The doctrine of res judicata bars considering claims that could have been advanced in an earlier administrative disciplinary hearing in the course of subsequent litigation

Although the Appellate Division held that the Plaintiff's breach of contract claims against the New York City Department of Education [DOE] was properly dismissed for failure to serve a notice of claim within three months of claim accrual, citing Fifty CPW Tenants Corp. v Epstein, 16 AD3d 292, the court further observed that these breach of contract claims against DOE were all related to Plaintiff's termination. As Plaintiff's breach of contract claims  "... were litigated, or could have been litigated in his Education Law §3020-a hearing or his proceeding to vacate the arbitration award," the Appellate Division ruled that the claims were barred by the doctrine of res judicata."

Addressing Plaintiff's complaint that his collective bargaining representative, the United Federation of Teachers [UFT], failed to properly represent him during his Education Law §3020-a disciplinary proceedings, the Appellate Division noted that UFT's alleged failure "to properly represent" Plaintiff occurred almost a year before he had commenced the instant litigation. The court explained that the applicable statute of limitations was "four months from the date the [Plaintiff] knew or should have known that such breach occurred," and thus it was untimely. 

Further, opined the Appellate Division, "[c]haracterizing a claim for breach of the duty of fair representation as one for breach of contract is unavailing to avoid the four-month limitations period," citing Roman v City Empls. Union Local 237, 300 AD2d 142, lv denied 100 NY2d 501.

In addition, the Appellate Division noted that Plaintiff's claim was based on an alleged breach of contract based on Plaintiff's representation that UFT failed to offer him opportunities to "participation in certain remediation programs during the 2008-09, 2009-10, and 2010-11 school years." As this issue related to Plaintiff's §3020-a disciplinary hearings, the court said the claim was subject to a six-year statute of limitations and thus it would run, at the latest, only until 2017.

The Appellate Division unanimously affirmed Supreme Court's ruling granting DOE's and UFT's motions to dismiss Plaintiff's complaint.

The decision is posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2020/2020_07516.htm

 

Emergency Medical Technician found guilty of disciplinary charges alleging that he addressed vulgar language to a triage nurse is suspended without pay

The New York City Fire Department [Department] served disciplinary charges on an Emergency Medical Technician [EMT] alleging that the EMT used vulgar language in the course of his responding to a work-related question posed by a hospital triage nurse in violation of Department rules. This, the Department contended, "created a hostile work environment."

At the disciplinary hearing that followed, the Department presented documentary evidence and testimony given by the EMT's coworker and a nurse who had overheard the EMT's response to the triage nurse. The EMT testified that he did not recall the incident but did not challenge the charge in the light of the testimony of the Department's witnesses.

OATH Administrative Law Judge Ingrid M. Addison found the EMT guilty of violating five of the six rules he was alleged to have violated and recommended that the EMT be suspended from his employment without pay for 45 day.

Then Judge Addison, noting that EMT's misconduct was based on a single incident, opined that imposing "a single penalty" was appropriate under the circumstances and so recommended to the Department.

The decision is posted on the Internet at http://archive.citylaw.org/wp-content/uploads/sites/17/oath/20_cases/20-1798.pdf

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Prosecuting a claim of "employer retaliation" allegedly based on an employee's having exercised his federal Family Medical Leave Act rights

The federal Family Medical Leave Act, 29 U.S.C. §2612(a)(1)(C), [FMLA] entitles eligible employees to twelve workweeks of unpaid leave per year “to care for [a] spouse, or a son, daughter, or parent . . . , if such spouse, son, daughter, or parent has a serious health condition.”

The FMLA prohibits an employer from interfering with an employee’s exercise of this entitlement or retaliating against an employee for exercising this entitlement.* 

In this action the U.S. Circuit Court of Appeals, Second Circuit, distinguished between prosecuting claims of “interference” and claims of “retaliation” under the FMLA as follows:

a. An employee typically brings an “interference” claim when the employer allegedly has prevented or otherwise impeded the employee’s ability to exercise rights under the FMLA, characterized as ex ante FMLA protection; and

b. “Retaliation” claims, in contrast, typically involve an employee, having actually exercised his FMLA rights or opposed perceived unlawful conduct within the meaning of the FMLA, subsequently alleges that he was subjected to some adverse employment action by the employer. This is characterized as ex post FMLA protection.

To establish a prima facie case of interference with FMLA rights, a plaintiff must demonstrate that:

(1) Plaintiff is an eligible employee for FMLA leave within the meaning of the FMLA;

(2) The defendant is an employer as defined by the FMLA;

(3) Plaintiff was entitled to take leave under the FMLA

(4) Plaintiff gave notice to the defendant of her intention to take leave; and

(5) Plaintiff was denied benefits to which she was entitled under the FMLA.

In contrast, to establish a prima faciecase of retaliation within the meaning of the FMLA, the plaintiff must demonstrate that:

(1) Plaintiff “exercised rights protected under the FMLA”; 

(2) Plaintiff“was qualified for [the] position”; 

(3) Plaintiff “suffered an adverse employment action”; and 

(4) “the adverse employment action occurred under circumstances giving rise to an inference of retaliatory intent.”

Courts test FMLA retaliation claims under the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, whereby upon the plaintiff's making a prima facie case of retaliation the burden shifts to the employer to demonstrate action was not in the nature of retaliation but made for legitimate business reasons. 

Then, as the court held in Weinstock v. Columbia Univ., 224 F.3d 33, if the employer demonstrates that the action taken was for "a legitimate business reason," the burden of going forward then shifts back to the plaintiff, who "must then show that [the employer's] proffered explanation is pretextual.” A plaintiff may satisfy this burden “by demonstrating weaknesses, implausibilities, inconsistencies, or contradictions in the employer’s proffered” reason, or by providing evidence such that "a reasonable fact finder could conclude that the prohibited reason was a motivating factor in the adverse employment action."

* See Woods v. START Treatment & Recovery Ctrs., Inc., 864 F.3d 158

Click here to access the text of the Circuit Court's decision.