Characteristics of a hostile work environment for the purposes of litigating claims brought pursuant to 42 U.S.C. §1983

To prevail in a “hostile work environment” action brought pursuant to 42 U.S.C. §1983  the Plaintiff must set out claims alleging racial discrimination, retaliation, and a hostile work environment and demonstrate that his “workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of [his] employment and create an abusive working environment.”  

The Circuit Court Appeals, Second Circuit held that Plaintiff’s hostile work environment claim was based on the same conduct underpinning his racial discrimination and retaliation claims: his being given work orders to change light bulbs and, from time to time, receiving work orders for items not in need of repair. 

The Circuit Court explained that such "identified conduct falls far short of the conduct required to sustain a hostile work environment claim." The Circuit Court then affirmed the District Court’s grant of summary judgment dismissing Plaintiff’s complaint.

The District Court had dismissed Plaintiff's claims, in part, because Plaintiff failed to identify any adverse employment action. The Circuit Court, agreeing with the District Court that the Plaintiff failed to identify an adverse employment action, affirmed the lower court's ruling and opined that it "need not address any of the other grounds identified by the District Court as supporting summary judgment". 

Click HERE to access the Circuit Court's decision posted on the Internet.

Applying the Doctrine of Res Judicata

Federal district court dismissed Plaintiff's cause of action pursuant to the doctrine of res judicata. 

The U. S. Circuit Court of Appeals, Second Circuit, affirmed the lower court's ruling explaining “res judicata bars re-litigation of a claim if :

    (1) the previous action involved an adjudication on the merits; [and]

    (2) the previous action involved the same parties or those in privity with them; [and] 

    (3) the claims asserted in the subsequent action were, or could have been, raised in the prior action.”

In this instance the Plaintiff and the Defendants were parties in both this case and the prior litigation and the prior action was decided on the merits through a motion to dismiss. 

The Circuit Court also noted that Plaintiff's current claims against Defendants could have been brought in the earlier action if they were not and, accordingly, the District Court properly determined that the claims against Defendants were barred by res judicata. 

As to another claim advanced by Plaintiff, the Circuit Court observed that "defamation claims against the attorneys relating to their work in the prior lawsuit are precluded by the common law litigation privilege," citing Martirano v. Frost, 25 N.Y.2d 505. The court opined that "a courtroom statement is absolutely privileged unless it is 'so outrageously out of context as to permit one to conclude, from the mere fact that the statement was uttered, that it was motivated by no other desire than to defame'”. 

Click HERE to access the Circuit Court's decision.

Report by New York State Comptroller issued January 25, 2023 identifies school districts in fiscal stress

Fourteen school districts statewide were designated in some level of fiscal stress under State Comptroller Thomas P. DiNapoli’s Fiscal Stress Monitoring System for the school year (SY) ending on June 30, 2022, down from 23 districts in fiscal stress the prior year. This is the lowest incidence of fiscal stress recorded for schools since the system’s inception in the 2012-13 school year.

“The number of districts designated in a fiscal stress category has fallen considerably over the past three years. This year there was a particularly steep drop because of significant increases in both federal and state aid,” DiNapoli said. “High need districts in urban and suburban areas, which typically have the highest incidence of fiscal stress, received some of the largest increases in aid. However, the federal aid is temporary so school district officials may face difficult operational and staffing decisions in determining how to best provide services to their students in the future.”  

The Comptroller’s Fiscal Stress Monitoring System was designed to identify issues that school districts, counties, cities, towns and villages are having with budgetary solvency, or the ability to generate enough revenues to meet expenses. The Comptroller releases fiscal stress scores for the various categories of government three times a year. School districts are given a fiscal stress score based on several factors: year-end fund balance, operating deficits and surpluses, cash position, and reliance on short-term debt for cash-flow. The higher the score the more severe the level of stress.

The monitoring system, which excludes New York City and the “Big Four” City School Districts of Buffalo, Rochester, Syracuse and Yonkers, found one school district in “significant fiscal stress,” which is the highest category - Mount Vernon City School District in Westchester County.

Five districts were designated as being in moderate fiscal stress. Only one of these, East Ramapo Central School District in Rockland County, saw a decrease in its stress score since last year. The remaining four – Arkport Central School District (Steuben County) Harrisville Central School District (Lewis County), New Suffolk Common School District (Suffolk County), and Roscoe Central School District (Sullivan County) – had score increases.

In response to the COVID-19 pandemic, the federal government passed three major multiyear grants of aid targeted to low-income school districts. In total, school districts included in FSMS reported receiving nearly $1 billion in temporary federal aid during SY 2021-22.

DiNapoli’s report also notes many school districts also saw a substantial increase in ongoing state aid. In State Fiscal Year 2021-22 Enacted Budget, the state committed to fully funding Foundation Aid for school districts by SY 2023-24. Total state aid reported by school districts (excluding New York City and the Big Four) increased from $13.8 billion in SY 2020-21 to $15 billion in SY 2021-22, an increase of $1.1 billion, or 8.5%.

Lists [Click on text set out in color to access the data.]

School Districts in Stress for Fiscal Year Ending 2022

Complete List of School District Fiscal Stress Scores

Report

Fiscal Stress Monitoring System: School Districts Fiscal Year 2012-22 Results

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Track state and local government spending at Open Book New York. Under State Comptroller DiNapoli’s open data initiative, search millions of state and local government financial records, track state contracts, and find commonly requested data.

Amending the New York State Assembly maps

The Appellate Division, First Department, affirming an order entered by Supreme Court Justice Laurence L. Love which, to the extent appealed from, ordered New York State's Independent Redistricting Commission (IRC):

1. Initiate the constitutional process for amending the New York State Assembly maps;

2. Conduct public hearings consistent with Article III, §4(c) of the New York State Constitution; 

3. Make plans, data and information available for the public to view at least 30 days prior to the first public meeting; and

4. Submit to the legislature an Assembly redistricting plan or plans and implementing legislation by April 28, 2023.

This plan would be voted upon by the legislature in a single bill.

Justice Love further ordered that should either house of the legislature failed to approve the implementing legislation, or if the Governor vetoed such legislation," the IRC would, within 15 days and in no case later than June 16, 2023, prepare a second redistricting plan and implementing legislation.

In the event either the legislature failed to approve the second plan and implementing legislation, or if the Governor vetoed it, then the legislature would introduce such implementing legislation with any amendments deemed necessary.

Click HERE to access the Appellate Division's decision posted on the Internet.

New York State Comptroller Thomas D. DiNapoli releases audits

On January 24, 2023, following audits were issued by State Comptroller DiNapoli:

Click on the text highlighted in color to access the full text of the audit report. 

 

Department of Health: Medicaid Program – Improper Payments for Brand Name Drugs  (2020-S-62)

The audit identified $1.1 million in Medicaid overpayments for brand name prescription drugs where generic drugs were available but not substituted. In addition, the audit found $1 million in potential cost avoidance associated with 27,455 Medicaid fee-for-service claims for drugs that appear to be generic but were paid using brand name pricing methods. 

 

Department of Health: Medicaid Program – Claims Processing Activity October 1, 2021 Through March 31, 2022 (2021-S-28) 

OSC’s audit of Medicaid claims processing activity identified over $22 million in improper Medicaid payments for claims that were not processed in accordance with Medicaid requirements. About $9.9 million of the improper payments had been recovered by the end of the audit fieldwork. The audit also identified 11 Medicaid providers who were charged with or found guilty of crimes that violated laws or regulations governing certain health care programs. Upon being advised of the providers, the Department removed them from the Medicaid program. 

 

New York City Health and Hospitals Corporation: Controls Over Equipment (Follow-Up) (2022-F-19)

The initial audit, issued in January 2019, determined that the New York City Health and Hospitals Corporation’s (H+H’s) controls over its inventory of equipment needed improvement, as auditors found equipment tracking problems and record-keeping issues associated with relinquished, mass-retired, transferred and repaired assets. The follow-up found that H+H made some progress in addressing the issues identified. Of the six recommendations from the initial audit, H+H implemented two and partially implemented one; three recommendations were not implemented. 

 

Department of Civil Service: New York State Health Insurance Program – Payments by CVS Health for Pharmacy Services for Ineligible Members (Follow-Up) (2022-F-29)

The initial audit, issued in September 2021, found that nearly $30.7 million in pharmacy service claims were paid on behalf of ineligible members due to data transfer issues between the Civil Service and CVS systems and retroactive disenrollment of members. The follow-up found that Civil Service and CVS made progress addressing the issues identified in the initial audit; namely, Civil Service and CVS are working to develop a procedure for the recovery of these and future improper payments. Of the report’s six recommendations, two were implemented, three were partially implemented and one was no longer applicable. 

 

Department of Civil Service: New York State Health Insurance Program – Payments by UnitedHealthcare for Medical/Surgical Services for Ineligible Members (Follow-Up) (2022-F-30)

An audit issued in September 2021 found that United made a total of $5.7 million in improper payments for medical/surgical services on behalf of ineligible members. The follow-up found that Civil Service and United made significant progress in addressing the issues identified in the initial audit. United recovered about $500,000 of the $5.7 million in overpaid benefits originally identified, and Civil Service and United identified another $10.9 million in claims for ineligible members, of which about $4.9 million has been recovered. Of the initial report’s three audit recommendations, two were implemented and one was partially implemented. 

 

State Education Department: Oversight of Career and Technical Education Programs in New York State Schools (Follow-Up) (2022-F-17)

The initial audit, issued in December 2020, found that the department did not provide adequate oversight of CTE programs offered through the secondary school system to ensure they align with student goals and the needs of the State labor market – specifically, those occupations that are most in demand, fastest growing or highest salaried. Auditors also identified several common issues that are a deterrent to students’ enrollment in CTE and their successful completion of the program, further contributing to the lack of skilled employees in certain industries. The follow-up found that the department made limited progress in addressing the issues identified in the initial audit report. Of the initial report’s seven audit recommendations, three were implemented, one was partially implemented and three were not implemented. 

 

Department of Health: Improper Medicaid Payments for Misclassified Patient Discharges (Follow-Up) (2022-F-21)

The initial audit report, issued in August 2021, found the department did not have a process to identify and recover improper Medicaid payments for inpatient claims with incorrect patient status codes, resulting in $28 million in improper and questionable Medicaid payments for recipients who were reported as discharged from a hospital, but then admitted to a different hospital within 24 hours of the reported discharge (which often meets the definition of a transfer). The follow-up found that the department made some progress in addressing the problems identified in the initial audit report, but additional action is still required. Of the initial report’s four audit recommendations, one was implemented, two were partially implemented and one was not yet implemented.

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Track state and local government spending at Open Book New York. Under State Comptroller DiNapoli’s open data initiative, search millions of state and local government financial records, track state contracts, and find commonly requested data.