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  29, 2017

Click on text highlighted in color to access the full report

Employer’s attempt to contractually shorten limitations period on FMLA claim fails

Transgender prof prevails on sex discrimination, retaliation claims in tenure denial

Dramatic uptick in major U.S. companies, law firms advancing LGBTQ nondiscrimination protections

Driver can’t be compelled to arbitrate misclassification claim; he wasn’t party to arbitration clause

Appointing authority imposed a more severe penalty than the one recommended by the hearing officer

Appointing authority imposed a more severe penalty than the one recommended by the hearing officer

OATH Index No. 2230/17

The employer alleged that the employee was absent without leave [AWOL] for two weeks, that the employee falsely attributed her absences to pre-approved leave granted under the Family Medical Leave Act ("FMLA"), that the individual  failed to supervise her subordinates and that the employee failed to attend a mandatory training class.

New York City Office of Administrative Trials and Hearings Administrative Law Judge Alessandra F. Zorgniotti recommended dismissal of the AWOL and falsification of leave charges in part, explaining that the employer had failed to show that the employee was AWOL or that she falsely attributed her absences to FMLA for the first week of her absence. The ALJ found that the record supported the employee's claim that her supervisor had approved her request for leave without pay and that that leave was supported by a valid doctor's note.

In contrast, Judge Zorgniotti found that the employer did prove the charges with respect to the second week of the employee's absence. In addition, Judge Zogniotti sustained the charges filed against the employee alleging that she failed to supervise her subordinates and that she had failed to attend the mandatory training class.

The ALJ recommended that the employee be given a penalty of a 60-day suspension without pay. The appointing authority, however, sustained all charges filed against the individual and terminated the individual's employment.

In Gradel v Sullivan Co. Public Works, 257 A.D.2d 972, the Appellate Division sustained the appointing authority's imposing a greater penalty that the one recommended by the hearing officer, explaining that there was ample evidence in the record to support the appointing authority's decision.

As a general rule, courts are reluctant to substitute their judgment for that of the employer on the fairness of penalties, but will do so if the penalty appears grossly unfair -- the standard established in Pell v Board of Education, 34 NY2d 222.

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/17_cases/17-2230.pdf

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Arbitrator rules that qualified retirees and future retirees to have the same health insurance coverage as the employer's active employees

Arbitrator rules that qualified retirees and future retirees to have the same health insurance coverage as the employer's active employees
Monroe County Deputy Sheriffs' Assn., Inc. (Monroe County), 2017 NY Slip Op 08107, Appellate Division, Fourth Department

Supreme Court granted the Monroe County Deputy Sheriffs' Association's petition to confirm the award rendered in a labor arbitration directing Monroe County and the Monroe County Sheriff to provide qualified retirees and future retirees from the Monroe County Sheriff's Office with the same health insurance coverage - here coverage for the dependent child of a retiree until the child reaches the age of 26 years - that was being  provided to active employees.

The Appellate Division cited the federal Affordable Care Act, 42 USC §300gg-14 [a] and the collective bargaining agreement (CBA) between the parties as the authority for the arbitrator's award.

The court rejected the County's and the Sheriff's claim that the arbitrator exceeded his power in fashioning the award, explaining that "It is well settled that an arbitrator exceeds his or her power within the meaning of CPLR §7511(b)(1) (iii) where the arbitrator's award " clearly exceeds a specifically enumerated limitation on the arbitrator's power."

Further, said the Appellate Division, "To exclude a substantive issue from arbitration . . . generally requires specific enumeration in the arbitration clause itself of the subjects intended to be put beyond the arbitrator's reach." The court then concluded that in this instance "the arbitrator did not exceed a specifically enumerated limitation on his power."

The Appellate Division also rejected the County's and Sheriff's contention that the arbitrator's award was irrational.

Citing Matter of Lackawanna City School District [Lackawanna Teachers Federation], 237 AD2d 945, the court decided that the arbitrator's interpretation of the CBA was not completely irrational and thus his ruling was beyond its power to review because "An arbitration award must be upheld when the arbitrator offer[s] even a barely colorable justification for the outcome reached."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_08107.htm

Procedural considerations when suing for alleged violations of free speech, unlawful employment discrimination and unlawful retaliation complaints

Procedural considerations when suing for alleged violations of free speech, unlawful employment discrimination and unlawful retaliation complaints

2017 NY Slip Op 07985, Appellate Division, Second Department

A New York City Administrative Law Judge [ALJ] commenced this action against the City of New York, her agency and five employees in her agency, alleging causes of action to recover damages for (1) violation of her free speech and petition rights under the New York State Constitution, Article I, §§8 and 9; (2) employment discrimination on the basis of sex and age in violation of the New York City Human Rights Law [NYCHRL] and (3) unlawful retaliation in violation of the NYCHRL for having made complaints of sexual harassment and age discrimination.

The complaint alleged that ALJ and other administrative law judges spoke out internally within the agency and externally to public officials and the press about an alleged agency practice of improperly pressuring administrative law judges to issue recommended decisions in favor of the agency and to impose maximum fines. 

ALJ contended that she was demoted and subjected to other retaliation due to this speech and to her complaints concerning alleged sexual harassment. ALJ's complaint also alleged the existence of a pattern of age discrimination within the agency.

Supreme Court granted the agency's CPLR 3211 motion to dismiss ALJ's complaint, denied her motion to amend her complaint. ALJ appealed these Supreme Court rulings to the Appellate Division.

Among the procedural issues considered by the Appellate Division were the following:

Motion to Dismiss: The Appellate Division said that a complaint "is to be afforded a liberal construction, the facts alleged are presumed to be true, the plaintiff is afforded the benefit of every favorable inference, and the court is to determine only whether the facts as alleged fit within any cognizable legal theory."* The court explained that "Whether the complaint will later survive a motion for summary judgment, or whether the plaintiff [here ALJ] will ultimately be able to prove its claims, of course, plays no part in the determination of a prediscovery CPLR 3211 motion to dismiss" noting that ALJ's allegations were "sufficient to state a cause of action to recover damages for sexual harassment in violation of the NYCHRL."  In the words of the Appellate Division, Supreme Court "erred in determining that the cause of action must be dismissed because the behavior [alleged] constituted no more than petty slights or trivial inconveniences. A contention that the behavior was a petty slight or trivial inconvenience constitutes an affirmative defense which should be raised in the defendants' answer and does not lend itself to a pre-answer motion to dismiss."

Claims of Age Discrimination: The Appellate Division ruled that ALJ's  allegations of disparate treatment of older employees, including herself, and that her demotion was based, in part, on age discrimination, sufficiently stated a cause of action to recover damages for age discrimination in violation of the NYCHR, explaining that "The fact that the individual defendants were approximately the same age as ALJ does not render the cause of action insufficient."

Complaints alleging Sexual Harassment and Age Discrimination: The Appellate Division held that Supreme Court  erred in granting dismissal of the cause of action alleging based on ALJ's complaints of sexual harassment.  ALJ's complaint, however, failed to allege that she had complained about the alleged acts of age discrimination and thus Supreme Court properly granted dismissal of the cause of action alleging unlawful retaliation based on complaints of age discrimination.

Notice of Claim: The Appellate Division also held that Supreme Court had properly granted dismissal of the cause of action alleging violations of the State Constitution because ALJ failed to serve a notice of claim. The court explained that ALJ's action "does not fall within the public interest exception to the notice of claim requirement, since the complaint seeks to vindicate the private rights of [ALJ], and the disposition of the claim will not directly affect or vindicate the rights of others."**

Leave to Amend the Complaint: Here the Appellate Division found that Supreme Court improvidently exercised its discretion in denying ALJ's cross motion for leave to amend her complaint to assert an alternative First Amendment retaliation cause of action pursuant to 42 USC §1983. In the absence of prejudice or surprise to the opposing party, leave to amend a pleading should be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit said the court.

Unlawful Retaliation: With respect to claims of unlawful retaliation under the NYCHRL, in the First Amendment context, a plaintiff "need only show that the retaliatory conduct in question would deter a similarly situated individual of ordinary firmness from exercising his or her constitutional rights." The Appellate Division found that the allegations that ALJ was demoted following the internal complaints, and that she suffered a campaign of harassment following the external complaints, sufficiently pleaded that the subject speech was a substantial or motivating factor for an adverse employment action. As with unlawful retaliation claims under the NYCHRL, in the First Amendment context, a plaintiff "need only show that the retaliatory conduct in question would deter a similarly situated individual of ordinary firmness from exercising his or her constitutional rights" and Supreme Court should have granted ALJ leave to amend the complaint.

* In addition the Appellate Division noted that Supreme Court may consider affidavits submitted by a plaintiff to remedy any defects in the complaint. 

** In contrast, the Appellate Division noted that a notice of claim was not required with respect to ALJ's perfecting her First Amendment retaliation cause of action pursuant to 42 USC §1983.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_07985.htm