Department of Civil Service Rule Making Activities

Department of Civil Service Rule Making Activities

NYS Register - June 24, 2015 Rule Making Activities

The following “ERRATUM” was published in the New York State Register dated June 24, 2015

A Notice of Adoption, I.D. No. CVS-20-14-00003-A, pertaining to Jurisdictional Classification, published in the June 3, 2015 issue of the State Register inadvertently failed to include an assessment of written comments received on the proposed rule.

The Department of Civil Service apologizes for any inconvenience this may have caused. The Assessment of Public Comment is published below in its entirety:

Assessment of Public Comment

At a public meeting held on April 8, 2014, the New York State Civil Service Commission amended Appendix 2 to 4 NYCCR by approving the placement of 230 positions of Empire Fellow in the non-competitive jurisdictional class. Following publication of the Notice of Proposed Rule Making, a public comment in opposition to the proposed rule amendment, dated June 30, 2014, was received from the New York State Public Employees Federation, AFL-CIO, (PEF).

Article V, section 6 of the State Constitution requires that appointments in the classified service of the State shall be “made according to merit and fitness, to be ascertained, as far as practicable, by examination which, as far as practicable, shall be competitive...” The Legislature has defined a number of exceptions where competitive examination in not practicable, such as contained in Civil Service Law section 42, which authorizes the filling of positions in the non-competitive jurisdictional class. Non-competitive class positions typically require candidates to meet minimum qualifications consisting of academic credentials or training and/or relevant work experience.

Empire Fellow positions are two-year term-limited appointments for highly skilled professionals who possess a bachelor’s degree or higher with three years of professional work experience and who demonstrate leadership capacity and a desire to make a significant contribution to enhancing New York State government operations. The Empire Fellows undertake special projects as assigned and report directly to State agency executive management or serve in the Office of Governor. Empire Fellows may be cycled through several different assignments during their fellowships and take part in a structured graduate-style training program focusing on areas of public administration/management including human resources, budgeting and community engagement/press relations.

PEF asserts that Fellows perform duties analogous to promotion-level competitive class positions such as Environmental Analyst 3 and Program Operations Specialist 5. PEF also claims, that based upon unverified anecdotal evidence, two Fellows had performed the same duties as competitive Senior Attorneys.

After review of the public comment, the State Civil Service Commission has determined to adopt the amendment as originally proposed. Commission decisions in such matters are based upon iinformation provided by the appointing authority (here, the State Office of General Services), as well as comments from professional staff of the Department of Civil Service Divisions of Classification and Compensation and Staffing Services. Department staff advised the Commission that Fellows will work on highly sensitive and cross-functional matters for agency heads and the Executive Chamber.

The variety and nature of these projects are not amenable to competitive examinations, which may be limited to specific career-oriented test rubrics.

The promotion-level competitive class titles cited in PEF’s comment reference certain analytical and policy development duties in narrow fields, but these titles remain fundamentally distinct from the role of the Fellows program, which is intended to introduce and cultivate future generalist managers and leaders from outside of State service. As such, Fellows must enter State government at a relatively high level, rather than progressing through a competitive career ladder of successive promotion examinations. Further, the Fellows serve two-year term appointments and do not expect and cannot obtain tenure that ordinarily accompanies a permanent appointment from an eligible list established after a competitive examination.

Therefore, the unique and varied duties, high-level reporting relationships of the positions, along with the personal characteristics required of successful candidates and the limited nature of the appointments, render competitive examination impracticable for Empire Fellow positions. Candidates’ merit and fitness can be properly assessed through a non-competitive evaluation, which includes established minimum qualifications and a rigorous selection process featuring individualized resume reviews. 

Accordingly, the Commission continues to find that the Empire Fellow positions belong in the non-competitive jurisdictional class and the subject amendment to Appendix 2 of 4 NYCRR has been approved for final adoption.

Distinguishing between a covered employee and an independent contractor for the purposes of eligibility for unemployment insurance benefits

Distinguishing between a covered employee and an independent contractor for the purposes of eligibility for unemployment insurance benefits

2015 NY Slip Op 04550, Appellate Division, Third Department

A law firm [Firm] appealed a decision of the Unemployment Insurance Appeal Board [Board] which assessed Firm for additional unemployment insurance contributions after ruling that a claimant [Lawyer] for unemployment insurance benefits for eligible for such benefits.

Lawyer had been retained as a "contract attorney" by the Firm to perform document review services in conjunction with the litigation of a class action lawsuit. After his assignment ended, Lawyer applied for unemployment insurance benefits and . The Unemployment Insurance Appeal Board ruled that Lawyer was the Firm’s employee and assessed it for additional unemployment insurance contributions as a result.

The Appellate Division affirmed the Board’s decision explaining that "Whether an employer-employee relationship exists is a factual determination for the Board, and its decision will be upheld if supported by substantial evidence." Citing Matter of LaValley, 120 AD2d 1498, the court said that "in cases where the rendering of professional services is involved, an employment relationship can be found where there is substantial evidence of control over important aspects of the services performed other than results or means."

The decision indicates that Lawyer:

1. was paid an agreed-upon hourly rate and required to work at least 45 hours a week, but not more than 50 hours per week;

2. was given specified hours each day to report to his assigned work station;

3. was required to take a daily unpaid 30 minute lunch break and was occasionally required to report to work on weekends;

4. was allowed to take unpaid days off, provided that he requested the time off in advance;

5. received daily assignments from an associate attorney employed by the Firm and who supervised Lawyer’s work; and

6. assisted in the litigation by providing written memoranda summarizing deposition testimony, work that included Lawyer's attendance at meetings with attorneys from other firms involved in the litigation.

These elements, said the Appellate Division, constituted “substantial evidence” supporting the Board's decision that the Firm retained sufficient overall control of Lawyers services to establish an employment relationship, despite evidence in the record that could support a contrary conclusion.

Significantly, the court commented that “The fact that [Lawyer] signed a written agreement designating him as an independent contractor does not compel a different result, citing Matter of Joyce, 116 AD3d 1132.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_04550.htm

Employer has the burden of proving that the disciplinary charges filed against the employee were timely served

Employer has the burden of proving that the disciplinary charges filed against the employee were timely served

2015 NY Slip Op 04940, Appellate Division, First Department

The disciplinary hearing officer found that the tenured teacher [Teacher] was guilty of two of three sets of charges and imposed the penalty of termination from his position.

Teacher appealed and Supreme Court granted his petition to vacate a hearing officer's award to the extent of annulling the portion of the award that sustained a third set of charges against Teacher and imposed the penalty of termination. The court remanded the matter to Teacher’s employer, the New York City Department of Education (DOE) for the imposition of an appropriate lesser penalty.

On appeal, the Appellate Division “unanimously affirmed” the Supreme Court’s action.

The Appellate Division said that there was nothing in the record to support Teacher’s claim that his due process rights were violated as the result of his having been provided with the third set of charges after having been served the first two sets of charges. The court explained that Teacher had more than 10 days before he offered testimony with respect to those charges, and he did not object to DOE's request for consolidation of all of the charges against him.

In addition, observed the Appellate Division, “[e]ven though DOE did not specify the precise sections of the Penal Law allegedly violated, the allegations in the three specifications fairly apprised” Teacher of the basis the alleged misconduct underlying the charges filed against him. As the Court of Appeals held in Matter of Block v Ambach, 73 NY2d 323, "in the administrative forum, the charges need only be reasonably specific, in light of all the relevant circumstances, to apprise the party whose rights are being determined of the charges against him and to allow for the preparation of an adequate defense."

Notwithstanding this, the Appellate Division said that Supreme Court did not exceed its authority in finding that the third set of charges against Teacher was time-barred.*

Although DOE had requested that hearing officer to take judicial notice of two sections of the Penal Law and repeatedly characterized Teacher's conduct as "criminal," the hearing officer did not find that Teacher’s conduct as alleged in the third set of charges constituted a crime. Thus there was no basis triggering the three year exception regarding timeliness set out in Education Law §3020-a(1) and DOE had the burden of establishing that the charges served on Teacher were timely.

As the DOE essentially conceded at the disciplinary hearing that the first and second set of charges against Teacher do not support the penalty of terminating Teacher's employment with DOE, The Appellate Division concluded that Supreme Court correctly remanded the matter to DOE for the imposition of an appropriate lesser penalty.

* See Education Law §3020-a(1). Disciplinary charges against a teacher must be brought within three years from the date of the alleged misconduct, unless the alleged misconduct constituted a crime when committed.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_04940.htm

Hearsay evidence

Hearsay evidence

Ohio v Clark, No. 13-1352, Decided  June 18, 2015

As the Court of Appeals observed in Matter of Gray v Adduci, 73 N.Y.2d 741, hearsay evidence can be the basis of an administrative determination,

In Willis v New York State Liquor Authority, 118 AD3d 1013, the Appellate Division noted that:

[1] “The strict rules of evidence do not apply to administrative proceedings and hearsay evidence is admissible” and 

[2] “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.”

Indeed, in Doctor v New York State Office of Alcoholism & Substance Abuse Services, 112 A.D.3d 1020, the court said that hearsay evidence alone may constitute substantial evidence in an administrative hearing.

In contrast, hearsay testimony is typically barred in a criminal trial.

Paul Rothstein, Professor of Law, Georgetown University Law Center, addressed the use of hearsay in a criminal trial in his review of Ohio v Clark,* a decision recently handed down by the United States Supreme Court. His analysis is posted on the Internet at https://casetext.com/posts/a-comment-on-the-supreme-courts-decision-in-ohio-v-clark.

In response to an inquiry, “Does not Ohio v Clark suggest a weakening, if not the eventual demise, of the prohibition against the use of “hearsay” in criminal actions?”, Professor Rothstein explained:

"The hearsay rule and its exceptions still apply as an additional filter, but the states are free to make exceptions to the hearsay rule. As long as the exceptions are not used to let in "testimonial" hearsay (i.e. statements made/obtained at the time with a primary purpose to make/get evidence for prosecution) against a criminal defendant, which would violate the confrontation clause, the evidence would be admissible.

"In many situations, the new approach to the confrontation clause (beginning with Crawford in 2004) lets LESS hearsay in. The previous approach (a case called Roberts) allowed hearsay in, if it was within a traditional hearsay exception, even if it was testimonial. Evidence even if within a traditional hearsay exception is now inadmissible under the confrontation clause if it is testimonial"

* In Ohio v Clark, addressing an appeal from a criminal conviction, the U.S. Supreme Court held that “In light of these circumstances, the Sixth Amendment did not prohibit the State from introducing L. P.’s statements at trial.” At the time the statements at issue were made L.P. was a three-year old child.

Administrative decision adversely affecting employee that considered allegations not set out in the charges vacated

Administrative decision adversely affecting employee that considered allegations not set out in the charges vacated
2015 NY Slip Op 04764, Appellate Division, First Department

Supreme Court’s denial of a probationary teacher’s [Probationer] the petition to [1] annul the Board of Education’s [BOE] determination sustaining the Probationer’s an unsatisfactory rating (U-rating) as a teacher for the 2006-2007 school year, and [2] dismissing the proceeding, was unanimously reversed, on the law, by the Appellate Division. The Appellate Division then vacated Probationer’s U-rating for the 2006-2007 school year and remanded the matter to the BOE for “further proceedings consistent” with its ruling.

After discussing the events leading to Probationer’s U-rating, the court noted:

1. Probationer was informed that her file would be reviewed for a determination of whether her services as a probationary teacher would be discontinued and whether her teaching license would be terminated as of the close of business on July 15, 2007 “.based on professional attitude and professional growth; attention to records and reports; unsatisfactory classroom performance; poor planning and preparation; skill in adapting instruction to the individual needs of the students; evidence of pupil growth in knowledge and skills;" and

2. This letter constituted the charging document that was the basis of the ensuing hearing.

In particular the Appellate Division noted “missing from the charging document was any mention of excessive absences.”

An “officially designated” committee, composed of three members, conducted a review of [1] the decisions to issue Probationer’s U-rating for the 2006-2007 school year; to discontinue her probationary service; and [2] to revoke her New York City teaching certificate.

The majority of the committee concurred as to the recommendation to discontinue Probationer’s probationary service. However, said the Appellate Division, "[r]ecognizing that [Probationer] is young and inexperienced and that she had to take over a new class, which may have been more of a challenge than she could handle," the committee "reached unanimous non-concurrence on the recommendation to terminate all license(s)/certificate(s) held by [Probationer]."

Ultimately Probationer was advised that a "reviewed the report of [the committee] concerning the recommendation that all your teaching certificate(s)/licenses be terminated . . . and that your probationary service as a Teacher of Common Branches be discontinued," and the recommendation had been sustained. The Appellate Division noted that this determination was made “notwithstanding the unanimous view” of the committee that the recommendation to terminate all [Probationer’s] licenses/certificates … should not be adopted.”

One of the elements referred to in this “ultimate” ruling was the Probationer’s alleged “excessive absence” not withstanding, as the Appellate Division pointed out, no mention of  alleged excessive absences were setout in the “charging document.”

Probationer sought judicial relief in a prior proceeding which resulted in a Supreme Court concluding that the petition to review the termination of Probationer's probationary employment was time-barred. However the court granted Probationer’s petition to the extent of annulling the unsatisfactory rating and the revocation of Probationer’s teaching license. The court then remanded the matter for a new hearing on Probationer’s unsatisfactory rating and the imposition of a penalty.*

Supreme Court, in this earlier proceeding, also ruled the Probationer had not been provided with adequate notice that absenteeism was a basis for BOE’s taking adverse action against her and thus that its reliance on Probationer’s attendance record in making a final determination violated due process.

Nevertheless, on remand, BOE again relied on “evidence of absenteeism,” as did Supreme Court in upholding Probationer’s U-rating in the proceeding giving rise to this appeal.

The Appellate Division said that Supreme Court in this second Article 78 proceeding acted in a manner that was arbitrary and capricious, explaining that “While the evidence of pedagogical deficiency — apart from the evidence of absenteeism — might, by itself, be sufficient to warrant the U-rating, that is for [BOE] to decide.”

The Appellate Division ruled that if on remand BOE “declines to sustain [Probationer’s] unsatisfactory rating, [BOE] is free to reconsider the termination of her probationary employment.”

However, in the event BOE sustains the unsatisfactory rating, it is precluded from imposing the penalty of revocation of Probationer’s teaching license because the judgment in the first Article 78 proceeding directed that the penalty, if any, should be something less than revocation of Probationer's license, and BOE did not appeal from that judgment.

Noting that “it is significant that the wrongful admission of evidence in this case occurred after a specific direction from [Supreme Court] that evidence of absenteeism was not authorized, based on the charges,” the Appellate Division again remand the matter to BOE for its reconsideration of Probationer’s performance rating for the 2006-2007 school year “based solely on the evidence related to the charges of which [Probationer] received proper notice.”

* The Supreme Court’s decision in that action is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2012/2012_22316.htm

The Appellate Division's decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_04764.htm

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The Discipline Book - A concise guide to disciplinary actions involving public employees in New York State set out in a 448 page e-book. For more information click on
http://thedisciplinebook.blogspot.com

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Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending June 19, 2015

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending June 19, 2015

Click on text highlighted in color  to access the full report

Son left father’s body in morgue in order to steal his father's pension and social security payments  

On June 14, 2015State Comptroller Thomas P. DiNapoli announced the pending sentencing of a Queens man for concealing his father’s death so he could continue to unlawfully collect pension payments electronically deposited into a checking account in the name of his father. Christopher Bunn is expected to make restitution full on based upon his guilty plea in October to grand larceny in the third degree, a Class D felony, and petit larceny. Bunn has already served six months in federal prison related to his arrest.

Bunn’s father was a designated beneficiary collecting retirement benefits that were not transferable upon his death. State Comptroller DiNapoli said that “Mr. Bunn left his deceased father’s body unclaimed at the Nassau County morgue for more than a year so he could steal his pension and social security payments.”

The Comptroller thanked District Attorney Brown and the Social Security Inspector General for their partnership and continued commitment to protecting public funds.”

Special Agent in Charge Edward J. Ryan, Office of the Inspector General, Social Security Administration said that “It is illegal to conceal or fail to report deaths to continue receiving someone else’s Social Security benefits. I am gratified by the State Comptroller’s pursuit of justice in this case.”

Queens District Attorney Richard A. Brown said that Christopher Bunn’s actions was “robbing the New York pension system and the federal government of tens of thousands of dollars in unlawfully obtained benefits. My office will continue to pursue and prosecute individuals who abuse the system for their own benefit.”            

This is one of a series of investigations by DiNapoli’s office that have led to criminal convictions and recovery of unlawful retirement payments. In 2011, DiNapoli’s investigation of a double-dipping former Rome police officer resulted in the recovery of almost $90,000. DiNapoli’s 2012 investigation of double-dipping at the Troy Housing Authority led to two guilty pleas and the recovery of almost $70,000 in unlawfully paid pension earnings. In 2015, DiNapoli’s work with the Attorney General’s Office resulted in a two- to six-year prison sentence of a Florida resident for defrauding the system of over $100,000 and pending indictments of two New Jersey residents for stealing over $100,000 in pension funds. Most recently, in May 2015, a retired Suffolk County police officer was convicted in Nassau County of defrauding the pension system of more than $465,000 and ordered to pay full restitution.  

Since taking office in 2007, DiNapoli has committed to fighting public corruption and fraud and encourages the public to help fight fraud and abuse.  Allegations of fraud involving New York taxpayer money by calling the toll-free Fraud Hotline at 1-888-672-4555, by filing a complaint online at investigations@osc.state.ny.us  or by mailing a complaint to: Office of the State Comptroller, Division of Investigations, 14th Floor, 110 State St., Albany, NY 12236. 

A Ticking Clock for Job Benefits

New York State Comptroller Thomas P. DiNapoli’s “op-ed,” A Ticking Clock for Job Benefits, was published in The Albany Times Union on June 16, 2015. The Comptroller urges the state Legislature to act on his proposal to create an optional investment pool to help fund retire health insurance and other post employment benefits (OPEB).

The text of the Comptroller “op-ed” is posted on the Internet at:

http://www.timesunion.com/tuplus-opinion/article/A-ticking-clock-for-job-benefits-6328455.php

New York State Comptroller Thomas P. DiNapoli announced his office completed audits at the

Village of Brookville
http://www.osc.state.ny.us/localgov/audits/villages/2015/brookville.pdf?utm_source=weeklynews20150621&utm_medium=email&utm_campaign=061815release

Village of Canajoharie 
 http://www.osc.state.ny.us/localgov/audits/villages/2015/canajoharie.pdf?utm_source=weeklynews20150621&utm_medium=email&utm_campaign=061815release

Fairport Public Library 
http://www.osc.state.ny.us/localgov/audits/libraries/2015/fairport.pdf?utm_source=weeklynews20150621&utm_medium=email&utm_campaign=061815release

Revena-Coneymans-Selkirk Community Library
http://www.osc.state.ny.us/localgov/audits/libraries/2015/ravenacoeymansselkirk.pdf?utm_source=weeklynews20150621&utm_medium=email&utm_campaign=061815release

Rockland County Department of Social Services

http://www.osc.state.ny.us/localgov/audits/counties/2015/rocklandco.pdf?utm_source=weeklynews20150621&utm_medium=email&utm_campaign=061815release

and the Town of Saugerties 
http://www.osc.state.ny.us/localgov/audits/towns/2015/saugertiesjc.pdf?utm_source=weeklynews20150621&utm_medium=email&utm_campaign=061815release
 

New York State Comptroller Thomas P. DiNapoli announced his office completed audits at the following school districts:

Cheektowaga-Maryvale UFSD
http://www.osc.state.ny.us/localgov/audits/schools/2015/cheektowagamaryvale.pdf?utm_source=weeklynews20150621&utm_medium=email&utm_campaign=061815arelease

Corinth CSD 
 http://www.osc.state.ny.us/localgov/audits/schools/2015/corinth.pdf?utm_source=weeklynews20150621&utm_medium=email&utm_campaign=061815arelease

Millbrook CSD
http://www.osc.state.ny.us/localgov/audits/schools/2015/millbrook.pdf?utm_source=weeklynews20150621&utm_medium=email&utm_campaign=061815arelease

and the Mount Morris CSD 
 http://www.osc.state.ny.us/localgov/audits/schools/2015/mountmorris.pdf?utm_source=weeklynews20150621&utm_medium=email&utm_campaign=061815arelease

Distinguishing between a covered employee and an independent contractor for the purposes of eligibility for unemployment insurance benefits

Distinguishing between a covered employee and an independent contractor for the purposes of eligibility for unemployment insurance benefits

2015 NY Slip Op 04550, Appellate Division, Third Department

A law firm [Firm] appealed a decision of the Unemployment Insurance Appeal Board [Board] which assessed Firm for additional unemployment insurance contributions after ruling that a claimant [Lawyer] for unemployment insurance benefits for eligible for such benefits.

Lawyer had been retained as a "contract attorney" by the Firm to perform document review services in conjunction with the litigation of a class action lawsuit. After his assignment ended, Lawyer applied for unemployment insurance benefits and . The Unemployment Insurance Appeal Board ruled that Lawyer was the Firm’s employee and assessed it for additional unemployment insurance contributions as a result.

The Appellate Division affirmed the Board’s decision explaining that "Whether an employer-employee relationship exists is a factual determination for the Board, and its decision will be upheld if supported by substantial evidence." Citing Matter of LaValley, 120 AD2d 1498, the court said that "in cases where the rendering of professional services is involved, an employment relationship can be found where there is substantial evidence of control over important aspects of the services performed other than results or means."

The decision indicates that Lawyer:

1. was paid an agreed-upon hourly rate and required to work at least 45 hours a week, but not more than 50 hours per week;

2. was given specified hours each day to report to his assigned work station;

3. was required to take a daily unpaid 30 minute lunch break and was occasionally required to report to work on weekends;

4. was allowed to take unpaid days off, provided that he requested the time off in advance;

5. received daily assignments from an associate attorney employed by the Firm and who supervised Lawyer’s work; and

6. assisted in the litigation by providing written memoranda summarizing deposition testimony, work that included Lawyer's attendance at meetings with attorneys from other firms involved in the litigation.

These elements, said the Appellate Division, constituted “substantial evidence” supporting the Board's decision that the Firm retained sufficient overall control of Lawyers services to establish an employment relationship, despite evidence in the record that could support a contrary conclusion.

Significantly, the court commented that “The fact that [Lawyer] signed a written agreement designating him as an independent contractor does not compel a different result, citing Matter of Joyce, 116 AD3d 1132.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_04550.htm

Anatomy of an unlawful discrimination complaint

Anatomy of an unlawful discrimination complaint

2015 NY Slip Op 04601, Appellate Division, Second Department

The Plaintiff commenced this action seeking to recover damages for alleged unlawful discrimination and retaliation within the meaning of 42 USC §§1981 and 1983, the “Civil Rights Act” and for alleged violation of Executive Law §296, the State’s Human Rights Law, in connection with his employment at a State agency [Agency].  Supreme Court granted the Agency’s motion for summary judgment dismissing the complaint and Plaintiff appealed.

In considering Plaintiff’s appeal the Appellate Division said:

1. Aplaintiff alleging discrimination in employment has the initial burden to establish a prima facie case of discrimination; and

2. To meet this burden, the plaintiff must show that (1) he or she is a member of a protected class; (2) he or she was qualified to hold the position; (3) he or she was terminated from employment or suffered another adverse employment action; and (4) the discharge or other adverse action occurred under circumstances giving rise to an inference of discrimination.

If the plaintiff is able to satisfy each of these requirements, said the Appellate Division, the burden then shifts to the employer "to rebut the presumption of discrimination by clearly setting forth, through the introduction of admissible evidence, legitimate, independent, and nondiscriminatory reasons to support its employment decision."

If the employer is able to do so, the burden of going forward shifts to the plaintiff and in order to succeed on his or her claim, "the plaintiff must prove that the legitimate reasons proffered by the defendant were merely a pretext for discrimination by demonstrating both that the stated reasons were false and that discrimination was the real reason."

With respect to Supreme Court granting Agency’s motion for summary judgment dismissing Plaintiff’s complaint, the court said to prevail on a motion for summary judgment in a discriminatory employment action, “a defendant must demonstrate either the plaintiff's failure to establish every element of intentional discrimination, or, having offered legitimate, nondiscriminatory reasons for their challenged actions, the absence of a material issue of fact as to whether their explanations were pretextual.”

In this instance the Appellate Division found that after Agency demonstrated a prima facie entitlement to judgment as a matter of law while Plaintiff failed to raise a triable issue of fact as to whether any adverse employment action he allegedly suffered occurred under circumstances giving rise to an inference of discriminatory motive.

Further, the court noted that the Agency’s setting out “legitimate, nondiscriminatory reasons” for its challenged actions, said that Plaintiff failed to raise a triable issue of fact as to whether the Agency’s explanations were pretextual.

While it is unlawful to retaliate against an employee for opposing discriminatory practices, in order to make out a claim for retaliation, the plaintiff must show that (1) he or she has engaged in protected activity; (2) his or her employer was aware of such activity; (3) he or she suffered an adverse employment action based upon the protected activity; and (4) there is a causal connection between the protected activity and the adverse action.

Again, Agency demonstrated, prima facie, its entitlement to judgment as a matter of law on the causes of action alleging retaliation while Plaintiff, again, failed to raise a triable issue of fact as to whether he engaged in a protected activity or that Agency was aware of any such complaint prior to the date on which Plaintiff sent an email specifically complaining of discrimination.

The Appellate Division decided that Plaintiff did not submit sufficient evidence from which a jury could reasonably find a causal connection between any protected activity in which he engaged and any adverse employment action nor did he rebut the Agency’s evidence that any adverse action taken against him was justified by legitimate, nondiscriminatory reasons.

Accordingly, the court held that Supreme Court had properly granted Agency’s motion for summary judgment dismissing the complaint.

The decision is posted on the Internet at:

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http://www.nycourts.gov/reporter/3dseries/2015/2015_04601.htm

Benefit available members of union pursuant to a "Memorandum of Agreement" was a “vested lifetime benefit”

Benefit available members of union pursuant to a "Memorandum of Agreement" was a “vested lifetime benefit”

Port Auth. of N.Y. and N.J. v Union of Automotive Technicians, 2015 NY Slip Op 05114, Appellate Division, First Department

Due to budget constraints, the Port Authority of New York and New Jersey [Port Authority], effective January 1, 2011, discontinued its free E-Z Pass program available to retired Port Authority employee.

The Appellate Division unanimously affirmed a decision by Supreme Court modifying an arbitration award to rule that the E-Z Pass benefit as encompassed in the parties' 2006-2011 Memorandum of Agreement was a vested lifetime benefit available to retired members of the Union of Automotive Technicians in accordance with the provisions set out in the parties' 2006-2011 Memorandum of Agreement.

The court noted that “In light of our disposition of previous appeals raising the same issue, Supreme Court reached the right result in this matter,” citing Port Authority of New York and New Jersey v Port Authority of New York and New Jersey Police Lieutenants Benevolent Association, 124 AD3d 473, among other relevant decisions.

NYPPL’s summary of the Supreme Court’s ruling in the Lieutenants’ case is posted on the Internet at: http://publicpersonnellaw.blogspot.com/2013/06/article-75-petition-seeking-to-confirm.html

The Automotive Technician decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_05114.htm

Challenging an unsatisfactory annual performance rating

Challenging an unsatisfactory annual performance rating

2015 NY Slip Op 04589, Appellate Division, First Department

A teacher [Teacher] brought an Article 78 action against the New York City Department of Education's (DOE) challenging her annual unsatisfactory rating for the 2011-12 school year, Supreme Court dismissed the petition and Teacher appealed.

The Appellate Division sustained the Supreme Court’s ruling holding that Teacher’s unsatisfactory annual rating was not arbitrary and capricious or contrary to law.

Teacher had contended that her supervisor administered the lesson observation on which the rating was based in an arbitrary and capricious manner. The court held that this claim was not supported by the record.*

As to Teacher’s argument that the annual performance rating was made "in violation of lawful procedure" because DOE failed to follow procedural safeguards set forth in their own guidelines, in that it failed to provide her with “a written warning” that she had to improve her performance, the Appellate Division said that Teacher’s argument “lacks merit,” explaining that DOE's rating handbook did not create “any substantive right to receive a written warning” that failure to improve "may result in an unsatisfactory rating."

The Appellate Division also noted that Teacher “went on terminal leave two months after the unsatisfactory observation report,,” retiring one month later, which precluded DOE’s making a second observation which would normally have been the case.

* The court noted that Teacher’s principal's hearing testimony clarifying the reasoning behind the unsatisfactory annual rating.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_04589.htm