Applying the substantial evidence test rather than the arbitrary and capricious test in the course of litigation

Applying the substantial evidence test rather than the arbitrary and capricious test in the course of litigation

2017 NY Slip Op 06077, Appellate Division, Second Department

The Petitioner filed a grievance with the Unified Court System [UCS] alleging that Court Office Assistants had been given responsibilities constituting out-of-title work. After a grievance meeting, the Acting Deputy Director of Labor Relations of the UCS issued a determination denying the grievance.

Petitioner challenged the Acting Director's determination by filing a CPLR Article 78 action in Supreme Court. Supreme Court concluded that the challenged duties did not constitute out-of-title work and that the administrative determination was not arbitrary or capricious. The court denied the petition and dismissed the proceeding.

Contending that Supreme Court erred in failing to apply the "substantial evidence" standard of review in deciding the petition,* Petitioner appealed.

The Appellate Division, sustaining the lower court's ruling, explained that "a substantial evidence question is presented only where a quasi-judicial evidentiary hearing has been held." Notwithstanding the fact that Petitioner had the "right to be heard . . . and to present facts in support of [his] position" at the grievance meeting," this did not render the grievance meeting "a quasi-judicial proceeding involving the cross-examination of witnesses and the making of a record within the meaning of Civil Practice Law and Rules §7803(4)."

As the administrative determination in this case was made after a grievance meeting, in contrast to having been made after a quasi-judicial evidentiary hearing, the Appellate Division ruled that Supreme Court "properly concluded that the relevant standard of review was whether the Acting Director's "determination was made in violation of lawful procedure, was affected by an error of law, or was arbitrary and capricious or an abuse of discretion."

Addressing Petitioner's alternative contention -- that the Deputy Director's determination was arbitrary and capricious -- the Appellate Division said that "[a]n action is arbitrary and capricious when it is taken without sound basis in reason or regard to the facts" and "[i]n applying the arbitrary and capricious' standard, a court inquires whether the determination under review had a rational basis." Here, said the court, the Deputy Director's determination that the challenged duties did not constitute out-of-title work was not arbitrary and capricious as work is not considered out-of-title if it is related to, similar in nature to, or a reasonable outgrowth of, the employee's in-title work."

Finding that Petitioner failed to identify any duty that has been assigned to Court Office Assistants that is not related to the types of general tasks enumerated in the relevant title standard, the Appellate Division concluded that the Deputy Director's ruling that the challenged duties were reasonably related to the duties described in the Court Office Assistant title standard was not arbitrary or capricious.

* CPLR §7804 provides, in pertinent part, "(g) Hearing and determination; transfer to appellate division. Where the substantial evidence issue specified in question four of §7803 is not raised [i.e., whether a determination made as a result of a hearing held, and at which evidence was taken, pursuant to direction by law is, on the entire record, supported by substantial evidence], the court in which the proceeding is commenced shall itself dispose of the issues in the proceeding. Where such an issue is raised, the court shall first dispose of such other objections as could terminate the proceeding, including but not limited to lack of jurisdiction, statute of limitations and res judicata, without reaching the substantial evidence issue." [Emphasis supplied.]

 

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_06077.htm

Employment Law News from WK WorkDay

Employment Law News from WK WorkDay 

Source: Wolters Kulwer

Selected reports posted by WK Workday distributed August 17, 2017

Click on text highlighted in color  to access the full report

No error in refusing to ‘look through’ arbitration petition to defeat subject matter jurisdiction 

Minnesota whistleblower need not suspect illegal conduct to bring retaliation claim  

American workplace ‘physically, emotionally taxing,’ Rand Corp survey find

Reconsidering, DC Circuit holds that denying lateral transfer can be Title VII adverse action
 

Matter of the Application of the Board of Education of the City School District of the City of Buffalo for the removal of Carl Paladino as a member of the Board of Education of the City School District of the City of Buffalo

Matter of the Application of the Board of Education of the City School District of the City of Buffalo for the removal of Carl Paladino as a member of the Board of Education of the City School District of the City of Buffalo

Decisions of the Commissioner of Education, Decision No. 17,147

The Commissioner concluded that Carl Paladino should be removed as a member of the Board of Education as "[t]he record demonstrates that [Paladino] disclosed confidential information regarding collective negotiations under the Taylor Law which he gained in the course of his participation as a board member in executive session, and that his disclosures constituted a wilful violation of law warranting his removal from office pursuant to Education Law §§306 and 2559...."

The text of the decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume57/d17147

Determining seniority and tenure area of teachers in the event of the abolishment of positions

Determining seniority and tenure area of teachers in the event of the abolishment of positions

Decisions of the Commissioner of Education, Decision No. 17,137

Petitioner [M] appealed the decision of the School Board [Board] terminating her employment as the result of "the abolishment of her position."

At the time of this appeal the district employed three teachers, M held a permanent certification as a teacher of Nursery, Kindergarten and Grades 1-6, as well as a Students with Disabilities (Grades 1-6) professional certificate. On September 1, 1998, M had been given a probationary appointment in the position of Teacher - Primary Grades and granted tenure in the Elementary Education K-6 tenure area effective September 1, 2001. 

The other staff members at this time consisted of two teachers, C and N, and two teaching assistants.  C was given a probationary appointment in the Elementary Education K-6 tenure area in September 2009 and was subsequently granted tenure effective September 1, 2012.  N, the then third teacher in the district, was given a probationary appointment on September 1, 2011 in the Elementary Education K-6 tenure area.

Effective July 1, 2004, M was designated as a Teacher on Special Assignment with a "Teacher Center." Although M served as the Director at the Teacher Center, she remained an employee of the district, was continued on its payroll and continued to accrue seniority in the Elementary Education K-6 tenure area.  The district was reimbursed for her "district-paid compensation" by the Teacher Center.

At its April 15, 2014 meeting, the Board adopted a resolution establishing a “Hybrid Tenure Area: Elementary Education K-6/Special Education” and the two teachers then in service, C and P, were granted tenure in the new “hybrid” tenure area and their seniority credit was not affected.  N, the third teacher on staff, had been appointed as a probationary teacher in the Elementary Education K-6 tenure area effective September 1, 2011 and her probationary appointment was “carried forward” to the “hybrid” tenure area and her service thus far with the district was credited in the new, hybrid tenure area and she was subsequently granted tenure effective September 1, 2014. M, however, was retained in the K-6 Elementary tenure area.

P resigned and by letter dated May 21, 2014, M advised the district of her intention to return to the district in the fall. M was then notified that the position she was seeking to fill upon her return required a special education certification, which certification M did not then possess.  However, M notified the district she would possess the necessary special education certificate by the beginning of the 2014 school year. On August 18, 2014, M was assigned to non-classroom curriculum development duties in the district.

At its April 16, 2015 meeting, the board voted to abolish one teaching position in the Elementary Education K-6 tenure area effective June 30, 2015 and M was determined to be the least senior teacher in that tenure area. As a result M was excessed, effective June 30, 2015. 

M, asserting that she was the most senior teacher in the district, appealed her being excessed to the Commissioner of Education, seeking reinstatement with full salary and benefits, retroactive to June 30, 2015.  M contended that the Board’s actions granting retroactive tenure and seniority credit to C and N in the new “hybrid” tenure area was illegal, arguing that the board’s creation of a “hybrid” Elementary Education K-6/Special Education tenure area, and the transfer of these two teachers to that tenure area while leaving her in the prior Elementary Education K-6 tenure area constitutes impermissible retroactive restructuring of her tenure area and circumvented her tenure and seniority rights. 

The Board, in rebuttal, [1] raised a procedural issue, contending that M's appeal must be dismissed "for failure to join necessary parties," and [2] contended that its creation of a “hybrid” Elementary Education K-6/Special Education tenure area was legally proper.

  

In support of its claim that necessary parties had not been served, the Board argued that there were two teaching assistants in the district that work under the supervision of  C and N and should M prevail and be reinstated, “the likely result” will be the excessing of  N, and one or both of the teaching assistants for budgetary reasons.

Noting that a party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such and be clearly named as a respondent in the caption and served with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense, the Commissioner rejected the Board's argument that M's appeal must be dismissed for failure to join necessary parties, .

Here the Board eliminated a position in the Elementary Education K-6 tenure area as a result of which M was excessed and to which she seeks reinstatement.  Teaching assistants, explained the Commissioner, hold certificates that are separate and distinct from elementary education teachers and are authorized to act only under the general supervision of a licensed or certified teacher and do not serve in the same tenure area as a classroom teacher such as M.  Thus, such individuals will not, as matter of law, be affected should M prevail in this matter. The Commissioner pointed out that Education Law §3013(2) provides that when a position is abolished, “the services of the teacher having the least seniority in the system within the tenure of the position abolished shall be discontinued.” 

Further, the Commissioner said that the Board's "speculation as to how the district would resolve a budgetary issue should M prevail in this appeal is insufficient to support a conclusion that the teaching assistants would be adversely affected, warranting their joinder as respondents."

Turning to the merits of M's appeal, the Commissioner acknowledged the Board's argument that the district was exempt from the tenure areas requirements set forth in Part of 30 of the Rules of the Board of Regents "because it employs fewer than eight teachers." However, said the Commissioner, the Board is still subject to Education Law §3012-a, which defines the elementary tenure area.

 

Significantly, the Commissioner observed that §3012-a provides that, with exceptions not relevant here, “elementary tenure area shall mean kindergarten through grade 6 for teachers employed in such grade levels [after May 13, 1975].  All teachers holding tenure [as of May 13, 1975] in the kindergarten tenure area or grade one through six tenure area shall be deemed to hold tenure in the elementary tenure area as defined by this section.” The Commissioner pointed out that, as a matter of law, "all teachers in kindergarten through grade six, apart from those in a special tenure area, shall be in a single elementary tenure area without regard to the organizational pattern of the district."

Another consideration: the Commissioner observed that a “hybrid” elementary education/special education tenure area is not permitted under Education Law §3012-a, nor is it permissible to simultaneously have an elementary tenure area and such a hybrid tenure area as the Board attempted to create in this case. 

In the words of the Commissioner, the Board "had no authority to create such hybrid tenure area" and its April 15, 2014 action establishing the “hybrid” Elementary Education K-6/Special Education tenure area, as well as the transfer of C and N to that “hybrid” tenure area, was not permissible "and void ab initio."  This meant that C and N remained in the Elementary Education K-6 tenure area for the purposes of determining seniority in the event of a layoff.

Noting that when abolishing a position in the Elementary Education K-6 tenure area the Board, was required to excess the teacher(s) “having the least seniority in the system within the tenure of the position abolished,” the Commissioner said that, based on her findings, C and N never served in the unauthorized “hybrid” Elementary Education K-6/Special Education tenure area. Rather they remained in the authorized Elementary Education K-6 tenure area and the Board must calculate the seniority of M, C and N as of April 16, 2015, in the Elementary Education K-6 tenure area. 

Further, if the Board finds that M was not the least senior teacher in that tenure area, it must reinstate her to her position with back pay and benefits effective June 30, 2015.

The decision is posted on the Internet at: 

http://www.counsel.nysed.gov/Decisions/volume57/d17137

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An agreement to submit a dispute to arbitration will be enforced by the court

An agreement to submit a dispute to arbitration will be enforced by the court

Adams v Metropolitan Transp. Auth., 2017 NY Slip Op 05946, Appellate Division, Second Department

As a general rule, arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he or she has not agreed so to submit. Further, a party may not be compelled to arbitrate a dispute unless there is evidence affirmatively establishing that the parties clearly, explicitly, and unequivocally agreed to arbitrate.

In a proceeding pursuant to CPLR Article 75 to compel arbitration Supreme Court granted the petition directed the parties to proceed to arbitration. The Appellate Division affirmed the lower court's ruling.

As to the genesis of this Article 75 action, since 1973, Nassau County provided bus service for the County through an operating agreement with a subsidiary of the Metropolitan Transportation Authority [MTA], the MTA-Long Island Bus [MTA-LIB]. The operating agreement set out various protections that were set forth in various agreements, known §13(c) agreements, which included arbitration provisions.

In 2011, MTA discontinued its bus service in the County and the County contracted with Veolia Transportation Services, Inc. [Veolia] to provide bus services. Veolia agreed that the §13(c) agreements that had been entered into by the County would continue. These agreements provided for arbitration of claims by the employees of the bus service.

Certain employees of the MTA-LIB were terminated and subsequently hired by Veolia. These employees, contending that as a result of moving their employment to Veolia they encountered "negative employment consequences" that were compensable under the §13(c) agreements, demanded that their complaints be submitted to arbitration.

The Appellate Division said that Supreme Court had correctly determined that MTA, MTA-LIB, the County and Veolia "had all clearly and expressly agreed to arbitrate the claims alleged by the former MTA-LIB employees pursuant to the §13(c) agreements and that any conditions precedent to seeking arbitration had been satisfied."

Accordingly, the Appellate Division found that the lower court had properly granted the former MTA-LIB employee's petition to compel arbitration.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_05946.htm

A notice of termination may constitute an adverse employment action within the meaning of Title VII and the Family Medical Leave Act

A notice of termination may constitute an adverse employment action within the meaning of Title VII and the Family Medical Leave Act

United States Court of Appeals, 2nd Circuit, Docket #16-3140

The Second Circuit US Court of Appeals ruled that "a notice of termination itself constitutes an adverse employment action, even when the employer later rescinds the termination."

Citing two decisions by the Supreme Court, Delaware State College v Ricks, 449 U.S. 25 and Chardon v Fernandez, 454 U.S. 6, the Second Circuit held that plaintiff's notice of termination in this case may, itself, constitute an adverse employment action notwithstanding its revocation before it became effective for the purpose of litigating an alleged unlawful discrimination or other claim.

Although in this action the court found that the rescission of a notice of termination given to an employee may not constitute an adverse employment action and other facts alleged in the complaint "were insufficient to establish constructive discharge nor a hostile work environment," the court found that the plaintiff did state a plausible claim of "discriminatory termination and interference with her FMLA rights."

The Circuit Court remanded the matter to the district court for the purpose of the lower court reconsidering " ... its decision to decline to exercise supplemental jurisdiction over the [plaintiff's] state and city law [unlawful discrimination] claims."

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/e303b236-2fce-492b-9315-69b43828ec4b/1/doc/16-3140_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/e303b236-2fce-492b-9315-69b43828ec4b/1/hilite/

Employment Law News from WK WorkDay

Employment Law News from WK WorkDay 

Source: Wolters Kulwer

Selected reports posted by WK Workday distributed August 11, 2017

Click on text highlighted in color  to access the full report 

Grievance reveals possible Hatch Act violations

Despite his racist comments toward replacement workers, firing picketer violated NRLA

Head Start grant recipient must repay $1.3M used for employee bonuses

Employer can’t avoid $305K in penalties for Form I-9 and other INA violations

Waffle House’s arbitration agreement included valid delegation clause supporting motion to compel

 

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending August 12, 2017

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending August 12, 2017

Click on text highlighted in color  to access the full report

New York State Comptroller Thomas P. DiNapoli announced the following items have been issued:

Comptroller DiNapoli and A.G. Schneiderman Announce 2 to 6 Year Prison Sentence for Former Councilman Ruben Wills in Public Corruption Scheme

State Comptroller Thomas P. DiNapoli and Attorney General Eric T. Schneiderman announced the sentencing of former New York City Councilman Ruben Wills to 2 to 6 years in prison; Wills was also ordered to pay nearly $33,000 in restitution and a $5,000 fine.

Former Town of Minerva Clerk Pleads Guilty

Jordan Green, the former clerk to the supervisor for the town of Minerva, pleaded guilty to fourth degree grand larceny, official misconduct and tampering with public records, after an investigation and audit found she stole thousands of dollars from the town.

Adirondack Research posts its 2017 Research Newsletter on the Internet

Adirondack Research posts its 2017 Research Newsletter on the Internet

Adirondack Research Director Ezra Schwartzberg has announced that the organization has posted its Annual Adirondack Research Newsletter, In the Field, on the Internet in the unique form of a StoryMap – a medium that allows the organization to bring its 2017 newsletter to life using maps, photos, graphics, video and text.

The Newsletter is best viewed on a computer, but may be read on a smartphone turned sideways. Click here to view the newsletter: http://arcg.is/1XiKb0

Information about Adirondack Research is posted on the Internet at http://adkres.org/.

Hearing Officer is entitled to weigh the evidence in making his or her decision when the parties' present conflicting medical evidence

Hearing Officer is entitled to weigh the evidence in making his or her decision when the parties' present conflicting medical evidence 

2017 NY Slip Op 02270, Appellate Division, Fourth Department

A  police officer [Petitioner], filed a CPLR Article 78 petition seeking to annul the determination of the Hearing Officer that he was medically qualified to perform his light duty assignment and thus not entitled be continued on  General Municipal Law §207-c leave.

Petitioner was receiving benefits pursuant to §207-c as a result of prior on-duty injuries. Returning to work in a light-duty capacity, Petitioner twisted his ankle while at work and allegedly exacerbated his prior injuries.

Following a hearing, the Hearing Officer determined that Petitioner was able to perform his light-duty assignment notwithstanding the injury to his ankle and thus Petitioner was not totally disabled. Accordingly, the employer discontinued Petitioner's §207-c leave status.

The Appellate Division said it agreed with Petitioner's employer that the Hearing Officer's determination that Petitioner could continue to perform the light duties to which he was assigned was supported by substantial evidence.

The court said that although Petitioner presented evidence suggesting that he was not able to work at all, "the Hearing Officer instead credited other evidence that Petitioner could perform a light-duty assignment" and unanimously dismissed the petition.

In the words of the Appellate Division, "[t]he Hearing Officer was entitled to weigh the parties' conflicting medical evidence" and a court "may not weigh the evidence or reject [the Hearing Officer's] choice where the evidence is conflicting and room for a choice exists."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_02270.htm

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