A school district employee's good faith in reporting allegations of child abuse in an educational setting triggers Education Law §1128(4) immunity from liability

A school district employee's good faith in reporting allegations of child abuse in an educational setting triggers Education Law §1128(4) immunity from liability
Bratge v Simons, 167 AD3d 1458

Among the issues raised by Plaintiffs in this appeal was the claim that Supreme Court erred in dismissing the complaint with respect to Plaintiffs' allegations that a school district and certain of its officers  and employees has subjected them to malicious prosecution. The Appellate Division held that Supreme Court properly dismissed this claim.

To obtain recovery for malicious prosecution, said the court, a plaintiff must establish [1] that a criminal proceeding was commenced; [2] that it was terminated in favor of the accused; [3] that it lacked probable cause; and [4] that the proceeding was brought out of actual malice."

In this instance, said the Appellate Division, it is undisputed that there was "a judicial determination of probable cause" in the underlying criminal action which "can be overcome only upon a showing of fraud, perjury or the withholding of evidence" and the Plaintiffs' complaint failed to allege such misconduct.

The Appellate Division also noted that the documentary evidence established that School District merely "furnished information to law enforcement authorities." The law enforcement authority then exercised its own judgment in determining whether criminal charges should be filed. Citing Quigley v City of Auburn, 267 AD2d 978, the court observed that "It is well settled that such actions by a civilian complainant . . . do not render the complainant liable for . . . malicious prosecution."

In addition, the Appellate Division commented that Education Law §1128(4) provides that School District employees named as defendants in such an action with immunity from liability with respect to their good faith compliance with the mandatory reporting requirements of  Education Law §1126.

§1126 sets out the duties of employees specifically enumerated in this section upon receipt of an allegation of child abuse in an educational setting. The Appellate Division said that the documentary evidence submitted by defendants in this action established that they acted reasonably and in good faith in transmitting a report of alleged child abuse in an educational setting consistent with the requirements of §1126.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_08778.htm

Violations of specific safety requirements

 

State ex rel. Angelo Benedetti, Inc. v. Indus. Comm.

Court: Ohio Supreme Court

 

Docket: 20070619

Judge: Per Curiam

Areas of Law: Business Law, Government & Administrative Law, Injury Law, Labor & Employment Law

The Industrial Commission of Ohio found that Angela Benedetti, Inc. (ABI) violated two newly added specific safety requirements that resulted in an injury to an ABI employee. ABI filed a complaint in mandamus in the court of appeals, alleging that the commission abused its discretion in permitting the injured employee to amend his specific safety requirement violations application and in finding violations of the specific safety requirements. The court of appeals upheld the Commission's order and denied the writ. On appeal, the Supreme Court affirmed, agreeing with the reasoning provided by the court of appeals but not given in this opinion.

 

http://j.st/SQE

Penalty of termination imposed on a employee found to have been conducting private business activities "on company time"

Penalty of termination imposed on a employee found to have been conducting private business activities "on company time"

Ficken v Suffolk Vocational Education Board, 238 A.D.2d 589

An employee of Suffolk County's Vocational Education and Extension Board [VEEB] was conducting a personal business activity while employed simultaneously being employed by VEEB. The problem was that the employee was alleged to have conducted some of her personal business on VEEB property and on VEEB time.

Although warned several times not to conduct her personal business affairs while on VEEB property and that her failure to comply with directive could result in disciplinary action, the employee persisted in conducting some of her personal business while at work.

This resulted in the employee being charged with and found guilty of, misconduct, characterized as theft of services. The penalty imposed: termination. 

The employee appealed the disciplinary action taken against her, claiming that there was no substantial evidence to support the appointing authority's determination. 

The Appellate Division disagreed and dismissed the appeal challenging the disciplinary action taken against her. The court explained that the employee's admission that she met with a client to conduct aspects of her business on VEEB property and on "VEEB time," coupled with the testimony of two co-workers that the employee typed documents related to her business activities while "at work," was "sufficient to provide substantial evidence to sustain the findings of misconduct."

As to the penalty imposed, the Appellate Division, citing Pell v Board of Education, 34 NY2d 222, said that under the circumstances, dismissal was not so disproportionate to the offense as to be "shocking to one's sense of fairness."

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Employer's "legitimate, independent, and nondiscriminatory reasons" for its personnel actions trumps employee's complaint of discrimination and retaliation

Employer's "legitimate, independent, and nondiscriminatory reasons" for its personnel actions trumps employee's complaint of discrimination and retaliation

Cubelo v City of New York, 2019 NY Slip Op 00689, Appellate Division, First Department

The Plaintiff in this action, who was born in Spain, contended that he was passed over for several promotions by the New York City Department of Transportation [DOT] as a result of DOT's giving persons of South Asian descent preference in promotions. He also claimed that DOT retaliated against him after he had filed complaints alleging unlawful discrimination and a union grievance by "transferring* him to a lesser position" in violation of the State** and City Human Rights Laws.***

The Appellate Division said that DOT had established, prima facie, "legitimate, independent, and nondiscriminatory reasons" for the personnel actions underlying Plaintiff's complaints. The court explained that the record supports DOT's explanation that the candidates selected for promotion over Plaintiff were chosen because the individuals appointed "were better qualified for the job, having advanced degrees and directly relevant experience that [Plaintiff] did not possess."

Although Plaintiff contended that these candidates were actually promoted as a result of preferential treatment toward employees of South Asian descent, the Appellate Division noted that Plaintiff failed to submit evidence that in making these decisions his supervisors took into account the fact that he was not of South Asian descent. Further, said the court, Plaintiff's contention that the real reason for the decisions constituted unlawful discrimination was undermined by the fact that a woman of Polish descent was ultimately hired to occupy one of the four positions for which he applied and that Plaintiff failed to raise an issue of fact whether DOT's proffered reasons concerning the promotions were false and a pretext for, or motivated at least in part by, discrimination.

Addressing Plaintiff's allegations of retaliation after he had filed discrimination complaints and grievances, the court said that DOT had also established prima facie that Plaintiff's departmental transfer was not made in retaliation for his complaints of discrimination because it did not constitute an "adverse employment action" or an "action that disadvantaged him."

As to Plaintiff's filing a grievance with his union, his grievance alleged that he was performing out-of-title work in his former position. The Appellate Division pointed out that Plaintiff's reassignment was initiated as a remedy for the grievance and Plaintiff continued to earn the same salary and benefits while serving in the same title in his new position.

The Appellate Division unanimously affirmed Supreme Court's granting DOT's motion for summary judgment dismissing Petitioner's complaint.  

* The movement of an individual from one position to a second position subject to the jurisdiction of the same appointing authority is typically described as a "reassignment." In contrast, the movement of an employee from one position to a second position under the jurisdiction of a different appointing authority is typically characterized as a "transfer."  Although the term "transfer" is used in this decision to describe the personnel action Plaintiff experienced, the term "reassignment" is, in opinion of NYPPL's editor, the appropriate term to describe the relevant "personnel action" in this instance. Contrast, for example, 4 NYCRR 1.2(b)(1) with 4 NYCRR 1.2(b)(2).

** See Executive Law §296.

*** See Administrative Code of City of NY §8-107.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_00689.htm