New York State's Human Rights Law requires the compliant to be filed with the State Division of Human Rights within one year of the most recent act of the unlawful discrimination alleged

New York State's Human Rights Law requires the compliant to be filed with the State Division of Human Rights within one year of the most recent act of the unlawful discrimination alleged

2017 NY Slip Op 06968, Appellate Division, Second Department

The Petitioner in this action, a long-term, at-will employee of the Town, was advised that his employment would be terminated as part of the Town's transitioning to the incoming administration of a newly elected Town Supervisor. Ultimately a formal resolution terminating the employment of Petitioner and several other employees was approved by the Town Board and the individuals affected notified of that fact.

Petitioner filed a complaint with the New York State Division of Human Rights [DHR] alleging that the termination of his employment was the result of discrimination based on his age, gender, and ethnicity. DHR subsequently issued an administrative determination finding that the matter was untimely because the complaint was filed more than one year after the most recent alleged discriminatory act. Petitioner commenced this CPLR Article 78 proceeding but Supreme Court denied the petition, confirmed DHR's determination, and dismissed the proceeding.

The Appellate Division affirmed the lower court's ruling, explaining that Executive Law §297(5) provides that "[a]ny complaint filed pursuant to this section must be so filed within one year after the alleged unlawful discriminatory practice." Thus, said the court, §297(5) "is in the nature of a statute of limitations" and therefore mandatory. Further, noted the court, the limitations period commences running on the date that a claimant receives his or her notice of the alleged discriminatory act or practice.

Rejecting Petitioner's argument that the one-year period in which he was required to file a complaint with the DHR begin to run on his last day of employment, the Appellate Division said the statute of limitations began to run on date that he received notice of the termination of his employment, i.e., on the date on which the individual knew, or should have know, he or she was the victim of the alleged act of unlawful discrimination.*

As it was undisputed that Petitioner had not file his complaint with DHR within the one year period following his receiving the notice of the termination of his employment as required by §297(5), the Appellate Division ruled that Supreme Court had properly sustained DHR's determination that the complaint was untimely.

* Gaston v NYC Department of Health, 432 F.Supp.2d 321. See, also, Fager v Board of Education, Rochester City School Dist., 73 AD3d 1458, in which the Appellate Division held that the statute of limitations to challenge an administrative decision starts to run when the determination becomes “final and binding.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_06968.htm

Summaries of court decisions involving fire, police and corrections personnel

Summaries of court decisions involving fire, police and corrections personnel

Source: AELE's blog

This month's issue of Fire, Police and Corrections Personnel Reporter, an employment law publication for law enforcement, corrections and the fire/EMT services agencies and personnel, summarizes court decisions that addressed:

Bill of Rights Laws

F.L.S.A. – Overtime in General

Disability Discrimination

Family and Medical Leave

Race Discrimination – In General

Retaliatory Personnel Action

Veterans and Other Preference Laws

 

View at http://www.aele.org/law/2017all11/FP2017NOV.html

New York City's City Council may, by express language, limit the New York City Civil Rights Law provide narrower coverage than the NYSHRL or the federal ADA

New York City's City Council may, by express language, limit the New York City Civil Rights Law provide narrower coverage than the NYSHRL or the federal ADA

2017 NY Slip Op 07208, Court of Appeals

In response to a question certified to it by the United States Court of Appeals for the Second Circuit, the Court of Appeals has advised the Circuit Court of Appeals that  has certified — and we have accepted for review (29 NY3d 1019 [2017]) — the §§8-102 (16) (c) and 8-107 (1) (a) of the New York City Administrative Code precludes a plaintiff from bringing a disability discrimination claim based solely on a perception of untreated alcoholism.

The court explained that § 8-102 [16] [c] stated that "[i]n the case of alcoholism, drug addiction or other substance abuse, the term 'disability' shall only apply to a person who (1) is recovering or has recovered and (2) currently is free of such abuse, and shall not include an individual who is currently engaging in the illegal use of drugs, when the covered entity acts on the basis of such use."

Applying the rules of statutory interpretation to this case, the Court of Appeals conclude that the certified question should be answered in the affirmative because the Administrative Code does not consider a mistaken perception of alcoholism to be a disability covered by the NYCHRL.

The court said the Second Circuit had noted that "there is no ambiguity about the plain language of the NYCHRL, which is only open to one reasonable interpretation: the disability of alcoholism "shall only apply to a person who (1) is recovering or has recovered and (2) currently is free of such abuse."

The Court of Appeals indicated that the NYCHRL covers circumstances in which employers unfairly typecast alcoholics who have sought treatment and who are not presently abusing alcohol so as to ensure that such persons are afforded a fair opportunity at recovery. In other words, NYCHRL is triggered "only when the individual "is recovering or has recovered" and "currently is free of such abuse."

In contrast, the NYSHLR and the ADA cover alcoholics presently abusing alcohol, as well as recovering and recovered alcoholics. However, said the Court of Appeals, " this is a rare case where through its express language, the City Council has mandated narrower coverage than the NYSHRL or the ADA."

The court's conclusion, Judge Garcia dissenting, in which dissent Judge Stein concurs: the Administrative Code does not consider a mistaken perception of alcoholism to be a disability covered by the NYCHRL

Dismissing an employee before he or she has completed his or her probationary period

Dismissing an employee before he or she has completed his or her probationary period 

153 AD3d 1201, Appellate Division, First Department

In York v McGuire, 63 NY2d 760, the Court of Appeals indicated that "it is well settled that a probationary employee may be discharged without a hearing and without a statement of reasons" where the decision is made in good faith and not for a constitutionally impermissible purpose or reason.   

With respect to employees in the classified service of a public employer, this general statement has been clarified and while a probationer in the classified service can be discharge at any time after the completion of his or her minimum period of probation and before the end of the maximum period of probation, the courts have further held that in the event the appointing authority decides to terminate a probationary appointee during his or her minimum probationary period, the individual is entitled to “notice and hearing” in the nature of a disciplinary proceeding as a condition precedent to such termination.*

The rule is somewhat different with respect public employees in the unclassified service.**

Here an educator [Petitioner] serving her probationary period, challenged the New York City Department of Education's decision discontinue her employment as a probationary teacher, a position in the unclassified service.  Petitioner challenged the Department's action, contending that it erred in concluding that her actions constituted prohibited corporal punishment. 

Supreme Court agreed and annulled the Department's action. The Department then appealed the Supreme Court's ruling. The Appellate Division, however, unanimously reversed the lower court's decision "on the law" and reinstated the Department's decision to dismiss Petitioner from her from her position.

Citing Mendez v New York City Dept. of Education, 28 NY3d 993, the Appellate Division explained that Petitioner failed to show that the Department's decision to discontinue her employment as a probationary teacher was done in bad faith, for a constitutionally impermissible purpose, or in violation of the law.

Further, said the court, Petitioner's claim that the Department had erred in concluding that Petitioner had subjected the student  to "prohibited corporal punishment" was insufficient to establish that the employer reached its conclusion in bad faith or for an impermissible reason. 

* See McKee v Jackson, 152 AD2d 54, holding that a probationer is entitled to a minimum period of time to demonstrate his or her ability to successfully perform the duties of the position, and Gray v Bronx Developmental Center, 65 NY2d 904, holding that 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. 

**§3012(a) of the Education Law provides that the services of a probationary teacher may be discontinued at any time during the teacher's probationary period, which is typically set by law. Absent a provision in a collective bargaining agreement to the contrary, such a dismissal will not be overturned unless the teacher can demonstrate that the appointing authority's action was for a constitutionally impermissible reason or purpose.

The decision is posted on the Internet at: 
http://www.nycourts.gov/reporter/3dseries/2017/2017_06713.htm

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School board seeks to remove a sitting member from the board for alleged "official misconduct"

School board seeks to remove a sitting member from the board for alleged "official misconduct"

Decisions of the Commissioner of Education, Decision No. 17,204

The School Board [Board] held a special meeting at which it voted to pursue removal charges against a sitting member of the board [Member]* for alleged "official misconduct." Member did not attend the special meeting at which the Board approved three motions, all by a 4-2 vote, ** which, respectively:

1. Charged Member with official misconduct pursuant to Education Law §1709(18);

2. Appointed a board attorney to prosecute the charges; and

3. Designated an attorney to serve as a hearing officer for the removal hearing.

Member was subsequently served with disciplinary charges that set out "twelve specifications of misconduct [that] alleged numerous incidents in which [Member], among other things, berated or verbally attacked district personnel, invaded the personal space of others, refused to comply with orders, improperly photographed personnel records and improperly destroyed a document."

In response, Member filed an appeal with the Commissioner of Education challenging the Board's action, contending:

[1] The Board "lacked sufficient votes to approve charges against [Member] because [the Board's President] ... was biased and, therefore, should have been disqualified from voting"; 

[2] "The charges do not allege official misconduct;" and

[3] [The charges] "[d]o not sufficiently identify specific factual details which would afford [Member] an opportunity to prepare a defense."

Addressing Member's argument that the Board "lacked sufficient votes to approve charges" because the Board President "was biased*** and, therefore, should have been disqualified from voting," the Commissioner first noted that "a distinction must be drawn between a board member’s vote to authorize removal proceedings (the “initiation level”) and his or her vote to sustain charges of official misconduct following a full and fair opportunity for the subject of such charges to refute them (the “final determination level”)"

Although "a board member harboring an 'adverse animus' should not be allowed to participate in the 'decision-rending' aspect of a removal proceeding," the Commissioner noted that Member cited "no authority indicating that this standard is applicable to a board member’s vote to initiate removal proceedings." In other words, a board member may participate in activities leading to, and making, the decision to file disciplinary charges against an individual but then he or she should recuse himself or herself from any and activities involving or related to going forward with the disciplinary action.

Accordingly, the Commissioner said that she found that Member had tried, and failed, to meet Member's burden of demonstrating that the Board President should have been disqualified at the initiation of disciplinary action level.

Turning to Member's allegation that the Charge and Specifications were defective, the Commissioner said she found no merit in Member's claim that the statement of charges is deficient. "On the record before me," said the Commissioner, Member was  "afforded sufficient due process to satisfy this requirement and found that "the statement of charges was sufficiently detailed so as to apprise [Member] of the alleged official misconduct which would be at issue at the hearing." In the words of the Commissioner, "[e]ach charge identified the date when the alleged conduct occurred and a specific description of the objectionable conduct.

Finding that Member's claims were "without merit," the Commissioner dismissed Member's appeal.

* Education Law §1709(18) authorizes the members of a Board "To remove any member of their board for official misconduct. But 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.

**  The decision notes that "[a]s relevant to this appeal," the Board President was one of the four board members who voted in favor of the motions.

*** In support of this contention, Member refereed to and submitted numerous newspaper articles and public statements detailing the acrimonious relationship between various board members and the superintendent.  In particular, Member complained of an incident in which the superintendent alleged that his vehicle had been vandalized, and the Board President allegedly told a fellow board member that he believed Member was responsible for the vandalism.  Member  further complained that the Board President told a reporter that Member had been a “headache” since Member took office and that Board President is referenced within some of the charges against Member.  The Board denies in its answer that the Board President speculated that Member damaged the superintendent’s vehicle and, in an affidavit, Board President generally averred  that he is not biased against Member.

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume57/d17204

Trends in arbitration

Trends in arbitration

On October 24, 2017, the United States Senate, by a 51-50 vote, approved H.J.Res. 111 providing for congressional disapproval under Chapter 8 of Title 5, United States Code, of the rule submitted by Bureau of Consumer Financial Protection relating to "Arbitration Agreements." 

The Joint Resolution, in effect, nullified a rule adopted by the Consumer Financial Protection Bureau prohibiting banks from mandating that consumers resolve disputes with the bank through arbitration.

The Bureau's rule regulated the use of arbitration agreements in contracts for specific consumer financial products and services and prohibited "the use of a predispute arbitration agreement to prevent a consumer from filing or participating in certain class action suits." The rule also requires consumer financial product and service providers to furnish the CFPB with particular information regarding arbitrations."

In contrast, on October 26, 2017, a California appellate court handed down its decision in Baxter v. Genworth North America Corp., [California Courts of Appeals, First Appellate District, Docket Number A144244, ], sustaining a lower court's ruling that held that a employment agreement constituted  “procedural unconscionability.”

Genworth had acquired another company, AssetMark, and Maya Baxter, as a condition of continue employment by Genworth, was required to agree to resolving any dispute with Genworth through its "Resolve Employee Issue Resolution  Program," a four-step procedure culminating in arbitration of the matter[s].

Significantly, the court ruled that severing the offending provisions it found in Genworth's "Resolve Employee Issue Resolution  Program" was not an option because "the arbitration agreement is permeated by unconscionability."