Courts apply the substantial evidence standard when considering a challenge to the penalty imposed following a disciplinary action

A police detective [Plaintiff] was terminated from his position after being found guilty of possessing and ingesting methamphetamine. The Appellate Division found that there was substantial evidence in the record supporting the finding that Petitioner possessed and ingested methamphetamine.

Noting that "[T]hree samples of hair from [Plaintiff's] [leg] were subjected to repeated testing by independent laboratories and yielded positive results," the court opined that to the extent there were conflicting expert opinions as to the efficacy of drug testing using hair, as well as character witness testimony tending to show that petitioner did not use drugs, "courts may not weigh the evidence or reject the choice made" by the hearing officer to accept or reject particular testimony.

As to the penalty imposed, dismissal from his position, the Appellate Division said it found "no grounds" to vacate the penalty as "[t]he [appointing authority's] dismissal of a police officer for using illegal drugs is not so disproportionate to the offense as to be shocking to one's sense of fairness."

Rejecting Petitioner's contention that the employer "failed to apply the preponderance of the evidence standard," the Appellate Division observed that its review "is limited to a consideration of whether [the penalty imposed] was supported by substantial evidence upon the whole record," citing 300 Gramatan Ave. Assoc., 45 NY2d at 181.

Click here to access the text of the Appellate Division's decision

 

Applying the three-step burden-shifting framework established in McDonnell Douglas Corp. followed where the plaintiff lacks direct evidence of discriminatory conduct

Under the McDonnell Douglas Corporation* three-step shifting framework used in evaluating a Title VII discrimination complaints, the plaintiff must first establish a prima facie case of discrimination, which then shifts the burden to the employer to come forward with a legitimate, nondiscriminatory reason for the adverse employment action. If the employer provides such a justification, the plaintiff must present evidence from which a reasonable jury could find that the employer’s explanation is a pretext for intentional discrimination.

In this case the U. S. Court of Appeals, Second Circuit, assuming that the Plaintiff had established a prima facie case of unlawful discrimination within the meaning of Title VII, found that the record showed that the employer "proffered legitimate reasons for the various employment actions" the Plaintiff challenged as discriminatory and that the Plaintiff failed to present sufficient evidence from which a jury could find pretext.

Citing Schnabel v. Abramson, 232 F.3d 83, the Circuit Court explained that at the third step of the McDonnell Douglas framework, the court's task is to “examin[e] the entire record,” using a case-specific approach, “to determine whether the plaintiff could satisfy his ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff.” To satisfy this requirement, the plaintiff must produce enough evidence "to support a rational finding not only that the employer’s nondiscriminatory reasons were false but also 'that more likely than not discrimination was the real reason for the' employment actions."

Finding that the overall record showed that:

1. Plaintiff’s subordinates lodged repeated complaints against him over the course of several years;

2. Plaintiff was consistently combative and defiant toward his superiors; and

3. Plaintiff was unwilling to incorporate constructive feedback in response to his performance reviews over that time.

The Circuit Court opined that assuming it could be argued that Plaintiff in this action presented some evidence of pretext, "the record, taken as a whole, does not permit a reasonable trier of fact to find that 'the most likely alternative explanation' for his termination was [unlawful] discrimination."

Noting that a plaintiff is not guaranteed a trial merely because he can satisfy a prima facie case and can adduce “evidence that arguably would allow a reasonable factfinder to conclude that [the employer’s] explanation . . . is false”, in this instance Plaintiff failed to demonstrate “weaknesses, implausibilities, inconsistencies, or contradictions in the employer's proffered legitimate, nonretaliatory reasons for its action.”

In the words of the court, "there can be no question that [the Employer] proffered legitimate, non-retaliatory reasons for disciplining and ultimately terminating [Plaintiff]" and based on the totality of the record, the Circuit Court of Appeals said it agreed with the federal district court that "a rational jury could not find that retaliation was the but-for cause of the actions taken against [Plaintiff]."

* McDonnell Douglas Corp.v. Green, 411 U.S. 792.

Click here to access the text of the decision.

 

Attendance and Leave information for officers and employees of New York State as the employer

The leave benefits available to Executive Branch State Officers and Employees in the Classified Service are contained in the Attendance Rules for Employees in New York State Departments and Institutions, attendance and leave provisions of the relevant collective bargaining agreements negotiated with State employee organizations, and related laws, rules and regulations. 

These Attendance Rules and the other attendance and leave provisions referred to above apply to officers and employees of the State of New York as the employer*  and, as provided by 4 NYCRR 1.1, "Except as otherwise specified in any particular rule, these rules shall apply to positions and employments in the classified service of the State and public authorities, public benefit corporations and other agencies for which the New York State Civil Service Law is administered by the New York State Department of Civil Service."

N.B. Civil service commissions of political subdivisions of the State of New York and Personnel Officers appointed pursuant to New York State Civil Service Law §15.1(b) or §15.1(d) may have promulgated or adopted similar provisions applicable to public officers and employees employed in positions under their jurisdiction.

The information listed below has been posted on the Internet by the New York State Department of Civil Service. The New York State Attendance and Leave Manual is the official published description of the manner in which leave benefits are to be administered. Links to the Manual and other relevant information concerning attendance and leave issues, and calendars of legal holidays, are set out below.

Click here to access the  New York State Attendance and Leave Manual posted on the Internet. 

Memoranda of special note posted by the New York State Department of Civil Service are listed below. Click on text in colorto access the particular information of interest.

Family Medical Leave Act

Military Leave Related Memoranda

 

Recent Memoranda and Bulletins posted on the Internet by the New York State Department of Civil Service.

Click on text in colorto access the particular information of interest.

Policy Bulletin No. 2020-06, Implementation of the Productivity Enhancement Program for 2021

Policy Bulletin No. 2020-05, Clarification of Policy Bulletin 2020-01 and 2020-04

Policy Bulletin No. 2020-04, Clarification of Policy Bulletin 2020-01, entitled Guidance Related to Recent State and Federal Law and Policy Changes Due to COVID-19

Policy Bulletin No. 2020-03, Executive Order Recognizing Juneteenth as a Holiday for State Employees - June 19, 2020

Advisory Memorandum No. 2020-04, Designation of Floating Holidays in lieu of Election Day and Lincoln's Birthday for Contract Year 2020–2021

Advisory Memorandum No. 2020-03, Independence Day—July 4, 2020

Policy Bulletin No. 2020-02, Time Off to Vote

Policy Bulletin No. 2020-01, Guidance Related to Recent State and Federal Law and Policy Changes Due to COVID-19

Advisory Memorandum No. 2020-02, Memoranda of Understanding on Extension of Special Military Benefits and Post-Discharge Benefits through December 31, 2020

Advisory Memorandum No. 2020-01, Special Holiday Waiver Memoranda of Understanding for Security Supervisors Unit (SSpU), Security Services Unit (SSU), and Agency Police Services Unit (APSU)

Policy Bulletin No. 2019-05, Implementation of the Productivity Enhancement Program for 2020

Policy Bulletin No. 2019-04, Attendance and Leave Item - 2016-2023 State-NYSCOPBA Negotiated Agreement

Advisory Memorandum No. 2019-03, Designation of Floating Holidays in Lieu of Election Day and Lincoln's Birthday for Contract Year 2019-2020

Transmittal Memorandum No. 45, 2020 Calendar of Legal Holidays and Days of Religious Significance

Policy Bulletin No. 2019-03, Implementation of Paid Family Leave Benefits for Rent Regulation Services Unit Employees

Advisory Memorandum No. 2019-02, Special Holiday Waiver Memoranda of Understanding for Security Supervisors Unit (SSpU), Security Services Unit (SSU), and Agency Police Services Unit (APSU)

Policy Bulletin No. 2019-01, Military Leave for Combat Related Health Care Services

Advisory Memorandum No. 2019-01, Memoranda of Understanding on Extension of Special Military Benefits and Post-Discharge Benefits through December 31, 2019

Policy Bulletin No. 2018-05, Implementation of the Productivity Enhancement Program for 2019

Policy Bulletin No. 2018-04, Line of Duty Sick Leave Related to World Trade Center Conditions

Policy Bulletin No. 2018-03, Attendance and Leave Items in the 2016-2021 Negotiated Agreements Between the State of New York and CSEA for Employees in the Administrative Services Unit (ASU), Institutional Services Unit (ISU), Operational Services Unit (OSU) and the Division of Military and Naval Affairs (DMNA)

Policy Bulletin No. 2018-02, Leave for Cancer Screening

 

Information posted on the Internet by the New York State Department of Civil Service for the calendar years indicated:

2020

2019

2018

2017

2016

2015

2014

2013

2012

2011

2010

2009

2008

2007

2006

2005

2004

2003

2002

2001

2000

 

Calendars of Legal Holidays

2021

2020

2019

* Although not all employees of the State are "state officers," all officers of the State are State employees.

Questions concerning attendance and leave issues? Call (518) 457-2295.

 

Challenging a school board's approving the cost of providing for the defense and indemnification of board members and district officers in an appeal to the Commissioner of Education

The Applicant [Petitioner] in this appeal to the Commissioner of Education, among other things, challenged the school board's approval of resolutions to pay for the cost of the defense and indemnification of certain members of the school board and district officers in connection with prior appeals under Education Law §310. Interim Commissioner of Education Betty A. Rosa said the Petitioner's application must be denied and the appeal must be dismissed.

Petitioner had filed several prior appeals and applications involving various school district officers and the school board had voted to provide for the defense and the indemnification of the district officers in such prior appeals. Petitioner, in the instant appeal, contended that the school board had "improperly authorized the defense and indemnification of 'individuals who do not possess certificates of good faith', because the indemnified officers failed to notify the board of the commencement of the proceedings against them within five days as required by Education Law §3811(1)."

The Commissioner initially addressed some procedural issues and ruled:

1. The Petitioner's applications concerning the board's authorization for "defense and indemnification" in three of the four events must be dismissed as untimely* as they were not commenced "within 30 days from the making of the decision or the performance of the act complained of" by the school board and the Applicant failed to show "good cause" for the Commissioner to excuse such delay; and

2. Petitioner's application to remove certain school officers from their positions was untimely as a removal application must be commenced within 30 days of the petitioner’s good faith discovery of the misconduct alleged in the application even though the alleged misconduct occurred "more than 30 days before the application was instituted."

Turning to the merits of Petitioner’s several challenges to the school board's actions concerning providing for the defense and indemnification of district officers, the Commissioner said that a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief. Further, explained the Commissioner, Education Law §3811 requires a board of education to defend and indemnify school board members, officers and employees if: 

(1) The targets of the petitioner's appeal notify the board in writing of the commencement of an action or proceeding against them within five days after service of process;

(2) The action or proceeding arises out of the exercise of their powers or the performance of their duties; and

(3) A court or the Commissioner, as the case may be, certifies that they appeared to act in good faith with respect to the exercise of their powers or the performance of their duties.

Further, said the Commissioner, Public Officers Law §18(3) provides for defense and indemnification "in any civil action or proceeding arising out of any alleged act or omission which occurred or allegedly occurred while a public employee was acting within the scope of his or her employment or duties, so long as he or she: 

(1) provides a written request for defense along with copies of the relevant pleadings within 10 days of service of such pleadings upon the employee; and 

(2) cooperates fully in his or her defense. 

Public Officers Law §18, however, contains no requirement that a public employee obtain a certificate of good faith to avail him or herself of its protections.

Citing Matter of Scimeca v. Brentwood Union Free Sch. Dist., 140 AD3d 1174, the Commissioner opined that "once adopted by a public entity," Public Officers Law §18 normally becomes the exclusive source of a public employee’s defense and indemnification rights, "unless the governing body of such public entity has provided that [the] benefits [of Public Officers Law §18] shall supplement, or be in addition to, defense or indemnification protection conferred by another enactment.”

Finding that the school board has adopted a board policy which “recognizes” the board’s duty to defend and indemnify district officers under Education Law §3811 and additionally “confers” upon district officers the benefits of Public Officers Law §18, the Commissioner concluded that Petitioner’s reliance on the argument that Education Law §3811 is "the only vehicle for the board to authorize the defense and indemnification of district officers" was misplaced. 

The Commissioner noted that Petitioner claimed that providing for the defense and indemnification of the relevant officials was improper "because the indemnified officers did not obtain certificates of good faith."  However, said the Commissioner, such certification is not required to be defended or indemnified pursuant to Public Officers Law §18. 

Accordingly, the Commissioner ruled that Petitioner has failed to prove that any aspect of the board’s December 19, 2019 vote to approve the defense and indemnification of district officers was unwarranted or improper under Public Officers Law §18.  

Additionally, with respect to Education Law §3811, the Commissioner said she "took notice" that the record indicated the officers requested that the Commissioner certify, pursuant to Education Law §3811, that they acted in good faith and thus complied with Education Law §3811 with respect to the underlying appeals.

Turning to Petitioners’ application for removal of certain school board members and school officers, the Commissioner explained that "A member of the board of education or a school officer may be removed from office pursuant to Education Law §306 when it is proven to the satisfaction of the Commissioner that the board member or school officer has engaged in a willful violation or neglect of duty under the Education Law or has willfully disobeyed a decision, order, rule or regulation of the Board of Regents or Commissioner of Education." 

In the words of the Commissioner, " ... [P]etitioner has not proven a violation of Education Law §3811 or any other act pertaining to common schools, let alone a willful violation of such laws" and denied Petitioner's application for such removals.

Noting the "multiplicity of appeals and applications" filed by Petitioner over a short period of time, the Commissioner observed that "Although [Petitioner] retains a right to commence proceedings under Education Law §310 and Education Law §306, I caution [Petitioner] that such proceedings should not be used to harass school district officers or employees.  Additionally, I remind [Petitioner] that he bears the burden of proving any alleged wrongdoing and that an appeal pursuant to Education Law §310 or an application for removal under Education Law §306 will not succeed on bald assertions alone."

* The Commissioner explained that while Petitioner timely commenced the fourth proceeding within 30 days of the board’s December 19, 2019 vote, his challenges to the three earlier votes must be dismissed as untimely.

Click here to access the full text of this decision.