Declining a particular fringe benefit does not convert the value of the employer's contribution for such benefit into additional salary or other compensation

The appointing authority [Town] employed two town justices. Both justices have the same job functions and receive an identical annual salary. The Town also offers both town justices the opportunity to participate in its employee health insurance plan. While the Justice A elected to participate in this plan, Justice B elected not to do so and, in lieu of receiving health benefits, made several unsuccessful requests seeking additional compensation equal to the cost of the "employer contribution" to the Town to provide Justice A with health insurance coverage.

Ultimately Justice B sent a letter to the Town's supervisor formally requesting this additional compensation, contending that health insurance coverage was a component of a town justice's salary and that, because her fellow town justice was receiving this benefit and she was not, she was being compensated less than the other justice in violation of Town Law §27.1. After Justice B's request was denied by the Town, she initiated an Article 78 action seeking, among other things, a declaration that the Town's denial of her request for additional compensation violated Town Law §27.1. The Town answered the petition and, following oral argument, Supreme Court found Justice B's claim to be without merit and dismissed her petition and complaint. Justice B appealed the ruling to the Appellate Division.

The Appellate Division affirmed the lower court's ruling, explaining that Town Law §27.1  provides, in relevant part, that "[t]he town board of each town shall fix . . . the salaries of all officers and employees of said town" and that "the salaries of all town justices shall be equal," unless otherwise agreed upon by a majority vote of the town board."

Although §27 does not define the term "salary," the Appellate Division noted that in Bransten v State of New York, 30 NY3d 434 the Court of Appeals, considering the State Constitution's Judicial Compensation Clause, Article VI, §25[a], and held that the state's employer contributions toward a justice's health insurance coverage "is not part of [his or her] judicial salary" nor considered "a permanent remuneration for expenses necessarily incurred in fulfillment of judicial obligations."

Finding that both Town Justice A and Town Justice B have received identical salary and benefits, "including eligibility to participate in the Town's health insurance plan," the Appellate Division opined that the fact that Justice B had chosen to forgo participating in the Town's health insurance plan did not transform the Town's employer contribution towards the plan it made on behalf of Justice A, who did elect to participate in the Town's health insurance plan, into some form of salary differential forbidden under Town Law §27.1.

According, the Appellate Division said it agreed with Supreme Court that the Town's denial of Town Justice B's request for additional compensation did not violate Town Law §27.1.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_03864.htm

Seeking a writ of mandamus to compel a public entity to perform a certain action

For many years, Binghamton City Court [City Court] used docket books maintained in hard copy used by the plaintiff to personally compile lists of adjudicated summary eviction proceedings. However, at some point, City Court discontinued their use of hard copy docket books and began maintaining court records electronically. Beginning in 2015, Plaintiffs made several written requests to City Court for all summary eviction proceedings that had been adjudicated since January 1, 2014.

Plaintiff was advised that City Court did not maintain its records in the specific manner that he was requesting and that he could access the electronically-stored court records by providing a case name or index number. In addition, the Town of Union Court [Town Court] similarly notified Plaintiff that it did not maintain a running list of summary eviction proceedings in a form that he had requested.

Ultimately Plaintiff commenced a CPLR Article 78 proceeding in the nature of mandamus seeking to compel City Court and Town Court to, among other things, "maintain all court records in a written form . . . [l]ike the old docket books" and, since the records were maintained electronically, to provide the requested information "on a disk in a form that could be easily used by the public."

City Court answered Plaintiff's petition and alleged that Plaintiff had failed to state a claim. Town Court submitted an affidavit in opposition to Plaintiff's petition, requesting that the petition be dismissed, indicating that, although under no obligation to do so, it had employed an outside information technology company to create the list sought by Plaintiff. Supreme Court ultimately dismissed the petition and Plaintiff appealed.

The Appellate Division, citing Matter of County of Chemung v Shah, 28 NY3d 244, affirm the lower court's ruling, explaining that a "writ of mandamus"* is an extraordinary remedy that lies only to compel the performance of "an administrative act positively required to be done by a provision of law." In the words of the Appellate Division, "[s]uch a writ will not be awarded to compel the performance of an act involving the exercise of judgment or discretion or to direct the manner in which a public official carries out his or her legal duty to complete a ministerial act."

Finding that the records demonstrated that both City Court and Town Court were satisfying their duties under Judiciary Law §§255 and 255-b by maintaining an electronic docketing systems that was available for search and examination by members of the public with the assistance of court staff, the Appellate Division ruled that neither City Court nor Town Court were statutorily required to maintain their respective court dockets "in the particular manner requested by Plaintiff or create the list that Plaintiff desires."

Finding that City Court and Town Court cannot be compelled to perform their ministerial duties in the specific manner sought by Plaintiff, the Appellate Division ruled that Supreme Court had properly dismissed the Plaintiff's Article 78 petition.

* A writ of mandamus is one of a number of the ancient “common law” writs and is granted by a court to compel an official to perform acts that such an official is duty-bound to perform. Other such ancients writs include the writ of prohibition, issued by a higher tribunal to a lower tribunal to "prohibit" the adjudication of a matter then pending before the lower tribunal on the grounds that the lower tribunal "lacked jurisdiction"; the writ of "certiorari," compelling a lower court to send its record of a case to the higher tribunal for review by the higher tribunal; and the writ of “quo warranto,” which requires a person or body to show by what warrant, office or franchise, held, claimed, or exercised, with respect to that individual or entity performing a particular act or omission. The Civil Practice Law and Rules sets out the modern equivalents of the surviving ancient writs.

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2019/2019_03863.htm

Under certain circumstances a court may order the New York State Public Employment Relations Board to issue determinations on pending improper practice charges

Petitioner in the Article 78 action had filed two improper practice charges with the Public Employment Relations Board [PERB] in 2014. Contending that PERB had yet to issues its determinations concerning these charges, in 2018 Petitioner initiated a CPLR Article 78 proceeding, seeking a court order compelling PERB to issue determinations on these two improper practice charges then pending before it, naming PERB and the State of New York [State] as respondents,.

In lieu of filing an answer to Petitioner's complaint, PERB moved to dismiss the petition for, among other reasons, Petitioner's alleged failure to exhaust administrative remedies. State, in lieu of filing an answer to Petitioner's complaint, separately moved to dismiss the petition with respect to it, alleging that it "was not a proper party to the proceeding."

The Supreme Court [1] granted the State's motion to dismiss it from the proceedings on the ground that it was not a proper party to the proceeding; [2] denied PERB's motion to dismiss the action on the grounds that petitioner "had failed to exhaust" administrative remedies; and [3] granted Petitioner's petition on the merits, directing PERB to issue determinations on Petitioner's improper practice charges within 60 days of the serving of the court's order, with notice of entry, on PERB.

PERB appealed the Supreme Court's ruling to the Appellate Division, thereby "invoking an automatic stay of Supreme Court's judgment."*

While the appeal was pending in the Appellate Division, however, PERB issued it's decisions on Petitioner's improper practice charges, thus providing Petitioner with all of the relief that he requested in his CPLR petition. 

The Appellate Division, observing that "the rights of the parties would not be affected by a determination" of PERB's appeal"on the merits," rejected PERB's contention that exceptions** to the mootness doctrine applied in this action. The court explained that the controversy presented by this case "evaded its review solely because PERB issued the requested determination during the pendency of the appeal."

Holding that the controversy between Petitioner and PERB had been resolved as the result of PERB's issuing the determinations demanded by Petitioner, the Appellate Division dismissed PERB's appeal as moot.

* See CPLR §5519[a][1], which, in pertinent part, provides for a stay of the enforcement of a court decision without a court order upon the filing of a notice of appeal or an affidavit of intention to move for permission to appeal where "the appellant or moving party is the state or any political subdivision of the state or any officer or agency of the state or of any political subdivision of the state."

** Claims of exception to the mootness doctrine typically require the court to consider three issues: [a] is the question presented of a substantial public nature; [b] is there is a need for an authoritative determination for the future guidance of public officers; and [3] is there a likelihood of future recurrence of the question [see Hearst Corp. v Clyne, 50 NY2d 707].

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_03858.htm

Adjudicating claims filed against an employer alleging disability discrimination and retaliation pursuant to the Americans with Disabilities Act

The Federal District Court dismissed an employee's [Petitioner] claim that his public employer [City] had unlawfully discriminated against him and took retaliatory actions against in violation of the Americans with Disabilities Act [ADA] and the New York State Human Rights Law [NYSHRL].

Petitioner appealed the district court's ruling to the United States Circuit Court of Appeal, challenging three conclusions of the District Court that Petitioner:

[1] was not disabled after he returned to work;

[2] failed to show the existence of an accommodation that would allow him to

perform the essential functions of his employment; and

[3] did not produce evidence sufficient to show discrimination or retaliation.

Deciding that it need not consider Petitioner's first challenge, i.e., did the District Court erred in determining that Petitioner was disabled after he returned to work as, assuming, but not deciding that Petitioner was disabled after he returned to work,* the Circuit Court held that Petitioner's "claims fail as a matter of law" as he did not meet his burdens of "both production and persuasion as to the existence of some accommodation that would allow [him] to perform the essential functions of [his] employment.”

The Circuit Court explained that Petitioner failed to provide evidence of a reasonable accommodation, which “may include modification of job duties and schedules, alteration of the facilities in which a job is performed, acquisition of devices to assist the performance of job duties, and, under certain circumstances, reassignment to a vacant position.” Thus, said the court, Plaintiff's failure to accommodate claim fails as a matter of law, citing Borkowski v. Valley Cent. Sch. Dist., 63 F.3d 131.

Turning to Plaintiff's claim that he suffered discrimination and retaliation based on his three-day and subsequent termination from his position. Plaintiff argued that the City's discriminatory or retaliatory intent was demonstrated by "[a] the temporal proximity between his placement on light duty and his suspension the following business day and [b] the failure of the employer "to engage with him in an interactive process to identify a potential reasonable accommodation."

The City rebutted these allegations by explaining that Petitioner's suspension and later termination resulted from Petitioner's "numerous disciplinary infractions, several of which pre-date the time of his first injury."

Conceding that “A plaintiff can indirectly establish a causal connection to support a discrimination or retaliation claim by showing that the protected activity was closely followed in time by the adverse employment action” and that “an employer’s failure to engage in a good faith interactive process [to identify a reasonable accommodation] can be introduced as evidence tending to show disability discrimination,” the Circuit Court opined that "temporal proximity alone is 'insufficient to satisfy [plaintiff’s] burden' at the third stage of the McDonnell Douglas analysis." Considering his "prolific and longstanding disciplinary record," the court held that Plaintiff had not adduced sufficient evidence for a reasonable jury to conclude that the City had suspended or terminated Plaintiff for discriminatory or retaliatory reasons rather than as a result of his disciplinary problems.

Finally, said the court, "for the same reasons stated above, even assuming without deciding that an ADA mixed-motive discrimination claim under the framework set out in Price Waterhouse v. Hopkins, 490 U.S. 228 ... is still viable after Gross v. FBL Fin. Servs., Inc., 557 U.S. 167," Plaintiff failed to produced evidence warranting a shift in burden under Price Waterhouse.

The Circuit Court explained that “[T]o warrant a mixed motive burden shift, the plaintiff must be able to produce a smoking gun or at least a thick cloud of smoke to support his [or her] allegations of discriminatory treatment.”

Accordingly, the Circuit Court of Appeals affirmed the judgment of the District Court.

* The Circuit Court of Appeals noted that Petitioner did not argued that the District Court erred by dismissing his NYSHRL claims for the same reasons as his ADAclaims.

The decision is posted on the Internet at:

https://www.courtlistener.com/opinion/4603613/molina-v-city-of-rochester/