Challenging an unsatisfactory annual performance rating

An educator [Petitioner] challenged his unsatisfactory annual performance review rating but Supreme Court granted the appointing authority's cross-motion to dismiss the proceeding Petitioner brought pursuant to CPLR Article 78. The Appellate Division unanimously affirmed the lower court's action.

The Appellate Division said:

1. The Petitioner has failed to show that the U-rating was arbitrary and capricious, or made in bad faith;

2. The record established that there was a rational basis for the determination to uphold petitioner's U-rating, which was based on insubordination and unprofessional conduct during the relevant school year; and

3. The Petitioner failed to demonstrate that there were procedural deficiencies in the performance review process resulting in the U-rating that undermined the integrity or fairness of the process.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_03301.htm

The anatomy of a challenge to a civil service commission's action rescinding an employee's appointment based on a criminal conviction

In consideration of the employee's [Plaintiff's] criminal history, the County Civil Service Commission [Commission] revoked Plaintiff's eligibility, certification and appointment to his Title A position, resulting in the termination of Plaintiff from service. The Commission also disqualified and removed the Plaintiff's name from an eligible list for appointment to a different title, Title B. Plaintiff initiated an Article 78 action challenging the Commission's decisions.

The record indicates that Plaintiff, in connection with his application for Title A, disclosed certain criminal history to the Commission. The Commission later sent letters to Plaintiff seeking additional documents and information concerning his criminal history. Although Plaintiff did not provide the documents sought by the Commission,* as the result of an administrative error, Plaintiff was certified eligible and, subsequently, appointed to the Title A position.

Subsequently, the County facility where Plaintiff worked was to be privatized. In accordance with an agreement enabling employees who did not want to work for the privatized company to be transferred to other job titles or work locations, Plaintiff applied for the Title B position and in connection with his application for the Title B position Plaintiff disclosed prior criminal convictions that had not been disclosed when he applied for the Title A position.

Ultimately the Commission notified Plaintiff that it was revoking his eligibility certification and appointment, terminating his employment in Title A and disqualifying him from the eligible list for the Title B position. The reasons advanced by the Commission for its actions with respect to the Title B position were Plaintiff's "disrespect for the process of law and order as evidenced by your record of convictions and failure to cooperate with your investigation." Plaintiff appealed the Commission's decision, submitting letters attesting to his good character and good work performance, as well as educational and training certificates he had earned. The Commission then advised Plaintiff that "it had determined that the 'original notification of disqualification stands,' and that [Plaintiff] will be terminated from his [Title A] position and removed from [Title B eligible list].

Plaintiff thereupon commenced his CPLR Article 78 proceeding challenging the Commission's  determination. Supreme Court, granted so much of the petition as sought to restore the Plaintiff's eligibility certification and appointment and his employment in Title A, with back pay and benefits, and to restore the Plaintiff to the eligible list for the Title B position. The Commission appealed the Supreme Court's determination but the Appellate Division sustained the lower court's ruling.

The Appellate Division addressed a number of elements crucial to its consideration of the Commission's appeal.

Procedure: Judicial review of an administrative determination made without a formal hearing is limited to whether the determination was arbitrary or capricious or without a rational basis in the administrative record, and once it has been determined that an agency's conclusion has a sound basis in reason, the judicial function is at an end.**

Controlling statutory law: Civil Service Law §50[4] provides that the state civil service department or appropriate municipal commission may investigate the qualifications and background of an eligible individual after he or she has been appointed, and may revoke a certificate of appointment and direct the termination of employment, "upon finding facts which if known prior to appointment, would have warranted his [or her] disqualification, or upon a finding of illegality, irregularity or fraud of a substantial nature in his [or her] application, examination or appointment . . . provided, however, that no such certification shall be revoked or appointment terminated more than three years after it is made, except in the case of fraud."

In this instance the Commission's determination to revoke the Plaintiff's eligibility certification and appointment and terminate his employment in Title A found arbitrary, capricious, and without a rational basis in the administrative record as Plaintiff was appointed to this position in 2011. Accordingly,, the Commission was precluded from revoking his certification and terminating his appointment from his Title A position in 2016 except for fraud. The Commission, however, did not alleged it bases its determination on the ground of fraud.***

Considering the Commission's determination to disqualify the Plaintiff from the eligible list for the Title B position, the Appellate Division concluded that its ruling was arbitrary, capricious, and without a rational basis in the administrative record as it was conceded that Plaintiff disclosed his prior convictions when seeking employment in a Title B position. Further, opined the court, "the record provided no sound basis to conclude that the Plaintiff failed in 2016 to cooperate with the investigation or to disclose material facts."

Addressing Plaintiff's criminal convictions, the Appellate Division cited Article 23-A of the Correction Law, explaining that this provision "protects persons who seek employment, after having been convicted of one or more criminal offenses, from unfair discrimination" and prohibits both public sector and private sector employer to deny a license or employment application by reason of the individual's having been "previously convicted of one or more criminal offenses" absent one of two exceptions permitted set out Correction Law §752 in applies.**** These exceptions are:

[a] There is a direct relationship between one or more of the previous criminal offenses and the specific license or employment sought or held by the individual; or

[b] The issuance or continuation of the license or the granting or continuation of the employment would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public"

The Appellate Division said that there nothing in the record indicating that the Commission determined that an exception to Correction Law §752 was applicable or considered the factors to be applied in making that determination.

Thus, said the Appellate Division, it agreed with the Supreme Court's determination granting so much of the petition as sought to restore the Plaintiff's eligibility certification and appointment and his employment in Title A, with back pay and benefits, and to restore the Plaintiff to the eligible list for appointment to the Title B  position.

* Plaintiff later contended that during the investigation into his criminal background he disclosed certain criminal convictions, but was not asked about certain other out-of-state convictions, explaining that he was under the impression that the additional documents the Commission sought pertained to an investigation for a different position that he had applied for, but in which he was no longer interested.

** Where an administrative adjudication made after a formal hearing, Supreme Court would transfer an Article 78 petition seeking judicial to the Appellate Division.

*** Citing Giangiacomo v Village of Liberty, 50 AD2d at 666, the Appellate Division observed that "under the circumstances presented, the record did not reveal the existence of fraud of a substantial nature" in connection with Plaintiff's application for examination and appointment to Title A.

**** Correction Law §753 sets out eight factors an employer is to consider when evaluating an applicant with a criminal record for employment.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_03785.htm

Employer's actual investigation of the incident on the date of the event reported to it by the injured party obviates its claim that it lacked timely notice of the event

Plaintiff, a medical technician employed by the New York City Health and Hospitals Corporation [HHC] filed motion seeking approval to file a "late notice of claim" alleging that she was assaulted by an inmate in the custody of Department of Correction [DOC] while that inmate was being treated at Bellevue Hospital. In support of her application, filed about seven months after the 90-day statutory period elapsed, Plaintiff submitted an affidavit averring that on the very same day of the alleged assault, she had two conversations with a DOC employee, a Corrections Captain [Captain], and told the Captain that she intend to pursue legal action." DOC did not submit any evidence to Supreme Court to dispute these factual allegations.

Supreme Court rejected Plaintiff's argument that the investigation provided respondent with actual notice, concluding only that her argument was "unavailing," presumably because agreed with DOC's argument that it lacked notice because Plaintiff never specified that she had told the Captain the manner in which DOC was negligent.

In considering whether to grant leave to file a late notice of claim, explained the Appellate Division, courts consider whether the public entity involved "acquired actual knowledge of the essential facts constituting the claim within [90 days] or within a reasonable time thereafter," and "all other relevant facts and circumstances," including "whether the delay in serving the notice of claim substantially prejudiced the public [entity] in maintaining its defense on the merits," the length of the delay, and whether there was a reasonable excuse for the delay.*

Although the Appellate Division held that while Supreme Court correctly found that Plaintiff failed to establish that DOC had actual knowledge of the essential facts constituting the claim based on the documentation that Plaintiff submitted to the Workers' Compensation Board, it erred in rejecting Plaintiff's argument that the investigation provided respondent with actual notice, concluding only that her argument was "unavailing."

To the extent that Plaintiff did not establish actual notice because she did not specify that her description of the assault included a recitation of who was in the room, the Appellate Division opined that "municipal authorities have an obligation to obtain the missing information if that can be done with a modicum of effort," citing Goodwin v New York City Hous. Auth., 42 AD3d 63. Here, said the court, negligence is the only theory of liability that could be implied by Plaintiff's conversations with Captain and, in any event, Captain could have determined who was in the room during the course of his investigation with "a modicum of effort." In the words of the Appellate Division, "[t]o hold otherwise would turn the statute into a sword, contrary to its remedial purpose."

The Appellate Division also found that Supreme Court erred by applying the incorrect legal standard when evaluating the issue of substantial prejudice. Supreme Court neglected to consider the decision of the Court of Appeals in Matter of Newcomb v Middle Country Cent. Sch. Dist., 28 NY3d 455.

Applying the Newcomb standard, "as we must", the Appellate Division said it was compelled to find that DOC was not substantially prejudiced by the delay.**

Noting that the burden initially rests on the Plaintiff to make a showing that the late notice will not substantially prejudice the respondent and that showing "need not be extensive," the Appellate Division ruled that "Plaintiff easily met her initial burden of providing 'some evidence or plausible argument' regarding the lack of substantial prejudice by pointing to the investigation" by Captain. This shifted the burden of going forward to DOC, which failed to rebut Plaintiff's showing with the particularized evidence  as required by Newcomb nor provided Supreme Court with any evidence to substantiate that it was prejudiced by the mere passage of time.

The bottom line, the Appellate Division said it must bear in mind that "the purpose of the statute is to give the municipality the opportunity to investigate the claim" and here the record indicated that DOC's Captain  "actually investigated [Plaintiff's] claim on the very same day that it arose, thereby fulfilling the statute's purpose."***

* See General Municipal Law §50-e[5].

** The Appellate Division pointed out that Plaintiff failed to demonstrate a reasonable excuse for service of her late notice of claim but concluded that the "lack of excuse" is not fatal here.

*** The Appellate Division also noted that it had simultaneously recalled and vacated its Decision and Order previously entered [see 168 AD3d 481] regarding this matter.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_03921.htm