New York Public Personnel Law

November 20, 2017

NYS Governor Cuomo announces administration appointments

NYS Governor Cuomo announces administration appointments

Source: Officer of the Governor

On November 20, 2017, New York Governor Andrew M. Cuomo announced the following appointments to his administration.

Cathy Calhoun has been appointed Director of State Operations. Previously, Ms. Calhoun served as Acting Commissioner of the Department of Transportation, leading the Governor's landmark $100 billion, five-year infrastructure plan to help reduce congestion and air pollution, and improve the safety of motorists on New York roads. Ms. Calhoun previously served as Chief of Staff at the Department of Transportation. Ms. Calhoun previously served as Deputy Comptroller for Intergovernmental Affairs for Comptroller Thomas DiNapoli and as a Central New York representative for former U.S. Senator Hillary Clinton. Ms. Calhoun also previously worked for former Governor David Paterson in intergovernmental affairs.

Linda Lacewell, Esq. has been appointed Chief of Staff and Counselor to the Governor. In that senior role, Ms. Lacewell will oversee Executive Chamber operations, as well as ethics and law enforcement matters. Ms. Lacewell most recently served as executive director of the Cancer Breakthroughs 2020 at the Chan Soon-Shiong NantHealth Foundation in Santa Monica, California. Prior to that, Ms. Lacewell served as chief risk officer and counselor to Governor Cuomo where she built and implemented the first statewide system for ethics, risk and compliance in agencies and authorities. Ms. Lacewell was formerly special counsel to the Governor, as well as the architect of OpenNY, a state-of-the-art open data initiative. She also served as special counsel to Attorney General Cuomo, where she oversaw the public pension fund pay-to-play investigation and the out-of-network health insurance investigation, both of which led to nationwide systemic reform. Prior to that, Ms. Lacewell spent nine years as an assistant U.S. attorney for the Eastern District of New York, including two years on the Enron Task Force, and received the Henry L. Stimson Medal and the Attorney General's Award for Exceptional Service. Ms. Lacewell earned her B.A. from New College of the University of South Florida and her J.D. with honors from the University of Miami School of Law. She clerked for a United States District Judge for the Southern District of Florida. She formerly served as an adjunct professor at New York University School of Law, teaching ethics in government, we as well as an adjunct professor of law at Fordham University School of Law, teaching international criminal law.

Letizia Tagliafierro, Esq. has been appointed Deputy Secretary for Intergovernmental Affairs and Special Counsel to the Governor. Ms. Tagliafierro presently serves as Special Counsel for Public Safety. Prior to that, Ms. Tagliafierro served as Deputy Commissioner of the Criminal Investigations Division at the New York State Department of Taxation and Finance and as the Executive Director and Director of Investigations and Enforcement of the New York State Joint Commission on Public Ethics. Ms. Tagliafierro also served as Director of Intergovernmental Affairs in the Executive Chamber, Special Counsel for the New York State Attorney General, and Assistant District Attorney in Erie County. Ms. Tagliafierro holds a J.D. from Albany Law School and B.A. from SUNY University at Albany.

Paul Karas has been appointed Commissioner of the Department of Transportation to continue the Governor's $100 billion investment plan to modernize aging infrastructure across the state. Before joining the Cuomo Administration, Mr. Karas served for four years as Vice President and Manager of RS&H, Inc., a transportation and buildings infrastructure consulting firm. Prior to that, he served as President and Founder of Karas Associates Co., an infrastructure development consultancy. Mr. Karas has extensive experience working at the Port Authority of New York/New Jersey, where he served as director of the $3.2 billion John F. Kennedy International Airport Redevelopment Program, and he previously served as the Commissioner of Public Works for the City of Chicago for three years. In 2004, Mr. Karas was appointed by the Illinois legislature to the Northeastern Illinois Regional Transportation Task Force, and in 1997, he was appointed by the U.S. House of Representatives to the Blue-Ribbon Advisory Committee for developing solutions to funding and operating concerns regarding Amtrak. Mr. Karas received his Bachelor of Arts in Civil Engineering from the University of Notre Dame, and a Master's degree from the University of Michigan.

Richard White, Esq. has been appointed Deputy Secretary for Public Safety. Previously, Mr. White led the Tenant Protection Unit at New York State Homes and Community Renewal, a unique statewide unit which proactively enforces landlord obligations to tenants and imposes strict penalties for failure to comply with HCR orders and New York's rent laws. Prior to working for Governor Cuomo, Richard R. White served as Of Counsel to the commercial real estate firm of Cyruli Shanks LLP, with a focus in government affairs, compliance, and complex criminal litigation. Before Cyruli Shanks, Mr. White served at the highest levels of governmental agencies and authorities in New York City; serving as Deputy Commissioner for Investigation, Trials & Litigation at the New York City Department of Correction and Deputy Commissioner of Operations at the New York City Department of Probation. Previously, for over a decade, Mr. White served as a Senior Trial Attorney for Robert M. Morgenthau in the Manhattan District Attorney's Office. Mr. White received a Bachelor of Arts degree in Economics from Franklin & Marshall College, his law degree from Delaware Law School, was an Executive Education Graduate at Harvard University's John F. Kennedy School of Government and was a recipient of Harvard Law School's Program on Negotiation for Senior Executives. Commissioner White is admitted to practice law before the courts of New York, New Jersey, the District of Columbia, the United States District Courts of the Southern and Eastern Districts of New York, the United States District Court for the District of New Jersey and before the United States Supreme Court.

Peter Ajemian has been appointed Deputy Communications Director for Transportation. Prior to joining the Governor's Office, he served as Chief of Staff to State Senator Brad Hoylman. Previously, he was the primary spokesman and Senior Adviser for Communications on Attorney General Eric Schneiderman's successful re-election campaign. He has also served as Senior Vice President at the consulting firm Marathon Strategies, where he coordinated communications and research strategy on four successful state ballot initiatives legalizing same-sex marriage in Washington, Maine, Maryland and Minnesota. He is a graduate of Boston University and The New School.

Issuing a certificate of good faith authorizing the indemnification of expenses incurred by school personnel in defending a proceeding arising from an act or omission of the individual

Issuing a certificate of good faith authorizing the indemnification of expenses incurred by school personnel in defending a proceeding arising from an act or omission of the individual

Decisions of the Commissioner of Education, Decision No. 17,245

A parent filed an application with the Commissioner of Education seeking the removal of the superintendent [Superintendent] of the school district.

The Commissioner ruled that the parent's application must be denied on procedural grounds, whereupon the Superintendent ask the Commissioner to issue a Certificate of Good Faith.

Such a certificate is issued by the Commissioner for the sole purpose of authorizing a school board to indemnify a school district officer, and certain other individuals, for legal fees and expenses incurred in defending a proceeding arising out of the exercise of the individual's power or performance of his or her official duties.*

The Commissioner said that it is appropriate to issue such certification unless it is established on the record that the requesting school district officer acted in bad faith. Here, however, the application filed with the Commissioner has been denied on procedural grounds. Nevertheless, the Commissioner said that as there has been no finding that the Superintendent acted in bad faith with respect to the allegations in the Parent's application, "to the extent such a certificate is necessary, I hereby certify that [the superintendent] is entitled to receive the requested certificate."

Similarly, §17 of the Public Officers Law provides for the defense and indemnification of officers and employees of the State as the employer in such situations while §18 of the Public Officers authorizes a political subdivision of the State, by the adoption of a of local law, by-law, resolution, rule or regulation to provide for the defense and indemnification of its officers and employees.

* §3811.1 of the Education Law provides that the "costs, expenses and damages" incurred by a trustees or board of education, school district officers, and other individuals designed in the statute in defending any action brought against them "shall be a district charge and shall be levied by tax upon the district." Paragraph (c) of §3811.1, in pertinent part, provides that "it shall be certified by the court or by the commissioner of education, as the case may be, that [the individual] appeared to have acted in good faith with respect to the exercise of his [or her] powers or the performance of his [or her] duties under this chapter.

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

http://www.counsel.nysed.gov/Decisions/volume57/d17245

November 18, 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 17, 2017
Click on text highlighted in color to access the full report

Bus driver failed to show severe obesity was disability under the ADA

HR VP fired for ‘racially charged’ Trump tweet still gets unemployment benefits

Despite complaints about quality of internship, student not employee entitled to pay

Justices won’t consider challenge to Illinois collective bargaining law for home care providers

Washington law prohibits retaliation against job applicants by prospective employers

Some challenges to Trump administration’s DACA policy trimmed for lack of standing

November 17, 2017

Terminated employee sues the employer challenging her dismissal and the union for its alleged breach of its duty of fair representation

Terminated employee sues the employer challenging her dismissal and the union for its alleged breach of its duty of fair representation

Thompson v District Council 37, 2017 NY Slip Op 07964, Appellate Division, First Department

Bobbie Thompson sued District Council 37 [DC-37], her collective bargaining organization after to it informed her that it would not demand arbitration challenging the termination of her employment. However, because Thompson failed to commence her CPLR Article 78 action against her former employer, the New York City Department of Education (DOE), within the four-month limitations period governing claims filed under Article 78 or the one-year limitations period applicable to other claims against provided for in Education Law §3813(2-b).

As §3813(2-b) states that "Except as provided in subdivision two of this section and, notwithstanding any other provision of law providing a longer period of time in which to commence an action or special proceeding, no action or special proceeding shall be commenced against any entity specified in subdivision one of this section more than one year after the cause of action arose," the Appellate Division ruled that Thompson's causes of actions were time-barred.

Turning to Thompson's claims against DC-37 for an alleged breach of the unions duty of fair representation, the Appellate Division ruled that her actions was "likewise untimely under the applicable four-month limitations period." The court explained that Thompson's discrimination claims against DC-37 relating to events alleged to have occurred prior to September 10, 2012are untimely under the governing three-year limitations periods.

Addressing Thompson's "facially timely claim that the union discriminated against her by refusing to arbitrate her termination," the court ruled that Thompson "fails to state a cause of action," noting that Thompson failed to allege any facts which could support an inference of bias.

Thompson's final contentions included constitutional claims and claims under Civil Service Law §75. The court said that those claims were "unpreserved and without merit."

As to Thompson's claims with respect to §75, in Antinore v Stat, 40 NY2d 6, the Court of Appeals ruled that a public employee's collective bargaining agent 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..

Thus if DC-37 was authorized by law to negotiate an alternate disciplinary procedure with Thompson's employer providing equivalent administrative due process, in this instance apparently §75 of the Civil Service Law, on behalf of employees in the relevant negotiating unit, an employee in that negotiating unit would no longer be entitled to claim the "notice and hearing" mandated by §75 of the Civil Service Law with respect to disciplinary action taken against the individual by his or her employer.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_07964.htm

November 16, 2017

Exploring claimed procedural obstacles to demands for certain records pursuant to New York's Freedom of Information Law

Kim A. Kirsch filed a petition pursuant to CPLR Article 78 seeking a court order directing the Williamsville Central School District's Board of Education [Board] to comply with her Freedom of Information Law [FOIL] request. Kirsch's FOIL request sought certain email records.

Among the issues considered by the Appellate Division were:

1. Standing to submit a FOIL request;

2. Statute of Limitations;

3. Adding another party to the action;

4. Exemptions from disclosure; and

5. Identification of the records demanded.*

The Appellate Division sustained the Supreme Court's decision in favor or Kirsch. The Board then filed a motion for leave to appeal to the Court of Appeals, which motion was denied by the Appellate Division.

* NYPPL's summary of the Appellate Division's ruling is posted on the Internet at: https://publicpersonnellaw.blogspot.com/2017/07/exploring-claimed-procedural-obstacles.html.

The Appellate Division's decision denying the Board of Education's motion is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2017/2017_07935.htm].

Issuing a certificate of good faith authorizing the indemnification of expenses incurred by school personnel in defending a proceeding arising from an act or omission of the individual

Issuing a certificate of good faith authorizing the indemnification of expenses incurred by school personnel in defending a proceeding arising from an act or omission of the individual

Decisions of the Commissioner of Education, Decision No. 17,245

A parent filed an application with the Commissioner of Education seeking the removal of the superintendent [Superintendent] of the school district.

The Commissioner ruled that the parent's application must be denied on procedural grounds, whereupon the Superintendent ask the Commissioner to issue a Certificate of Good Faith.

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

http://www.counsel.nysed.gov/Decisions/volume57/d17245

Exploring claimed procedural obstacles to demands for certain records pursuant to New York's Freedom of Information Law

Exploring claimed procedural obstacles to demands for certain records pursuant to New York's Freedom of Information Law
Kirsch v Board of Educ. of Williamsville Cent. Sch. Dist., 2017 NY Slip Op 05547, Appellate Division, Fourth Department

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:

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

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

Denial of telecommuting due to employee’s use of ‘sedating medications’ not a plausible disability claim

Actions towards one employee due to anti-union motive, but not the other

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

Conservative law prof won’t get new trial in political discrimination suit

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

New York Public Personnel Law Blog Editor Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.

November 20, 2017

November 18, 2017

November 17, 2017

November 16, 2017

November 15, 2017

November 14, 2017

CAUTION