ARTIFICIAL INTELLIGENCE IS NOT USED, IN WHOLE OR IN PART, IN THE SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS PREPARED BY NYPPL

June 03, 2022

Seeking to recover damages for alleged employment discrimination in violation of the New York State Human Rights Law and the New York City Human Rights Law

 

Blackman v Metropolitan Tr. Auth.

2022 NY Slip Op 03490

Decided on June 1, 2022

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on June 1, 2022 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
BETSY BARROS, J.P.
CHERYL E. CHAMBERS
ROBERT J. MILLER
DEBORAH A. DOWLING, JJ.


2019-09440
(Index No. 502489/14)

[*1]Michelle Blackman, respondent,

v

Metropolitan Transit Authority, et al., defendants, New York City Transit Authority, et al., appellants.




David I. Farber (Steve S. Efron, New York, NY, of counsel), for appellants.

The Clancy Law Firm, P.C. (Niall MacgiollabhuĂ­, New York, NY, of counsel), for respondent.

 

DECISION & ORDER

In an action, inter alia, to recover damages for employment discrimination in violation of the New York State Human Rights Law and the New York City Human Rights Law, the defendants New York City Transit Authority, Thomas P. Latimer, and Christopher Johnson appeal from an order of the Supreme Court, Kings County (Katherine A. Levine, J.), dated July 8, 2019. The order, insofar as appealed from, in effect, denied those branches of those defendants' motion which were for summary judgment dismissing the first, third, fifth, seventh, ninth, eleventh, and twelfth causes of action insofar as asserted against them.

ORDERED that the order is modified insofar as appealed from, on the law, by deleting the provisions thereof, in effect, denying those branches of the motion of the defendants New York City Transit Authority, Thomas P. Latimer, and Christopher Johnson which were for summary judgment dismissing the fifth, seventh, ninth, eleventh, and twelfth causes of action insofar as asserted against them, and substituting therefor provisions granting those branches of the motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

The plaintiff, an African-American female, was employed by the defendant New York City Transit Authority (hereinafter the NYCTA). In March 2014, the plaintiff commenced this action, inter alia, to recover damages for employment discrimination on the basis of race in violation of the New York State Human Rights Law (Executive Law art 15; hereinafter NYSHRL) and the New York City Human Rights Law (Administrative Code of City of NY § 8-101 et seq.; hereinafter NYCHRL). The complaint asserted causes of action to recover damages for discrimination in hiring (first cause of action), discrimination in promotion (third cause of action), constructive discharge and hostile work environment (fifth cause of action), discrimination based on disparate impact (seventh cause of action), aiding and abetting discrimination against the defendants Thomas P. Latimer and Christopher Johnson (ninth cause of action), and breach of contract (eleventh and twelfth causes of action).

Thereafter, the NYCTA, Latimer, and Johnson (hereinafter collectively the defendants) moved for summary judgment dismissing the complaint insofar as asserted against them. In an order dated July 8, 2019, the Supreme Court, among other things, in effect, denied those [*2]branches of the motion which were for summary judgment dismissing the first, third, fifth, seventh, ninth, eleventh, and twelfth causes of action insofar as asserted against the defendants. The defendants appeal.

The NYSHRL and the NYCHRL prohibit discrimination in employment on the basis of race (see Golston-Green v City of New York, 184 AD3d 24, 34). "To establish a prima facie case of discrimination on the basis of race under the NYSHRL, a plaintiff must demonstrate that (1) the plaintiff is a member of a protected class, (2) the plaintiff was qualified to hold the position, (3) the plaintiff suffered an adverse employment action, and (4) the adverse action occurred under circumstances giving rise to an inference of discrimination" (Ellison v Chartis Claims, Inc., 178 AD3d 665, 667; see Forrest v Jewish Guild for the Blind, 3 NY3d 295, 305; Bilitch v New York City Health & Hosps. Corp., 194 AD3d 999, 1001). To prevail on a summary judgment motion in an action alleging discrimination in violation of the NYSHRL, "a defendant must demonstrate either the plaintiff's failure to establish every element of intentional discrimination, or, having offered legitimate, nondiscriminatory reasons for the challenged actions, the absence of a triable issue of fact as to whether the explanations were pretextual" (Reichman v City of New York, 179 AD3d 1115, 1117 [internal quotation marks omitted]; see Bilitch v New York City Health & Hosps. Corp., 194 AD3d at 1001).

Here, the Supreme Court properly determined that there were triable issues of fact as to whether the defendants' proffered explanations for not hiring or promoting the plaintiff to a certain position, and for, instead, promoting a white woman to that position, were a pretext for intentional racial discrimination (see Lefort v Kingsbrook Jewish Med. Ctr., 203 AD3d 708; Reichman v City of New York, 179 AD3d at 1117; see also Bilitch v New York City Health & Hosps. Corp., 194 AD3d at 1001).

Moreover, the defendants failed to demonstrate their prima facie entitlement to judgment as a matter of law dismissing the claims of employment discrimination based on race in violation of the NYCHRL. The defendants failed to establish, prima facie, "that there was no evidentiary route that could allow a jury to find that discrimination on the basis of [race] played a role in their challenged actions" (Reichman v City of New York, 179 AD3d at 1118). The defendants' contention that the NYCTA is exempted from the requirements of the NYCHRL is without merit (see Tang v New York City Tr. Auth., 55 AD3d 720, 720-721).

Accordingly, the Supreme Court properly denied those branches of the defendants' motion which were for summary judgment dismissing the first cause of action, alleging discrimination in hiring, and the third cause of action, alleging discrimination in promotion.

However, the Supreme Court should have granted that branch of the defendants' motion which was for summary judgment dismissing so much of the fifth cause of action as alleged constructive discharge. "An employee is constructively discharged when her or his employer, rather than discharging the plaintiff directly, deliberately created working conditions so intolerable that a reasonable person in the plaintiff's position would have felt compelled to resign" (Golston-Green v City of New York, 184 AD3d at 44; see Nelson v HSBC Bank USA, 41 AD3d 445, 447). Here, the defendants established, prima facie, that the plaintiff's complaints were insufficient to show an intolerable work environment that would lead a reasonable person in that position to feel compelled to resign (see Best v Peninsula N.Y. Hotel Mgt., 309 AD2d 524, 524-525; Petrosino v Bell Atl., 385 F3d 210, 231). In opposition, the plaintiff failed to raise a triable issue of fact.

The Supreme Court also should have granted that branch of the defendants' motion which was for summary judgment dismissing so much of the fifth cause of action as alleged a hostile work environment. A hostile environment claim "involves repeated conduct," not "[d]iscrete acts such as termination, failure to promote, denial of transfer, or refusal to hire" (National Railroad Passenger Corporation v Morgan, 536 US 101, 114). Here, the two discrete acts alleged by the plaintiff were insufficient to create a hostile work environment (see Murphy v Department of Educ. of the City of N.Y., 155 AD3d 637, 639-640; Holtz v Rockefeller & Co., 258 F3d 62, 75 [2d Cir]).

The Supreme Court should have granted that branch of the defendants' motion which was for summary judgment dismissing the ninth cause of action, alleging aiding and abetting discrimination (see Strauss v New York State Dept. of Educ., 26 AD3d 67, 73). The court should have granted those branches of the defendants' motion which were for summary judgment dismissing the eleventh and twelfth causes of action, alleging breach of contract, since the plaintiff abandoned those causes of action by failing to address them in opposition to the defendants' motion (see Elam v Ryder Sys., Inc., 176 AD3d 675, 676). Finally, the court should have granted that branch of the motion which was for summary judgment dismissing the seventh cause of action, alleging discrimination based on disparate impact, as the plaintiff also abandoned that cause of action.

BARROS, J.P., CHAMBERS, MILLER and DOWLING, JJ., concur.

ENTER:

Maria T. Fasulo

Clerk of the Court

Arbitration award vacated and the matter remanded for a rehearing and a new determination before a different arbitrator

  

Matter of Ventillo v County of Rockland Sheriff's Dept.

2022 NY Slip Op 03521

Decided on June 1, 2022

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on June 1, 2022 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
HECTOR D. LASALLE, P.J.
SHERI S. ROMAN
LINDA CHRISTOPHER
DEBORAH A. DOWLING, JJ.


2018-14993
(Index No. 34561/18)

[*1]In the Matter of Ranolfo Ventillo, respondent,

v

County of
Rockland Sheriff's Department, appellant.




Saretsky Katz & Dranoff, LLP, New York, NY (Robert B. Weissman of counsel), for appellant.

Law Office of Frank M. Graziadei, P.C., New York, NY (Peter B. Fallon of counsel), for respondent.

 

DECISION & ORDER

In a proceeding pursuant to CPLR article 75 to vacate an arbitration award dated June 4, 2018, the County of Rockland Sheriff's Department appeals from an order of the Supreme Court, Rockland County (Paul I. Marx, J.), dated December 10, 2018. The order granted the petition to vacate the award and remitted the matter for a rehearing and a new determination before a different arbitrator.

ORDERED that the order is affirmed, with costs.

On April 26, 2016, the County of Rockland Sheriff's Department (hereinafter the RCSD) suspended the petitioner, Ranolfo Ventillo, from his employment as a correction officer without pay based upon conduct which was alleged in certain criminal charges that had been brought against him. Ventillo, through the Correction Officers Benevolent Association of Rockland County (hereinafter the Union), filed a grievance protesting the suspension and demanded a disciplinary arbitration pursuant to the Union's collective bargaining agreement with the County of Rockland. Ventillo was subsequently acquitted of the criminal charges on June 30, 2017, after a jury trial.

At the scheduled hearing date of January 24, 2018, Ventillo's counsel sought to be relieved due to a conflict of interest and requested that the hearing be adjourned. Ventillo did not appear at the January 24, 2018 hearing date due to an unspecific work emergency. The arbitrator granted counsel's request to be relieved but did not grant counsel's request for an adjournment, and allowed the RCSD to proceed with the hearing on that date and elicit testimonial evidence from two witnesses without the presence of Ventillo or counsel. The hearing was continued on four additional dates in the absence of Ventillo and counsel, despite Ventillo's repeated request for an adjournment to obtain new counsel. Thereafter, by arbitration award dated June 4, 2018 (hereinafter the arbitration award), the arbitrator, inter alia, sustained the disciplinary charges and found that just cause existed to terminate Ventillo's employment with the RCSD.

On July 27, 2018, Ventillo commenced this proceeding pursuant to CPLR article 75 to vacate the arbitration award. In an order dated December 10, 2018, the Supreme Court granted the petition and remitted the matter for a rehearing and a new determination before a different arbitrator. The RCSD appeals, and we affirm.

"'Judicial review of arbitration awards is extremely limited'" (Matter of City of Middletown v Weissinger, 188 AD3d 670, 671, quoting Kotlyar v Khlebopros, 176 AD3d 793, 795). "However, '[p]recisely because arbitration awards are subject to such judicial deference, it is imperative that the integrity of the process, as opposed to the correctness of the individual decision, be zealously safeguarded'" (Marracino v Alexander, 73 AD3d 22, 26, quoting Matter of Goldfinger v Lisker, 68 NY2d 225, 231). An arbitration award may be vacated pursuant to CPLR 7511(b)(1)(iv) on the ground that a party's rights were prejudiced by the "failure to follow the procedure of [CPLR article 75], unless the party applying to vacate the award continued with the arbitration with notice of the defect and without objection." As part of the procedure set forth in CPLR 7506, the parties to an arbitration "are entitled to be heard, to present evidence and to cross-examine witnesses," and have "the right to be represented by an attorney" (id. § 7506[c], [d]). The right to be represented by an attorney "may not be waived" (id. § 7506[d]; see Marracino v Alexander, 73 AD3d at 26).

Here, the Supreme Court properly granted the petition to vacate the arbitration award. Proper procedure was not followed by the arbitrator, who denied Ventillo the right to be represented by an attorney by proceeding with the hearing on January 24, 2018, and thereafter continuing with the hearing over Ventillo's objection and without affording him time to obtain new counsel (see CPLR 7506[d]; 7511[b][1][iv]; Marracino v Alexander, 73 AD3d at 26; Matter of Mikel v Scharf, 85 AD2d 604, 604). This failure to observe statutory procedure was sufficiently prejudicial, under the circumstances of this matter, to require vacatur of the arbitration award (see Marracino v Alexander, 73 AD3d at 26; Sartiano v Becker, 119 AD2d 656, 656; Matter of Mikel v Scharf, 85 AD2d at 604).

The parties' remaining contentions either are without merit or need not be considered in light of our determination.

Accordingly, we affirm the order.

LASALLE, P.J., ROMAN, CHRISTOPHER and DOWLING, JJ., concur.

ENTER:

Maria T. Fasulo

Clerk of the Court

June 01, 2022

Issues considered in selected decisions promulgated by New York State courts during the month of May 2022.

Application for Performance of Duty Disability Retirement Benefits. Although Employee seeking performance of duty disability retirement benefits testified that he was being cooperative during the examination but that pain restricted his range of motion, the Comptroller credited the testimony of the orthopedic surgeon who examined Employee on behalf of the New York State and Local Employees' Retirement System, and the medical report and concluded that Employee had "deliberately frustrated the Retirement System's ability to confirm, and/or rebut, [his] assertions regarding his alleged disability." Click HERE to access the court's decision.

Applying the continuing wrong doctrine. The continuing wrong doctrine "may only be predicated on continuing unlawful acts and not on the continuing effects of earlier unlawful conduct" and "The distinction is between a single wrong that has continuing effects and a series of independent, distinct wrongs." Click HERE to access the court's decision.

Determining if the issue petitioner's claims was arbitrable. As the language of the arbitration clause contained in the collective bargaining agreement (CBA) between Emplolyee's union and the Employer lacks the plain and sweeping language demonstrating an intent by the parties to delegate the question of arbitrability to an arbitrator (see e.g. Matter of Steyn v CRTV, LLC, 175 AD3d 1, the clause does not state that it encompasses "any and all disputes" between the parties and it does not explicitly delegate the arbitrability question to an arbitrator and the CBA does not evince a clear and unmistakable intent to arbitrate the Labor Law claims at issue here. The URL to the court's decision is https://www.nycourts.gov/reporter/3dseries/2022/2022_03313.htm.

Considering a motion to expunge a disciplinary letter from petitioner's personnel file. As the four-month statute of limitations on Article 78 proceedings began to run when the disciplinary letter was placed in the Employee's file on May 6, and this proceeding was not commenced until, at the earliest, the subsequent January 13, the Appellate Division said Supreme Court should not have considered the letter. Click here to access the decision: https://www.nycourts.gov/reporter/3dseries/2022/2022_03209.htm

Holding a party in contempt for violating a prior confirmed arbitration award and order. Actions outside the scope of a confirmed arbitration award cannot be found to be a violation of a clear and unequivocal court mandate sufficient to support a finding of civil contempt. Click here to access the decision: https://www.nycourts.gov/reporter/3dseries/2022/2022_03218.htm

Paying for expert legal services. Plaintiff serve as Defendant's expert in a separate legal matter pursuant to an engagement letter outlining Plaintiff's fees and the terms of the retainer. Defendant failed to pay certain invoices, prompting Plaintiff to commence this action for breach of contract and an account stated. The URL to access the decision is http://www.nycourts.gov/reporter/3dseries/2021/2021_03499.htm.

Police officer terminated for excessive absences after suffering a work related injury. Following a hearing pursuant to Town Law §55 and Civil Service Law §75, a police officer was found guilty of incompetence and terminated from his position under color of Civil Service Law §75 after being charged with one count of incompetence due to excessive absenteeism as a result of his being physically unable to perform his duties on scheduled work days as the result of a work-related injury. The URL to access the decision is: https://www.nycourts.gov/reporter/3dseries/2022/2022_02413.htm. [See, also, https://www.nycourts.gov/reporter/3dseries/2022/2022_02420.htm]. For a "contra view" with respect relying on Civil Service Law §71 in such situations, see https://publicpersonnellaw.blogspot.com/2016/11/termination-of-police-officer-on.html

Traveling to and from work is not within the scope of employment. As a general rule, traveling to and from work is not within the scope of employment and any injuries sustained during that period are not subject to a workers' compensation award. However, there are exceptions to this general rule, including, as is relevant in this action, "outside employees who, as a distinguishing feature of their employment, have no fixed work site and are required to travel between job locations" and employees engaged in a special errand, wherein, "at the employer's direction, the employee undertakes a work-related errand and thereby 'has altered the usual geographical or temporal scheme of travel, thereby altering the risks to which the employee is usually exposed during normal travel.'" Click here to access the decision: https://www.nycourts.gov/reporter/3dseries/2022/2022_02474.htm

Union alleged the Employer unilateral implementing the new rules and procedures for the usage of sick leave violated Civil Service Law § 209-a(1)(d). The Appellate Division affirmed portions of a determination of the New York State Public Employment Relations Board, which, after a hearing, found that the Employer violated Civil Service Law §209-a(1)(d) by issuing certain provisions of a sick leave management program, and directed the Employer to rescind those provisions. The matter was remitted to the Supreme Court for the issuance of an order compelling compliance with this decision and judgment. The URL to access the Appellate Division's ruling is https://www.nycourts.gov/reporter/3dseries/2022/2022_03392.htm.

 

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