Judicial review of student disciplinary action taken by a private college or university is limited to whether the institution substantially complied with its own rules

A New York Supreme Court denied a petition filed by a student [Student] attending a private institution of higher education [Institution]. Student had asked the court to annul the Institution's decision affirming a hearing committee's suspending the Student for one semester based on its finding that Student had engaged in academic dishonesty -- forging an examination booklet. Student appealed the Supreme Court's decision, arguing that the disciplinary action taken by the Institution violated his right to "due process."*

The Appellate Division commenced its review of Student's appeal by observing that Student's "due process" challenge was misplaced. Citing Cavanagh v Cathedral Preparatory Seminary, 284 AD2d 360, among other decisions, the court explained that a student at a private university is not afforded the "full panoply" of due process rights that might be available to a student at a public institution of higher education.

Accordingly, in the absence of any "State involvement," the only issue for review by the court is whether the institution substantially complied with [1] its own rules; [2]  was made in accordance with its written disciplinary policy; and [3] was rationally based and not arbitrary and capricious.

Turning to the Institution's procedures, the Appellate Division observed that Student "had ample opportunity at the hearing to defend his conduct and explain his actions." However, said the court, the Institution's rejection of Student's explanation as not credible was not irrational nor was the denial of Student's internal appeal irrational. The Institutions' written policy provided for limited grounds for appeal, "none of which availed Student."

Citing Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale and  Mamaroneck, Westchester County, 34 NY2d 222, the Appellate Division opined that there was nothing shocking or disproportionate about the one-semester suspension imposed on Student.

Addressing another issue, Student's allegation that the Institution had defamed him, the Appellate Division held that Supreme Court's dismissal of his defamation claim was correct because:

1. The subject statements were true;

2. The statements had not been published to any persons outside the university; and

3. The Institution's statements were protected by a qualified common interest privilege.

As to Student's allegations of malice, the Appellate Division said that this amounted to little more than "mere surmise and conjecture" and therefore was insufficient to overcome the Institution's qualified common interest privilege.

* Another issue addressed in this action involve Student's allegation that he had been defamed by the disciplinary action taken against him by Institution.

** The so-called "Pell Doctrine" defines a reasonable disciplinary penalty as one that is "neither arbitrary and capricious nor so disproportionate to the offense as to be shocking to one's sense of fairness."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_01720.htm

Upon permanent appointment to a position in the classified service the officer or employee is typically required to serve a specified minimum period of probation, but not to exceed a specified maximum period of probation.

Upon permanent appointment to a position in the classified service the officer or employee is typically set in terms of his or her serving  [1] a specified minimum period of probation and [2] a specified maximum period of probation.

The appointing authorities may be given discretion to waive a limited period of a probationary officer's or employee's absence during his or her probationary period pursuant to the rules of the responsible civil service commission. Otherwise the minimum and maximum periods of the probationary term of the officer or the employee is extended by the number of workdays of such absences are not counted as "time served" during the individual's probationary period.”* As the Court of Appeals held in Boyle v Koch, 68 NY2d 60, an employee's probationary period may be extended in the event the employee is given a “light duty” or some other alternate assignment while serving as a probationer. 

In this action the petitioner [Probationer] was permanently appointed to his position effective May 16, 2013 and his probationary period was set at not less than two-month and not more than two-years. When Probationer was subsequently terminated from his position effective March 2, 2016, he initiated an Article 78 action contending that his probationary period had ended prior to the termination of his employment and was a tenured employee entitled to notice and hearing as a condition precedent to his termination from his position. In effect, Probationer argued that he had attained tenure by estoppel.

Citing Matter of Venes v Community School Bd. of Dist. 26, 43 NY2d 520, the Appellate Division explained that a probationary employee may "be dismissed for almost any reason, or for no reason at all" after completing his or her minimum period of probation and before the end of his or her maximum period of probation without a hearing and without a statement of reasons for his or her termination in the absence of evidence that the termination was "in bad faith, for a constitutionally impermissible or an illegal purpose, or in violation of statutory or decisional law."

Probationer, however, contended that he had attained tenure** in his position upon his being continued in service after he had completed the minimum two-month period of his probationary period.

The Appellate Division disagreed, noting that the two-month minimum period of probation was simply the beginning portion of the two-year probationary term during which two-month period he could be terminated only upon notice and hearing.*** Further, opined the court, the appointing authority is not required to advise a probationer that his or her probationary term of service is to be continued after the completion of his or her initial two-month period of probationary service.

The Appellate Division said it agreed with the Supreme Court's determination that the termination of Probationer's employment occurred while he was still a probationary employee in view of the fact that his probationary period had been extended due to his absences during his probationary period as a period of probationary employment is measured by the number of days a probationer is actually working at the job and "may be extended by the number of days that the probationary employee does not perform the duties of the position."

In addition, the City maintained that Probationer had not acquired tenure in the position by reason of his having been continued in service after he had completed his maximum period of probation. Rather the Probationer was terminated before having completing his maximum period of probation as his probationary term had been extended [1] by the number of days that he was required to work but was absent; and [2]  by his agreeing to extension his probationary period  based upon his attendance, punctuality, and disciplinary records.

Finding that Probationer had failed to demonstrate that the termination of his employment during his probationary period was made in bad faith or for a constitutionally impermissible or an illegal purpose or in violation of statutory or decisional law, the Appellate Division sustained the Supreme Court's ruling denying Probationer's petition and dismissing the proceeding.

* See, for example, 4 NYCRR 4.5(g), “Absence during probationary term”.

** The decision implies that a probationary appointment does not become permanent until the completion of the minimum period of probation. As a general rule, an individual is initially appointed to the position as "permanent" effective on the date of his or her appointment but does not attain tenure in the position until [1] he or she satisfactorily completes his or her maximum period of probation or [2] acquires tenure by estoppel or [3] as the result of the appointing authority's lawfully truncating the individual's maximum period of probation. In addition, tenure may be acquired in consideration of certain military service performed during a probationary period or by other lawful process.

*** In York v McGuire, 63 NY2d 760, the Court of Appeals set out the basic rule concerning the dismissal of probationary employees as follows: “After completing his or her minimum period of probation and prior to completing his or her maximum period of probation, a probationary employee can be dismissed without a hearing and without a statement of reasons, as long as there is no proof that the dismissal was done for a constitutionally impermissible purpose, or in violation of statutory or decisional law, or the decision was made in bad faith.”

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2019/2019_02093.htm

Religious Accommodations in the Workplace

   Links to material posted on the Internet highlighted in COLOR

The New York State Division of Human Rights announced a statewide public education campaign to remind New Yorkers about their legal rights and protections regarding religious accommodation in the workplace. The Division has partnered with local chambers of commerce to make employers aware of their legal obligations and responsibilities in providing religious accommodations to applicants and employees. The Division has also created a brochurefor workers, informing them of the ways in which New York State law allows for religious accommodation and protection. Through these efforts, the Division seeks to reduce the potential for religious discrimination, harassment and retaliation in the workplace.

“With the sacred holidays of Easter, Passover and Ramadan just around the corner, it’s important that New Yorkers of all faiths know that they do not have to choose between their faith and a paycheck,” Division of Human Rights Commissioner Helen Diane Foster said. “Our great state is made even greater by the presence and contributions of all of our citizens, regardless of their religion. The Division is committed to protecting the rights of all those who seek to balance work responsibilities while also faithfully observing their religious tradition.” 

This public education campaign kicks off with the Utica Chamber of Commerce, while additional sessions will be held in Buffalo, Ithaca, Syracuse, Rochester and Westchesterthroughout April and May. This effort advances the Governor’s Justice Agenda and his commitment to protecting the rights and freedoms of all New Yorkers.   

Unemployment insurance benefits unavailable to claimant found to have engaged in disqualifying misconduct

§75 of the Civil Service Law permits the appointing authority to place an officer or an employee served with disciplinary charges on leave without pay for up to 30-days pending the completion of the disciplinary hearing and the determination of the penalty to be imposed in the event the officer or the employee is found guilty of one or more of the charges and specifications filed against him or her.* This absence is deemed "disqualifying misconduct" for the purposed of eligibility for unemployment benefits associated with such absence and thereafter.

An individual [Claimant] employed by a municipality was alleged to have committed numerous violations of her employer's code of conduct by, among other things, failing to report to work on time, being absent without authorization, sleeping and lounging during her shift and refusing to comply with her supervisor's directives. 

The employer placed Claimant on a 30-day suspension without pay and served Claimant with disciplinary charges pursuant to Civil Service Law §75. The penalty proposed by the employer: Termination.

Claimant applied for unemployment insurance benefits during the period of her 30-day suspension without pay. The Department of Labor initially granted her application but subsequently issued a revised determination finding, among other things, that Claimant was not eligible to receive benefits during this time period "because she had engaged in disqualifying misconduct."

Following a hearing, an Unemployment Administrative Law Judge upheld the Department of Labor's revised determination that found Claimant ineligible for benefits because of her disqualifying misconduct and ruled, among other things, that due to Claimant's misconduct, the remuneration paid to her prior to the effective date of her  suspension without pay could not be used to establish a valid original claim for unemployment insurance benefits.** The Unemployment Insurance Appeal Board sustained the Administrative Law Judge's decision in this regard, and Claimant appealed the Board's decision.

The Appellate Division affirmed the Board's ruling. The court noted that a claimant's excessive tardiness, absenteeism and insubordination has been found to constitute disqualifying misconduct for the purpose of determining an individual's eligibility for unemployment insurance benefits. Further, said the court,  "The many instances of [Claimant's] problematic behavior and failure to abide by the employer's code of conduct are well supported by the record."

The court noted that while Claimant admitted to certain acts of misconduct, with respect to her alleged "sleeping during her shift" Claimant contended that she suffers from a disability that interfered with her ability to work during her night shift. However, noted the Appellate Division, Claimant failed to produce medical proof at the hearing to substantiate this claim.

The Appellate Division concluded that substantial evidence supported the Board's decision finding that the remuneration paid to Claimant prior to her placement on a 30-day suspension without pay could not be used to establish a valid original claim.

* In the event an officer or employee is found not guilty of all charges and specifications he or she is reinstated to the position with back salary and benefits. In the event the officer or employee is found guilty, the time during which an officer or employee was suspended without pay may be considered as part of the penalty.

** Claimant was still employed by the employer on the date her Unemployment Insurance hearing was conducted  as the disciplinary action being taken against her pursuant to Civil Service Law §75 was then still pending. 

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_01880.htm

Disregarding unrebutted medical evidence in the record supporting an application for accidental disability retirement benefits fatal to the Medical Board and the Board of Trustees rejecting the application

Petitioner's application for accident disability retirement (ADR) benefits was rejected by both the Medical Board and the Board of Trustees. The Appellate Division unanimously annulled these decisions, on the law, and the matter remanded for further proceedings.

Petitioner, said the Appellate Division, had met his burden in establishing that he was entitled to ADR benefits by presenting:

 [1] the reports of his treating physicians, including the surgeon who performed his spinal surgery;

[2] the line-of-duty (LOD) accident reports indicating neck and back injuries;

[3] the contemporaneous emergency room reports also documenting neck and back pain; and

[4] MRIs from 2010 and 2011 revealing disc herniation, disc degeneration, and stenosis.

The medical evidence in the record, said the court, showed that Petitioner suffered from chronic back pain as a result of LOD injuries, in particular those sustained during a LOD accident that occurred in 2008.

The Board of Trustees' finding that Petitioner's 2008 accident was not causally related to his disability was based on a two-year gap in Petitioner's treatment, during which time he had returned to full duty. The Appellate Division found that this decision by the Board of Trustees "was conclusory" in light of the medical evidence in the record and  "[b]oth the Medical Board and the Board of Trustees failed to refute the opinion of Petitioner's surgeon that Petitioner's condition, which necessitated surgical intervention, was the result of his LOD injuries."

While the Medical Board was free to come to any conclusion supported by medical evidence before it, the court ruled that the board could not disregard the only competent evidence on the issue before it and its failure to refute the opinion of Petitioner's surgeon that Petitioner's condition was the result of his LOD injuries required that the Board's determination be vacated.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_02028.htm