Roundtable Discussion via the Internet: Navigating LGBTQ+ Issues in the Workplace

Roundtable Discussion via the Internet: Navigating LGBTQ+ Issues in the Workplace

Source: Wolters Kluwer Legal & Regulatory U.S 

Noting that employers face a shifting patchwork of state laws and significant conflict between federal court interpretations of existing protections against employment discrimination and harassment that at least potentially shield LGBTQ+ applicants and employees, Wolters Kluwer Legal & Regulatory U.S  is offering a complimentary Webinar on Thursday, October 25, 2018, 3:00 PM - 4:00 PM EDT.*

WK indicates that the ways in which these applicants and employees may be negatively impacted by workplace biases, both obvious and subtle, continues to evolve. As a result, many employers are uncertain about how to navigate LGBTQ+ issues that may arise in their own workplaces. 

This roundtable discussion will cover:

• Who are the applicants and employees we are talking about?
• Knowing LGBTQ+ discrimination when you see it
• Dealing with gender fluidity
• Proactive measures to prevent discrimination
• How to handle discrimination complaints

To register for this complimentary Webinar click on:

http://learn.wolterskluwerlr.com/LP=1796?cm_mmc=Eloqua-_-Email-_-LM_Other%20Labor%20%26%20Employment%20Law%20All%202018-October%20Webinar%20LGBTQ%20Workplace%20IssuesRoundtable%20Discussion%3A%20Navigating%20LGBTQ%2B%20Issues%20in%20the%20Workplace-_-0000&elqTrackId=a7059e0e8a9e4790b9c0c3333ccd4359&elq=5f0ab4948ade4436ab642fa0e5ed3dc1&elqaid=10043&elqat=1&elqCampaignId=8105

* Participants may be eligible for 1 CLE credit - Wolters Kluwer Legal & Regulatory U.S. is seeking CLE certificates for NY, NJ, CA, and FL. For other states, it is seeking the Uniform CLE certificates which attendees can use to obtain CLE credit. Upon completion of each webinar an informal certificate will be issued. Attendees will receive an email from Above the Law with filing instructions so official certificate can be issued for your records and attendance submission where necessary.

Disallowing a workers' compensation claim based on the record as it then existed does not bar a claimant from submitting additional evidence to support the claim

Disallowing a workers' compensation claim based on the record as it then existed does not bar a claimant from submitting additional evidence to support the claim

Matter of Nock v New York City Dept. of Educ., 8 NY Slip Op 02693, Appellate Division, Third Department

Tykeisha D. Nock [Nock], a school lunch helper, filed a claim for workers' compensation benefits claiming that she had sustained injuries to her spinal cord, lower back, legs, feet and thighs while standing, cleaning tables and lifting heavy pans at work.

Nock's employer, the New York City Department of Education* [Education] controverted the claim. A Workers' Compensation Law Judge found that Education's  notice of controversy was untimely and established a claim for a work-related injury to Nock's back. The Workers' Compensation Board, however, ultimately determined that Nock had not submitted proof that she had sustained a causally-related injury, and disallowed her claim.

Although Education's failure to file a timely notice of controversy challenging Nock's workers' compensation claim barred it from raising certain defenses, Nock still has the burden of demonstrating a causal relationship between her employment and the medical condition she alleged was work related in the workers' compensation claim filed with the Workers' Compensation Board. Nock appealed.

The Appellate Division sustained the Board's ruling, finding:

1. Nock's threshold obligation to submit prima facie medical evidence, which the Board found she had satisfied, required only that she submit "a medical report referencing an injury, which includes traumas and illnesses" but did not require that such "evidence draw a causal link between the injury and [Nock's] employment."

2. In order to establish her claim for benefits, Nock bore the burden of demonstrating, "by competent medical evidence, that a causal connection existed between her injur[ies] and her employment" and such proof  "must signify a probability as to the underlying cause of the [Nock's] injury which is supported by a rational basis."

3. Nock's medical evidence consisted solely a report from a physician indicating that she had a spinal injury and underwent surgery and recorded her subjective complaints and physical findings, while noting that her prognosis was "poor."

The Appellate Division said that the physician's report contained no specific diagnosis, make no mention of the history of Nock's injury nor how it related to her work at Education and, although the report made reference to other medical providers and tests, "no other evidence was submitted."

Explaining that a medical opinion need not be expressed with "medical certainty," the Appellate Division found that Nock failed to submit any medical evidence providing a causal link between her injury and her employment. Thus, said the court, it discerned no basis upon which to disturb the Board's finding that Nock failed to establish her claim.

As to Nock contention that it "was improper for the Board to terminate her claim without providing her an opportunity to submit additional medical evidence," the Appellate Division noted that the Board did not outright deny her claim but, rather, "disallowed the claim based on the record as it existed" and declared that "[n]o further action is planned at this time." The court said that it did not read the Board's decision as precluding Nock from submitting further medical evidence of a causal relationship between her injury and her employment with Education, explaining that Board's statement that "no further action is planned at this time" generally indicates that "the claim is merely currently inactive" and presumably may be "reactivated" should Nock present the Board with additional relevant medical evidence within a reasonable period of time.

* Department of Education is a self-insured employer.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_02693.htm

Failure to name a necessary party dooms an appeal to the Commissioner of Education to dismissal

Failure to name a necessary party dooms an appeal to the Commissioner of Education to dismissal

Appeal of Jules J. Comeau, Decisions of the Commissioner of Education, Decision No. 17372

Jules J. Comeau [Petitioner] appealed the adoption of a resolution by the Board of Education of the Long Lake Central School District approving a "side letter of understanding with the Long Lake Faculty Association" that  relieved District retirees who retired prior to July 1, 2014 from the obligation to pay health insurance premiums.

The genesis of this appeal was resignation of board member Christine Blumberg effective January 29, 2015 and the Board's appointing Ms. Lorrie Hosley to fill the vacancy left by Ms. Blumberg’s resignation until an election scheduled for May 2015. Ultimately Brian Penrose was elected to fill Ms. Blumberg's unexpired term.

The record before the Commissioner indicated that a "draft agenda indicated that Mr. Penrose would be sworn in early in the meeting while, in fact, the Board at its June 11, 2015, distributed a revised agenda indicating that Mr. Penrose’s swearing in had been moved to the end of the meeting. Also stated in the record before the Commissioner was the fact that prior to Mr. Penrose taking the oath of office, the board approved a side letter of understanding with the union described above in a 3-2 vote and Ms. Hosley was one of the three board members who voted to approve the resolution. This appeal followed.

Mr. Comeau alleged that the Board "improperly postponed Mr. Penrose’s swearing in so that Ms. Hosley could provide the necessary vote to approve the side letter" and further contends that the Board's "inappropriately moved Mr. Penrose’s swearing in from the beginning of the June 11, 2015 board meeting to the end of the meeting to prohibit him from voting on the side letter resolution."

The Commissioner dismissed Mr. Comeau's appeal for a number of reasons, including the failure to join necessary parties. A necessary party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such and joinder requires that an individual be clearly named as a respondent in the caption and served with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense.

Here necessary parties included the retired teachers that would be adversely affected were Mr. Comeau's efforts to invalidate a side letter were successful as if the side letter annulled approximately 18 retired teachers would be required to contribute money in order to maintain their health insurance. The Commissioner found the failure to name these teachers in the caption in the appeal and serve them with a copy of the notice of petition and petition warrants dismissal of the appeal.

Notwithstanding this procedure omission, the Commissioner noted that Mr. Comeau's appeal would have been dismissed on the merits as in an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief.

Mr. Comeau, said the Commissioner, failed to allege or prove that the timing of Mr. Penrose’s swearing in violated any law or policy. The Public Officers Law requires that every officer shall take the required oath of office and Mr. Penrose satisfied that requirement. Further, the Commissioner noted that "there is no legal basis for a finding that Mr. Penrose’s failure to take his oath of office at the beginning of a board meeting as opposed to the end of a board meeting, especially where this meeting was well within the 30-day timeframe imposed by the Public Officers Law, was in any way improper."

In addition, the Commissioner's decision indicates that while Mr. Comeau alleged that the Board delayed Mr. Penrose’s swearing in so that the Board "could utilize Ms. Hosley’s vote to pass the side letter resolution," Mr. Comeau failed to allege or prove that the vote would have been different had Mr. Penrose participated.

While Mr. Comeau asserts that he spoke with Mr. Penrose on June 12, 2015 but does not allege or establish that Mr. Penrose would have voted against the side letter had he been sworn in at the start of the meeting. Accordingly, said the Commissioner, Mr. Comeau failed to meet his burden of proving that, but for the allegedly improper conduct, the outcome of the vote would have been different.

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume57/d17372

Determining the employer of a workers' compensation benefit claimant is critical to determining if a respondent may be sued by the claimant

Determining the employer of a workers' compensation benefit claimant is critical to determining if a  respondent may be sued by the claimant

Dube v County of Rockland, 2018 NY Slip Op 02597, Appellate Division, Second Department

New York State's Workers' Compensation Law provides that:

1. An employee who is entitled to receive workers' compensation benefits may not sue his or her general employer or special employer for injuries occurring during the course of employment.

2. A special employee is "one who is transferred for a limited time of whatever duration to the service of another" and a determination as to whether a special employment relationship exists is generally an issue of fact requiring consideration of many factors, including:

            [a] who controls and directs the manner of the employee's work,

           

            [b] who is responsible for payment of wages and benefits,

            [c] who furnishes equipment,

            [d] who has the right to discharge the employee, and

            [e] whether the work being performed was in furtherance of the special employer's or the general employer's business.

3. General employment is presumed to continue, and that presumption can only be rebutted by a "clear demonstration of [the] surrender of control by the general employer and assumption of control by the special employer."

The workers' compensation claimant in this action, Richard Dube, a police officer employed by the Town of Ramapo, was selected as a candidate for the Rockland Regional Rescue, Entry and Counter-Terrorism Team [REACT], a part-time SWAT team comprised of specially trained police officers from participating law enforcement agencies in Rockland County.

During a physical fitness test in connection with his candidacy for REACT, Dube suffered heat stroke and sustained personal injuries. Dube and his wife, suing derivatively, [Plaintiffs] commenced an action against the County, the Rockland County Sheriff's Department, and REACT [County Defendants]. Subsequently the action was consolidated with an action commenced by Plaintiffs against USPLabs, LLC.

County Defendants moved for summary judgment dismissing Plaintiff's complaint asserted against them, contending that Dube was their special employee and therefore barred from commencing an action against them. The County Defendants also contended that they were entitled to summary judgment dismissing the complaint based upon governmental immunity, the "firefighter's rule," and the doctrine of primary assumption of risk.

The Supreme Court granted the County Defendant's motion, determining that Dube was a special employee of the County Defendants, but did not address addressing the other grounds claimed by the County Defendants in support of its motion for summary judgment. The Plaintiffs appealed the Supreme Court's decision.

The Appellate Division reversed the lower court ruling, explaining that the County Defendants "failed to meet their initial burden of submitting sufficient evidence demonstrating the absence of any triable issues of fact" in that the County Defendants failed to submit sufficient evidence to rebut the presumption that Dube remained a general employee under the control of the Town at the time of the incident.

The Appellate Division pointed out that Dube was under the control of the County Defendants for the limited purpose of the physical test to evaluate his ability to join REACT. In contrast, Dube's general employer, the Town of Ramapo, paid his wages, gave him permission to attend the REACT test on his regular work day, paid his workers' compensation benefits premiums, and retained the authority to discharge or discipline him.

Addressing the County Defendants claim of "governmental immunity," the Appellate Division said the County Defendants "failed to establish, prima facie, that there was a set procedure for administering the physical test and that they did not violate accepted practices.

Further, said the court, the County Defendants reliance on the "firefighter's rule" is misplaced in light of the court's determination that the County Defendants  failed to establish, prima facie, that Dube was their special employee.

Finally, the Appellate Division noted that as the County Defendants "failed to establish, prima facie, that the doctrine of primary assumption of risk is applicable under the circumstances of this case."

As the County Defendants failed to meet its prima facieburden, Supreme Court was required to deny its motion for summary judgment "regardless of the sufficiency of the [Plaintiffs'] papers submitted in opposition. Accordingly, the Appellate Division reversed the lower court's decision, on the law, and awarded one bill of costs to the Plaintiffs.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_02597.htm

Seeking to dismiss a lawsuit on the basis of collateral estoppel, also know as issue preclusion

Seeking to dismiss a lawsuit on the basis of collateral estoppel, also know as  issue preclusion

Razzano v Remsenburg‐Speonk Union Free Sch. Dist., et al., USCA, Second Circuit, Docket 17-775-CV

Janice Razzano, acting pro se,* appealed a federal district courtʹs ruling in favor of  the Remsenburg‐Speonk Union Free School District [District] dismissing her complaint alleging discrimination and retaliation in violation of the Americans with Disabilities Act of 1990, 42 U.S.C. §1983, and the New York State Human Rights Law.

The district court, in an oral ruling dismissing the Razzano's petition and subsequently clarified its decision, explaining that a New York State Appellate Divisionʹs decision precluded Razzanoʹs complaint ʺunder the doctrines of res judicata and collateral estoppel."

The Circuit Court initially considered the following components of the lower court's decision.

I. Failure to Prosecute - The Circuit Court explained that a district court may dismiss an action "[i]f the plaintiff fails to prosecute or to comply with [the Federal Rules of Civil Procedure] or a court order" and reviews Rule 41(b) dismissals for abuse of discretion. Although review for abuse of discretion ʺsuggests great deference,ʺthe Circuit Court said it recognizes that ʺdismissal is a harsh remedy and is appropriate only in extreme situations" and in reviewing a Rule 41(b) dismissal, consider the following five factors:

(1) the duration of the plaintiffʹs failure to comply with the court order;

(2) whether plaintiff was on notice that failure to comply would result in dismissal;

(3) whether the defendants are likely to be prejudiced by further delay in the proceedings;

(4) a balancing of the courtʹs interest in managing its docket with the plaintiffʹs

interest in receiving a fair chance to be heard; and

(5) whether the judge has adequately considered a sanction less drastic than

dismissal.

In this instance the Circuit Court said it could not make a determination concerning the application of Rule 41(b) by the district court as the record was   incomplete and the district court was better situated than the Circuit Court to develop the record and assess the propriety of dismissal in the first instance.

II. Collateral Estoppel (Issue Preclusion) - Collateral estoppel, or issue preclusion, bars the re-litigation of an issue that was previously decided, regardless of whether the two lawsuits are based on the same cause of action.

The district court had invoked the doctrines of collateral estoppel and res judicata to support its dismissal of Razzano's action but the Circuit Court again noted "record deficiencies."

Although the §3020-a proceeding resulting in Razzanoʹs termination was ʺan administrative adjudication that must be given [issue] preclusive effect,ʺissue applies only if ʺ(1) the identical issue necessarily was decided in the prior action and is decisive of the present action, and (2) the party to be precluded from relitigating the issue had a full and fair opportunity to litigate the issue in the prior action.ʺ The District, as the party asserting issue preclusion, ʺbears the burden of showing with clarity and certainty what was determined by the prior judgment,ʺthe Appellate Division's decision** is given issue preclusive effect ʺonly if it is quite clear that this requirement has been met.ʺ

Addressing the application of the doctrine of res judicata, the Circuit Court said that New York uses a ʺtransactional approachʺsuch that ʺonce a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transaction are barred.ʺ

In rejecting Razzanoʹs termination challenge, the Appellate Division held that the hearing officer ʺproperly rejected [Razzanoʹs] defense that the disciplinary proceedings were retaliatory in natureʺand that the ʺevidence of specific incidents of inappropriate, unprofessional, or insubordinate conduct . . . demonstrate[d] a separate and independent basis for the action takenʺ such that ʺa defense under Civil Service Law §75-b cannot be sustained.ʺ

The Circuit Court found that Razzanoʹs state court ʺclaimʺwas her CPLR §7511 petition challenging the §3020-a hearing officerʹs decision. Razzanoʹs defense to the disciplinary charges was that they were retaliatory in violation of Civil Service Law § 75-B(2)(a), a State "Whistleblower Statute but Razzano did not assert the claims she raised in her federal district court complaint with respect to the Americans with Disabilities Act, 42 USC 1983, and New York State's Human Rights Law for which she sought monetary damages, equitable relief, and attorneyʹs fees and costs.

As it appeared that neither the administrative hearing officer nor the Appellate Division had the power to rule on the discrimination claims, as Razzano had not raised them in the disciplinary proceeding or in her petition challenging the decision the Circuit Court concluded that dismissal on res judicata grounds was unwarranted.

The Circuit Court vacated the judgment of the district court and remanded the matter to the lower court "for further proceedings consistent with this order."

* An individual acts "pro se" by serving as his or her own attorney in a judicial or quasi-judicial proceeding.

** Razzano v Remsenburg-Speonk UFSD, 41 N.Y.S.3d 72

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/19590bd6-7c4a-43be-82e8-0d96d8dd64f5/1/doc/17-775_so.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/19590bd6-7c4a-43be-82e8-0d96d8dd64f5/1/hilite/

Setting the number of justices on the United States Supreme Court and judges on the New York State Court of Appeals

Setting the number of justices on the United States Supreme Court and judges on the New York State Court of Appeals

Response to an inquiry from a NYPPL reader

The short answer to your question concerning determining the number of justices on the United States Supreme Court is the number of justices is set by Act of Congress as the Constitution of the United States does not provide for the number of justices sitting on the Court.

§1 of the Judiciary Act of 1789 provided that "That the supreme court of the United States shall consist of a chief justice and five associate justices, any four of whom shall be a quorum", i.e., six justices. 

From time to time the number of justices on the Supreme Court has been modified by Acts of Congress to reflect the growth of the United States and the increasing number of judicial circuits. 

For example, the "Seventh Circuit Act of 1807" statutorily increased the size of the Court from six Justices to seven. 

Subsequently the number of justices was increased to 9 in 1837 and then to 10 in 1863. In 1869, however, the Circuit Judges Act set the number of justices of the Supreme Court back to 9, and it has since remained 9 notwithstanding former President Franklin D. Roosevelt's attempt to increase the number of justices to "not to exceed 15."

In contrast, §2 of Article VI - Judiciary - of the Constitution of the State of New York, in pertinent part, provides:

a. The court of appeals is continued. It shall consist of the chief judge and the six elected associate judges now in office, who shall hold their offices until the expiration of their respective terms, and their successors, and such justices of the supreme court as may be designated for service in said court as hereinafter provided. The official terms of the chief judge and the six associate judges shall be fourteen years.

Five members of the court shall constitute a quorum, and the concurrence of four shall be necessary to a decision; but no more than seven judges shall sit in any case. In case of the temporary absence or inability to act of any judge of the court of appeals, the court may designate any justice of the supreme court to serve as associate judge of the court during such absence or inability to act. The court shall have power to appoint and to remove its clerk. The powers and jurisdiction of the court shall not be suspended for want of appointment when the number of judges is sufficient to constitute a quorum.

b. Whenever and as often as the court of appeals shall certify to the governor that the court is unable, by reason of the accumulation of causes pending therein, to hear and dispose of the same with reasonable speed, the governor shall designate such number of justices of the supreme court as may be so certified to be necessary, but not more than four, to serve as associate judges of the court of appeals.