Disqualifying an employee for employment in the public service and revoking his or her appointment based on a finding of fraud of a substantial nature in his or her application for employment

Disqualifying an employee for employment in the public service and revoking his or her appointment based on a finding of fraud of a substantial nature in his or her application for employment  

2017 NY Slip Op 05151, Appellate Division, Third Department

In 2009 the petitioner [Petitioner] in this Article 78 action had completed an application for employment with a public employer [Employer A] that included the question, "Have you ever resigned from employment rather than face discharge?" Petitioner answered "no" and signed an affirmation that the statements in the application "[were] true under the penalties of perjury and that a material misstatement or fraud may disqualify [her] from appointment." Petitioner was subsequently appointed by Employer A.

In 2015, Employer A issued a notice of charges alleging several acts of misconduct and notifying Petitioner that it would seek her dismissal if she was found guilty after a hearing. After obtaining additional information, the notice of discipline was revised to add a charge that Petitioner had made a false statement in her application for employment.

A disciplinary hearing was conducted and the hearing officer found, among other things, that Petitioner had withheld relevant information regarding her previous employment with another public employer, Employer B. As a result of this additional information, Petitioner was sent a notice of revocation of eligible certification, appointment and termination of employment pursuant to Civil Service Law §50(4). Petitioner requested, and was provided with a due process hearing. Ultimately Petitioner's "eligible certification and appointment" was revoked and Petitioner was terminated from her position.

Petitioner then commenced a proceeding pursuant to CPLR Article 78 seeking a court order annulling Employer A's determination and reinstate to her former position. Supreme Court dismissed Petitioner's action and she appealed the court's determination.

The Appellate Division noted that evidence and hearing testimony resulting Employer A terminating Petitioner revealed that Employer B, her former employer, had issued six disciplinary charges against her in 2008, which carried a maximum penalty of dismissal. After being served with these disciplinary charges, Petitioner had filed various claims against Employer B and her union, including charges with the Public Employment Relations Board. In September 2008, the parties entered into a separation agreement, by which Petitioner agreed to resign from her employment and withdraw her claims and Employer B, among other things, agreed to withdraw the disciplinary charges* against her, to issue a letter of reference using agreed-upon language, and to pay Petitioner $100,000 in settlement of her claims. In addition, the parties agreed not to discuss "the terms of [the agreement] or any fact concerning its negotiation, execution or implementation with anyone," unless "required to do so by law or legal process."

Acknowledging that she had resigned her position with Employer B while the charges were still pending, and that the maximum penalty sought by Employer B was dismissal, Petitioner gave several reasons for her "no" answer to the application question, stating that:

1. She acted upon the advice of counsel;**

2. She believed that she could not discuss the agreement because of its confidentiality provisions, and;

3. She expected to prevail on the disciplinary charges and therefore believed that she was not facing discharge.

Pursuant to the Civil Service Law §50[4], the State Civil Service Commission, with respect employee of the State as the employer and a county civil service department with respect to employers within its jurisdiction, may investigate the background and qualifications of an eligible individual after he or she has been appointed, and may revoke a certificate of appointment and direct the termination of employment, as pertinent here, "upon finding facts which if known prior to appointment, would have warranted his [or her] disqualification, or upon a finding of . . . fraud of a substantial nature in his [or her] application, examination or appointment."

Here, said the Appellate Division, Employer A's Personnel Officer found that Petitioner had resigned her position with Employer B rather than face discharge, that this resignation would have warranted Petitioner's disqualification from eligibility and, in the alternative, that Petitioner's failure to disclose the circumstances of her resignation constituted, as relevant here, a fraud of a substantial nature in her application. The Personnel Officer further found that Petitioner's failure to disclose her resignation had prevented Employer A from inquiring into the circumstances and discovering information material to her qualifications and background, and that her failure to disclose her resignation amounted to fraud.

The court noted that Employer A appointed Petitioner almost six years before it brought charges against her. Thus, said the Appellate Division, "Supreme Court correctly determined that [Employer A] is time-barred by the three-year statutory limitations period from enforcing Civil Service Law §50 on grounds other than fraud, and the sole issue to be resolved here 'is whether fraud of a substantial nature existed in connection with petitioner's application.'"

In the words of the Appellate Division, [Employer A] has "[w]ide discretion" to determine the fitness of candidates for civil service eligibility and employment and, in the absence of clear abuse, this Court will sustain such a determination."

Further, said the court, "Our review is limited to whether [Employer A's] determination was an abuse of discretion or arbitrary and capricious." Considering the affirmation that the statements in Petitioner's application were true in light of her acknowledgment that she resigned while charges that could have resulted in her dismissal were pending against her, the Appellate Division did not find Employer A's inference that Petitioner acted intentionally to be arbitrary and capricious. As Petitioner's resignation was an express requirement of the agreement by which Employer B agreed to withdraw the charges, "it was not arbitrary and capricious for [Employer B] to discredit Petitioner's assertion that she resigned, not for the purpose of avoiding dismissal, but instead to obtain payment for settling her claims against [Employer B].

The Appellate Division also rejected Petitioner's assertions related to the provisions of the agreement that prohibited her from disclosing its terms and related facts, explaining that the language in the agreement did not preclude her from disclosing the fact that she had resigned pursuant to an agreement. As Supreme Court had noted, said the court, Petitioner could have completed the employment application truthfully while complying with the agreement's confidentiality requirements by answering the question about previous resignations "yes" and indicating in the application's explanatory section that she had resigned from her employment with [Employer B] pursuant to an agreement, but could not disclose its details.

Such an acknowledgment would have allowed Employer A an opportunity to inquire further into circumstances surrounding her resignation, "as it did promptly when it later learned of her resignation." The Appellate Division said it found nothing arbitrary and capricious and no abuse of discretion in Employer A's determination that Petitioner committed fraud of a substantial nature.

* 4 NYCRR 5.3(b), which applies to employees of the State as the employer, in pertinent part, provides that, Resignation, provides: that “… when charges of incompetency or misconduct have been or are about to be filed against an employee, the appointing authority may elect to disregard a resignation filed by such employee and to prosecute such charges and, in the event that such employee is found guilty of such charges and dismissed from the service, his termination shall be recorded as a dismissal rather than as a resignation." Many local civil service commissions have adopted a similar rule.

** Petitioner, said the Appellate Division, clarified that she did not consult with counsel while completing the application, and that her understanding of the issue was based upon a conversation that she had previously had with her counsel when she entered into the separation agreement.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_05151.htm

______________________

A Reasonable Disciplinary Penalty Under the Circumstances - The text of this publication focuses on determining an appropriate disciplinary penalty to be imposed on an employee in the public service in instances where the employee has been found guilty of misconduct or incompetence. Now available in two formats - as a large, paperback print edition, and as an e-book. For more information click on http://booklocker.com/books/7401.html

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The actions of an employee prior to his or her promotion may properly form the basis for terminating the individual prior to the completion of his or her probationary period

The actions of an employee prior to his or her promotion may properly form the basis for terminating the individual prior to the completion of his or her probationary period

2017 NY Slip Op 05145, Appellate Division, Third Department

An individual [Probationer]  serving with the  New York State Department of Corrections and Community Supervision was promoted to a higher grade position subject to his satisfactory completion of a 52-week probationary period. Shortly after Probationer had completed the minimum period of probation he was terminated from his probationary appointment and reinstated to his former, lower grade, position.

Probationer contending that the termination of his probationary period was made in bad faith as the appointing authority "waited to demote him to his former position until just after he completed the eighth week of his probationary period — the minimum probationary service period — to avoid having to establish under Civil Service Law §75 that the demotion was based on incompetence or misconduct," filed an Article 78 petition in Supreme Court seeking reinstatement to the higher grade position with back salary.

Supreme Court dismissed Probationer's petition and he appealed the court's ruling.

The Appellate Division affirmed the lower court's determination, explaining that "An employee's probationary appointment may be terminated without a hearing for any reason or no reason at all, so long as the termination was not "in bad faith or for an improper or impermissible reason."*

To warrant a hearing after completing his or her minimum period of probation, the employee bears the burden of raising a material issue of fact as to whether the termination was made in bad faith or for an impermissible reason; allegations of a conclusory or speculative nature are insufficient to meet this burden.

Here, said the Appellate Division, Probationer's submissions were insufficient to raise a material issue of fact as to whether his discharge from the higher grade position was made in bad faith or based on an improper or impermissible motive.

The court noted that in answering Probationer's petition, the appointing authority submitted, among other things, the affidavit of the Personnel Director "which established that the decision to terminate [Probationer's] probationary promotion was made in good faith." The affidavit of the Personnel Director cited an investigative report in which it was concluded that the most credible version of certain events that occurred prior to Probationer's promotion "pointed to [Probationer] having observed and/or participated in threatening [a] particular inmate and then denying such observation or participation."

In addition, "as found by Supreme Court," the Appellate Division said that Probationer's allegations of bad faith "were too conclusory and speculative to warrant a hearing on the matter" as there was no evidentiary support that the Director waited to demote him to his former position until just after he completed the minimum probationary period.

* "Probationary employees" typically hold permanent appointment in the position and may enjoy limited tenure rights. For example, courts have ruled that probationers are entitled to notice and hearing if the appointing authority seeks to dismiss the individual during his or her minimum period of probation. In contrast, a probationer may be dismissed without notice and hearing after completing his or her minimum period of probation and prior to the expiration of his or her maximum period of probation.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_05145.htm

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The Discipline Book - A concise guide to disciplinary actions involving public officers and employees in New York State set out as an e-book. For more information click on http://booklocker.com/books/5215.html

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As the Regulations of the Commissioner of Education's do not define full-time status for the purpose determining compensation, a collective bargaining agreement may control such a determination

As the Regulations of the Commissioner of Education's do not define full-time status for the purpose determining compensation, a collective bargaining agreement may control such a determination

Decisions of the Commissioner of Education, Decision No. 17,062

Susan Ford-Gambee Wilhelm filed a appeal with the Commissioner of Education challenging the action of the Board of Education of the Eden Central School District assigning her to teach five classes following a reduction in her position from a full-time position to a .83 full time equivalent [FTE] position. 

Wilhelm contended that she was a full-time teacher within the meaning of §100.2(i) of the Commissioner’s regulations "because she continued to teach five classes each day, which she contended is a 1.0 FTE." She claimed that Eden has improperly treated her position as a .83 FTE and compensated her on that basis, even though she contended that she was a full-time teacher.

The Commissioner said that the essence of Wilhelm's argument appeared to be that §100.2(i) defines a full-time teaching load as five classes and thus that she is entitled to compensation as a full-time teacher based on the classes she was assigned to teach by the school district.

§100.2(i), relating to teaching assignments, provides that, with respect to teaching staff in public schools, the number of daily periods of classroom instruction for a teacher should not exceed five. Further, said the Commissioner, pursuant to the regulation, "a school requiring of any teacher more than six teaching periods a day, or a daily teaching load of more than 150 pupils, should be able to justify the deviation from this policy."

The Commissioner said that a petitioner, here Wilhelm, has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which he or she seeks relief.

Wilhelm, however, did not contend that her number of daily periods of classroom instruction exceeds five; admitted that she only taught five classes for the 2016-2017 school year; and did not claim that she was assigned a daily teaching load in excess of 150 students. Rather she argued that §100.2(i) defines a full-time teaching load as five classes and thus she was entitled to compensation as a full-time teacher. 

The Commissioner disagreed, explaining that §100.2(i) "merely establishes a policy that teachers should not be assigned more than five classes or a teaching load of 150 pupils and requires that a board of education be able to justify any such assignment, for the purpose of maintaining quality instruction for students." Further, said the Commissioner, the regulation does not define full-time status for purposes of compensation, noting that in Wilhelm's case, was governed by the applicable collective bargaining agreement.

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume56/d17062

Unemployment Insurance Appeals Board may apply the doctrine of collateral estoppel to a disciplinary determination made after a hearing in determining if an individual is disqualified for unemployment insurance benefits

Unemployment Insurance Appeals Board may apply the doctrine of collateral estoppel to a disciplinary determination made after a hearing in determining if an individual is disqualified for unemployment insurance benefits
Matter of Telemaque (Commissioner of Labor), 2017 NY Slip Op 02109, Appellate Division, Third Department

Veronica Telemaque appealed the decision of the Unemployment Insurance Appeals Board that she was disqualified from receiving unemployment insurance benefits because her employment was terminated due to misconduct.

Telemaque had been found guilty and dismissed from her position after a hearing on disciplinary charges filed against her pursuant to Education Law §3020-a for allegedly engaging in misconduct, conduct unbecoming and/or prejudicial, insubordination and violating the employer's rules.

The Appellate Division said that Telemaque's primary challenge concerns the disciplinary Hearing Officer's factual and credibility determinations and alleged evidentiary errors were made at the disciplinary hearing. The Board noted that it did not appear that Telemaqueappealed that disciplinary determination and "her challenges to the merits of that determination may not be raised in this unemployment insurance proceeding."

As Telemaque had "a full and fair opportunity to litigate the charges of misconduct at [her §3020-a disciplinary] hearing, the Appellate Division said that the Board had "properly gave collateral estoppel effect to the Hearing Officer's factual determinations" in that proceeding and sustained the Board's determination.

The decision is posted on the Internet at: 
http://www.nycourts.gov/reporter/3dseries/2017/2017_02109.htm 

Determining if the parties agreed to resolve a particular grievance pursuant to the terms of the arbitration clause set out in a collective bargaining agreement

Determining if the parties agreed to resolve a particular grievance pursuant to the terms of the arbitration clause set out in a collective bargaining agreement

County of Monroe (Civil Serv. Employees Assn., Inc., Local 828, Unit 7423, 2017 NY Slip Op 04602, Appellate Division, 4th Department

Civil Service Employees Association, Inc., Local 828, Unit 7423 [7423] filed a grievance on behalf of certain retired former employees of the Monroe County Sheriff's Department, all of whom retired prior to January 1, 2000, when a collective bargaining agreement [CBA] that covered the period between 1994 through 1999 was in effect.

The grievance alleging that Monroe County had had violated the CBA by unilaterally changing the subject retirees' post-Medicare health insurance benefits.

Monroe County contended that any such alleged unilateral change was subject to resolution pursuant to the grievance and arbitration procedure set out in the 2009-2012 CBA. 7423, however, denied that the parties had agreed to resolve retiree health insurance benefit disputes for those retiring prior to January 1, 2000, by submitting it to the grievance and arbitration procedure set out in the 2009-2012 CBA.

When Monroe County demanded arbitration pursuant to the 2009-2012 CBA, 7423 commenced this proceeding, and the County cross-moved to compel arbitration. Supreme Court granted 7423's petition, permanently staying arbitration, and denied the County's cross motion to compel arbitration. Monroe County appealed but the Appellate Division sustained the Supreme Court's ruling.

Citing City of Buffalo v A.F.S.C.M.E. Council 35, Local 264, 107 AD2d 1049, the Appellate Division, agreeing with Supreme Court, concluded that the rights of the subject retirees are governed by the 1994-1999 CBA, which was in effect when they retired.

Then, in order to determine whether the grievance was arbitrable under the 1994-1999 CBA, the Appellate Division initiated "the requisite two-step inquiry." As to the first step of its inquiry - was there any statutory, constitutional or public policy prohibition against arbitration of the grievance -- the Appellate Division said " it is undisputed that there is no prohibition against arbitration of the grievance."

The court then considered the "second step" of the inquiry -  "... whether the parties did agree by the terms of their particular arbitration clause to refer their differences in this specific area to arbitration."

Addressing this second element of the "two-step inquiry," the Appellate Division concluded that Supreme Court had properly determined that the parties did not agree to refer to arbitration retiree health benefit disputes raised by former employees who had retired prior to January 1, 2000.

The decision of the Appellate Division notes that that a "grievance clause in the 1994-1999 CBA" specifically excludes retirement benefits from the grievance and arbitration procedure. Accordingly, the court dismissed Monroe County's appeal, sustaining Supreme Court's order granting 7423's petition to stay arbitration and denying the County's cross-motion to compel arbitration.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_04602.htm

A police officer holds a position of great sensitivity and trust and is subject to a higher standard of fitness and character are "ordinary civil servants"

A police officer holds a position of great sensitivity and trust and is subject to a higher standard of fitness and character are "ordinary civil servants"

Oliver v D'Amico, 2017 NY Slip Op 04596, Appellate Division, Fourth Department

A former New York State Trooper, Jean Oliver, commenced a CPLR Article 78 proceeding seeking to annul Commissioner of State Police's determination finding her guilty of certain disciplinary charges or, in the alternative, to vacate the penalty of dismissal imposed upon her. Oliver contended that the Superintendent's determination was not supported by substantial evidence and that the penalty of dismissal is "shocking to one's sense of fairness."

Citing Wilson v City of White Plains, 95 NY2d 783, the Appellate Division sustained the Superintendent's determination, explaining that "It is well established that, '[i]n CPLR Article 78 proceedings to review decisions of administrative tribunals, the standard of review for the Appellate Divisions ... is whether there was substantial evidence to support the Hearing Officer's decision.'" The court found that, contrary to Oliver's contention, the Superintendent's determination was supported by substantial evidence.

Although Oliver also argued that the hearing panel had improperly expanded the charge in Charge number one by expanding the scope of the alleged order from an order to refrain from working on certain cases she had been assigned while at CNET to an order to refrain from working on relatedcases or being involved in "any matters related to her previous work, the Appellate Division rejected her contention, noting that Charge number one was "reasonably specific, in light of all the relevant circumstances, to apprise [Oliver] . . . of the charges against [her] . . . and to allow for the preparation of an adequate defense." Further, said the court, the evidence at the hearing established that "[Oliver's] guilt was based only on violations that were charged."*

As to the penalty imposed, dismissal, the court, quoting from Kelly, 96 NY2d at 38,  concluded that the penalty of termination is not shocking to one's sense of fairness noting that "Judicial review of an administrative penalty is limited to whether the measure or mode of penalty or discipline imposed constitutes an abuse of discretion as a matter of law . . . [T]he Appellate Division is subject to the same constraints as th[e] Court [of Appeals]—a penalty must be upheld unless it is so disproportionate to the offense as to be shocking to one's sense of fairness,' thus constituting an abuse of discretion as a matter of law."

Of critical importance, said the Appellate Division, is the principal that "a State Trooper holds a position of great sensitivity and trust . . . and [a] higher standard of fitness and character pertains to police officers than to ordinary civil servants." Thus, given the conduct underlying the offenses -- directly disobeying an order and making false statements in an Internal Affairs interview and on official police records, and Oliver's refusal to accept any responsibility for her conduct. Accordingly, the court concluded that it could not say that the penalty of dismissal shocks its sense of fairness.

Finally, the court said it recognized that the allegations against Oliver did not involve any harm to the public, any misconduct for her personal gain or official corruption. It also noted that charges herein "were filed following petitioner's initial complaints of discrimination and that the Equal Employment Opportunity Commission has since found that "there is reasonable cause to believe that [the New York State Police] has discriminated against [petitioner] on account of her gender and in retaliation for engaging in a protected activity."

However, said the Appellate Division, its review of the penalty is extremely limited and it does not have any "discretionary authority or interest of justice jurisdiction in reviewing the penalty imposed."

* Oliver also argued that the hearing panel failed to consider the retaliatory motive of the disciplinary charges in violation of Civil Service Law §75-b, the so-called "whistle blower statute." The Appellate Division said that she failed to raise that contention in her petition and thus that contention was "not properly" before it.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_04596.htm

_____________________

A Reasonable Disciplinary Penalty Under the Circumstances - The text of this publication focuses on determining an appropriate disciplinary penalty to be imposed on an employee in the public service in instances where the employee has been found guilty of misconduct or incompetence. Now available in two formats - as a large, paperback print edition, and as an e-book. For more information click on http://booklocker.com/books/7401.html

_____________________

Recent Decisions by OATH Administrative Law Judges

Recent Decisions by OATH Administrative Law Judges

Source: NYC Office of Tribunals and Hearings

Dismissal of disciplinary charges recommended

OATH Index Nos. 1417/17 & 1418/17

OATH Administrative Law Judge Astrid B. Gloade recommended dismissal of charges that sanitation workers used department equipment without authorization to collect refuse from a home not on their assigned route.

The ALJ found that the home was across the street from workers' assigned route and that they were scheduled to service it the next day. The workers collected refuse from the home after they completed their assigned work and there was no evidence that the refuse they collected was trade waste.

Judge Gloade found that the fact that the workers failed to obtain authorization before collecting the refuse was too minor to warrant a sanction.  

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/17_cases/17-1417.pdf

Termination of hospital dietician recommended

OATH Index No. 282/17

OATH Administrative Law Judge Noel R. Garcia recommended termination of a hospital dietician for "misconduct and/or incompetence" after finding that the dietician failed to competently perform nutrition assessments for several patients over a six-month period, including recommending oral diets for patients who were on “nothing by mouth” status, recommending a tube feeding formula with insufficient calories for a patient who was severely malnourished, and failing to complete accurate assessments for high risk patients, placing patients’ health at risk.

Judge Garcia was not persuaded by the dietician's contention that he had a  "high volume of work," concluding that "To the extent [the dietician] attempted to justify any of [his acts, omissions or errors] by blaming an alleged high volume of work, such argument is without merit."

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/17_cases/17-282.pdf

 _________________

The Discipline Book - A concise guide to disciplinary actions involving public officers and employees in New York State set out as an e-book. For more information click on http://booklocker.com/books/5215.html

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Spoliation of evidence

Spoliation of evidence

Burke v Queen of Heaven R.C. Elementary Sch., 2017 NY Slip Op 04593, Appellate Division, Fourth Department

Kelly Burke commenced this action seeking damages for injuries that she sustained when she slipped and fell on stairs at a facility owned and operated by Queen of Heaven R.C. Elementary School [Defendant] and sought partial summary judgment as to liability against Defendant on the ground Defendant had destroyed and replaced the stairs after Burke had notified Defendants of her intent to have her expert inspect the stairs, contending that such destruction and replacement of the stairs in question constituted "spoliation of evidence".

With respect to "spoilage", the Appellate Division noted that "Where the evidence is determined to have been intentionally or wil[l]fully destroyed, the relevancy of the destroyed [evidence] is presumed." In contrast, if the evidence is determined to have been negligently destroyed, the party seeking spoliation sanctions must establish that the destroyed [evidence was] relevant to the party's claim or defense."

In order to obtain sanctions for spoliation of evidence, the plaintiff had the burden of showing that [1] the party having control over the evidence possessed an obligation to preserve it at the time of its destruction, [2] the evidence was destroyed with a culpable state of mind, and [3] the destroyed evidence was relevant to the party's claim or defense such that the trier of fact could find that the evidence would support that claim or defense.

Defendant conceded that the original condition of the stairway was relevant.

Noting that Defendant had an obligation to preserve the condition of the stairs existed because litigation had begun at the time the stairs were replaced, the Appellate Division agreed with Burke that she met her burden of establishing that Defendant destroyed the stairs with a culpable state of mind.

As Supreme Court had "properly concluded" that Defendant's culpable state of mind was evidenced by its destruction of the stairs during the parties' ongoing debate about whether Burke had to disclose the name of her expert to Defendant before Defendant would agree to the inspection, the Appellate Division said it agreed with Burke that the  imposition of a sanction against Defendant for spoliation of evidence was warranted here.

As to granting Burke partial summary judgment on liability based on Defendant's destruction of the stairway, the Appellate Division, citing Sarach v M & T Bank Corp., 140 AD3d 1721, explained that  in deciding to impose sanctions, and what particular sanction to impose, courts look to the extent that the spoliation of evidence may prejudice a party, and whether a particular sanction is necessary as a matter of elementary fairness.

Observing that "It is well established that a less drastic sanction than dismissal of the responsible party's pleading may be imposed where [, as here,] the loss does not deprive the nonresponsible party of the means of establishing his or her claim or defense ... the record does not demonstrate that [Burke] has been left 'prejudicially bereft' of the means of prosecuting her action." Accordingly, the Appellate Division ruled that "given that [Burke] has in her possession, among other evidence of the condition of the stairs, photographs of the stairs taken after the commencement of this action, "an appropriate sanction is that an adverse inference charge be given at trial with respect to any now unavailable evidence of the condition of the stairs."

In contrast, in some instances the destruction of records will not be deemed to be subject to sanctions for "spoilage."

In Matter of Klikocki (NY Department of Corrections, Mount McGregor), 216 AD2d 808, the Appellate Division decided that evidence Klikocki claimed would be helpful in his defense in a disciplinary action that the employer had destroyed had not been destroyed in an effort to conceal something but rather occurred in accordance with the normal procedure concerning the retention or destruction of certain records after they had been retained for a specified period of time.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_04593.htm

New York courts use a "two-prong" test to determine if a dispute between a public sector employer and public sector employees may be submitted to arbitration

New York courts use a "two-prong" test to determine if a dispute between a public sector employer and public sector employees may be submitted to arbitration

Village of Garden City v Professional Firefighters Assn. of Nassau County, Local 1588, 2017 NY Slip Op 04849, Appellate Division, Second Department

The Village of Garden City sought to permanently stay arbitration of an alleged violations of a collective bargaining agreement [CBA] demanded by the employee organization, contending that the grievance at issue was not subject to arbitration because [1] the provisions alleged to have been violated were not a part of the parties' CBA; [2] the provisions involved did not contain its own arbitration clause; [3] the matters in dispute were not binding due to improper execution or expiration; and [4] public policy barred arbitration of the dispute.

In contrast, the Association moved to compel arbitration, arguing that the agreements it relied upon in its demand for arbitration constituted an addendum to the CBA and, thus, were subject to arbitration.

The Supreme Court determined that [1] arbitration of the dispute was not against public policy and [2] that the dispute was subject to the arbitration provisions in the parties' CBA. The Village appealed Supreme Court's granting the Association's motion to compel arbitration.

Citing Locust Val. Cent. Sch. Dist. v Benstock, 144 AD3d 758, the Appellate Division said that "The determination of whether a dispute between a public sector employer and [its] employee is arbitrable is subject to [a] two-prong test."

First, the court must determine whether there is any statutory, constitutional or public policy prohibition against arbitration [of] the grievance."

Second, should the court determine that there is no such prohibition against arbitrating the dispute, it must examine the parties' collective bargaining agreement and determine if they, in fact, agreed to arbitrate the particular matter in dispute.

The Appellate Division then explained that in examining the collective bargaining agreement the court merely determine whether there is a reasonable relationship between the subject matter of the dispute and the general subject matter of the agreement. Should the court rule the matter arbitrable, the arbitrator will then make a more exacting interpretation of the precise scope of the substantive provisions of the CBA and whether the subject matter of the dispute fits within them.

Further, the Appellate Division observed that a court "may not consider whether the claim with respect to which arbitration is sought is tenable, or otherwise pass upon the merits of the dispute."

In this instance the Appellate Division ruled that Supreme Court correctly held that public policy does not prohibit arbitration of the Association's grievance alleging that the Village violated certain procedures and that it also correctly held that the Association's grievance was reasonably related to the general subject matter of the CBA. Thus, the question of the scope of the substantive provisions of the CBA is a matter of contract interpretation and application reserved for the arbitrator.

Accordingly, the Appellate Division sustained the lower court's granting the Association's motion to compel arbitration.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_04849.htm

Should an entity grants a request to postpone an administrative hearing, it is required take appropriate action to reschedule the hearing

Should an entity grants a request to postpone an administrative hearing, it is required take appropriate action to reschedule the hearing

Doe v Onondaga County, 2017 NY Slip Op 04697, Appellate Division, Fourth Department

Jane Doe initiated an Article 78 action against Onondaga County and the Onondaga County Department of Social Services [Onondaga County].

Onondaga County asked Supreme Court to dismiss Doe's complaint contending Doe failed to comply with the provisions set out General Municipal Law §50-h as she failed to comply with its demand for a hearing pursuant to General Municipal Law §50-h.

Supreme Court denied Onondaga County's motion and the County appealed.

Citing Legal Servs. for the Elderly, Disabled, or Disadvantaged of W. N.Y., Inc. v County of Erie, 125 AD3d 1321, the Appellate Division said that "It is well settled that a plaintiff who has not complied with [the requirements set out in] General Municipal Law §50-h(5) is precluded from maintaining an action against a [county]."

However, §50-h(5) also provides, as here relevant, that "[t]he action, however, may not be commenced until compliance with the demand for examination if the claimant fails to appear at the hearing or requests an adjournment or postponement beyond the ninety day period. If the claimant requests an adjournment or postponement beyond the ninety day period, the city, county, town, village, fire district or school district shall reschedule the hearing for the earliest possible date available."

The Appellate Division pointed out that Doe was in compliance with the statute as after Onondaga County demanded a General Municipal Law §50-h(5) hearing, Doe requested and was granted an adjournment of that hearing.

Contrary to the Onondaga County's contention, the Appellate Division said that it was incumbent upon the County to reschedule the adjourned hearing. Accordingly Supreme Court correctly denied Onondaga County's motion to dismiss Doe's petition.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_04697.htm

Determining if a complaint alleging sexual harassment based a claim of a continuing violation of New York State's Human Rights Law is timely

Determining if a complaint alleging sexual harassment based a claim of a continuing violation of New York State's Human Rights Law is timely

Lozada v Elmont Hook & Ladder Co. No. 1, 2017 NY Slip Op 04845, Appellate Division, Second Department

Beatrice Lozada, a former volunteer firefighter with the Elmont Hook and Ladder Company No. 1 [Elmont], filed administrative complaints against Elmont with the New York State Division of Human Rights [DHR] alleging that she had been subjected to a hostile work environment as the result of sexual harassment.

After a hearing, the DHR Adjudication Counsel [AC] determined that although the acts of sexual harassment that occurred during Lozada's early service with Elmont "clearly" constituted a hostile work environment, those acts occurred outside of the applicable one-year statute of limitations period set out in Executive Law §297(5). In addition, the AC determined that Lozada had failed to establish a continuing violation concluding that her hostile work environment claim was time-barred.

The Commissioner adopted the AC's findings and recommendation that Lozada's complaint be dismissed. In response, Lozada initiated an Article 78 proceeding challenging the Commissioner's decision with respect to the Commissioner's finding that her hostile work environment claim based upon sexual harassment was untimely.

The Appellate Division sustained the Commissioner's decision, which it found was supported by substantial evidence and was not arbitrary and capricious. The court explained that a review of the record demonstrated that the Commissioner's determination that Lozada failed to establish a continuing violation and thus her sexual harassment claim based a hostile work environment relying the Doctrine of Continuing Violation was misplaced. 
    

Although Lozada did establish the existence of a hostile work environment based on incidents of sexual harassment, the court noted that those incidents occurred outside the limitations period and Lozada failed to prove that a specified related incident took place within the limitations period required to invoke the Continuing Violation Doctrine.

The court explained that a hostile work environment claim is subject to a one-year statute of limitations and a hostile work environment claim, by its very nature, is predicated on a series of separate acts that collectively constitute an unlawful discriminatory practice.

Case law considering the Doctrine of a Continuing Violation indicates that the Doctrine is triggered even though one or more of those unlawful acts might have occurred outside of the limitations period so long as at least one of unlawful acts occurred within the limitations period.

Considering the viability of relying on the Doctrine of Continuing Violation in adjudicating a hostile work environment claim, in Strauss v New York State Dept. of Educ., 26 AD3d 67, the court held that "[i]n the case of a hostile work environment claim, the statute of limitations requires that only one sexually harassing act demonstrating the challenged work environment occur within [the statutory period]" and that "once that is shown, a court . . . may consider the entire time period of the hostile environment in determining liability."

Finding that there was no basis to vacate the Commissioner's determination in this instance, the Appellate Division dismissed Lozada's appeal.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_04845.htm

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending June 24, 2017

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending June 24, 2017

Click on text highlighted in color  to access the full report

Public Drinking Water Needs More Protection
New York's public water supplies need stronger protections to ensure clean drinking water and prevent contamination that could result in health problems, according to a reportby State Comptroller Thomas P. DiNapoli.

Former Mahopac VFD Treasurer Sentenced After $5.6 Million Embezzlement

State Comptroller Thomas P. DiNapoli and Joon H. Kim, the Acting United States Attorney for the Southern District of New York, announced that Michael Klein, the former treasurer of the Mahopac Volunteer Fire Department (MVFD), was sentenced by U.S. District Judge Cathy Seibel to 77 months in prison for wire fraud, subscription to false tax returns, obstruction of the grand jury, and false statement charges arising out of his embezzlement of more than $5.6 million from the MVFD.

DiNapoli Announces State Contract and Payment Actions for May 2017

State Comptroller Thomas P. DiNapoli announced his office approved 1,531 contracts valued at $14 billion and approved nearly 2.3 million payments worth more than $12 billion in May. His office also rejected 219 contracts and related transactions valued at $400 million and nearly 1,900 payments valued at more than $7 million due to fraud, waste or other improprieties.


New York StateComptroller Thomas P. DiNapoli announced his office completed audits of

Chestertown Volunteer Fire Company,

Town of Ithaca and the

Town of Smithtown.

OATH disciplinary hearing held in absentia

OATH disciplinary hearing held in absentia 

OATH Index #728/17

A tax auditor was charged with misconduct and incompetence for performing her duties in an inefficient manner, being discourteous to her supervisor, and time and leave violations.

The auditor failed to appear at trial and the matter proceeded by inquest. Based on credible testimony from a supervisor and documentary evidence, ALJ Addison sustained the charges.

Judge Addison found that the auditor’s persistent unwillingness to perform her tasks constituted incompetence as well as misconduct and recommended that the auditor be terminated from her employment.

Posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/17_cases/17-728.pdf

__________________ 

The Discipline Book - A concise guide to disciplinary actions involving public officers and employees in New York State set out as an e-book. For more information click on http://booklocker.com/books/5215.html

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Educator terminated for a continuing pattern of inappropriate behavior involving students

Educator terminated for a continuing pattern of inappropriate behavior involving students

Vagianos v City of New York, 2017 NY Slip Op 04779, Appellate Division, First Department

Kristopher Vagianos appealed Supreme Court's dismissal of his Article 75 petition to vacate a disciplinary arbitration award that resulted his termination as a tenured school teacher.

Sustaining the lower court's ruling, the Appellate Division noted that Vagianos had been previously disciplined and found guilty of similar misconduct and had neither taken responsibility for such misconduct that involved his "verbal abuse of one student and corporal punishment of a student confined to a wheelchair" nor was he deterred by that earlier disciplinary action from continuing his pattern of inappropriate behavior.

The record in the current appeal indicated that the hearing officer found that Vagianos, a teacher of special-needs students, made denigrating comments about a students' limitations in the presence of other teachers, including referring to such students as "waste products," made inappropriate comments to a student with autism, and made threatening comments to another teacher.

Under the circumstances, the Appellate Division said that its sense of fairness was not shocked by imposing the penalty of termination in this disciplinary action, explaining that Vagianos' insensitivity to and disrespect for his students "compromised his ability to function as a teacher."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_04779.htm

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A Reasonable Disciplinary Penalty Under the Circumstances - The text of this publication focuses on determining an appropriate disciplinary penalty to be imposed on an employee in the public service in instances where the employee has been found guilty of misconduct or incompetence. Now available in two formats - as a large, paperback print edition, and as an e-book. For more information click on http://booklocker.com/books/7401.html

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Does the public have a right of access to a hearing concerning the removal of a member of a school board for official misconduct?

Does the public have a right of access to a hearing concerning the removal of a member of a school board for official misconduct?

2017 NY Slip Op 04624, Appellate Division, Fourth Department

The Board of Education [School Board] sought to remove one of its members [Member] from her position on the School Board pursuant to Education Law §1709(18).

Subdivision 18 of §1709 sets out the relevant procedures to be followed in the event a school board seeks to "remove any member ... for official misconduct" and requires that a "written copy of all charges made of such misconduct shall be served upon him [or her] at least ten days before the time appointed for a hearing of the same; and he [or she] shall be allowed a full and fair opportunity to refute such charges before removal."

Member challenged the School Board's procedure in holding the hearing concerning her removal from the board, contending that the School Board had violated her First Amendment right of access when it closed the first three days of the Member's removal hearing to general public. Supreme Court denied her motion for summary judgment and Member appealed.

The Appellate Division unanimously affirmed the Supreme Court's ruling and, addressing the School Board's action barring the public from "the first three days" of the hearing, said:

1. "The First Amendment, made applicable to the States through the Fourteenth Amendment, prohibits the government from 'abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances';

2. "[A] trial courtroom ... is a public place where the people generally — and representatives of the media — have a right to be present, and where their presence historically has been thought to enhance the integrity and the quality of what takes place;

3. "The United States Supreme Court has applied a two-part test to determine whether there was a right of access under the First Amendment [see Press-Enterprise Co. v Superior Ct. of Cal., County of Riverside, 478 US 1, 8-10], and the [New York State] Court of Appeals has used that test to determine whether there is a right of access to a professional disciplinary hearing;

4. "The test requires a court to consider 'whether the place and process have historically been open to the press and general public and whether public access plays a significant positive role in the functioning of the particular process in question'; and

5. "Once it has been determined that there is such a right of access, then the proceeding 'cannot be closed unless specific, on the record findings are made demonstrating that closure is essential to preserve higher values and is narrowly tailored to serve that interest.'"

The Appellate Division found that Member failed to submit evidence establishing that, as a matter of law, removal hearings conducted pursuant to Education Law §1709(18) have historically been open to the public and that the public has played a significant positive role in such proceedings.

Accordingly, the court concluded that Supreme Court "properly denied [Member's] motion on the ground that [Member] failed to meet her burden of establishing as a matter of law that there is a First Amendment right of access to an Education Law §1709(18) removal proceeding."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_04624.htm

_________________

The Discipline Book - A concise guide to disciplinary actions involving public officers and employees in New York State set out as an e-book. For more information click on http://booklocker.com/books/5215.html

_________________

A collective bargaining agreement may expand an employer's obligation to provide information to an employee organization not specifically provided for by law

A collective bargaining agreement may expand an employer's obligation to provide information to an employee organization not specifically provided for by law

City of New York v New York State Nurses Assn., 2017 NY Slip Op 04492, Court of Appeals

New York State Nurses Association (Union) filed an improper practice petition with the Board of Collective Bargaining of the City of New York (the Board), alleging that it had a right to certain information pursuant to New York City's Collective Bargaining Law (NYCCBL) §12-306(c)(4), in connection with disciplinary proceedings brought against two nurses employed by the City's Human Resources Administration (HRA).

HRA refused to provide the information the Union sought in connection with its representing the two nurses in the disciplinary action, including the "relevant policies and the HRA Code of Conduct, information on time-keeping, patient treatment records for the relevant dates, witness statements, and a written statement detailing how the nurses violated the HRA Code of Conduct." HRA also refused to permit the Union to question "the witnesses who gave statements and the nurses' supervisors."

The Board, with two members dissenting, ruled that it was an improper practice for the City to refuse to comply with certain of the information requests, finding that §12-306(c)(4) extends to information "relevant to and reasonably necessary to the administration of the parties' agreements, such as processing grievances." The Board, however, found that the Union was not entitled to witness statements or a written explanation regarding the violation or the opportunity to question the identified witnesses or supervisors, concluding that §12-306(c)(4) is limited to information "normally maintained in the regular course of business."

The City filed an Article 78 petition challenging the Board's determination.

Supreme Court granted the City's petition and annulled the Board's determination, concluding that the Board improperly extended the Union's right to obtain information for grievances pursuant to contract administration to disciplinary proceedings, noting that "the agreement does not explicitly require the City to provide information in disciplinary proceedings."

The Appellate Division unanimously reversed, holding that "the Board's decision, which was entitled to 'substantial deference,' had a rational basis" but granted the City leave to appeal on a certified question of whether its order was properly made.

The Court of Appeals affirmed the Appellate Division's ruling, Judge Garcia dissenting, explaining:

1. NYCCBL provides that it is improper practice for a public employer "to refuse to bargain collectively in good faith on matters within the scope of collective bargaining with certified or designated representatives of its public employees" and requires both employers and unions "to furnish to the other party, upon request, data normally maintained in the regular course of business, reasonably available and necessary for full and proper discussion, understanding and negotiation of subjects within the scope of collective bargaining."

2. The Board held that NYCCBL §12-306(c)(4) extended to information "relevant to and reasonably necessary for the administration of the parties' agreements, such as processing grievances, and/or for collective negotiations on mandatory subjects of bargaining."

3. The Appellate Division noted, "... the City and HRA do not dispute the Board's precedent holding that the duty to furnish information already applied to 'contract administration' and 'grievances' (including potential grievances)."

4. Union had bargained for and obtained the right to obtain such information in the context of a disciplinary proceedings and not just "contract" grievances by defining "grievance" to include disciplinary action in the relevant collective bargaining agreement.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_04492.htm

Expulsion of a public employee in a collective bargaining unit from membership in an employee organization recognized or certified for the purposes of the Taylor Law

Expulsion of a public employee in a collective bargaining unit from membership in an employee organization recognized or certified for the purposes of the Taylor Law

Montero v Police Assn. of the City of Yonkers, Inc., 2017 NY Slip Op 02040, Appellate Division, Second Department

Raymond Montero asked the Appellate Division to review a determination by Supreme Court that sustained the Police Association of the City of Yonkers, Inc., also known as Yonkers Police Benevolent Association [YPBA], expulsion of Montero from its membership. The Appellate Division annulled the lower court ruling, on the law, with costs, and granted Montero's petition.

YPBA had notified Montero of charges alleging he was guilty of certain misconduct and of a hearing scheduled to consider such charges. Montero chose not to appear at the hearing. Apparently YPBA conducted Monero's hearing in absentia and made a determination to expel him from membership in the organization.

Citing Matter of Kelly v Northport Yacht Club, Inc., 44 AD3d 858, the Appellate Division set out the standard for assuming jurisdiction in the matter as follows: "[W]here the constitution and by-laws of a voluntary association reasonably set forth grounds for expulsion and provide for a hearing upon notice to the member, judicial review of such proceedings is unavailable, unless the reason for expulsion is not a violation of the constitution or by-laws or is so trivial as to suggest that the action of the association was capricious or corrupt, or unless the association failed to administer its own rules fairly."

Here, said the court, YBPA determined that Montero committed conduct that was "prejudicial to the welfare of the Association," in violation of the bylaws, was arbitrary and capricious.

Montero was charged with providing "information" to the author of articles published online, providing that author with an email from the YPBA's president to the members, publishing that email online himself, with comments, and being involved in an altercation with another member. The court noted that "Other than the single identified email, there is no basis in the record on which to determine what, if any, other information was provided to the author of the articles by [Montero], and whether such unidentified information was detrimental to [YPBA]."

Although YPBA characterized the email as "confidential," the Appellate Division opined that there is no reason to conclude that the email, which was sent to all of the YPBA's members, was confidential as the email merely contained a statement indicating that the sharing of the email was "discouraged." Further, said the court, while Montero's was alleged to have disseminated "certain misinformation," during a time when YPBA was negotiating a contract with the City of Yonkers complicated the contract negotiations, YPBA failed to explain how the shared email, or the comments made by Montero, had such an effect or was detrimental to the welfare YPBA.

Quoting from Polin v Kaplan, 257 NY 277, the court observed that "If there be any public policy touching the government of labor unions, and there can be no doubt that there is, it is that traditionally democratic means of improving their union may be freely availed of by members without fear of harm or penalty. And this necessarily includes the right to criticize current union leadership. . . . The price of free expression and of political opposition within a union cannot be the risk of expulsion or other disciplinary action. In the final analysis, a labor union profits, as does any democratic body, more by permitting free expression and free political opposition than it may ever lose from any disunity that it may thus evidence."

Lastly, the court said that there was no rational basis for the conclusion that a brief physical altercation between Montero petitioner and another YPBA member "prejudice[d] the welfare" of organization.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_02040.htm

Applying the Doctrine of Abatement in a criminal action

Applying the Doctrine of Abatement in a criminal action

United States v Libous, USCA, 2nd Circuit, Docket#15-3979

Under the Doctrine of Abatement, the government has no right to retain fines imposed pursuant to a criminal conviction that is subsequently vacated.

In this case, the Executrix of the estate of Thomas W. Libous, a former New York State Senator, moved to [1] withdraw his then pending appeal; [2] vacate the underlying judgment of conviction of making false statements to the FBI; and [3] remand the matter to the district court for dismissal of the indictment and a order refunding the fine and special assessment imposed upon Libous' conviction to his estate.

A federal jury had convicted former New York State Senator Thomas W. Libous of making false statements to the FBI in violation of 18 U.S.C. §1001. At sentencing, the district court imposed a two-year term of probation on Libous, whose physicians had determined had less than a year to live, along with a $50,000 fine imposition of the mandatory $100 special assessment.

Although the government consented to the abatement of Libous’ conviction, it opposed the return of the fine and special assessment. Incorrect said the Circuit Court, ruling that the government had no right to retain fines imposed pursuant to a conviction that is subsequently vacated and granted the Executrix's  motion in its entirety.

The court explained that "Under the well-established Doctrine of Abatement, ab initio, when a convicted defendant dies pending an appeal as of right, his [or her] conviction abates, the underlying indictment is dismissed. Further, his or her estate is relieved of any obligation to pay a criminal fine imposed at sentence. In effect, all proceedings in the prosecution from its inception are abated."

To comply with this common law rule, said the court, “[T]he appeal does not just disappear, and the case is not merely dismissed. Instead, everything associated with the case is extinguished, leaving the defendant as if he [or she] had never been indicted or convicted.” In other words, “Under the doctrine of abatement ab initio . . . the defendant stands as if he [or she] never had been indicted or convicted.”

This is so because, in the interests of justice, "a defendant does not stand convicted without resolution of the merits of an appeal and to the extent that the judgment of conviction orders incarceration or other sanctions that are designed to punish the defendant, that purpose can no longer be served.”

As the Supreme Court held in Nelson v. Colorado, 137 S. Ct. 124, “[w]hen a criminal conviction is invalidated by a reviewing court and no retrial will occur,” the state is required under the Fourteenth Amendment’s due process guarantee “to refund fees, court costs, and restitution exacted from the defendant upon, and as a consequence of, the conviction.”

Once a defendant’s conviction is “erased, the presumption of [his or her] innocence [is] restored,” and the state “has no interest in withholding from [a defendant] money to which the [s]tate currently has zero claim of right.”

The Supreme Court, however, said "We express no view on how abatement operates, if at all, in the event the defendant commits suicide pending an appeal as of right, suggesting that it may distinguish the impact on the Doctrine in cases of suicide from the impact of the Doctrine in the event of death as the result of natural causes, accident, or events other than suicide while such an appeal is pending.

The Circuit Court then granted the Executrix's motion and vacated Libous' judgment of conviction. It also remanded the matter to the federal district court "for the dismissal of the indictment and the return of the fine and special assessment imposed on Libous pursuant to his now-vacated conviction"

The decision is posted on the Internet at:

http://law.justia.com/cases/federal/appellate-courts/ca2/15-3979/15-3979-2017-05-30.html

Determining if an individual is an employee of an employer

Determining if an individual is an employee of an employer

Griffin v. Sirva Inc., USCA, 2nd Circuit, Docket No. 15-1307

The New York Court of Appeals answered a certified question from the Second Circuit, holding that liability under §296(6) and under §296(15) of the New York State Human Rights Law [NYSHRL] is limited to an aggrieved party's employer.

The New York Court of Appeals then answered a second certified question by identifying the four factors to use in determining whether an entity is an aggrieved party's employer. On the basis of New York case law, the court identified the four factors as follows:

1. The selection and engagement of the employee by the entity;

2. The payment of salary or wages by the entity;

3. The power of dismissal of the individual by the entity; and

4. The entity's power of control over the employee's conduct.

In this case, two individuals had filed suit alleging that Sirva, Inc., as Allied's parent, can be held liable under the NYSHRL for employment discrimination on the basis of the individuals' respective criminal convictions.

Based on the answers to the certified questions by the Court of Appeals, the Second Circuit vacated the district court's grant of summary judgment and remanded the matter for further proceedings.

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/6e81c29b-fc57-4111-80b3-1d3bdb5f48ee/4/doc/15-1307_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/6e81c29b-fc57-4111-80b3-1d3bdb5f48ee/4/hilite/