An employee who alleged she was subjected to retaliation because she testified before a grand jury was not engaged in “protected activity” within the meaning of the State’s Human Rights Law

An employee who alleged she was subjected to retaliation because she testified before a grand jury was not engaged in “protected activity” within the meaning of the State’s Human Rights Law

Clarson v City of Long Beach, 2015 NY Slip Op 07614, Appellate Division, Second Department

Sandra Yu Clarson, an Asian-American woman, served as the City Comptroller for the City of Long Beach [City]. Alleging that the City had terminated her employment in retaliation against her because "she cooperated and provided testimony to a grand jury regarding alleged criminal activity of a city councilperson, and that the City subsequently hired a less qualified, white male to fill her former position," Clarson sued the City to recover damages for unlawful retaliation in violation of Executive Law §296, New York State’s Human Rights Law.

The City moved to dismiss the complaint for failure to state a cause of action but Supreme Court denied the City's motion. The Appellate Division reversed the lower court’s decision.

The Appellate Division explained that when considering a motion to dismiss the complaint for failure to state a cause of action, the court must accept the plaintiff's allegations as true, afford the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory.

In this instance, said the court, Clarson failed to state a cause of action alleging retaliation in violation of Executive Law §296(1)(e), which section provides that “it is unlawful to retaliate against an employee because he or she opposed statutorily forbidden discriminatory practices."

In order to make a prima facie showing of retaliation within the meaning of Executive Law §296, a plaintiff is required to show that:

(1) he or she was engaged in protected activity;

(2) his or her employer was aware that he or she participated in such activity;

(3) he or she  suffered an adverse employment action based upon his or her activity; and

(4) there was a causal connection between the protected activity and the adverse action."

The Appellate Division said that an employee engages in a "protected activity" by "opposing or complaining about unlawful discrimination."

However, the court found that Clarson’s testimony before the grand jury “was unrelated to opposing or complaining about statutorily prohibited discrimination,” and, therefore, “was not ‘protected activity' as contemplated by the [the State's Human Rights Law].”

Further, notwithstanding Clarson’s contention to the contrary, the court said that her complaint does not allege a cause of action for retaliation based on whistle-blowing activities in violation of Civil Service Law §75-b.

The Appellate Division reversed the Supreme Court’s decision “on the law,” and granted the City’s motion to dismiss the complaint is granted.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_07614.htm

Educators are ineligible for unemployment insurance between academic terms only if given timely assurance of reemployment for the next academic term

Educators are ineligible for unemployment insurance between academic terms only if given timely assurance of reemployment for the next academic term

Upham (Dutchess Community Coll.--Commissioner of Labor), 2015 NY Slip Op 07898, Appellate Division, Third Department

Labor Law §590(10) prohibits a professional employed by an educational institution from receiving unemployment insurance benefits during the period between two successive academic terms if the educational institution has given the professional a reasonable assurance of continued employment.

In cases where educational institutions have failed to set forth the terms or conditions of continued employment or have made such employment contingent upon certain conditions, courts have found that a reasonable assurance of reemployment was lacking and thus the individual was eligible for unemployment insurance benefits.

Paul Upham served as an adjunct instructor at a community college and, during the fall 2013 semester, he taught three courses in history and government. Prior to the end of that semester, the chair of his department asked Upham if he wanted to teach potentially four courses during the spring 2014 semester and he expressed an interest in doing so.

After the semester ended, the college sent Upham a letter "anticipat[ing] that [he would] be invited to return to teach," during the spring 2014 semester "subject to enrollment and/or budget constraints."

Upham had applied for unemployment insurance benefits before receiving this letter.  Following a hearing, an Administrative Law Judge concluded that Upham was, in fact, eligible to receive benefits because the college had not given him a reasonable assurance of continued employment within the meaning of Labor Law §590(10).

The Unemployment Insurance Appeal Board sustained the administrative law judge’s decision and the college appealed the Board’s determination.

The Appellate Division affirmed the Board’s ruling, explaining that while Labor Law §590(10) makes a professional employed by an educational institution ineligible for unemployment insurance benefits during the period between two successive academic terms, such ineligibility is triggered by the claimant having been given a reasonable assurance of continued employment by the institution.

A "reasonable assurance," in turn, is a representation by the educational institution "that substantially the same economic terms and conditions will continue to apply to the extent that the claimant will receive at least 90% of the earnings received during the first academic period." Whether the claimant has been given a “reasonable assurance” is a factual question for the Board to resolve and its determination will be upheld if supported by substantial evidence.

While the department chair mentioned that Upham could teach potentially four courses during the spring 2014 semester, which exceeded the number that he taught during the fall 2013 semester, this was never confirmed during any subsequent conversations nor in the letter sent to Upham.

Significantly, the Appellate Division noted that the letter did not specify the details of the spring 2014 semester teaching assignment and conditioned Upham’s further employment upon "enrollment and/or budget constraints."

Accordingly, said the court substantial evidence supports the Board's finding that Upham was entitled to receive unemployment insurance benefits.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_07898.htm

A governmental entity’s liability for alleged negligence is limited

A governmental entity’s liability for alleged negligence is limited
Guerrieri v New York City Dept./Bd. of Educ., 2015 NY Slip Op 07816, Appellate Division, Second Department

As a general rule, a governmental entity’s liability for alleged negligence may arise where the entity has a special duty or a special relationship to the plaintiff. Such a special duty can arise in three situations: (1) the plaintiff belonged to a class for whose benefit a statute was enacted; (2) the government entity voluntarily assumed a duty to the plaintiff beyond what was owed to the public generally; or (3) the municipality took positive control of a known and dangerous safety condition. Further, the plaintiff has the burden of proving that the government defendant owed a special duty of care to the injured party because such a duty is an essential element of the negligence claim itself and in situations where the plaintiff fails to meet this burden, liability may not be imputed to the municipality that acted in a governmental capacity.

Thomas Guerrieri was employed as a school bus driver by an independent contractor that contracted with the New York City Department/Board of Education [BOE] to provide student transportation services.

Guerrieri was allegedly assaulted by one of the students he was transporting and sued BOE, among others, for damages for personal injury. Supreme Court granted BOE’s motion for summary judgment dismissing the complaint insofar as asserted against it and Guerrieri appealed.

Citing Garrett v Holiday Inns, 58 NY2d 253, the Appellate Division sustained the lower court’s ruling, explaining that "Liability for a claim that a municipality negligently exercised a governmental function turns upon the existence of a special duty to the injured person, in contrast to a general duty owed to the public." In contrast to a school district having a special duty to its students to adequately supervise them to prevent foreseeable injuries to fellow students, the court said that such a duty does not extend to adults.

Holding that BOE “demonstrated its prima facie entitlement to judgment as a matter of law” by establishing that it did not owe Guerrieri a special duty and Guerrieri’s failing to raise a triable issue of fact, the Appellate Division said that Supreme Court properly granted BOE’s motion for summary judgment “dismissing the complaint insofar as asserted against it.”

Dinardo v City of New York, 13 NY3d 872, provides another illustration of the proof of a “special duty” that a plaintiff is required to demonstrate.

Zelinda Dinardo, a special education teacher at a New York City public school, was injured when she tried to restrain one student from attacking another. The student had been orally and physically aggressive for several months and Dinardo had repeatedly expressed concerns to her supervisors about her safety in the classroom. The school's supervisor of special education and the principal had both told Dinardo that "things were being worked on, things were happening" and urged Dinardo to "hang in there because something was being done" to have the student removed.

Following her injury, Dinardo commenced an action alleging, among other things, that by the assurances given to her by her supervisor and her principal, the Board of Education of the City of New York had assumed an affirmative duty to take action with respect to the removal of the student and that she justifiably relied upon those assurances. When the student was not removed in a timely fashion, Dinardo alleged, the altercation which led to her injury resulted.

In the words of the Dinardo court, “Affording Dinardo every inference that may properly be drawn from the evidence presented and considering the evidence in a light most favorable to her (see Szczerbiak v Pilat, 90 NY2d 553, 556 [1997]), we conclude that there is no rational process by which the jury could have reached a finding that [Dinardo] justifiably relied on assurances by the Board of Education. The vaguely worded statements by Dinardo's supervisor and principal that 'something' was being done to have the student removed, without any indication of when, or if, such relief would come, do not, as a matter of law, constitute an action that would lull a plaintiff into a false sense of security or otherwise generate justifiable reliance. Indeed, [Dinardo] was aware that the administrative process for determining whether a student should transfer to a different program or school could take up to 60 days and was still ongoing when the incident occurred. There was therefore no "special relationship" between the Board of Education and [Dinardo] (see Cuffy, 69 NY2d at 259), upon which a cause of action for negligence could be based, and the Board of Education is entitled to judgment as a matter of law.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_07816.htm