An employee's failure to use the grievance procedure set out in the relevant collective bargaining agreement before commencing an Article 78 action may not be excused by the court

An employee's failure to use the grievance procedure set out in the relevant collective bargaining agreement before commencing an Article 78 action may not be excused by the court
Finkelstein v Board of Educ. of the City Sch. Dist. of the City of N.Y., 2017 NY Slip Op 03850, Appellate Division, First Department

Supreme Court annulled the New York City's Board of Education's [BOE] discontinuing Petitioner's probationary employment and ordered BOE to reinstate Petitioner to her former position "with full salary and benefits retroactive to September 30, 2014."

The Appellate Division unanimously vacated the Supreme Court's ruling, "on the law" with respect to Petitioner's reinstatement to her former position and payment of "full salary and benefits," but, citing Tucker  v Board of Educ., Community School Dist. No. 10, 82 NY2d 274, found that Petitioner was entitled to nine days' pay because she was given inadequate notice of her termination.

The court explained that Petitioner failed to avail herself of the grievance procedure set forth in her collective bargaining agreement before commencing the instant action seeking relief under CPLR Article 78 and thus Supreme Court "erred in relieving [Petitioner] of her obligation to exhaust her administrative remedies."*

In any event, said the court, a probationary employee may be terminated for "almost any reason, or for no reason at all," as long as it is not "in bad faith or for an improper or impermissible reason." Upon such termination "[T]he burden falls squarely on the petitioner to demonstrate, by competent proof, that a substantial issue of bad faith exists, or that the termination was for an improper or impermissible reason, and mere speculation, or bald, conclusory allegations are insufficient to shoulder this burden."

In this instance the Appellate Division found that the record indicated that Petitioner's dismissal was made in good faith and was based on substantiated findings after an independent investigation demonstrating that she neglected her duties and falsified records.

As to Petitioner's claim of the investigator's delay in publishing the written report concerning the matter, the court said that such delay "amounted to a mere technical violation of the collective bargaining agreement," as Petitioner had received timely notice of the allegations, as well as an opportunity to respond, prior to the issuance of the report. The Appellate Division then opined that Supreme Court's "conclusion of bad faith stemming from the lateness of the report was purely speculative."

* However, as the Appellate Division held in Amorosano-LePore v Grant, 56 AD3d 663, the employee's exhaustion of his or her administrative remedies is not required where his or her so doing would constitute an exercise in futility.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_03850.htm

An agency investigating a particular complaint on behalf of an employee may not, without prior notice to the employer, make broad findings of fact involving the employer's "over-all operations" and impose sanctions

An agency investigating a particular complaint on behalf of an employee may not, without prior notice to the employer, make broad findings of fact involving the employer's "over-all operations" and impose sanctions

MTA Bus Co. v New York State Div. of Human Rights, 2017 NY Slip Op 03903, Appellate Division, First Department

The New York State Division of Human Rights [SDHR] found that the MTA's policy of disqualifying all employees with bipolar disorder from working as a bus operator was an unlawful discriminatory act. The Division order MTA to pay a civil fine and penalty of $30,000. MTA appealed and the Appellate Division unanimously annulled the Division's decision and dismissed the complaint.

The Appellate Division noted that the record demonstrates, and the SDHR determined, that the "employee complainant" [Complainant], a bus operator, was placed on restricted duty for reasons unrelated to his alleged disability of bipolar disorder and ultimately terminated from his position. The record also indicated that Complainant had a "reckless driving record and that MTA dismissed him for his conduct in vandalizing three buses in passenger service." The court held that MTA "was justified" in terminating Complainant.

The court, however, said that rather than dismissing the complaint, SDHR proceeded to conclude that "[b]ecause MTA has a blanket policy disqualifying all employees with bipolar disorder from being appointed to, or remaining in, the Bus Operator position and passenger service, and because [MTA] does not individually assess the ability of those with bipolar disorder to perform the essential functions of the job, [MTA's] policy violates the Human Rights Law."

SDHR had not advised MTA that its policies with respect to the employment of individuals with a bipolar disorder were going to be reviewed. Such failure on the part of SDHR, said the court, denied MTA its right to due process.

The Appellate Division explained that although SDHR, its own motion, may investigate and file a complaint alleging discriminatory practices, it did not do in this instance. Rather, while investigating the bus operator's complaint, which was filed solely on his behalf and found that he had not been discriminated against, SDHR could not "and at the same time," make broad findings of fact and impose broad sanctions pertaining to MTA's "over-all operations."

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2017/2017_03903.htm

An employee's unreasonable failure to use an employer-provided preventive or remedial apparatus bars the consideration of his or her complaints of unlawful discrimination

An employee's unreasonable failure to use an employer-provided preventive or remedial apparatus bars the consideration of his or her complaints of unlawful discrimination

Magnusson v. County of Suffolk, et al., USCA, 2nd Circuit, Docket #16-1876-cv

This civil rights action brought pursuant to Title VII and 42 U.S.C. §1983 was founded on allegations of sexual harassment and sexual orientation harassment.*

The United States Court of Appeals for the Second Circuit, however, did not reach the merits of the question of whether the County’s conduct constituted sex discrimination would constitute a violations of Title VII and, or, 42 U.S.C. §1983 because the Plaintiff, Arline Magnusson, "failed to follow the County’s internal grievance procedures" available to her.

The Circuit Court explained that “An employer may defend against [a hostile work environment claim] by showing both (1) that it had installed a readily accessible and effective policy for reporting and resolving complaints of sexual harassment, and (2) that [Magnusson] unreasonably failed to avail herself of that employer-provided preventive or remedial apparatus.”

The federal district court's decision indicated that "the County maintained a sexual harassment policy for the entire term of [Magnusson] employment" and that Magnusson had received documents instructing her on the Department of Public Work's [DPW] sexual harassment reporting procedures from both the DPW and her own union.  

Magnusson, however, had never provided appropriate County employees with any notice of the alleged incidents of harassment before initiating her action with the Equal Employment Opportunity Commission. Accordingly, even if Magnusson had an otherwise viable hostile work environment claim, the County was protected from Title VII liability by successfully advancing such an affirmative defense.

Although there are instances where an employee’s failure to report sexual harassment can be excused if the employee has a credible fear of retaliation or believes that the complaint would be futile, based on the record the Circuit Court concluded that Magnusson's "conclusory assertions that she feared retaliation or that complaining would be futile fail as a matter of law to constitute sufficient evidence to establish that her fear was ‘credible.'"

Addressing Magnusson 's equal protection claim, the Circuit Court said it agreed with the district court that Magnusson "does not have a viable hostile work environment claim under §1983."

According to the Circuit Court's ruling, the incidents that Magnusson alleged in her complaint had occurred in 2003 and 2012. While presumably inappropriate incidents, the court observed that they had occurred nine years apart and the Magnusson failed to present evidence that these incidents unreasonably interfered with her job performance.

Accordingly, the Circuit Court ruled that Magnusson did not have a viable hostile work environment claim under 42 U.S.C. §1983.

* The court noted that Magnusson's Title VII sexual orientation harassment complaints were timely but that such allegations under §1983 were untimely.

The decision is posted on the Internet at"

http://www.ca2.uscourts.gov/decisions/isysquery/b88edb38-3438-4fd4-b25e-6daea280f646/1/doc/16-1876_so.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/b88edb38-3438-4fd4-b25e-6daea280f646/1/hilite/

The basis for challenging a decision by a civil service commission are limited

The basis for challenging a decision by a civil service commission are limited

Agbai v New York City Civ. Serv. Commn., 2017 NY Slip Op 03699, Appellate Division, First Department

Supreme Court granted the NYC Civil Service Commission's motion dismissing a CPLR Article 78 petition seeking to vacate a determination by the Commission the terminated the petitioner's [Petitioner] employment as a New York City correction officer.

The Appellate Division explained that the New York City Civil Service Commission is subject to judicial review only if "the agency has acted illegally, unconstitutionally, or in excess of its jurisdiction," citing New York City Dept. of Envtl. Protection v New York City Civ. Serv. Commn., 78 NY2d 318.

Supreme Court, said the Appellate Division, "properly rejected Petitioner's argument that the Administrative Law Judge did not have the authority and jurisdiction to conduct the challenged disciplinary hearing."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_03699.htm

Tenured teacher unwilling to improve her pedagogical skills despite being provided with substantial assistance terminated from her position

Tenured teacher unwilling to improve her pedagogical skills despite being provided with substantial assistance terminated from her position

Broad v New York City Bd./Dept. of Educ., 2017 NY Slip Op 03691, Appellate Division, First Department

Supreme Court granted a New York City tenured teacher's [Teacher] CPLR Article 75 petition to set aside a determination of an arbitrator that sustained numerous disciplinary charges and specifications filed against her and terminating her employment as a tenured teacher.

The New York City Board/Department of Education appealed and the Appellate Division   unanimously reversed the lower court's ruling "on the law" and reinstated the arbitrator's decision.

The Appellate Division ruled that the arbitrator's decision had a rational basis and was supported by adequate evidence. The court said that he arbitrator reasonably determined that Teacher's performance had been deficient for two years based on the observations and ratings of the school principal and two assistant principals.

Although some of the charges and specifications were not significant, the Appellate Division noted that "the record reflects that petitioner was provided with substantial assistance over a two-year time period to improve her pedagogical skills, but she was unwilling to improve her performance."

As to the penalty imposed by the arbitrator, termination from employment, the court said that the penalty "does not shock our sense of fairness," citing Russo v NYC Dept of Education, 25 NY3d 946.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_03691.htm

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Challenging Adverse Personnel Decisions - A 765 page electronic book [e-book] focusing on penalties imposed on public employees of New York State and its political subdivisions found guilty of misconduct or incompetence by hearing officers and arbitrators and the judicial review of such penalties. More information is available on the Internet at http://nypplarchives.blogspot.com.

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Governor Cuomo announces refund checks have been issued to retirees deceived by Future Income Payments LLC

Governor Cuomo announces refund checks have been issued to retirees deceived by Future Income Payments LLC

Office of the Governor

As part of consent order with New York State's Department of Financial Services [DFS], Future Income Payments, LLC [FIP] is repaying more than $500,000 to New York pensioners

On May 15, 2017 New York State's Governor Andrew M. Cuomo announced that refund checks totaling $541,835, as well as loan forgiveness information, were issued to 115 retirees deceived by pension advance company FIP as required by FIP and its owner Scott Kohn.

FIP was not licensed to make loans in New York, nor was it licensed as a money transmitter. An investigation by DFS found that the company solicited and made loans to retired consumers at high interest rates in exchange for retirees assigning away several years of their pension benefits to pay for the unlawful loans.

The consent order resolved the investigation by DFS, which found that FIP made loans in New York State without a lending license, charged a usurious rate of interest on loans to New York pensioners, transmitted money to and from New York State without a money transmitter license, misrepresented to New York pensioners the legal status of the transactions by characterizing the loans as sales of an asset, and omitted the annual percentage rate of the loans. The refunds were mailed Friday, May 12, 2017 to 108 New York residents and seven former residents.

In addition to mandating the refunds, the consent order requires FIP to pay a $500,000 fine and stop engaging in all consumer-related transactions within New York State and with any New York resident. FIP was also required to reduce the total amount owed by pensioners to the actual value of the lump sum that was advanced and forgive amounts due above that amount, resulting in forgiveness of more than $6.3 million across 292 transactions.

New York pensioners who entered into agreements with FIP will receive a letter from the third-party administrator, Rust Consulting, Inc. Consumers who entered into an agreement with FIP and do not receive a letter or need more information should visit www.nyfipsettlement.com or contact Rust Consulting, Inc. at (866) 317-8866 or info@nyfipsettlement.com.

DFS urges anyone who suspects that they have been the victim of a pension advance scheme to contact the DFS Consumer Help Line at (800) 342-3736 or log onto www.dfs.ny.gov for assistance.

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Some exceptions to the Doctrine of Exhaustion of Administrative Remedies

Some exceptions to the Doctrine of Exhaustion of Administrative Remedies

Police Benevolent Assn. of N.Y. State, Inc. v State of New York, 2017 NY Slip Op 03588, Appellate Division, Third Department

Civil Service Law §64 bars temporary appointments to positions in the competitive class excess of three months, subject to certain exceptions, including, but not limited to, when an employee is on leave of absence from the position.

The Police Benevolent Association of New York State, Inc. [PBA], the bargaining representative for individuals employed as university police officers [UPO] at the State University of New York [SUNY] brought an Article 78 action seeking an order, among other things, annulling the temporary part-time appointment of an individual [Employee] as a UPO by SUNY's College of Environmental Science and Forestry. PBA contended that SUNY's appointment of Employee as a temporary part-time employee violated Civil Service Law §64.

Supreme Court granted SUNY's pre-trial motion to dismiss PBA's petition on the ground that PBA did not exhaust its administrative remedies. SUNY cited  an appeal of a grievance filed by PBA pursuant to the relevant collective bargaining agreement [CBA] then pending before the Governor's Office of Employee Relations [GOER] in support of its "failure to exhaust administrative remedies" in support of its motion to dismiss PBA's Article 78 petition.

PBA appealed and the Appellate Division reversed the Supreme Court's decision, finding that the exhaustion of remedies principle was inapplicable here because the matter was "ripe for judicial review."

Although the court observed that  "[A] determination made by an administrative agency must first be challenged through every available administrative remedy before it can be raised in a court of law," it said that this rule does not apply where [1] "an administrative challenge would be futile" or [2] where "the issue to be determined is purely a question of law."

The Appellate Division noted that PBA's Article 78 petition did not challenge the grievance determinations by SUNY processed pursuant to the grievance procedure set out in the CBA and that an appeal concerning those decisions were then pending a determination by the Governor's Office of Employee Relations.*

Rather PBA's Article 78 action challenged the appointment of Employee on the ground that it violated Civil Service Law §64. As PBA does not allege that SUNY violated the CBA, but instead alleges a statutory violation, it was not required to use the CBA's grievance procedure.

Indeed, said the court, "Article 7 of the CBA limits the grievance process to three types of disputes: first, concerning the application and/or interpretation of the CBA; second, concerning a term or condition of employment; and third, concerning a claim of improper or unjust discipline. However, none of these provisions "can be reasonably viewed as applicable to an (alleged) unlawful appointment by SUNY" in violation of §64 of the Civil Service Law.

As the cited provisions in the CBA are inapplicable with respect to adjudicating the alleges violation of Civil Service Law §64, use of the grievance process to challenge the appointment on statutory grounds would have been futile. As Employee's appointment was final, resulting in an alleged injury to PBA and, or, collective bargaining unit members, and because the question presented is "purely legal," the Appellate Division ruled that the matter "is ripe for judicial review" and Supreme Court erred in granting SUNY' pre-answer motion to dismiss.

* The Appellate Division noted that GOER denied the grievance and PBA made no demand for arbitration.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_03588.htm