Deciding an action seeking to reinstate the Petitioner/Plaintiff's decedent to his position

Matter of O'Hara v Board of Educ., Yonkers City Sch. Dist.

2021 NY Slip Op 05703

Decided on October 20, 2021 

Appellate Division, Second Department

In a hybrid proceeding pursuant to CPLR article 78, inter alia, to review a determination of the Board of Education, Yonkers City School District, dated October 12, 2017, which terminated the petitioner/plaintiff's decedent's employment as Director of Transportation, and action pursuant to Civil Service Law §75-b, among other things, to reinstate the petitioner/plaintiff's decedent to the position of Director of Transportation, the petitioner/plaintiff appeals, and the Board of Education, Yonkers City School District, Yonkers City School District, and Luisa Erika Lassi cross-appeal, from an order and judgment (one paper) of the Supreme Court, Westchester County (George E. Fufidio, J.), dated October 31, 2018. The order and judgment, insofar as appealed from, (1) granted that branch of the motion of the Board of Education, Yonkers City School District, Yonkers City School District, and Luisa Erika Lassi which was pursuant to CPLR 3211(a) to dismiss the first cause of action, and dismissed that cause of action, and (2), in effect, dismissed the third cause of action.

The order and judgment, insofar as cross-appealed from, (1) denied that branch of the motion of the Board of Education, Yonkers City School District, Yonkers City School District, and Luisa Erika Lassi which was pursuant to CPLR 3211(a) to dismiss the second cause of action, granted that cause of action, annulled the determination, and directed that the petitioner/plaintiff's decedent be reinstated to the position of Director of Transportation as a permanent employee, with back pay and benefits, and (2) denied that branch of their motion which was to dismiss the third cause of action.

ORDERED that the order and judgment is modified, on the law, (1) by deleting the provisions thereof granting that branch of the motion of the Board of Education, Yonkers City School District, Yonkers City School District, and Luisa Erika Lassi which was pursuant to CPLR 3211(a) to dismiss the first cause of action and dismissing that cause of action, and substituting therefor a provision denying that branch of the motion, (2) by deleting the provisions thereof granting the second cause of action, annulling the determination of the Board of Education, Yonkers City School District, and directing that the petitioner/plaintiff's decedent be reinstated to the position of Director of Transportation, as a permanent employee, with back pay and benefits, and (3) by deleting the provision thereof, in effect, dismissing the third cause of action; as so modified, the order and judgment is affirmed insofar as appealed and cross-appealed from, without costs or disbursements, the first and third causes of action are reinstated, and the matter is remitted to the Supreme Court, Westchester County, for the service and filing of an answer and the administrative record within 20 days after the date of this decision and order, and for further proceedings on the petition/complaint consistent herewith.

Shelley A. O'Riley was employed by the Yonkers School District (hereinafter the school district) as its Director of Transportation. After serving in the position on a temporary basis from August 31, 2015, through November 19, 2015, and later on a provisional basis from November 20, 2015, through April 20, 2017, she was eventually appointed to the position by the Board of Education, Yonkers City School District (hereinafter the Board), on April 21, 2017. A probationary period of 26 weeks commenced upon her appointment in April 2017. On October 20, 2017, the Board terminated O'Riley's employment.

O'Riley subsequently commenced this hybrid proceeding against the Board, the school district, and Luisa Erika Lassi, in her official capacity as the Director of Transportation for the Yonkers City School District (hereinafter collectively the respondents), pursuant to CPLR article 78 and Civil Service Law §75-b, inter alia, to annul the Board's determination. In the petition/complaint, as a first cause of action pursuant to CPLR Article 78, O'Riley alleged that the Board's determination was made in violation of law and lawful procedure and was arbitrary and capricious. The second cause of action pursuant to CPLR Article 78 alleged that the Board's determination was made in bad faith and for improper reasons. In the third cause of action pursuant to Civil Service Law §75-b, O'Riley alleged that, by terminating her employment, the respondents retaliated against her after she engaged in protected activity. Prior to answering the petition/complaint, the respondents moved pursuant to CPLR 3211(a)(1) and (7) to dismiss the petition/complaint.

In an order and judgment dated October 31, 2018, the Supreme Court granted that branch of the respondents' motion which was to dismiss the first cause of action, denied that branch of the motion which was to dismiss the second cause of action, granted the second cause of action, annulled the determination, directed that O'Riley be reinstated to the position of Director of Transportation as a permanent employee, with back pay and benefits, and denied that branch of their motion which was to dismiss the third cause of action. However, the court, in effect, dismissed the third cause of action on the ground that it had been rendered academic in light of the relief granted on the second cause of action. O'Riley appeals from so much of the order and judgment as dismissed the first cause of action, and, in effect, dismissed the third cause of action. The respondents cross-appeal from so much of the order and judgment as denied that branch of their motion which was to dismiss the second cause of action, granted the second cause of action, annulled the Board's determination as arbitrary and capricious, directed that O'Riley be reinstated to the position of Director of Transportation as a permanent employee, with back pay and benefits, and denied that branch of their motion which was pursuant to CPLR 3211(a) to dismiss the third cause of action. During the pendency of the appeal, O'Riley died, and the adminstrator of her estate was substituted as appellant-respondent.

"On a motion to dismiss a petition pursuant to CPLR 3211(a)(1), the movant has the burden of providing documentary evidence that utterly refutes the petitioner's factual allegations, conclusively establishing a defense as a matter of law. On a motion to dismiss a pleading pursuant to CPLR 3211(a)(7), the factual allegations in the pleading must be deemed true, and the petitioner must be afforded the benefit of every favorable inference" (Matter of Palmore v Board of Educ. of Hempstead Union Free Sch. Dist., 145 AD3d 1072, 1073 [citations and internal quotation marks omitted]). "When evidentiary material outside the pleading's four corners is considered, and the motion is not converted into one for summary judgment, the question becomes whether the pleader has a cause of action, not whether the pleader has stated one, and unless it has been shown that a material fact as claimed by the pleader is not a fact at all, and unless it can be said that no significant dispute exists regarding it, dismissal should not eventuate" (Matter of Clavin v Mitchell, 131 AD3d 612, 614).

A probationary employee may be discharged without a hearing and without a statement of reasons (see Matter of Griffin v MTA N.Y. City Tr. Auth., 127 AD3d 1083, 1084). "However, this broad discretion is not 'unlimited'" (Matter of Lake v Town of Southold, 189 AD3d 1588, 1591, quoting Matter of Maynard v Monaghan, 284 App Div 280, 283). "The employment of a probationary employee may not be terminated 'in bad faith, for a constitutionally impermissible or an illegal purpose, or in violation of statutory or decisional law'" (Matter of Lake v Town of Southold, 189 AD3d at 1591, quoting Matter of Lane v City of New York, 92 AD3d 786, 786).

Here, the documentary evidence does not utterly refute the allegation that the termination of O'Riley's employment was not in compliance with law and lawful procedure and it does not show that she does not have a cause of action on this basis. Consequently, the Supreme Court should not have granted that branch of the respondents' motion which was to dismiss the first cause of action.

Contrary to the respondents' contention, the Supreme Court properly denied that branch of their motion which was to dismiss the second cause of action, which alleged that the Board's determination was made in bad faith and for improper reasons. The respondents argue that the Board's determination to terminate O'Riley's employment as Director of Transportation was based on her poor job performance. On the evidence submitted, O'Riley has a cause of action pursuant to CPLR Article 78, on the ground that the Board's determination was made in bad faith. The petition/complaint alleges that the determination to terminate O'Riley's employment as Director of Transportation was based on her efforts to have transportation vendors and bus monitors comply with certain laws, with which they had not been required to comply under her predecessor, which angered the Board's president and the president of the Union that represents the school district's bus monitors, both of whom held sway with the school district superintendent.

However, the Supreme Court improperly awarded O'Riley the ultimate relief sought on the second cause of action. Upon denying the respondents' pre-answer motion to dismiss, the Supreme Court should have permitted the respondents to answer the petition (see CPLR 7804[f]; Matter of NassauBOCES Cent. Council of Teachers v Board of Coop. Educ. Servs., 63 NY2d 100, 102; Matter of Irfan v Vullo, 168 AD3d 733, 734; Matter of Smiler v Board of Educ., 15 AD3d 409, 410). Accordingly, we remit the matter to the Supreme Court, Westchester County, inter alia, for the service and filing of an answer and the administrative record.

Finally, "Civil Service Law §75-b(2)(a)(ii) provides that adverse employment action may not be taken against a public employee based upon his or her disclosure of information 'which the employee reasonably believes to be true and reasonably believes constitutes an improper governmental action'" (Tipaldo v Lynn, 26 NY3d 204, 210-211, quoting Civil Service Law §75-b[2][a][ii]). In light of our determination with respect to the second cause of action, the Supreme Court improperly, in effect, dismissed the third cause of cause of action pursuant to Civil Service Law §75-b on the basis that it had been rendered academic. Moreover, on the merits, the respondents were not entitled to dismissal of the third cause of action pursuant to CPLR 3211(a), since the documentary evidence neither utterly refutes the allegation that O'Riley's employment was terminated in retaliation in violation of Civil Service Law §75-b, nor shows that she does not have a cause of action premised upon this basis (see Lilley v Greene Cent. Sch. Dist., 168 AD3d 1180, 1181).

In an appeal to the Commissioner of Education the petitioner has the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which he or she seeks relief

In this appeal to the Commissioner of Education the Petitioner [Doe]* sought the removal of a member of the Board of Education of School District [Respondent], alleging that the Respondent violated Doe's right to gainful employment and his right as a public employee to “engage in political discourse” on several occasions, including during [a] board meeting.  Doe "generally claims that Respondent "has harassed him since he was elected president of a local branch of the National Association for the Advancement of Colored People in 2015 and referenced several incidents between July 2018 and the spring of 2019 which allegedly demonstrate [Respondent's] disparate treatment of African American employees.:

In addition, Doe argued that Respondent “intentionally and wrongfully” divulged confidential information learned in an executive session [of the Board] while the executive session was ongoing."  

For relief, petitioner requests that respondent be removed as a trustee.  Petitioner also requests that respondent be ordered to comply with board policies, the New York State Constitution, and her oath of office. 

Addressing a number of procedural issues, the Commissioner opined:

1. Most of Doe's claims "must be dismissed as untimely", explaining that an appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown, citing 8 NYCRR §275.16.

2. An appeal to the Commissioner pursuant to Education Law §310—or, in this instance, Education Law §306—is not an appropriate forum to adjudicate claims of unlawful employment discrimination and retaliation and such claims “are more appropriately resolved by a fair employment practice agency or a court of competent jurisdiction,” citing Appeal of Moss and Sealy, 60 Ed Dept Rep, Decision No. 18,001.

Turning to the merits of Doe's appeal, the Commissioner said a member of a board of education, as a public officer, takes an oath of office to uphold the law and faithfully discharge his or her duties and a board member must not “disclose confidential information acquired by him [or her] in the course of his [or her] official duties or use such information to further his [or her] personal interests." Further, noted the Commissioner, "It is well settled that a board member's disclosure of confidential information in violation of General Municipal Law §805-a (1) (b) may constitute grounds for such board member's removal from office pursuant to Education Law §306, citing Application of Bd. of Educ. of the City Sch. Dist. of the City of Buffalo, 57 Ed Dept Rep, Decision No. 17,147 and other Decisions of the Commissioner of Education.

That said, the Commissioner noted that in a removal application or an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which he or she seeks relief. Doe, said the Commissioner, did not meet his burden of proving that Respondent disclosed confidential information learned in the course of her duties as a board member.

* Given the confidential nature of the Part 83 referral [Moral Character Actions] described herein, Petitioner has been assigned a pseudonym, Doe.  [See Appeal of Doe, 56 Ed Dept Rep, Decision No. 17,109.]

Click HERE to access the opinion of the Commissioner.

Challenging Adverse Personnel Decisions -

A 766-page E-book focusing on appealing penalties imposed following disciplinary action, adverse performance ratings, probationary terminations and the denial of unemployment insurance benefits initiated by officers and employees of New York State as an employer and its political subdivisions. For more information about this electronic handbook click HERE.

Appealing a decision of the Workers' Compensation Board denying claimant's request to reopen or rehear a prior Board decision

The Appellate Division reversed a decision by the Workers' Compensation Board which denied the claimant's [Claimant] request to reopen or rehear a prior decision.

Whether to grant an application for reopening or rehearing in the interest of justice is a matter left to the Board's discretion and Appellate Division's review of that decision is limited to whether there was an abuse of that discretion by the Board. In this instance the court found that such discretion was abused by the Board.

The court explained, "Notably, while the Board is free to reject the opinion of an expert where it finds such to be unconvincing or incredible, it may not reject an uncontradicted opinion that is properly rendered." Because the only medical opinion before the Board clearly reflects that claimant suffered a 35% SLU of the left shoulder, the Appellate Division found that the Board's denial of the application to reopen the claim to modify the decision in the interest of justice was an abuse of discretion.

Click HERE to access the full text of the court's decision.

Former town tax collector pleads guilty to offering a false instrument for filing in connection with pension fraud scheme

On November 5, 2021, State Comptroller Thomas P. DiNapoli and Orange County District Attorney David M. Hoovler announced that the former Town of Bethel, Sullivan County, Tax Collector,  Debra Gabriel, pleaded guilty before Judge Peter Feinberg in the Town of Rockland Justice Court to Offering a False Instrument for Filing in the Second Degree, in connection with a scheme to defraud the New York State and Local Retirement System.  Gabriel, 62, had resigned her public office and retired in August 2020.

The case against Gabriel is being prosecuted by Orange County District Attorney David Hoovler, appointed to serve as Special Prosecutor and Orange County Assistants District Attorney Peter Fernandez, Matthew Healy and Pakiza Sajid.

At the time that she pleaded guilty, Gabriel admitted having submitted a false "Record of Activity" with the Town of Bethel for filing with the State Comptroller.  Records of Activity are documents in which certain appointed or elected officials must record a daily detail of their hours worked and duties and certify their accuracy. The information is used to calculate their service time for retirement benefits.

An investigation of Gabriel’s Records of Activity conducted by the New York State Comptroller’s Office and the New York State Police revealed that from April 1, 2009 to Aug.  31, 2019, she falsely claimed credit for full-time work for the Town of Bethel when her actual hours were far less. For example, in 2018 and 2019, she had a full-time job with a private healthcare company, while claiming to also have worked full-time as a Tax Collector for Bethel. Her false claims increased her service credit toward retirement by more than seven years, according to Comptroller DiNapoli.

Gabriel turned over a certified check in the amount of $6,377.46 to prosecutors from the Orange County District Attorney’s Office as restitution to the State of New York for the amount of pension benefits that she was overpaid.

“Ms. Gabriel, as tax collector, was responsible for overseeing the collection of revenue for the town while at the same time she regularly filed false statements with the New York State and Local Retirement System to commit fraud,” said Comptroller DiNapoli. “Now, thanks to my partnership with District Attorney Hoovler and the New York State Police, she has been convicted and repaid the money she stole.”

District Attorney Hoovler thanked the New York State Comptroller’s Office and New York State Police for their investigation and the arrest of the defendant.  

“I thank State Comptroller DiNapoli for all the work his office did in this investigation, as well as the New York State Police who aided in the investigation and arrested the defendant,” said District Attorney David M. Hoovler. “Thefts of public monies are always serious. One of the benefits of public service is the ability to obtain a pension. Those funds will simply not be available to those who earned them if fraudulent practices are tolerated.”