Selective selection for appointment by sex permitted under certain circumstances

The Plaintiff in this  action sought a declaration that the Defendants' failure to consider and appoint female candidate on the eligible list established from a civil service examination for the position of  juvenile counselor with the New York City Administration for Children's Services (ACS) violated the State and City Human Rights Laws (Executive Law §296[1][a]; Administrative Code of the City of NY § 8-107[1][a]). Supreme Court found that the Defendants established prima facie that their selective hiring of male applicants as juvenile counselors did not violate the Human Rights Law because, pursuant to the Prison Rape Elimination Act* [PREA] and "industry best practice," sex is a bona fide occupational qualification [BFOQ] for juvenile counselors, and no reasonable alternative to the preferential hiring of male counselors existed to protect the privacy interests of male juvenile detainees. The Appellate Division unanimously affirmed the lower court's ruling, citing Jennings v New York State Office of Mental Health, 786 F Supp 376.

In Jennings the court opined that "[t]he gender-based assignment policy strikes a balance between the patients' privacy interests and the right of Security Hospital Treatment Assist ands [SHTA] to bid for [the] position," explaining that the requirement that at least one SHTA of the same gender as the patients be assigned to the ward is permissible under Title VII."

Plaintiff in this action, said the Appellate Division, "failed to raise an issue of fact as to the existence of reasonable alternatives to preferential male hiring" based on a selective hiring to save overtime compensation. However, opined, the court, gender-based hiring discrimination was appropriate "because the shortages of male counselors still at times forced the employer to assign female counselors to male residence halls, without the required male counterparts, which resulted in female counselors performing pat searches in violation of PREA and best practice.

Another factor, noted the Appellate Division, was that "mandatory overtime contributed to a 65% attrition rate among male counselors during the two years preceding the preferential hiring, which, combined with the overtime, worsened morale and affected performance among counselors.

In addition, the decision notes that Plaintiff failed to substantiate the assertion that better scheduling of staff could have obviated the need for huge amounts of mandatory overtime and the record belies the assertion that better recruitment could have solved the problem of critical shortages of male counselors.

* See 34 USC Sections 30301-9

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2020/2020_00527.htm

Publication of its investigation report by the New York City Office of Special Commissioner of Investigations on the Internet challenged by a party named in the report

An investigation report prepared by the New York City Office of Special Commissioner of Investigations [SCI] substantiated allegations that a contractor [Plaintiff] had engaged in "theft of services" and recommended that he be deemed ineligible to work as a contractor for New York City Department of Education [DOE]. The report was subsequently posted by SCI on its Internet site. Plaintiff then initiated a CPLR Article 78 seeking a court order compelling SCI to remove the report from its website.

Supreme Court denied the petition filed by Plaintiff and dismissed the proceeding. The Appellate Division unanimously affirmed the lower courts ruling. The Appellate Division ruling that SCI's decision not to remove the report upon Plaintiff's request was not arbitrary and capricious, citing Matter of Peckham v Calogero, 12 NY3d 424. The court also noted that the record demonstrated that SCI considered Plaintiff's "refusal to participate in its investigation, the nature of the conduct it substantiated, and the public interest in exposing the misconduct."

Thus, said the court, "[i]t was not unreasonable for SCI to conclude that [Plaintiff's] untimely rebuttal, submitted to the DOE months after it adopted SCI's recommendations, and the almost 10 years that passed from the report's publication before [Plaintiff's] current request, did not compel the report's removal," Further, said the Appellate Division,  the Special Commissioner is authorized to "issue such reports regarding corruption or other criminal activity, unethical conduct, conflicts of interest, and misconduct, that he or she deems to be in the best interest of the school district," sustaining the SCI's power to publish it report on the Internet.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2020/2020_00033.htm

Where certain disciplinary charges and specifications fail to survive judicial review the appointing authority must determine the appropriate penalty to be imposed based on the surviving charges and specifications

The Appellate Division ruled that dismissal of one or more Charges and, or, specification set out in a §75 disciplinary action required remanding the matter to the appointing authority for reconsideration of the disciplinary penalty imposed on the employee.

The appointing authority filed disciplinary charges against an employee [Petitioner] pursuant to Civil Service Law §75. Charge I consisted of six specifications alleging misconduct and, or, incompetence in connection with the Petitioner's performance in handling "911 calls" on a specified date while Charge II, consisted of five specifications, alleged misconduct and, or, incompetence in  Petitioner's handling of 911 calls on a different specified date.

After Petitioner testified concerning the "911 calls" underlying Charges I and II, the appointing authority directed a further investigation into the Petitioner's handling of other 911 calls. The findings resulting from this "further investigation" led to the appointing authority's filing "seven supplemental charges", Supplemental Charges I through and including VII against the Petitioner. Each such supplemental Charge set out multiple specifications of alleged misconduct in Petitioner's handling of these seven additional "911 calls."

The §75 disciplinary hearing officer designated by the appointing authority found Petitioner guilty of various, but not all, Charges and specifications and recommended that the Petitioner's employment be terminated given "the number and extent of his instances of misconduct and/or incompetence."

Petitioner then initiated a CPLR Article 78 action in Supreme Court seeking a judicial review the appointing authority's determination to impose the penalty of dismissal from employment. Supreme Court transferred the matter to the Appellate Division pursuant to CPLR §7804(g).

The Appellate Division explained that judicial review of an employee's Article 78 proceeding involving employee discipline made after a hearing pursuant to Civil Service Law §75 is limited to consideration of whether that determination was supported by substantial evidence. Further, the Appellate Division opined that courts may not weigh the evidence or reject the choice made by the appointing authority where the evidence is conflicting and room for choice exist, or where  different inferences may be drawn, as "the duty of weighing the evidence and making the choice rests solely upon the [appointing authority]."

Here any credibility issues were resolved by the disciplinary hearing officer. Further, substantial evidence in the record supports the determination that the Petitioner was guilty of the misconduct alleged in certain, but not all, Charges and Specifications. Here, however, the Appellate Division ruled that "specifications 3 and 4 of Charge II, and  a portion of specification 6 of Supplemental Charge VII cannot be sustained."

Concluding that the appointing authority had imposed the penalty of termination of Petitioner's employment in consideration of "all of the specifications for which he was found guilty, and [the court had dismissed] three of those specifications," the Appellate Division, citing Aronsky v Board of Educ., Community School Dist. No. 22 of City of N.Y., 75 NY2d 997, vacated the penalty of dismissal and remitted the matter to the appointing authority "to consider the appropriate penalty to be imposed upon the remainder of the charges and specifications for which he was found guilty, and the imposition of that penalty thereafter" in consideration of only the Charges and specifications that had survived judicial review.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_07582.htm