Employer not liable for its employee’s off-duty misconduct outside the scope of his or her employment or not in furtherance of the employer’s business

Employer not liable for its employee’s off-duty misconduct outside the scope of his or her employment or not in furtherance of the employer’s business

2015 NY Slip Op 02560, Appellate Division, First Department

The Administrator of the Estate of an individual shot by an off-duty New York City police officer after a "road rage" related altercation sued the City for alleged negligent training and instruction of the officer involved in the incident.

Supreme Court held that the off-duty police office’s act of shooting the decedent as the result of “road rage” was a private, intentional act that occurred outside the scope of his employment as a police officer.

The Appellate Division agreed, ruling that any alleged deficiencies in the City's training and instruction of its police officers could not have been the  proximate cause of the decedent's injuries.

In another case involving alleged off-duty misconduct, Jane Doe v New York City Department of Education, 2015 NY Slip Op 02433, it was undisputed that a teacher and a student had engaged in unlawful sexual intercourse after school hours. The Appellate Division, however, rejected the student’s argument that the New York City Board of Education was vicarious liable for the teacher’s misconduct as the alleged sexual intercourse with the student was not in furtherance of school business and was outside the scope of the teacher's employment.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_02560.htm

The Doe decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_02433.htm

Those concerned with employment related litigation in the public sector may be interested in some of the LawBlogs listed by Justia

Those concerned with employment related litigation the public sector may be interested in some of the LawBlogs listed by Justia

Justia currently tracks the readership of 6,098 Lawblogs in 74 subcategories, ranking the most popular based on the number of visits to the Blawg from the BlawgSearch search engine and directory listing pages. For example,

 

“Administrative Law” Blawgs are listed at:

http://blawgsearch.justia.com/blogs/categories/administrative-law

“Employment Law” Blawgs are listed at:

http://blawgsearch.justia.com/blogs/categories/employment-law

 “Government Law” Blawgs are listed at:

http://blawgsearch.justia.com/blogs/categories/government-law

In addition, Blawgs with a “New York State” Focus are listed at:

http://blawgsearch.justia.com/blogs/countries/united-states/new-york

Featured Blawgers are chosen by editorial selection of the BlawgSearch team.

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending March 28, 2015

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending March 28, 2015

Click on text highlighted in color  to access the full report

Comptroller DiNapoli Releases School Audits New York State Comptroller Thomas P. DiNapoli announced his office completed audits of the:

Academy Charter School,

Eastport-South Manor Central School District, and the

Liverpool Central School District.

DiNapoli and Diaz Help Bronx Residents Claim $245 Million in Lost Money

New York State Comptroller Thomas P. DiNapoli and Bronx Borough President Ruben Diaz Jr. encouraged Bronx residents to search for forgotten money belonging to them at Bronx Borough Hall. More than 444,000 accounts valued at nearly $245 million are owed to Bronx residents.

The State’s Abandoned Property Law requires banks, insurance companies, utilities, and other businesses to turn dormant savings accounts, unclaimed insurance and stock dividends, and other inactive holdings over to the State. If there has been no activity in the account for a set period of time, usually between two and five years, the money or property is considered unclaimed or abandoned. Although Section 1402 of the Abandoned Property Law has a $20 threshold for such listing, the Comptroller uses a "$50 threshold” for the listings on his Internet website.

 How much money is being held in the Fund? There are 31 million unclaimed funds accounts statewide valued at $13 billion.

 Readers are able to search for and claim money held in the Abandoned Property Fund with the Comptroller’s user friendly online claiming system or by calling the toll-free call center at 1-800-221-9311 to speak with English or Spanish-speaking representatives from 8:00 a.m. through 4:30 p.m.

Comptroller DiNapoli and A.G. Schneiderman Announce Felony Guilty Plea of Former City of Rensselaer DPW Commissioner for Stealing Scrap Metal Proceeds

State Comptroller Thomas P. DiNapoli and Attorney General Eric T. Schneiderman announced the guilty plea of Thomas Capuano, the former Commissioner of the Department of Public Works of the city of Rensselaer Department of Public Works, for teaming with two DPW employees to divert $46,000 from the city by pocketing the cash from scrap metals acquired as part of their jobs with the city.

Comptroller DiNapoli & A.G. Schneiderman Announce Guilty Plea of Former Highway Superintendent in Public Corruption Case

Comptroller Thomas P. DiNapoli and Attorney General Eric T. Schneiderman announced the guilty plea of Roger Burlew, former Highway Superintendent for the Town of Erin, in a public corruption case involving the theft of more than $65,000 in goods and services from the town. Burlew entered a guilty plea before The Honorable James Hayden in Chemung County Court to the charge of Grand Larceny in the Second Degree, a Class C Felony. As part of a plea agreement, Burlew will be sentenced to six months of incarceration and a period of five years of probation. Burlew will also pay $65,000 in restitution to cover the cost of what was stolen.

U. S. Steel and DiNapoli Agree on Enhanced Disclosure of Corporate Political Contributions

New York State Comptroller Thomas P. DiNapoli announced that United States Steel Corporation has agreed to the New York State Common Retirement Fund’s request that it publicly report its corporate political spending. As a result of the agreement, the Fund withdrew a shareholder proposal it had filed for consideration at the Fortune 500 company’s annual meeting. The Fund holds approximately 907,577 shares of U. S. Steel with an estimated value of $20 million.

Some guidelines followed by courts in deciding appeals from adverse out-of-title employee grievances

Some guidelines followed by courts in deciding appeals from adverse out-of-title employee grievances

New York State Corr. Officers & Police Benevolent Assn., Inc. v Governor's Off. of Empl. Relations, 2015 NY Slip Op 02543, Appellate Division, Third Department

Civil Service Law §61(2) provides, in relevant part, that "no person shall be assigned to perform the duties of any position unless he [or she] has been duly appointed, promoted, transferred or reinstated to such position in accordance with [the statute] and the rules prescribed thereunder. An out-of-title work assignment exists when an employee has been assigned or compelled to perform the duties of a higher grade, without a concomitant increase in pay, frequently, recurrently and for long periods of time"

A Safety and Security Officer 2 (SSO2), a salary grade 15 position, was advised that he would assume the duties of the Chief Safety and Security Officer (CSSO), a salary grade 20 position, at the facility upon the incumbent CSSO’s transfer to another facility. SSO2 was also told that he would be serving as the "Acting Chief" at that facility, an unofficial job title is not formally recognized by the Department of Civil Service.

The SSO2, alleging that he had performed the duties ordinarily assigned to the CSSO, filed an out-of-title work grievance seeking additional compensation for the duties he performed in his capacity as the facility's CSSO. Ultimately, the grievance proceeded to Step 3 to be considered by the Governor’s Office of Employee Relations [GOER].

Based on the limited duties listed in SSO2’s grievance form, the Division of Classification and Compensation of the Department of Civil Service (C & C) recommended that GEOR deny the grievance based on its finding that the work SSO2 was performing, in the absence of the CSSO, “either fell within the duties of an SSO2 or were a reasonable and logical outgrowth of those duties.

GOER adopted C & C’s recommendation and SSO2 initiated a CPLR Article 78 proceeding seeking a court order annulling GOER's determination. Supreme Court dismissed SSO2’s application, which ruling was appealed to the Appellate Division.

The Appellate Division affirmed the lower court’s decision. Citing CSL §61(2) the court explained that “An employee is not necessarily performing out-of-title work by fulfilling some overlapping functions of an absent supervisor, if those functions are substantially similar to duties listed in the classification standard for the employee's title.” In determining if the prohibition against out-of-title work has been violated, courts look "at the similarities between the duties assigned and those customarily performed by the employee, the extent to which the employee exercised the full range of duties of the higher level position, and whether the duties actually performed could be characterized as a reasonable extension of the employee's in-title duties."

Confining its review of the list of tasks performed by SSO2 set forth in his grievance form and not considering the expanded list of duties recited in the SSO2's underlying petition and SSO2’s affidavit in support his claim, the Appellate Division said that it must decide this matter based on the record that was before GOER and C & C. Finding that such record provided a rational basis for GOER's determination and that GOER’s determination was not arbitrary or capricious, the Appellate Division dismissed SSO2’s appeal.

SSO2 also contended that C & C and GOER acted arbitrarily and irrationally by deciding his grievance differently than that of another Safety and Security Officer 2 who was assigned to serve as the Acting CSSO at a different facility. However, this other Safety and Security Officer 2 asserted on her grievance form that she performed many more of the CSSO duties and stated that she, among other things,” supervised all 28 employees of her safety department across all three shifts.”

Considering this enhanced information, said the court, the record substantiates GOER’s' assertions that the facts presented by those two individuals were different, rationally leading to different outcomes.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_02543.htm

The employer may reject the findings and recommendations of a hearing officer if its decision is supported by substantial evidence

The employer may reject the findings and recommendations of a hearing officer if its decision is supported by substantial evidence

2015 NY Slip Op 02474, Appellate Division, Second Department

The Fire District’s Board of Commissioners rejected the recommendation of a hearing officer and denied a firefighter’s application for benefits pursuant to General Municipal Law §207-a(2).

The Appellate Division sustained the Board’s decision, explaining that it was entitled to make a finding contrary to the hearing officer's recommendation as long as substantial evidence supported the determination. The court said that the Board was free to credit the expert of the Fire District over the firefighter's expert so long as testimony of the Fire District's expert was consistent and supported by the medical evidence.

Noting that judicial review of an administrative determination made after a hearing required by law is limited to whether the determination is supported by substantial evidence, the Appellate Division said that "Substantial evidence means more than a mere scintilla of evidence, and the test of whether substantial evidence exists in a record is one of rationality, taking into account all the evidence on both sides."

Further, said the court, "When there is conflicting evidence or different inferences may be drawn, the duty of weighing the evidence and making the choice rests solely upon the [administrative agency]” and the courts may not weigh the evidence or reject the choice made by the administrative agency where “the evidence is conflicting and room for choice exists."

Finding that the Board's determination was supported by substantial evidence, the Appellate Division confirm the Board’s rejection of the firefighter’s application for GML §207-a(2) benefits.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_02474.htm

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Disciplinary action based on alleged sexual misconduct

Disciplinary action based on alleged sexual misconduct

2015 NY Slip Op 02418, Appellate Division, First Department

A former teacher [FT] was served with disciplinary charges pursuant to Education Law §3020-a alleging that he “hugged and kissed another teacher at least once a week for two months, despite her continually communicating to him that she did not want him to do this.” This unwanted contact escalated in a later encounter. The arbitrator found FT guilty of sexual misconduct towards another teacher and FT was terminated from his employment.

FT then filed an Article 75 petition seeking to vacate the arbitration award. Supreme Court denied FT’s motion and granted FT’s employer’s cross-motion to dismiss FT's petition and confirmed the arbitration award. The Appellate Division unanimously affirmed the lower court’s ruling, noting that the teacher had told FT several times that she did not want to meet with him and wanted no further contact.

The court held that the hearing officer “reasonably found” that under these circumstances that FT’s asking to embrace the teacher, and telling her to keep things between themselves also constituted misconduct in violation of the [employer’s] sexual harassment policies.”

The Appellate Division ruled that in consideration of the “egregious nature” of FT’s misconduct and the hearing officer's conclusion that FT did not credibly display remorse or an appreciation for the seriousness of his actions, the penalty of termination was appropriate notwithstanding FT's twenty-year satisfactory employment history

In another case involving alleged sexual misconduct, Jane Doe v New York City Department of Education [DOE], 2015 NY Slip Op 02433, it was undisputed that a substitute teacher [ST] and ST’s infant student plaintiff [Plaintiff] had unlawful sexual intercourse at a motel after school hours. The court, however, dismissed Plaintiff’s vicarious liability claim against DOE because ST's alleged conduct was not in furtherance of school business and was outside the scope of his employment.

The court also dismissed Plaintiff’s negligent supervision claim, explaining that the misconduct occurred after school hours and off school premises and that Plaintiff “failed to present evidence sufficient to raise a triable issue of fact that school authorities had specific knowledge or notice of [ST’s] misconduct or that [ST's] misconduct could reasonably have been anticipated.” Although there was evidence that ST drove Plaintiff and others home from school in violation of a Chancellor regulation, this, said the court, was insufficient to raise an issue of fact as to whether DOE had actual or constructive notice of sexual misconduct.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_02418.htm

The Doe decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_02433.htm

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