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.

 

A governmental entity may be subject to the doctrine of estoppel where the injured party has suffered manifest injustice as the result of bureaucratic confusion and deficiencies

Shortly after commencing their employment with the City of New York, the New York City Employees' Retirement System [NYCERS] placed the petitioners [Members] in this CPLR Article 78 action in the Basic Tier 4, 62/5 Retirement Plan [the 62/5 plan] which provided for retirement with full benefits at age 62 after at least 5 years of credited member service.

It was undisputed that the Members' enrollment in the 62/5 plan was in error and that the NYCERS was required by statute to enroll the Members in the Tier 4 57/5 Retirement Plan [the 57/5 plan] which Plan allows for retirement with full benefits at age 57 after at least 5 years of credited member service. The 57/5 Plan also requires greater employee contributions to the NYCERS.* The Members were in the 62/5 plan for more than 20 years, receiving annual statements from NYCERS confirming their membership in that plan.

However, in 2016 NYCERS advised the Members, then respectively 63 and 62 years of age, that their retirement plans were being changed to the 57/5 plan and that they owed additional member contributions because of their belated placement in that plan. The amount respectively due, said NYCERS was $20,198.41 and $24,346.69. This increased employee pension contributions was attributed to required contributions to the 57/5 plan that should have been deducted from their compensation since the time the Members joined NYCERS.

NYCERS also advised the Members that they could pay off their respective deficits "either in a lump sum or through periodic payroll deductions and that any unpaid balance remaining at the time of their retirement would permanently reduce their pension benefits."

The Members commenced this CPLR Article 78 proceeding seeking a court order directing NYCERS to reinstate them in their former 62/5 plan and to reimburse them for any additional pension contributions resulting from their involuntary switch into the 57/5 plan.

Supreme Court found that switching the Members from the 62/5 plan to the 57/5 plan violated Article V, §7 of the New York State Constitution. Further Supreme Court ruled that NYCERS long delay in discovering its error deprived the Members of "any opportunity to retire with full benefits before the age of 62," and it would be "an injustice to require them to make ...  payments when this benefit has been lost," notwithstanding their newly acquired 57/5 members status. NYCERS appealed the Supreme Court's decision.

The Appellate Division, agreeing with NYCERS that the Supreme Court erred in finding that switching the Members from the 62/5 plan to the 57/5 plan violated Article V, §7 of the New York State Constitution, modified the judgment of Supreme Court with respect to the Members' placement in the 57/5 plan in accordance with the applicable statute. The Appellate Division, however, sustained Supreme Court's applying the doctrine of estoppel thus requiring NYCERS to reimburse the Members for any funds collected pursuant to their placement in the 57/5 plan and barring its further collection of any such funds.

Citing Civil Serv. Empls. Assn., Local 1000, AFSCME, AFL-CIO v Regan, 71 NY2d 653 and other decisions, the Appellate Division observed that Article V, §7 "provides in pertinent part that 'membership in any pension or retirement system of the state or of a civil division thereof shall be a contractual relationship, the benefits of which shall not be diminished or impaired.'" The Appellate Division then observed that "under the New York State Constitution, '[t]he rights of public employees are . . . fixed as of the time the employee becomes a member of the system,' not at the time of retirement."

Further, opined the Appellate Division:

1. NYCERS is obligated to correct its errors and was required by statute to place the Members in the 57/5 plan;

2. The Members were never were eligible for membership in the 62/5 plan and thus were not entitled to receive benefits hereunder; and

3. The Members were required by law to be placed in the 57/5 plan from the outset of their employment and thus do not possess a constitutionally protected contractual right to be returned to the 62/5 plan.

However, the Appellate Division, noting "the extraordinary circumstances of this case," concluded that the Members had successfully established that NYCERS should be estopped from collecting additional funds resulting from their being placed in the 57/5 plan.

Although the Appellate Division conceded that "[a]s a general rule, estoppel may not be invoked against a governmental body to prevent it from performing its statutory duty or from rectifying an administrative error ... [t]his Court has invoked the doctrine of estoppel against governmental entities where ... 'misleading nonfeasance would otherwise result in a manifest injustice,' such as where the plaintiff has been the victim of bureaucratic confusion and deficiencies."

Pointing out that NYCERS' failure to discover its pension enrollment error for more than 20 years had effectively deprived the Members of any opportunity to avail themselves of the key benefit of early retirement, since they were both older than 62 when they were first advised of the NYCERS' error." The Appellate Division concluded that "[u]nder these circumstances, it would be manifestly unjust to permit NYCERS to collect additional employee contributions from the [Members] after its negligence rendered it impossible for them to obtain the primary benefit of the 57/5 plan."

The decision states that "Simply put, [NYCERS] may not negligently deny the [Members] the benefit of the 57/5 plan while simultaneously demanding from them the additional contributions associated therewith."

Sustaining that part of Supreme Court's determination stopping NYCERS from collecting such additional contributions and directing it to reimburse the Members for any such amounts it has already collected, the Appellate Division said it agreed with the Supreme Court's dismissal of NYCERS' cross motion to dismiss the Members' petition as amended.

* See Retirement and Social Security Law §604-d.

The decision is posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2020/2020_07583.htm

 

Employee terminated for continuing to address disrespectful written statements to coworkers after being told to discontinue such misconduct

A tenured faculty member [Plaintiff], after having several "guidance memoranda" placed in his personnel file concerning disrespectful written statements sent to coworkers, was served with disciplinary charges alleging similar misconduct. The arbitrator, finding that Plaintiff's conduct was unbecoming of a member of the college's faculty, imposed the penalty of a letter of reprimand to be placed in the Plaintiff's personnel file.*

Subsequently Plaintiff was denied promotion to full professor by a select committee and sent an email to committee members stating, in part, "I damn you all to hell-may your bodies and souls burn in eternal fires." 

The college filed disciplinary charges on the Plaintiff, alleging he exhibited "conduct unbecoming a staff member" and proposed his termination as the penalty to be imposed. After an administrative disciplinary hearing, the arbitrator found Plaintiff guilty of the charge and determined that the College had just cause to terminate Plaintiff's employment.

Supreme Court [1] denied the petition filed by Plaintiff  pursuant to CPLR Article 75 seeking to vacate the arbitrator's award and the penalty imposed, termination of Plaintiff's employment, and [2] granted the College's cross motion to dismiss Plaintiff's petition. 

Plaintiff appealed but the Appellate Division unanimously affirmed the Supreme Court's decision.

The Appellate Division sustained the arbitration award and penalty imposed, citing Hackett v Milbank, Tweed, Hadley and McCloy, 86 NY2d 146.

The court explained that an arbitration award may be vacated "only if the court finds that the party's rights were prejudiced by corruption, fraud or misconduct in procuring the award or the partiality of an arbitrator appointed as a neutral; where the arbitrator exceeded his or her power or so imperfectly executed it that a final and definite award was not made; or where the arbitrator failed to follow the procedure set forth in CPLR 7511(b)(1). 

Further, said the court, an arbitration award should not be vacated based on errors of law and fact nor should the court assume the role of overseers to make the award conform to the court's sense of justice.

Here, opined the Appellate Division, "the arbitrator's findings are supported by the record and are not arbitrary, capricious or irrational." 

Addressing the Plaintiff's assertion that the arbitrator was biased against him, the Appellate Division said that Plaintiff's allegation "was not supported by any evidence in the record."

As to the penalty imposed on Plaintiff, dismissal from his position, the Appellate Division acknowledged that "the penalty imposed, which may seem harsh given [Plaintiff's] lengthy and satisfactory service at the college" but, citing Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale and Mamaroneck, Westchester County, 34 NY2d 222, opined that it "was not so disproportionate to the offense as to shock the conscience."

Conceding that Plaintiff acknowledged that his email to the faculty committee members was an error in judgment, the Appellate Division, noting that Plaintiff had "received numerous prior warnings about disrespectful and intemperate writings to staff and coworkers," found that the arbitrator "reasonably concluded that a more lenient penalty was unlikely to change [Petitioner's] unprofessional conduct."

* The letter of reprimand [1] noted the findings of the arbitrator; [2] advised Plaintiff to commit to taking steps necessary to maintain a civil tone with coworkers; and [3] warned Plaintiff that additional such incidents "may lead to further disciplinary action."

** See United Fedn. of Teachers, Local 2, AFT, AFL-CIO v Board of Educ. of City School Dist. of City of N.Y., 1 NY3d 72.

Click here to access the text of the decision.