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:

http://www.nycourts.gov/reporter/3dseries/2017/2017_07609.htm

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

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Recently promoted hotel worker who lost job six days after reporting pregnancy advances suit

Rule, not statute, set deadline for appeal; CA-7 wrong to dismiss for lack of jurisdiction

Bill to dramatically narrow joint-employer standard clears House

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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:

http://www.counsel.nysed.gov/Decisions/volume57/d17239

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 

Counseling memorandum issued to an employee

Counseling memorandum issued to an employee

Decisions of the Commissioner of Education, Decision No. 17,236

The genesis of this appeal to the Commissioner of Education was the placement of a counseling memorandum in the educator's [Petitioner] personnel file. 

The seminal decision concerning placing a "counseling memorandum" in an educator's personnel file is Holt  v Board of Education, Webutuck Central School District, 52 NY2d 625. In Holt the Court of Appeals held that, although a disciplinary reprimand may not be issued to a teacher without a finding of misconduct pursuant to Education Law §3020-a, critical administrative evaluations need not be afforded such procedural protections.* 

In reviewing the letters placed in the teacher's file in Holt, the court found that the purpose of the communications was to call to the teacher's attention a relatively minor breach of school policy and to encourage compliance with that policy in the future.  The court held that critical written evaluations do not rise to the level of disciplinary reprimands when the purpose of such evaluations is to warn or instruct, but not to punish.

Turning to the merits of the instant appeal, the Commissioner observed that supervisory personnel of a school district have the right and the duty to make such evaluations as an adjunct to their responsibility to supervise the faculty of the school district, citing Holt.

Although the Commissioner found that the language "in the assistant superintendent’s letter is critical," the record supported a finding that the purpose of the memorandum was to call Petitioner’s "attention to breaches of school policy and encourage compliance with such policies in the future." Accordingly, the Commissioner ruled that the assistant superintendent permissibly issued the counseling memorandum without resort to the procedural protections of Education Law §3020-a."

Petitioner also alleged that "the counseling letter is internally inconsistent in that it indicates that its purpose was 'to warn [Petitioner] of the serious consequences of any future incident, and to instruct [him] ...' but also states that it does not rule out formal disciplinary action for this incident." 

The Commissioner acknowledged Petitioner's concerns but explained that the counseling memorandum "correctly recognizes that, so long as 'a timely charge of misconduct is made and the procedural requirements of section 3020-a of the Education Law have been fulfilled,' a school district may make 'formal disciplinary use' of counseling memoranda such as the memorandum at issue in this appeal."

On this point, in Bigelow v Trustees of the Village of Gouverneur, 63 NY2d 470, the court held that an individual's personnel record may be considered in determining the disciplinary penalty to be recommended or imposed in the event the individual is found guilty of one or more disciplinary charges, provided the individual is advised of the personnel records that will be so considered and he or she is given an opportunity to rebut the content of those personnel records that will considered for that purpose.

* See, also, Matter of Fusco, Comm. of Ed. Decision 14,396 and Matter of Irving, Comm. of Ed. Decision 14,373 for a NYPPL summary of decisions of the Commissioner of Education concerning constructive criticism as distinguished from disciplinary action. The URL is https://publicpersonnellaw.blogspot.com/2011/01/constructive-criticism-or-discipline.html

The decision is posted on the Internet at:

 http://www.counsel.nysed.gov/Decisions/volume57/d17236

Employee Scheduling Regulations proposed by the New York State Department of Labor

Employee Scheduling Regulations proposed by the New York State Department of Labor

Source: New York State Department of Labor

The Department of Labor has filed proposed rules addressing  what is commonly called as "just-in-time," "call-in" or "on-call" scheduling.

The text of the proposed regulation is posted on the Internet at:

https://labor.ny.gov/workerprotection/laborstandards/pdfs/employee-scheduling-proposed-rule.pdf

The full rulemaking package will appear in the November 22, 2017 issue of the State Register, and will be subject to a comment period for 45 days from that publication date. You may submit a comment on this proposed regulation by sending an email addressed to hearing@labor.ny.gov.

The Department of Labor developed these regulations after conducting four hearings and receiving testimony. Information concerning these hearings is posted on the Internet at:

https://labor.ny.gov/workerprotection/laborstandards/oncallscheduling.shtm

A school employee who elected to submit an issue for resolution through a contractual grievance procedure may not appeal the same issue to the Commissioner of Education pursuant to Education Law §310

A school employee who elected to submit an issue for resolution through a contractual grievance procedure may not appeal the same issue to the Commissioner of Education  pursuant to Education Law §310

Decisions of the Commissioner of Education, Decision No. 17,235

In this appeal to the Commissioner of Education, the petitioner [Petitioner] contended that certain actions taken by school district administrators [District] and the president of employee organization [Association] of a recognized or certified employee organization  for the purposes of collective bargaining under Article 14 of the Civil Service Law, the Taylor Law, were contrary to the terms of the relevant collective bargaining agreement [CBA] between the Association and the District.

The Association sought dismissal of the allegations filed against the Association on the ground that unions and their representatives are not subject to the jurisdiction of the Commissioner in an appeal filed pursuant to Education Law §310.

The Commissioner agreed, holding that the Petitioner's appeal against the Association must be dismissed for "lack of jurisdiction." The Commissioner explained that "It is well-settled that union organizations and their representatives are not subject to the jurisdiction of the Commissioner of Education under Education Law §310," and dismissed Petitioner's claims against the Association.

With respect to Petitioner's claims against the District, the Commissioner ruled that this branch of Petitioner's appeal must be dismissed for two reasons: lack of jurisdiction and election of remedies. 

The Commissioner explained that "It is well-settled that a school employee who elected to submit an issue for resolution through a contractual grievance procedure may not bring an appeal to the Commissioner pursuant to Education Law §310 for review of the same matter."*

In the alternative, the Commissioner observed that Petitioner’s contract claims also would be dismissed under the doctrine of election of remedies as a prior commencement of an action or proceeding in another forum for the same or similar relief constitutes an election of remedies which precludes the initiation of an appeal to the Commissioner of Education.

* In Antinore v State, 40 NY2d 6, the court said that a union could bargain away the employee’s statutory disciplinary rights in favor of an alternative disciplinary procedure so long as the alternate procedure provided constitutional due process protections equivalent to those available under the statutory procedure that it replaced where the law permitted the negotiation of such an alternative disciplinary procedure.

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume57/d17235