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November 15, 2017

Constructive discharge from the position as the result of unlawful acts of discrimination


Constructive discharge from the position as the result of unlawful acts of discrimination
2017 NY Slip Op 07609

In this action to recover damages for alleged unlawful discrimination in employment on the basis of age in violation of the Age Discrimination in Employment Act of 1967, the petitioner [Plaintiff] appealed an order of the Supreme Court which granted the defendants' [Employer] motion to dismiss the amended complaint.

In her amended complaint Plaintiff alleged that she had been subjected to two types of adverse employment actions: (1) she was given "unsatisfactory" ratings with respect to certain annual performance evaluations and (2) she was constructively discharged due to a hostile work environment.  

With respect to the allegation that her having been given an adverse employee performance evaluation constituted an adverse employment action, the Appellate Division held that this branch of her complaint was untimely as the acts alleged to constitute an adverse employment action occurred more than 300 days before  Plaintiff filed a complaint with the Equal Employment Opportunity Commission. 

The court, however, then stated that it considered those annual performance evaluations in connection with Plaintiff's contention that she was constructively discharged due to a hostile work environment.

The Appellate Division said that the alleged adverse employment action must be extreme, amounting to a change in the terms and conditions of employment. Citing Alfano v Costello, 294 F3d 365, the court explained that the alleged misconduct shown "must be severe or pervasive enough to create an objectively hostile or abusive work environment and the victim must also subjectively perceive that environment to be abusive." 

Further, as a general rule, incidents must be more than "episodic; they must be sufficiently continuous and concerted in order to be deemed pervasive." In contrast, said the court, "Isolated acts, unless very serious, do not meet the threshold of severity or pervasiveness."

To illustrate this point, the court said "An employee is constructively discharged when [his or her] employer, rather than discharging [him or her] directly, intentionally creates a work atmosphere so intolerable that [he or she] is forced to quit involuntarily." In contrast, the decision notes that in general, "a disagreement with management over the quality of an employee's performance will not suffice to establish a constructive discharge."

The Appellate Division concluded that Plaintiff's amended complaint failed to state a cause of action alleging constructive discharge based on a hostile work environment as it failed to adequately allege that Plaintiff was subjected to "an adverse employment action" and thus failed to state a cause of action to recover damages for unlawful age discrimination under the ADEA.

Accordingly, the Appellate Division found that "Supreme Court properly granted the [Employer's] motion pursuant to CPLR 3211(a) to dismiss the amended complaint."

The decision is posted on the Internet at:

November 14, 2017

Selected reports posted in Employment Law News by WK Workday



Selected reports posted in Employment Law News by WK Workday
Source: Wolters Kulwer

Selected reports posted by WK Workday November 14, 2017

Click on text highlighted in color  to access the full report







Some common procedural errors or omissions that will bar the Commissioner of Education's considering the merits of an appeal


Some common procedural errors or omissions that will bar the Commissioner of Education's considering the merits of an appeal
Decisions of the Commissioner of Education, Decision No. 17,239

A tenured teacher [Petitioner] employed at a New York City School District School [District] received an unsatisfactory annual performance rating [U-rating] after having been given three unsatisfactory observation reports during the academic year. Petitioner appealed the U-rating to the Commissioner of Education.

The Commissioner, however, never reached the merits of Petitioner's appeal as there were a number of  errors in Petitioner's filing the appeal that resulted in the Commissioner dismissing  it on procedural grounds. 

1. Timeliness: One frequently encountered problem in "perfecting" an appeal to the Commissioner is that it is found to have been untimely filed.  An appeal to the Commissioner must be commenced within 30 days from the making of the final administrative decision, or the performance of the act or omission complained of, unless any such delay is excused by the Commissioner "for good cause shown."

In this appeal Petitioner submitted the challenged "Annual Evaluation Report" in which she given a U-rating and which she signed on June 19. Petitioner, however, did not file her appeal until September 3, more than two months later. 

The Commissioner observed that Petitioner offered "no good cause for the delay other than to state in her reply that she filed an appeal to the United Federation of Teachers within the 30 days and sent a letter to the Commissioner dated July 19." This, Petitioner argued, shows that she was attempting to file her appeal in a timely manner. The Commissioner said that she has "consistently held that, except in unusual circumstances, ignorance of the appeal process is not a valid excuse for late commencement of an appeal." Finding no such unusual circumstances present here, the Commissioner dismissed Petitioner appeal as untimely. 

Petitioner's Reply: Petitioner had submitted a response to the District's answer captioned “Verified Answer” but stated that was intended “to address the [District's] denial of all of the allegations in [her] complaint.” The Commissioner said "[a]pplying the most liberal construction of the regulations, as [Petitioner] is not represented by counsel, it would appear that the intent of the same is that it be construed as petitioner’s reply."

The Commissioner then explained that the purpose of a reply is to respond to new material or affirmative defenses set forth in an answer and is not meant to buttress allegations in the appellant's petition or to belatedly add assertions that should have been in the petition. Accordingly, the Commissioner said that although she reviewed the reply, she had not considered those portions containing new allegations or exhibits that were not responsive to new material or affirmative defenses set forth by the District in its answer.

Addendum to a response: Petitioner appeared to have served two letters on the District and then submitted those letters, characterized as an "Addendum to her response," for the Commissioner's consideration. The Commissioner pointed out that such additional affidavits, exhibits and other supporting papers may only be submitted with the prior permission of the Commissioner.

Further, although such material may be submitted for the Commissioner's consideration, such a submission  cannot be used to add new claims against a respondent for which notice has not been provided. In the words of the Commissioner, "I will not accept materials that raise new issues and introduce new exhibits that are not relevant to the claims originally raised in the appeal."

With respect to the procedure to follow by a  party seeking to file such additional affidavits, exhibits and other supporting papers pursuant to 8 NYCRR §276.5, the individual is to submit an application to the Office of Counsel stating the reason or reasons why such affidavits, exhibits or other supporting papers are necessary and include a copy of each, together with proof of service of the application and the proposed additional material upon all parties as set out in  8 NYCRR §275.8(b) of the Commissioner’s regulations.

In this instance, said the Commissioner, Petitioner did not explain why the Addendum was necessary nor did Petitioner request permission to submit the Addendum in accordance with 8 NYCRR §276.5. 

Notwithstanding this, the Commissioner did review Petitioner's Addendum and found that it contained new factual or legal assertions which were not raised in the pleadings.  Accordingly, the Commissioner said that she would not consider the Addendum submitted by the Petitioner.

Memorandum of law:  Considering Petitioner's "memorandum of law," the Commissioner said that 8 NYCRR §276.4 requires that a memorandum of law "must be served within 20 days of service of the answer or 10 days after service of the reply, whichever is later."

In this instance the Commissioner found that Petitioner’s memorandum of law was served on the District more than 10 days after service of its reply. While the Commissioner may permit the late filing of a memorandum of law where a party has established good cause for the delay and demonstrated the necessity of such memorandum to the determination of the appeal, the Commissioner found that Petitioner had made no such showing here. 

As Petitioner provided no excuse or justification for such late service, the Commissioner did not considered Petitioner’s untimely memorandum of law.



The decision is posted on the Internet at:



November 13, 2017

Opportunity to Better Understand NYS Paid Family Leave Law


Opportunity to Better Understand NYS Paid Family Leave Law 
Source: NY Muni Blog

New York State is set to enact the strongest paid family leave program in the country.  The program, New York’s Paid Family Leave Law (“PFL”), takes effect January 1, 2018, and will provide New Yorkers job-protected, paid leave to care for a loved one who is seriously ill, bond with a new child, or help the family when a member is deployed for military service. Nearly every private employee in New York will be eligible to receive benefits—and there are many implications for business owners. 

Harris Beach Labor and Employment Law Attorney Ibrahim Tariq will present on employers’ most frequently asked Paid Family Leave questions and best practices for businesses day-to-day PFL administration. Mr. Tariq has been in contact with staff counsel at the Workers’ Compensation Board this fall over numerous PFL questions. He will share and provide input on the latest highlights that New York employers need to know to comply with the Department of Labor’s PFL requirements. PFL is one of three labor and employment topics at the seminar, including updates on the Affordable Care Act, and the latest updates from the National Labor Relations Board. 

To sign up for the Harris Beach Labor and Employment 2017 Seminar Series: Session 4 Thursday, November 16, 2017 8am-10am Harris Beach PLLC 99 Garnesy Road, Pittsford, NY 14534

Please register here or contact rsvp@harrisbeach.com 


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