demands only that a given inference is reasonable and plausible, not necessarily the most probable;

5. “The strict rules of evidence do not apply to administrative proceedings and hearsay evidence is admissible; and.

6. “Hearsay evidence may constitute substantial evidence if sufficiently relevant and probative and may, under appropriate circumstances, form the sole basis for an agency's determination, unless it is seriously controverted.”

In sustaining the challenged determination of the State Liquor Authority, the court explained that the Authority’s determination, sustaining three charges was supported by substantial evidence and that testimony at the hearing, consisting of conclusory denials, did not seriously controvert the Authority's showing of substantial evidence in support of the charges.

As to the penalty imposed by the Authority, the Appellate Division said that it was “not so disproportionate to the offenses as to be shocking to one's sense of fairness,” citing S&S Pub, Inc. v NYS Liquor Authority, 109 AD3d 460, and that “[i]n setting a penalty, consideration of the history and previous record … is appropriate,” citing Untitled LLC v NYS Liq. Auth., 82 AD3d 460 among other decisions.

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