An employer’s failure to make an individualized assessment of a disabled applicant’s particular abilities to perform the duties of the position required constitutes unlawful discrimination

An employer’s failure to make an individualized assessment of a disabled applicant’s particular abilities to perform the duties of the position required constitutes unlawful discrimination

Brentwood Union Free School Dist. v Kirkland, 2015 NY Slip Op 02121, Appellate Division, Second Department

In an appeal challenging a determination by the Commissioner of the New York State Division of Human Rights, made after a hearing before an administrative law judge who found that the Brentwood Union Free School District, unlawfully discriminated against the complainant, the Appellate Division explained that the scope of judicial review under the Human Rights Law is extremely narrow and is confined to the consideration of whether the determination of the New York State Division of Human Rights is supported by substantial evidence* in the record. Further, said the court "Courts may not weigh the evidence or reject the Division's determination where the evidence is conflicting and room for choice exists."

Here there was substantial evidence in the record to support a conclusion that Brentwood unlawfully discriminated against the complainant by denying him employment based solely on his membership in a class of persons with the same condition, chronic obstructive pulmonary disease, instead of upon an individualized assessment of his particular abilities.

While Brentwood did offer some evidence at the hearing that the complainant's condition may have prevented him from performing the duties of the job in a reasonable manner, the decision points out that Brentwood did not have this information at the time it made its determination not to employ the complainant.

In any event, said the Appellate Division, “this evidence merely conflicted with other evidence in the record indicating that the complainant's disability did not render him incapable of performing the duties of the job in a reasonable manner" and “it is the function of the administrative agency, not the reviewing court, to weigh the evidence or assess the credibility of the witnesses.”

The Appellate Division confirmed the findings of the Division and its award of damages in the principal sums of $66,488 for back pay, and $5,000 in compensatory damages, with interest at the rate of 9% from June 14, 2012, for mental anguish and humiliation to the complainant.

* The Court said that substantial evidence "means such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact . . . . More than seeming or imaginary, it is less than a preponderance of the evidence, overwhelming evidence or evidence beyond a reasonable doubt"

The decision is posted on the Internet at: 
http://www.nycourts.gov/reporter/3dseries/2015/2015_02121.htm

Recent appointments to Governor Cuomo’s administration

Recent appointments to Governor Cuomo’s administration

Source: Office of the Governor

On March 21, 2015 Governor Andrew M. Cuomo announced five appointments to his administration

Elizabeth De León Bhargava has been appointed Deputy Secretary for Labor. Ms. Bhargava previously served as First Deputy Chief of Staff for New York City Council Speaker Melissa Mark Viverito and, prior, as Deputy Commissioner for the Neighborhood Development Division of the New York City Department of Small Business Services, where she was responsible for the city's Business Improvement Districts, the largest network in the country investing more than $100 million in programs and services throughout NYC. Before working for the City, she was Associate Commissioner for the New York State Department of Labor and Assistant Deputy Counselor for the New York State Attorney General. Ms. Bhargava has a B.A. from Binghamton University and a J.D. from the State University of New York at Buffalo School of Law

Rose Rodriguez has been appointed Chief Diversity Officer. She has served the State in a variety of executive and management roles, most recently as Special Assistant to the Commissioner and Director of Workforce Development at the New York State Department of Labor, where she spearheaded several agency efforts linked to the Governor’s initiatives including the Buffalo Billion, The New NY Bridge, and the New NY Bronx Works partnership. Prior to joining the administration, she served as Vice President for Policy and Programs at the Committee for Hispanic Children and Family, Inc., as Senior Advisor and Director of Constituent Services for Senator Hillary Rodham Clinton, and at the US Department of Housing and Urban Development as Deputy Director in the Office of Community Planning and Development. She served in the cabinet of Governor Mario Cuomo as the Executive Director of the Office of Hispanic Affairs and Chairperson for the Governor’s Hispanic Advisory Board. Ms. Rodriguez has a B.S. from Fordham University and a J.D. from Fordham University School of Law

Jorge Montalvo has been appointed Deputy Secretary of State for Economic Opportunity where he will advise and support the Secretary of State in the management of the Department of State and will be responsible for assisting in formulating agency policy and implementing program plans related to the $60 million Community Service Block Grant, the Division of Consumer Protection and the Cemeteries Division, among other State programs. Mr. Montalvo will continue to serve as Director of the New York State Office for New Americans and will also continue to oversee the Regional Economic Development Councils Opportunity Agenda and the Empire State Fellows program. Mr. Montalvo previously served as Director of Strategic Policy Initiatives for the New York State Consumer Protection Board. Before joining the State, he served as Policy and Public Affairs Officer for the New York City Economic Development Corporation and Corporate Relations and Volunteerism coordinator for the NYC 2012 Olympic Bid Committee. Mr. Montalvo has a B.A. in chemistry from Dartmouth College.

Matthew Fernandez Konigsberg has been appointed Special Counsel to the Secretary for Ethics, Risk and Compliance at the Department of State. Mr. Konigsberg previously served as an associate at Foran Glennon focusing on first-party property coverage, subrogation recovery, casualty/liability defense matters, as well as other types of commercial litigation. Before joining Foran Glennon, he served as Assistant Corporation Counsel for the New York City Law Department, where he held a hybrid position as a pre-trial and trial attorney. He also served as pro bono Legal Counsel for the Rockland County Board of Advisors for ASPIRA of New York, Inc, a Hispanic non-profit organization working to foster educational excellence and civic responsibility among young Latinos. In this role, he counseled the Rockland County Board on diverse legal issues arising out of ASPIRA’s Rockland operations. He is also Deputy Regional President of the Hispanic National Bar Association - Region II, serving on its Judiciary Committee, and has served as Judiciary Co-Chair of the Puerto Rican Bar Association. Mr. Konigsberg has a B.A. from University of Wisconsin-Madison and a J.D. from Rutgers School of Law - Newark.

Angel Santana has been appointed the Governor’s Bronx Regional Representative. Mr. Santana previously served as Director of Community Affairs and, prior, Community Liason for State Senator Jose M. Serrano. He has a B.A. from Mount Saint Mary College and is currently pursuing an M.P.A. at Columbia University.

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending March 21, 2014

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending March 21, 2014 Click on text highlighted in color  to access the full report Comptroller DiNapoli Releases Municipal Audits New York State Comptroller Thomas P. DiNapoli Wednesday announced his office completed audits of the: Village of Franklinville,     Town of Jefferson, City of Olean, and   Walworth-Seely Public Library. Leading the Way in Transparency As Sunshine Week comes to an end, we are proud that U.S. PIRG, a non-profit consumer group, has ranked New York one of 14 ‘leading states’ in providing online access to government spending, thanks to Comptroller DiNapoli's transparency website, Open Book New York. A testament to his commitment for continuous improvement to transparency, 2015 marks the first time New York has scored an ‘A-’. Read the full report online at: Following the Money 2015. DiNapoli: Former Riverside Village Clerk Pleads Guilty in $50,000 Theft Former Riverside clerk-treasurer Kristina Johnson will do jail time and pay $50,000 in restitution after admitting Friday to repeatedly pilfering village coffers to pay for white water rafting and dating through Match.com, State Comptroller Thomas P. DiNapoli announced Friday. DiNapoli: Former Treasurer Arrested in Tupper Lake Fire Department Theft Former Tupper Lake Volunteer Fire Department Treasurer Timothy J. Brown was arrested on grand larceny charges Monday after allegedly stealing up to $20,000 as he spiraled into credit card debt. DiNapoli: State Tax Collections Slightly Stronger Than Exepcted in February But Remain Volatile Tax collections of $4.9 billion in February were $21.6 million above the state’s latest estimates, according to the monthly cash report released Wednesday by New York State Comptroller Thomas P. DiNapoli. Through 11 months of the fiscal year, tax collections were $636.6 million higher than originally projected, and $19 million higher than the latest estimates.

Denial of tenure

Denial of tenure
2015 NY Slip Op 02193, Appellate Division, First Department

A member of a college faculty [Petitioner] filed an Article 75 action challenging an arbitration award that sustained the college’s decision to deny awarding Petitioner tenure. Supreme Court granted the college’s cross motion to confirm the arbitration award, which decision was unanimously affirmed by the Appellate Division.

The Appellate Division explained that an arbitrator's award will not be vacated "unless it is violative of a strong public policy, or is totally irrational, or exceeds a specifically enumerated limitation on his power."

Here, said the court, Petitioner has not carried her "heavy burden" in claiming that the arbitrator's decision upholding the college’s determination that tenure was not warranted based on the lack of scholarly publication was "totally irrational." The court noted that Petitioner's claim that the college did not provide adequate notice of any alleged deficiencies is unavailing, as the college's bylaws, as well as the relevant collective bargaining agreement, provided notice that “publication requirements were rigorous and progressive.”

Further, according to the decision, the college had sent Petitioner a “letter of concern” approximately five months before the tenure process, one year before her appeal, and fifteen months before the college president issued her final determination. This, said the court, “provided adequate notice” explaining that as stated by the arbitrator, the fact that Petitioner "may not have received notice prior to [receiving a letter of concern] was based on her own [earlier] misstatements as to her publications...."

In addition, the Appellate Division held that college president’s evaluation of the quality and quantity of Petitioner's publications was a proper exercise of academic judgment, citing Pauk v Board of Higher Educ. of City of N.Y., 62 AD2d 660, affirmed 48 NY2d 930.

Concerning another issue, the court said that the record “provides no basis for a finding that [the college] denied [Petitioner] tenure in retaliation for her harassment claim against a department chair.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_02193.htm

Taxpayer identity theft

Taxpayer identity theft
Source: Internal Revenue Service

The United States Internal Revenue Service [IRS] stops and flags suspicious or duplicate federal tax returns that falsely represent your identity, such as your name or social security number. If the IRS suspects tax ID theft, the agency will send a 5071C letter to your home address. If you receive this letter, verify your identity at idverify.irs.gov or call the toll-free number listed in the letter. 

If you are a victim of state tax ID theft, contact your state's taxation department or comptroller's office about the next steps you need to take. 

Adjustments to a disabled firefighter’s salary and supplements to his or her disability retirement allowance paid pursuant to GML §207-a[2]

Adjustments to a disabled firefighter’s salary and supplements to his or her disability retirement allowance paid pursuant to GML §207-a[2]

2015 NY Slip Op 02134, Appellate Division, Second Department

General Municipal Law §207-a[1] guarantees a firefighter who is disabled in the performance of his or her duties entitlement to, among other benefits, the continued payment by his or her municipal employer of the "full amount of his [or her] regular salary or wages until [the] disability . . . has ceased.”. If, however, a permanently disabled firefighter is granted an accidental disability retirement allowance pursuant to Retirement and Social Security Law §363, a performance of duty disability retirement allowance pursuant to Retirement and Social Security Law §363-c, or a "similar accidental disability pension provided by the pension fund of which he [or she] is a member," the municipality is obligated to pay "the difference between the amounts received under such allowance or pension and the amount of his [or her] regular salary or wages."*

In Mashnouk v City of Newburgh, 55 NY2d 80, the Court of Appeals held that the provisions of §207-a[2] includes "prospective salary increases given to active firefighters subsequent to the award and therefore firefighters receiving §207-a benefits were to receive the benefits of the negotiated salary increases."

Disabled retired firefighters [DRF] who became disabled as a result of injuries they sustained in the performance of their duties were receiving performance-of-duty disability retirement allowances from the New York State Retirement System pursuant to Retirement and Social Security Law §363-c, as well as supplemental benefits from the employer in the amount of the "difference between the amounts received under [their] allowance[s] . . . and the amount of [their] regular salary or wages" pursuant to General Municipal Law §207-a[2].

However, the employer entered into a new Taylor Law [Civil Service Law Article 14] contract with its firefighters' union pursuant to which the salaries paid to active firefighters were temporarily decreased from the levels set forth in the previous contract by 5% for the period from January 14, 2011, through June 30, 2013, and by 3% for the period from July 1, 2013, through December 31, 2013. On January 21, 2011, the City notified the DRFs that the supplemental benefits they received pursuant to General Municipal Law §207-a[2] would be reduced in accordance with the new contract.

The DRFs commenced a proceeding pursuant to CPLR Article 78 in the nature of mandamus** to compel the employer to continue to pay supplemental benefits at the level that was in effect before the commencement of the new contract. Supreme Court dismissed their petition, which decision was sustained by the Appellate Division.

The Appellate Division explained that General Municipal Law §207-a guarantees a firefighter who is disabled in the performance of his or her duties entitlement to, among other benefits, the continued payment by his or her municipal employer of the "full amount of his [or her] regular salary or wages until [the] disability . . . has ceased." If, however, a permanently disabled firefighter is granted an accidental disability retirement allowance pursuant to Retirement and Social Security Law §363, a performance of duty disability retirement allowance pursuant to Retirement and Social Security Law §363-c, or a "similar accidental disability pension provided by the pension fund of which he [or she] is a member," the municipality is obligated to pay only "the difference between the amounts received under such allowance or pension and the amount of his [or her] regular salary or wages."

Citing Farber v City of Utica, 97 NY2d 476, the court said that the amount of such a disabled firefighter's regular salary or wages under §207-a[2] "is calculated based on the current salary of an active firefighter at the same grade the [firefighter] held upon retirement." Thus, the term "regular salary or wages" as employed in General Municipal Law §207-a[2] includes salary increases given to active firefighters following the award of the disability retirement allowance or pension as well as the benefit of longevity pay increases provided to active firefighters’

The Appellate Division then ruled that "regular salary or wages" also includes salary decreases applied to active firefighters and thus the DRFs failed to establish a "clear legal right" to the relief they sought.

* Such fireman shall continue to receive this supplement until such time as he or she shall have attained the mandatory service retirement age applicable to him or her or shall have attained the age or performed the period of service specified by applicable law for the termination of his or her service. Further, this supplement to the retirement allowance benefit is limited to firefighters; police officers are covered by Section 207-c of the General Municipal Law, which does not provide for the payment of the difference between the police officers retirement allowance and his or her "Section 207-c benefit."

** In addition to "mandamus" and "certiorari," CPLR Article 78 provides for the modern version of two other "ancient writs:" the writ of quo warranto [by what authority] and the writ of prohibition [a superior court barring the consideration of a matter by a lower court].

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_02134.htm

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Disability Leave for fire, police and other public sector personnel - a 1098 page e-book focusing on administering General Municipal Law Sections 207-a/207-c and providing benefits thereunder. For more information click on http://booklocker.com/books/3916.html

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A "global settlement contract" that, among other things, settled the underlying grievance renders the appeal pending before the court moot

A "global settlement contract" that, among other things, settled the underlying grievance renders the appeal pending before the court moot
2015 NY Slip Op 519109, Appellate Division, Third Department

A deputy sheriff injured his back during a foot pursuit in the course of his employment and received full pay for eight days of missed work immediately after the incident pursuant to General Municipal Law §207-c, as well as intermittent days during the next several months but ultimately was told that his benefits pursuant to General Municipal Law §207-c had been terminated. The deputy’s union filed a grievance on behalf of the deputy "and all similarly situated uni[on] members," charging a violation of the collective bargaining agreement between union and the County and demanded that the matter be submitted to arbitration.

The County filed a petition pursuant to CPLR §7503(b) seeking a stay of arbitration. Supreme Court granted the County’s application and the union appealed. While this appeal was pending before the Appellate Division, the deputy sheriff and union entered into a "global settlement contract" that, among other things, settled the deputy’s General Municipal Law §207-c claim, whereupon the County contended the appeal was moot and sought to have the appeal dismissed.

The Appellate Division agreed with the County that the “global settlement contract” rendered the union’s appeal moot, explaining that “In the absence of an exception to the mootness doctrine — that is, where an issue is likely to recur, presents novel or significant questions, or typically evades appellate review — ‘an appeal will be considered moot unless the rights of the parties will be directly affected by the determination of the appeal and the interest of the parties is an immediate consequence of the judgment.’"

In so ruling, the Appellate Division said that it was “unpersuaded by [the union’s] contention that it was not a party to the settlement and that similarly situated employees represented by [the union] would be affected by the outcome of this appeal.”

The court pointed out that the parties "are now operating under the terms of an expired contract, limiting the potential for similar disputes in the future." Further, said the Appellate Division, the union “participated in the grievance procedures that led to the settlement, and by means of its counsel's representation of both [the union] and the deputy throughout the proceedings, may also have been apprised of the terms of the agreement that ‘fully, finally and globally’ settled the claim.

Dismissing the union’s appeal, the Appellate Division ruled that the settlement contract contained no provisions reserving any issues for appeal and the record was devoid of any indication that there are similarly situated employees who lost benefits available to them pursuant to General Municipal Law §207-c.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_519109.htm