Contracting with a former employee to assist in the training and transition his or her replacement

Contracting with a former employee to assist in the training and transition his or her replacement  

2017 NY Slip Op 02300, Appellate Division, Fourth Department

A retired Superintendent of Schools [Plaintiff] of the School District [District] commenced this breach of contract action seeking damages for the alleged breach of an agreement whereby the District agreed to pay Plaintiff $22,000 "as compensation for making himself available to assist the new Superintendent in the development of the school budget for the following fiscal year and such other duties as may be reasonably required to assist in the training and transition of the new Superintendent.'"

Prior to Plaintiff's retirement he had removed or destroyed a large number of documents that were kept in the Superintendent's office. The District wrote Plaintiff advising him that it had determined that the removal of these documents constituted a breach of the agreement and canceled the District's obligation under the agreement to issue payments to Plaintiff.

Supreme Court denied the District's motion for summary judgment dismissing Plaintiff's amended complaint and for judgment on the District's counterclaim, for conversion.* The Appellate Division concluded that the District "failed to meet their initial burden" and thus Supreme Court properly denied its motion.

The Appellate Division's decision notes that:

1. Plaintiff's "deposition testimony" stated that he was at all times "ready, willing and able" to assist the District and the new Superintendent but was never called upon to do so;

2. Plaintiff testified that "at least 50%" of the documents destroyed were personal documents accumulated over his 52-year career and, otherwise, they were documents that he considered to be his copies of documents that existed in other parts of the District, either as hard copies or in electronic format;"

3. The District had submitted the deposition testimony of the newly-hired superintendent who testified that he called Plaintiff with respect to the discarded documents and that he interpreted Plaintiff's responses to his inquiries regarding the discarded documents as a "threat," and he did not again contact Plaintiff; and

4. The District also submitted the deposition testimony of a District employee who testified that he observed a personnel file in the documents removed from Plaintiff's office.

The Appellate Division said that viewing District's submissions in the light most favorable to Plaintiff, "as we must," it concluded that the District failed "to demonstrate the absence of any material issues of fact whether Plaintiff's actions constituted a repudiation of the contract." The court cited Alvarez v Prospect Hospital, 68 NY2d 320, which addressed the question of whether a plaintiff's actions "constitute[d] an unequivocal and overt communication of [his or her] intention not to perform agreed-upon obligations."

In addition, the court ruled that the District had failed to establish its entitlement of judgment on its counterclaim alleging "conversion."

* Conversion is any unauthorized act that deprives an owner of personal property without his or her or its consent.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_02300.htm

Resolving conflicts between the New York State Human Rights Law and the National Labor Relations Act

Resolving conflicts between the New York State Human Rights Law and the National Labor Relations Act

Figueroa v Foster, USCA, Second Circuit, Docket Nos. 16-1856-cv(L), 16-1864-cv(XAP)

The issue before the Court in this action concerned whether the duty of fair representation under the National Labor Relations Act [NLRA] preempted the New York State Human Rights Law [NYSHRL] with respect to claims of unlawful discrimination filed by a union member against a labor organization when the labor organization was acting in its capacity as a collective bargaining representative in contrast to its acting as an employer.

If, said the court, the NLRA’s duty of fair representation preempts the NYSHRL, then Title VII as administered by the Equal Employment Opportunity Commission will serve as the primary force protecting union members from "invidious discrimination by their labor organizations."

If, on the other hand, opined the Circuit Court, the NLRA’s duty of fair representation does not preempt the NYSHRL, then the NYSHRL as administered by the New York State Division of Human Rights will provide union members with additional protections against invidious discrimination by their labor organizations.

Holding that hold that the NLRA’s duty of fair representation did not preempt* the NYSHRL either on the basis of field preemption, i.e, the federal government has fully occupied the fieldit has chosen to regulate, or as a general matter on the basis of conflict preemption, i.e., is it impossible for a party to comply with both state law and federal law, the Circuit Court reversed the declaratory judgment of the district court.

The decision cautions that this opinion "addresses only the Local’s claim that the duty of fair representation preempts the NYSHRL in its entirety when applied to unions acting in their capacity as collective bargaining agents."

In the words of the Circuit Court: "We do not purport to address every potential conflict between the NYSHRL and federal law" in this ruling.

* Under the doctrine of preemption based on Article VI, Paragraph 2 of the Constitution of the United States, the so-called Supremacy Clause, federal law preempts state law, even when such laws are in conflict.

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/27722fb4-6571-480b-ab91-18b80fd52a6b/8/doc/16-1856_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/27722fb4-6571-480b-ab91-18b80fd52a6b/8/hilite/

Redacting the name of a party in an administrative disciplinary action from the decision

Redacting the name of a party in an administrative disciplinary action from the decision

OATH Index No. 724/17

A New York City correction officer was served administrative disciplinary charges alleging the officer used unauthorized force when disbursing a chemical agent for more than a two-second burst within six feet of an inmate who had ceased offering resistance. The officer was also charged with filing an incomplete and inaccurate use of force report.

The officer moved to have his name redacted from the decision pursuant to §50-a of the New York State Civil Rights Law*on the grounds that a correction officer’s personnel records cannot be disclosed without an officer’s consent or a court order.

New York City Office of Administrative Trials and Hearings [OATH] Administrative Law Judge Astrid B. Gloade denied the motion, explaining that OATH has

consistently held that its decisions are not subject to the confidentiality provisions of Section 50-a of the Civil Rights Law because it is an independent tribunal that is not under the New York City Department of Correction's control."  

* Civil Rights Law §50-a, in pertinent part, provides that  “personnel records . . . under the control of . . . a department of correction of  individuals employed as correction officers” cannot be disclosed without an officer’s consent or a court order.

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/17_cases/17-724.pdf