Applying the McDonnell Douglas burden-shifting test in adjudicating a Title VII action

Petitioner in this action proceeding pro se, alleged that the Office of the New York State Comptroller [OSC] refused to hire Petitioner because of his race.  Federal District Court, adopting a magistrate judge’s Report and Recommendation, the District Court granted OSC's motion for summary judgment. Petitioner appealed the District Court's ruling.

In response to Appellant's appeal the Circuit Court of Appealsl, Second Circuit, [Second Circuit] said it reviews "a grant of summary judgment de novo," drawing all reasonable inferences and resolve all factual ambiguities in favor of the nonmoving party.  The nonmoving party, however, "may not rely on conclusory allegations or unsubstantiated speculation” in opposing summary judgment.

That said, the Second Circuit observed that the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1) [Title VII] makes it unlawful for an employer “to fail or refuse to hire . . . any individual . . . because of such individual’s race.” Further, observed the Second Circuit, Title VII discrimination claims are analyzed using the familiar McDonnell Douglas burden-shifting test,* which has three prongs: (1) the plaintiff must first establish a prima facie case of discrimination; (2) the defendant must next proffer a legitimate, non-discriminatory reason for its actions; and (3) the plaintiff must then establish that the defendant’s proffered reason was a pretext for unlawful discrimination.

Noting that Plaintiff had "arguably forfeited appellate review of the issue of pretext for unlawful discrimination and the Second Circuit "could affirm on that basis alone", as OSC did not press Plaintiff's non-jurisdictional forfeiture in its brief, the Second Circuit exercised its discretion to reach the merits of Plaintiff's claims of unlawful discrimination “in the interests of justice”.

That said, the Second Circuit said it agreed with the District Court's ruling, explaining even assuming Plaintiff had established a prima facie case of discrimination—his burden under the first prong of the McDonnell Douglas test—he has not provided any evidence that OSC’s reasons for refusing to hire him were pretextual. OSC proffered three legitimate, non-discriminatory reasons for rejecting his application: (1) frequent job shifting, (2) résumé discrepancies, and (3) a poor writing sample. To establish these reasons as pretextual, Plaintiff would need to “point to evidence that reasonably supports a finding of prohibited discrimination.”

The Second Circuit also opined that Plaintiff "must produce evidence such that a rational finder of fact could conclude that the adverse action taken against [Plaintiff] was more likely than not a product of discriminatory animus.”

Concluding that Plaintiff failed to satisfy the third prong of the McDonnell Douglas test, and observing that OSC’s justification for its poor grade of Plaintiff's writing sample did not rely on anything that could suggest pretext but rather OSC’s interviewers specifically expressed concern over grammatical errors in the sample the Second Circuit said its judgment in favor of OSC appropriate as Plaintiff failed to met his burden under the third prong of the McDonnell Douglas test. 

* See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–04.

Click HERE to access the Second Circuit's ruling.

 

The Internal Revenue Service [IRS] posts notice of importance to Tax Exempt and Government Entities

The United States Internal Revenue Service posted a notice on November 4, 2022 advising tax exempt and government entities that the Tax Exempt and Government Entities (TE/GE) Fiscal Year 2023 Program Letter (PDF) lists IRS priorities for this new fiscal year. 

IRS reported that it will also use its Compliance Program and Priorities webpage to provide information about additional priorities as they are launched. 

In addition IRS advised that its Fiscal Year 2023 compliance program and priorities align with the IRS Strategic Goals listed below:

• Enhance Taxpayer Service
• Strengthen Compliance Activities
• Workforce Development
• Transform Operations

IRS plans to release a summary of its Fiscal Year 2022 accomplishments during the first quarter Fiscal Year 2023. Interested parties may also view IRS' "annual program (or work plan) and accomplishment letters for previous years."

 

 

The modern equivalent of a Writ of Mandamus and a Writ of Prohibition preserved in New York State's CPLR

There are a number of ancient common law writs that have been preserved in New York State's Civil Practice Law and Rules. In this action brought pursuant to Article 78 of New York State's Civil Practice Law and Rules, the Appellate Division considered the equivalent of two such ancient writs being sought by the Petitioner, a Writ of Mandamus and a Writ of Prohibition.

With respect to the Writ of Mandamus the court said that "The extraordinary remedy of mandamus will lie only to compel the performance of a ministerial act, and only where there exists a clear legal right to the relief sought", citing Matter of Legal Aid Society of Sullivan County v Scheinman, 53 NY2d 12.

Addressing the Petitioner's efforts to obtain a Writ of Prohibition, the Appellate Division noted that "Because of its extraordinary nature, prohibition is available only where there is a clear legal right, and then only when a court -- in cases where judicial authority is challenged -- acts or threatens to act either without jurisdiction or in excess of its authorized powers", citing Holtzman v Goldman, 71 NY2d 564.

As to the Petitioner's seeking either or both of these writs, the Appellate Division concluded that "The [Petitioner] has failed to demonstrate a clear legal right to the relief sought" Accordingly, the Appellate Division  dismissed the proceeding "on the merits." 

Other ancients writs that are from time to time sought in the course of litigation include the writ of "certiorari," compelling a lower court to send its record of a case to the higher tribunal for review by the higher tribunal; and the writ of  “quo warranto,” which requires a person or body to show by what warrant, office or franchise, held, claimed, or exercised, with respect to that individual or entity performing a particular act or omission. As noted earlier, New York State's Civil Practice Law and Rules sets out the modern equivalents of such surviving ancient writs. 

Click the URL below to access the Appellate Division's decision.

https://www.nycourts.gov/reporter/3dseries/2022/2022_06011.htm

 

Recently published New York State position classification standards

Click on the text in color to access that standard published by the New York State Department of Civil Service.

• Associate Director Biological Sciences, Drug Chemistry, Laboratory Quality Assurance, and Toxicology Services
• Immigrant Workers Specialist series
• Habilitation Specialist 1-2
• Security Hospital Treatment Assistant series
• Assistant Regional Director Environmental Conservation
• Retirement Program Administrator 1-4
• Audiologist and Speech Language Pathologist series
• Internal Investigator 1-2 OPWDD
• TRS Investment Officer series

To view all Classification Standards issued by the Department of Civil Service, visit:

https://www.cs.ny.gov/tsplan/tsp_search.cfm

 

Selected notices posted on the Internet by various departments and agencies of the State of New York during the week ending November 5, 2022

NEW YORK STATE DEPARTMENT OF CIVIL SERVICE ANNOUNCES PROFESSIONAL CAREER OPPORTUNITIES ONLINE EXAM IS NOW OPEN FOR REGISTRATION TO FILL HUNDREDS OF JOBS ACROSS STATE GOVERNMENT

 Applicants Can Apply for the PCO Online Exam From November 1 Through November 30; Online Exam Must be Completed by December 15

New PCO Virtual Career Fair Will be Held on November 9 to Highlight Jobs Available Across State Government – Register to Attend Here!

 

Computers Available for New Yorkers Who Need Them to Attend the Career Fair or Take the Online Exam at Designated Career Centers and Educational Opportunity Centers Across the State 

The New York State Department of Civil Service today announced that beginning today, individuals interested in a career in New York State public service can apply and complete the Professional Career Opportunities (PCO) exam, a civil service exam used to fill more than 150 professional entry-level titles across New York State agencies. This exam, which is being offered online for the first time, is the largest exam administered by the Department of Civil Service. Qualified candidates who have a Bachelor’s degree or will have a Bachelor’s degree by June 30, 2023, can apply for the exam online until 11:59 pm EST on Wednesday, November 30, 2022. All candidates who apply MUST complete the online examuntil 11:59 pm EST on Thursday, December 15, 2022.

 

“The Professional Career Opportunities Exam provides jobseekers, including soon-to-be college graduates, with the unique opportunity to gain access to a number of rewarding and meaningful careers with New York State,” said Department of Civil Service Commissioner Timothy R. Hogues. “The Department of Civil Service is pleased to be hosting this large exam online for the first time, making it easier than ever for all New Yorkers to take this exam from the comfort of their own homes or in centers located throughout the State for those who need access to computers. Working for New York State not only offers the chance to serve the greater public, but also provides the opportunity to work with dedicated public servants, in addition to the great health benefits and compensation packages. I encourage all interested candidates to apply for this exam and learn more about joining New York’s diverse and dedicated workforce.”

To be eligible to take the PCO exam, candidates must first meet the minimum qualifications for the exam, which requires a Bachelor’s degree by June 30, 2023. All applicants who meet the minimum qualifications must apply for the exam by November 30, 2022, then access the online exam and submit all examination materials by December 15, 2022. The online exam will require candidates to provide information about their training and experience with an online questionnaire that is completed and submitted by the candidate. Candidates should be prepared to provide detailed information on their education, work experience, dates of employment, and supervisor contact information to answer the questions completely.

To highlight the many career opportunities currently available across State government, all jobseekers are invited to attend the New York State PCO Jobs Virtual Career Fair being held on Wednesday, November 9 from 10:00am to 2:00pm. The job fair will feature a variety of State agencies with a special focus on the many job titles filled by the PCO exam. The career fair will also include informational sessions to help jobseekers begin their New York State careers with helpful information. To register and learn more, click here.

Candidates who need computer access to attend the virtual career fair or to access the online exam may visit a New York State Department of Labor Career Center and should first fill out this simple form to ensure computer availability. Candidates may also visit a SUNY Educational Opportunity Center for computer access.

New York State Department of Labor Commissioner Roberta Reardon said, “Governor Hochul continues to advance efforts to guide New Yorkers into family-sustaining careers that they will love. Civil Service exams open doors to so many amazing career possibilities. I encourage qualified New Yorkers to sign up today to begin their career journey in New York State service.”

SUNY Interim Chancellor Deborah F. Stanley said, “This exam is the next step for our SUNY graduates and soon-to-be graduating seniors to be eligible for hundreds of New York State jobs. For those interested in a career in public service, and the chance to help solve for the needs of our communities, this is the time to apply. Our thanks to our partners within the Department of Civil Service for making the exam more accessible than ever so that more New Yorkers can avail themselves of this opportunity.”

As part of the launch of the PCO exam, New York State has launched a statewide social media campaign, which will include videos and web content to help attract candidates to apply for the exam. Campaign content and additional information and resources to help candidates complete the exam is available at www.cs.ny.gov/pco.

The PCO exam is one civil service exam that is used by State agencies to fill more than 150 different entry-level professional job types across a wide range of discipline, including health and human services, environmental conservation, human resources, administrative analysis, and transportation.  The majority of positions filled through this exam require two-year traineeships during which individuals gain the necessary knowledge and experience to perform the full responsibilities of the position.

Governor Hochul’s ongoing, multi-pronged approach continues to help connect New Yorkers to new career opportunities statewide. Job seekers are encouraged to visit the New York State Job Bank, an online resource maintained by the New York State Department of Labor (NYSDOL) featuring 250,000 available positions across the state. NYSDOL also has several resources on its website to help job seekers with resumes, interview tips, training opportunities including apprenticeships, and much more.

To learn more about working for the State of New York and how to take the next step in pursuing a rewarding career in public service, please visit the Department of Civil Service website and follow the Department onFacebook, Twitter, andLinkedIn.

 

STATE COMPTROLLER DiNAPOLI ANNOUNCES NEW CYBERSECURITY TRAINING WEBINARS FOR LOCAL GOVERNMENTS

The Office of the State Comptroller has developed five new “10-minute Tech Talk” cybersecurity training webinars for local government officials with weekly releases planned throughout October in recognition of National Cybersecurity Awareness Month, State Comptroller Thomas P. DiNapoli announced. 

As threats and attacks from malicious actors continue to become more sophisticated and commonplace, the importance of training for the "people" part of a cyberdefense has grown even more critical.

The trainings were developed by DiNapoli’s Division of Local Government and School Accountability’s Applied Technology Unit. The theme for this year's campaign is "See Yourself in Cyber," highlighting the critical roles that all people play in cybersecurity.

The trainings include:

• Cybersecurity Foundations;
• Software Management;
• Multifactor Authentication;
• Passwords; and
• Phishing.

In addition to the new series, prior years’ Cybersecurity Awareness Month webinar series are also available on the Comptroller’s website, as are several other webinars and a wide variety of user-friendly publications designed to be further cybersecurity education.

DiNapoli's office will be surveying local governments in the weeks ahead on cybersecurity issues.

 

The Audits listed below were posted by the New York State Comptroller during the week ending November 5, 2022:

Click on the text below in "color" to access the audit.

New York City Department of Sanitation (DSNY) and New York City Mayor’s Office of Operations – Street and Sidewalk Cleanliness (Follow-Up) (2022-F-8)

The initial audit determined that weaknesses in key management controls, including communication, coordination, and record keeping, impair DSNY’s ability to address ongoing cleanliness problems on New York City streets and sidewalks efficiently and effectively. In addition, deficiencies in operations’ inspection process and rating calculations further undermine DSNY’s goal of clean streets and sidewalks. The audit made eight recommendations – four each to DSNY and Operations – to address the problems identified. The follow-up found that DSNY did not implement any of OSC’s four recommendations. Operations made progress, having implemented three recommendations and partially implemented one.

Office of Mental Health (OMH) – Reporting of Community-Based Services Under the Transformation Reinvestment Plan (2021-S-15)

OMH’s 2014 Transformation Reinvestment Plan entailed reducing capacity at its inpatient facilities and using the cost savings to enhance and expand services in lower-cost, more accessible community-based settings. OMH reported that, from 2014 through State fiscal year 2020-21, more than $82.5 million realized under the plan was allocated to community-based services (CBS), serving more than 111,000 individuals. This audit found that, while OMH provided adequate reporting on the funds reinvested in CBS under the plan, it can improve on the quality of its reporting. For example, the audit identified inconsistencies with how OMH collected data on “new individuals served,” which could impact the accuracy of the information included in these reports. Also, OMH’s reports do not clearly address its progress in the 11 areas of investments identified in the plan.

Office of Temporary and Disability Assistance – Reimbursement of Homeless Shelter Providers – Rescue Mission Alliance of Syracuse (2021-S-34)

The office’s annual budget for its network of 612 homeless shelters totals in the billions of dollars. Funding to shelters is administered through local departments of social services, which either operate the shelters directly or contract with providers to operate them. In 2020, under its contract with the Onondaga County Department of Social Services, the Rescue Mission Alliance of Syracuse (Rescue Mission) provided homeless services to nearly 1,100 adults and reported expenditures totaling $2.9 million. The audit found that, by design, the office does not monitor shelters’ costs claimed for reimbursement to ensure they comply with the approved budget or, for that matter, with state laws and regulations or Office policies. This responsibility instead falls to the local departments, yet the office does not provide them with the guidance needed for effective monitoring – creating significant risk of improper reimbursements, as evidenced by this audit, which identified $26,123 in costs claimed by Rescue Mission that were improperly reimbursed. The office needs to establish controls to adequately monitor and appropriately reimburse claims by Rescue Mission.

State Education Department (Preschool Special Education Audit Initiative) – Field of Dreams, Inc. – Compliance With the Reimbursable Cost Manual (2022-S-2)

Field of Dreams, a for-profit special education provider serving students from Orange and Ulster counties, is authorized by the State Education Department (SED) to provide Preschool Special Class (over 2.5 hours per day) and Preschool Integrated Special Class (over 2.5 hours per day) to children with disabilities who are between the ages of 3 and 5 years. For the three fiscal years ended June 30, 2019, Field of Dreams reported approximately $2.4 million in reimbursable costs to SED for these programs. Auditors identified $172,121 in costs that did not comply with SED’s requirements for reimbursement.

 

The Department of Civil Service has published the following Attendance and Leave Policy Bulletins:

• Policy Bulletin 2022-06, Attendance and Leave Items – 2021 – 2026-State-CSEA Negotiated Agreements 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)

Text of Policy Bulletin 2022-06 will be found at:
https://www.cs.ny.gov/attendance_leave/PolBull22-06.cfm

If you prefer to print Policy Bulletin 2022-06, there is a PDF version posted at:
https://www.cs.ny.gov/attendance_leave/pb2022-06.pdf

To view previous Attendance and Leave bulletins issued by the Department of Civil Service, visit: https://www.cs.ny.gov/attendance_leave/index.cfm

 

New York State Continuing Legal Education Board

An additional CLE requirement for New York attorneys established

• Effective July 1, 2023, attorneys must complete 1 CLE credit hour in the new Cybersecurity, Privacy and Data Protection category of credit as part of an attorney's CLE requirement. The total number of CLE credits that to be completed in a reporting cycle has not been increases.
  
• Experienced attorneys (admitted to the New York Bar for more than two years):
• If you are due to re-register on or after July 1, 2023 (birthday is on or after July 1st), you must complete 1 CLE credit hour in Cybersecurity, Privacy and Data Protection as part of your biennial CLE requirement.
• If you are due to re-register in 2023 but your birthday is before July 1st, you need not comply with the new requirement in 2023, but must comply in future biennial periods.
• Example: If your birthday is on June 30th and you are due to re-register in 2023, then you do not need to comply with the new requirement in 2023, even if you file your registration form on or after July 1, 2023.
• If you are due to re-register in 2024, or later, you must comply with the new requirement.
• Newly admitted attorneys (admitted to the New York Bar for two years or less):
• If you were admitted to the NY Bar prior to July 1, 2023, you need not comply with the Cybersecurity, Privacy and Data Protection requirement in your newly admitted cycle, but must comply in future reporting cycles.
• Attorneys admitted to the NY Bar on or after July 1, 2023, must complete 1 CLE credit hour in Cybersecurity, Privacy and Data Protection as part of their newly admitted attorney CLE requirement.
• Earning Credit: You may start to earn CLE credit in this new category beginning on January 1, 2023.
• For More Information
• CLE website
• https://www.nycourts.gov/attorneys/cle
• Cybersecurity FAQs

Posted on the Internet by the New York State Continuing Legal Education Board.