United States Supreme Court distinguishes a law from a regulation for the purposes the federal whistle blower statute

United States Supreme Court distinguishes a law from a regulation for the purposes the federal whistle blower statute

Department of Homeland Security v MacLean, USSC #13-984

A federal air marshal publicly disclosed that the Transportation Security Administration (TSA) had decided to cut costs by removing air marshals from certain flights.

He was subsequently dismissed from his position for disclosing sensitive security information without authorization in violation of TSA regulations, which action was sustained by the Merit Systems Protection Board. The Board found that MacLean was not entitled to whistle blower protection for the disclosures he made, finding that such statements were specifically prohibited by TSA's regulation.

The TSA regulation at issue, 67 Fed. Reg. 8351, prohibited the unauthorized disclosure of “sensitive security information” which included "[s]pecific details of aviation security measures . . . [such as] information concerning specific numbers of Federal Air Marshals, deployments or missions, and the methods involved in such operations."

The USCA, Federal Circuit, vacated the Board’s determination.

The Supreme Court affirmed the Federal Circuit’s ruling, explaining that Congress had used phrase "specifically prohibited by law" rather than a more general phrase such as “law, rule or regulation” in creating exceptions to the protections of the federal whistle blower statute [5 U.S.C. 2302(b)(8)(A)].

TSA's regulations, said the court, do not qualify as "law" for the purposes of 5 USC 2302(b)(8)(A) and thus such regulations do not satisfy the requirement that the provision constitute an “exception prohibited by law.”

For the purposes of “Whistle Law” protection, New York courts have distinguished between disclosures concerning of matters of public interest, which are subject to such protection and disclosures concerning matters of a personal nature or personal interest, which disclosures are not protected by the State’s Whistle Blower laws [Civil Service Law §75-b and Labor Law §740.(2)] or New York City’s Administrative Code §12-113.

 

The MacLean decision is posted on the Internet at:

http://www.supremecourt.gov/opinions/14pdf/13-894_e2qg.pdf

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Determining if there is a special relationship between a municipal employer and a municipal employee

Determining if there is a special relationship between a municipal employer and a municipal employee
2015 NY Slip Op 00526, Appellate Division, Second Department

Sometimes there is a "special relationship" between a municipal employer and a municipal employee.

Citing Pelaez v Seide, 2 NY3d 186, the Appellate Division explained that a special relationship of a municipality to an individual can be formed in three ways: 

(1) when the municipality violates a statutory duty enacted for the benefit of a particular class of persons; 

(2) when it voluntarily assumes a duty that generates justifiable reliance by the person who benefits from the duty; or 

(3) when the municipality assumes positive direction and control in the face of a known, blatant and dangerous safety violation."

A New York City school teacher sued the City’s Department of Education seeking damages for personal injuries she alleged she had suffered as the result of an assault by a student while at school. The teacher contended that the Department “breached a duty of care” by failing to remove the student from classes at the school and by failing to protect her from the student.

The Department contended that there was no special relationship between it and the teacher and therefore, it did not owe her a duty of care.

Supreme Court granted the District’s motion for summary judgement and the teacher appealed.

The Appellate Division affirmed the Supreme Court’s ruling noting that the District had established, prima facie, its entitlement to judgment as a matter of law by demonstrating that it had not voluntarily assume a duty toward the teacher.

The court held that the teacher “failed to raise a triable issue of fact as to whether a special relationship was formed by the Department’s voluntary assumption of a duty that generated her “justifiable reliance.” In addition, said the Appellate Division, the teacher did not allege that a special relationship was formed because the Department of Education had violated any statutory duty or “assumed positive direction and control in the face of a known, blatant, and dangerous safety violation.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_00526.htm

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An individual may be the victim of discriminatory animus that is directed to a third person with whom the individual associates

An individual may be the victim of discriminatory animus that is directed to a third person with whom the individual associates

2015 NY Slip Op 00326, Appellate Division, Second Department

In this action, which the court characterized as a “case of first impression for this Court,” one of the issues concerned whether a plaintiff alleging discrimination in employment on the basis of religion in violation of New York State’s Executive Law §296 can establish a prima facie case by alleging that he was discriminated against because of the religion of his spouse.

The Second Department’s answer in a word, yes.

The court noted that although there is no authority addressing this issue under the State’s Human Rights Law, several federal courts have construed Title VII to protect individuals "who are the victims of discriminatory animus towards third persons with whom the individuals associate," citing Tetro v Elliott Popham Pontiac, Oldmobile, Buick, and GMC Trucks, Inc., 173 F3d 988, [6th Cir].

The individual had alleged that he was the victim of unlawful discrimination in employment and a hostile work environment in violation of §296. Supreme Court, however, granted the employer’s motion for summary judgment, thereby dismissing the individual’s cause of action for unlawful discrimination and his cause of action for hostile work environment.”

The Appellate Division explained that “To establish liability under the State Human Rights Law arising from the termination of employment, a plaintiff has the initial burden of establishing a prima facie case of discrimination by a preponderance of the evidence.” In addition, said the court, “To establish a prima facie case of discrimination under the State Human Rights Law, a plaintiff who has been terminated from employment must demonstrate (1) that he or she is a member of the class protected by the statute, (2) that he or she was actively or constructively discharged, (3) that he or she was qualified to hold the position from which he or she was terminated, and (4) that the discharge occurred under circumstances giving rise to an inference of discrimination.”\

In order to prevail in its motion for summary judgement the employer must make "a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact."

The individual said the Appellate Division, had demonstrated his membership in a protected class by virtue of the employer’s alleged discriminatory conduct stemming from his wife’s religion, noting that discrimination against an individual based on his or her association with a member of a protected class also constitutes an infringement upon that individual's First Amendment right to intimate association, which receives protection as a fundamental element of personal liberty.

Nevertheless, the court held that the employer “established, prima facie, that the [individual] was not terminated from his employment under circumstances giving rise to an inference of discrimination” by demonstrating that he was terminated for legitimate, nondiscriminatory reasons—specifically, the issues litigated and decided during the disciplinary hearing.

However, in opposition to the defendants' prima facie showing of entitlement to judgment as a matter of law, the individual raised a triable issue of fact as “Verbal comments can serve as evidence of discriminatory motivation when a plaintiff shows a nexus between the discriminatory remarks and the employment action at issue.” The decision notes that “Even stray remarks in the workplace by persons who are not involved in the pertinent decision-making process may suffice to present a prima facie case [of unlawful discrimination], provided those remarks evidence invidious discrimination.

In consideration of this, the Appellate Division modified Supreme Court’s order, on the law, by deleting the Supreme Court's provision granting that branch of the employer’s motion “which was for summary judgment dismissing the cause of action alleging discrimination on the basis of religion in violation of the State Human Rights Law, and substituting therefor a provision denying that branch of the [employer’s] motion;" and as so modified, affirmed the order.

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2015/2015_00326.htm
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Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending January 24, 2015

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending January 24, 2015

Click on text highlighted in color  to access the full report

DiNapoli and Schneiderman Announce Guilty Plea in $120K Fraud of State Pension Benefits State Comptroller Thomas P. DiNapoli and Attorney General Eric Schneiderman Wednesday announced that Graycelia Cizik, 64, a resident of Polk County, Florida, pleaded guilty to a one-count indictment charging her with grand larceny in the second degree, a class C felony, before Supreme Court Judge Roger D. McDonough in Albany County Court. Cizik will be sentenced to 2 to 6 years in state prison on March 13, 2015

Comptroller DiNapoli Releases School Audits

On January 22, 2015 New York State Comptroller Thomas P. DiNapoli announced that his office completed audits of the:

Groton Central School District,

Herricks Union Free School District, and the

Stockbridge Valley Central School District.

Comptroller DiNapoli Releases Municipal AuditsOn January 22, 2015 New York State Comptroller Thomas P. DiNapoli announced that his office completed audits of the: 
Allegany Engine Company, Inc., 
Columbia County, and the 
Town of Tuxedo.

Proposed changes to the Education Law §3020-a disciplinary procedures

Proposed changes to the Education Law §3020-a disciplinary procedures

Source: Office of the Governor

On January 21, 2015 Governor Andrew M. Cuomo presented his “2015 Opportunity Agenda” in course of delivering his "State of the State Message."

The Governor said that ”The current teacher discipline and termination system, commonly known as 3020-a hearings, is broken. The hearings are costly and time-consuming for districts, and allow arbitrators to overrule administrators’ determinations of competency and of appropriate remedies. Administrators take on protracted battles that they may or may not win, at great cost to themselves and their school communities, in attempting to eliminate ineffective and incompetent educators in their buildings.Below is the Governor’s proposal to “Make it easier, fairer and faster to remove ineffective teachers from the classroom” 

Proposal #43: Make it easier, fairer and faster to remove ineffective teachers from the classroom
 
The Governor had proposed the following reforms to Education Law §3020-a hearings “to streamline the hearing process, shift the presumptions, and strengthen evidentiary standards,” including:

1. In the case of a teacher accused of physical or sexual abuse of a child, there will be an expedited hearing with a decision rendered within 60 days.

2. Easing the legal burden on school districts seeking to remove a teacher that has been rated ineffective two years in a row.

3. Elimination of the current legal requirement that administrators must attempt to “rehabilitate” teachers who are incompetent or engage in misconduct.

4. Removal of the requirement that children must testify in person and will allow them to testify via sworn written or video statements.

5. Clarification of the existing law with respect to the dismissal of a non-tenured teacher.

The Governor’s full “2015 Opportunity Agenda” policy book is available here, and the corresponding presentation is available here.