Selected links to items focusing on government operations posted on the Internet during the week ending Friday, March 22, 2024

8 Features of the Best Audit Management Software for Public Sector The shift to electronic working papers in the audit community fosters collaboration but inadvertently generates dark data. Audit management software offers solutions to access, analyze and maximize audit data's value. READ MORE

 

A Good AI Program Must Start with Good Data Making good on the promise of generative AI requires a foundation of clean data and clear policies. Chief data officers and AI experts weigh in on practical ways to build a strong program. READ MORE

 

A private university in New York is planning a new AI lab for education, research and networking opportunities, with a focus on the regional tech community. It is also planning two AI-related master’s degree programs. READ MORE

 

AI Is the Latest Tool in W.Va.'s Fight Against Opioid Use West Virginia is partnering with health technology firm GATC to integrate artificial intelligence into the state’s pharmaceutical research in an effort to accelerate the discovery of safe, effective drugs. READ MORE

 

AI Portends New Cybersecurity Risks, Opportunities for Higher Ed While new artificial intelligence technologies could be used for nefarious purposes such as creating more convincing phishing attacks, experts say the technology might also automate and strengthen IT security protocols. READ MORE

 

Automating Permit Applications Agencies and businesses desire quicker permit approvals. Automation via low-code tools and open source software streamlines processes effectively. READ MORE

 

California CIO Sees ‘Huge’ Potential for AI In remarks Monday at the California Public Sector CIO Academy, state CIO Liana Bailey-Crimmins discussed results from a new statewide emergency alert system, and the importance of harnessing artificial intelligence and generative AI. READ MORE

 

California Finally Starts Digitization of Water Rights Records The state has begun scanning 2 million pages. It’s part of a $60 million project to build a database integrating a century of water rights records, geospatial mapping and up-to-date water diversion data. READ MORE

 

Can Portland Successfully Place Special Needs Students in Neighborhood Schools? Portland Public Schools will no longer send students with disabilities to schools outside of their neighborhoods, except those with the most profound needs, in an attempt to transform special education and embrace diversity. READ MORE

 

Code Ninjas Team Up With Girls Who Code for Game Design In recognition of Women’s History Month and Expanding Girls’ Horizons in Science and Engineering Month, Microsoft, Code Ninjas and the nonprofit Girls Who Code are sponsoring girls who enter a game-design challenge. READ MORE

 

DDoS Cyber Attack Hits Alabama State Sites A state spokesman says all normal business operations have been restored. Meanwhile, the hacktivist group, Anonymous Sudan, is claiming credit for the attack through statements on its Telegram channel. READ MORE

 

Deploying ‘Perimeter’ App Helping With Evacuation Setup Perimeter is an app that puts emergency managers in an advanced state of situational awareness, allowing them to share critical information like road closures and evacuation routes both internally and with the public. READ MORE

 

Despite Low Unemployment, States Are Still Short of Funding Benefits States have devoted billions of dollars to replenishing their unemployment trust funds, but many are still short. Fewer states are now prepared for a recession than before the pandemic. READ MORE

 

DHS Unveils Artificial Intelligence Road Map, Pilots The federal Department of Homeland Security on Monday released its first artificial intelligence road map, which includes three AI pilot projects to test the technology's impact. Map goals include making DHS’ use of AI more transparent. READ MORE

 

Dollars for Driving: The Congestion Pricing Dilemma Faced with increasing traffic and declining gas tax revenue, policymakers and city planners are taking another look at dynamic pricing. If you love buying airline and concert tickets, they have got a deal for you. READ MORE

 

Election Systems Require Upgrading Ahead of Voting To protect voting outcomes, every step of the election process must be secure. Election machines are particularly vulnerable to cyberattacks because they’re network-connected and expand the attack surface of government entities. DOWNLOAD

 

Even $23B Might Not Be Enough to Upgrade Midwest’s Power Lines The Midcontinent Independent System Operator released a draft proposal earlier this month that aims to shift the region away from fossil fuels amid a rising demand for power. But many of the details are uncertain. READ MORE

 

Fed’s Direction on ‘Buy America’ Could Help Broadband Builds The federal government has issued guidance on exemptions from its Build America Buy America requirements for broadband infrastructure projects. This could help make it easier to acquire key pieces of high-speed Internet networks. READ MORE

 

Federal Cyber Agency Offlines 2 Systems After Ivanti Hack CISA, which had previously issued warnings about hackers exploiting zero-day vulnerabilities in certain Ivanti products, now says that it has had its own systems compromised. READ MORE

 

Feds Seek to Heal Community Scars from Interstate Highways The Reconnecting Communities program is giving $3.3 billion to help cities address problems caused by highways. But in most cases, the projects stop short of removing highways altogether. READ MORE

 

Florida Bill Could Undermine Corruption Investigations The legislation would require a person to have “personal knowledge or information other than hearsay” to file a complaint with the state’s Commission on Ethics. It would also bar local ethics commissions from self-initiating investigations. READ MORE

 

Google Announces $1B Data Center in Kansas City The site is expected to generate approximately 1,000 construction jobs immediately and 1,400 jobs once the center is finished. The center will be Google’s first in Missouri. READ MORE

 

How a Modular Business Solutions Strategy Addresses Workforce Gaps State and local governments face ongoing workforce challenges, including budget constraints and difficulty competing with the private sector. Often, antiquated technology and outdated processes make it even harder to attract and retain new employees. READ MORE

 

How Chicago Simplified its Building Permit Program Each year, thousands of Chicago's residents and businesses undertake minor projects that require a permit from the Department of Buildings, fueling the need for a simplified, streamlined online process for applying and approving projects. Express Permits account for one-third of Chicago's building permits, but until recently the city lacked an efficient way to process them. That changed in November 2023, when DOB migrated Express Permits onto the city's existing enterprise plat. DOWNLOAD

 

How Does AI Predict Governments Will Use AI? It Depends Where You Live Government Technology wanted to know what a generative AI model thought was the best AI use case for governments in each state — and if those uses were ethical or feasible. Google AI’s Gemini answered in surprising ways. READ MORE

 

How Florida’s Home Insurance Market Became So Dysfunctional So Fast It’s not only because of increasingly common and costly natural disasters. Can other states learn from Florida’s experiences and its lawmakers’ efforts to cope with the problem? READ MORE

 

How Much Downtown Space Does the City of San Diego Actually Need? A real estate consultant estimated that San Diego could go from 2,780 downtown employees using 819,000 square feet of space to 3,060 employees in just 580,000 square feet with small adjustments. READ MORE

 

How Process Automation Improves the Government Experience Process automation technology has long helped companies in the private sector work faster and more efficiently. For state and local government organizations, process automation goes hand in hand with systems integrations efforts to help states, cities and counties create a better, more satisfying government experience (GovX). DOWNLOAD

 

How Should Government Guide the Use of Generative AI? As governments grapple with how to roll out generative AI — or whether they even should — policies in Seattle, New Jersey and California aim to to be broad, easy to understand and relevant in the face of change. READ MORE

 

How to Think Like a Hacker — and Defend Your Data In this interview with white hat hacker Mishaal Khan, we learn about open source intelligence gathering and how to hack humans — or not. READ MORE

 

Is AI the Key to Mitigating Post-disaster Grant Fraud?  Discover the top 4 fraud risks in post-disaster grant programs and AI-driven strategies for effective mitigation. READ THE NEW INSIGHT BRIEF

 

IT Innovation: Real-Life Success Stories and Strategies This report from ServiceNow details how public sector agencies – including the U.S. Department of Veterans Affairs, Tennessee Department of Human Services, California Department of General Services and U.S. Department of State – leveraged IT innovation to deliver the best possible service to their customers and colleagues. DOWNLOAD

 

Kansas Wants Volunteers for Pay-By-Mile Program The state will launch an alternative system where drivers are charged for each mile they drive. That might replace the gas tax, which hasn’t been updated since 2003. As of 2022, just 0.13 percent of the state’s vehicles were hybrid or electric. READ MORE

 

LAUSD Builds Proprietary AI Assistant for Students, Parents “Ed,” an interactive co-pilot that allows students to access learning materials, and parents to monitor their child, will be available to all families in the Los Angeles Unified School District in the coming weeks. READ MORE

 

N.C., Washington, D.C., Earn ‘A's’ in National GIS Assessment The new 2023 Geospatial Maturity Assessment report from the National States Geographic Information Council evaluated 46 states and Washington, D.C. It highlights successes and disparities in GIS integration, and emphasizes collaboration. READ MORE

 

New Haven Harbor Debuts Its Heavy-Duty, All-Electric Cargo Mover The $7.5 million electric crane will help the city forgo around 350,000 gallons of diesel fuel in its lifespan. The machine is the largest of its kind to run entirely on electric power. READ MORE

 

New Research: How Outdated Business IT Is Holding States Back You can’t serve the public effectively with manual processes and obsolete technologies. This is especially true in government, where business applications for functions like budgeting, procurement, payments, permitting and grants management are long overdue for replacement. READ MORE

 

New Student Adviser Is Entirely AI The artificial intelligence adviser will tell students and parents about grades, test results and attendance, while also giving out assignments, suggesting readings and helping students cope with non-academic matters. READ MORE

 

New URBAN-X Cohort Looks to Cycling and Electrified Transportation In choosing its 14th cohort of seven companies, the New York-based urban tech accelerator is focused on advancing the use of electrified mobility, and two-wheeled transportation. READ MORE

 

New York State Boosts Procurement Transparency Via Dashboard The move, made during "Sunshine Week," could help suppliers learn more about contracting trends, and citizens to keep track of procurement trends. The launch comes amid a large procurement acquisition move. READ MORE

 

NYC Landmarks Commission Debuts Digital Permitting Portico, the Landmarks Preservation Commission’s new portal, features an online assistant to help expedite modernization for historically significant buildings and sites. It replaces a system that had only recently begun moving off paper. READ MORE

 

NOLA Mayor Fumbled $141M for Green Infrastructure, Watchdog Says An audit by a federal watchdog found several instances of poor planning, misallocation of funds and a lack of workers which undercut millions of dollars of federal aid meant to keep stormwater at bay. READ MORE

 

Opinion: Cyber Siege on U.S. Industries Threatens Higher Ed  From the SolarWinds hack to the more recent, serious disruptions of Microsoft and Change Healthcare, cyber attacks on industries that do business with universities create vulnerable points of entry for cyber criminals. READ MORE

 

Pennsylvania Transit Agency Ends AI Gun Detection Pilot The Southeastern Pennsylvania Transportation Authority has halted work after a year of testing. Artificial intelligence gun detection video analytics that were being explored proved incompatible with the agency’s analog security camera system. READ MORE

 

Pittsburgh Tech Sector Grows, Spurred by Autonomous Vehicles The city’s tech companies raised more than $3 billion in funding and attracted 57 new investors last year, marking the region’s second highest annual total in 12 years. READ MORE

 

Plagued by Drug Overdoses, Milwaukee County Tries a New Approach Milwaukee County has one of the nation’s highest death rates from synthetic opioids. It’s deploying millions of opioid settlement dollars to fund programs across a variety of agencies. READ MORE

 

Police in North Dakota Warn of AI-Assisted Phone Scams The Bowman Police Department is cautioning residents to be alert to phone calls seeking money, which may be using voice cloning. Police Chief Charles Headley highlighted the potential use of artificial intelligence in these calls. READ MORE

 

Ransomware Strikes District Attorney Offices in New Mexico The New Mexico Administrative Office of the District Attorneys was still trying to get its main computer servers working Thursday after ransomware locked prosecutors across the state out of files. READ MORE

 

Report: Biometric Injection Attacks on the Rise This type of attack involves using face-swapped videos to try to trick online verification systems, but as they rise in prevalence, so too do methods for combating them. READ MORE

 

Report Predicts Top Cybersecurity Threats for 2024 Cyber criminals are likely to soon target file transfer services, try to compromise the software supply chain and launch novel phishing strategies, according to a new report from Recorded Future. READ MORE

 

Resident First: Essential Elements of a Modern Contact Center Optimizing government contact centers should be part of a broader strategy to create connected agencies -- ones that make information available across all channels, streamline user experience, improve employee performance and job satisfaction, and deliver better services to all constituents. This paper shows how to move in the right direction. DOWNLOAD

 

San Jose Welcomes Participation in AI Coalition San Jose, Calif., has announced several steps to shape AI governance, including an open letter to stakeholders, a resource toolkit and an invitation to participate in its growing GovAI Coalition. A meeting is set for next Wednesday. READ MORE

 

South Florida Proposes Lowering Insurance Costs 25% Two political leaders are backing a congressional bill that would lower the cost of homeowner property insurance by about a quarter. In 2023, Florida homes cost three times the national average to insure. READ MORE

 

Tampa Bay Area Records Gas Emissions for the First Time Hillsborough, Pinellas, Pasco and Hernando counties produced 31.7 million metric tons of carbon dioxide-equivalent in 2021. The energy industry produced 45 percent of the region’s emissions, with transportation close behind. READ MORE

 

Technology ‘A Means to Help,’ California IT Leader Says Longtime executive Miriam Barcellona Ingenito, undersecretary at the Government Operations Agency, discussed the state’s IT landscape Tuesday at the California Public Sector CIO Academy. Mission-driven solutions, she said, are key. READ MORE

 

Texas Air Quality Measurements Fail Hispanic Communities Public data from a network of state air monitors around the Houston Ship Channel is hard to interpret and is often inadequate, leaving Latino-majority neighborhoods unaware whether the air they breathe is safe. READ MORE

 

Texas Faces Greater Competition on Incentives from Other States As other states ramp up their own development incentives, Texas is experiencing more competition for opportunity zone projects. Of 94 economic incentives projects across the nation this year, just two were in Texas. READ MORE

 

Texas’ Largest Wildfire Contained After 1 Million Acres Burned The Smokehouse Creek Fire began on Feb. 26 and grew to become the largest wildfire in state history. The wildfire burned across several counties in the Texas Panhandle, killed at least two people and destroyed hundreds of homes. READ MORE

 

The Art of Resident Relationship Management This whitepaper from CivicPlus details how public sector agencies can leverage a 311 CRM system to drive personalized and meaningful resident interactions. DOWNLOAD

 

The Racial Dynamics Involved in Flood Risk Aren't What You'd Expect New research finds that Native Americans are more exposed to flood risk than other groups, but Black and Asian communities are less exposed than predominantly white ones. Overall, the risk to property is much greater than depicted in official FEMA maps. READ MORE

 

The Surprising Link Between Budgeting and Good Health Health outcomes and life expectancy improve in counties where residents have greater opportunity to engage in civic life. READ MORE

 

UC Irvine Develops Custom GenAI Platform ‘ZotGPT Chat’University officials say the new platform will allow students and faculty to make use of AI for coursework and accelerating research, without the usual data privacy concerns that come with open-source tools. READ MORE

 

Uvalde Survivors Will ‘Never Recover’ From Robb Shooting The fact that police were unprepared and waited some 77 minutes to enter the school, and that Uvalde is a small community where law enforcement are always at the fore, adds another layer of grief to the situation. READ MORE

 

Veteran Tampa, Fla., Exec Eric Hayden Is Interim CIO Hayden has been at the city since 1986, most recently as infrastructure services manager, a role he has had for nearly 17 years. He's leading the Technology and Innovation Department, which has a staff of around 128. READ MORE

 

Where to Start with AI? Cities and States Offer Use Cases Building an AI program is a daunting proposition, but government has to start somewhere. From strengthening cybersecurity to improving 311, a handful of early adopters are finding safe and practical uses. READ MORE

 

Why Can’t Governments Modernize Business Systems? Here’s What’s Standing in the Way Governments may be hesitant to invest in major upgrades, especially in today’s uncertain budgetary climate. Massive technology overhauls of the past — enterprisewide projects that took years to build and tens of millions of dollars to implement — often failed to meet expectations. READ MORE

 

Why Every Community Needs an Emergency Mass Notification System When every second counts, disparate systems mean duplicitous work, inefficient reach, and lost opportunities to contact residents and travelers as soon as possible. READ FULL STORY

 

Working-Class Individuals Are Rarities as Legislators Only 116 of the nation’s nearly 7,400 state lawmakers qualify as “working class,” according to a new survey. READ MORE

 

An autopsy of a former employee's claim that his termination was in retaliation for his reporting coworker misconduct and illegal on-the-job activity

Plaintiff-Appellant [Plaintiff] initiated litigation pursuant to 42 U.S.C. §1983, alleging a violation of his First Amendment rights by his former employer, the City of New York[City].

Plaintiff claimed that as a result of his reports to supervisors, he became “the victim of a concerted retaliatory attack by supervisors and coworkers who were aware that he had blown the whistle.” 

The alleged retaliation included being transferred to the day shift after he had worked the night shift for seventeen years, which caused a significant reduction in his available overtime hours. Plaintiff contended that he was also subjected to workplace hostility, threats, and false accusations of wrongdoing. Plaintiff also alleged that in one particular incident, he was "assaulted by a coworker in retaliation for his reports and required medical treatment for his injuries."

The City initiated an Office of Administrative Trials and Hearings [“OATH”] disciplinary hearing. The OATH  Administrative Law Judge issued a report recommending termination of Plaintiff’s employment because of his “uncivil, insubordinate, and threatening behavior.” The Commissioner of DEP adopted the recommendation of the ALJ and ordered Plaintiff's termination. Plaintiff subsequently commenced a civil action changing his dismissal from his position.

The key element in the federal district court's dismissing Plaintiff's complaint: the court found that Plaintiff “fail[ed] to allege adequately that he spoke as a citizen on a matter of public concern as opposed to speaking as an employee about improper workplace conduct.” 

Citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, the U.S. Court of Appeals, Second Circuit, said it agreed with the district court's ruling, explaining "To survive a motion to dismiss, a complaint must allege 'enough facts to state a claim to relief that is plausible on its face.'”

Further, said the Court of Appeals, "To state a First Amendment retaliation claim, a plaintiff must plausibly plead that: “

(1) his speech or conduct was protected by the First Amendment; 

(2) the defendant took an adverse action against him; and 

(3) there was a causal connection between this adverse action and the protected speech.* 

In addition, opined the Circuit Court, "To determine whether a public employee’s speech is protected, courts must decide “whether the employee spoke as a citizen on a matter of public concern"**.

The Circuit Court concluded that Plaintiff''s reports of coworker misconduct were not about a matter of public concern. To establish a First Amendment claim, the plaintiff must do more than allege that the “sheer nature” of his and his colleagues’ work was connected to the public’s safety, and thus a matter of public concern.

In this appeal the Circuit Court's decision states that Plaintiff did not "actually allege that the misconduct contributed to unsafe drinking water or that it impacted public health and safety." 

Further, opined the Court, intoxicated employees at a sewage treatment facility certainly could take actions to harm the public’s safety, but "the sparse allegations in [Plaintiff’s] Amended Complaint [did] not allege any facts allowing the Court to draw the inferences, noting Plaintiff suggests, and his complaint contains but a single sentence concerning the intoxicated employees, which alleged “[M]any of the employees ... would consume alcohol and attend work while in a state of intoxication, thereby impeding their ability to adequately perform their job, which is an essential function to maintain public health.” 

In the words of the Court, "This conclusory assertion that the intoxicated employees’ jobs were essential to maintaining public health does not allow the Court to make a reasonable inference — or any inference — about how the employees’ intoxication endangered public health or were the subject of matters of public concern."

The Circuit Court also noted that Plaintiff's grievances were not made in his capacity as a citizen and his Amended Complaint "is devoid of any assertions articulating the nature of his job responsibilities and how his complaints fell outside of those duties."

Thus, because Plaintiff failed to adequately allege either that his reports about individual employees’ misconduct were made in his capacity as a citizen or that his complaints pertained to a matter of public concern — both of which are required to pursue his First Amendment claim, the Circuit Court of Appeals concluded that Plaintiff failed to allege a plausible retaliation claim.

* See Matthews v. City of New York, 779 F.3d 167, [quoting Cox v. Warwick Valley Cent. Sch. Dist., 654 F.3d 267].

** See Garcetti v. Ceballos, 547 U.S. 410.

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

 

New York State Comptroller DiNapoli releases municipal and school audits

On March 20, 2024, New York State Comptroller Thomas P. DiNapoli announced the following local government and school audits were issued.

Click on the text highlighted in color to access both the summary and the full audit.

New York State Comptroller Thomas P. DiNapoli today announced the following local government and school audits were issued.

City of Salamanca – Collections (Cattaraugus County)

The city comptroller’s collections were not always accurately recorded and because adequate collection records were not always maintained, auditors could not determine whether deposits were generally made in a timely manner. Auditors reviewed 29 deposits totaling nearly $2 million that consisted of 1,835 entries made during the audit period and determined: 1,759 entries lacked a duplicate press-numbered receipt which precluded them from determining whether deposits were made in a timely manner. Another 34 entries totaling approximately $50,000 did not have the correct form of payment (cash or check) listed in the collection records and 26 entries totaling approximately $18,000 did not have either the correct check number included on the collection records, or no check number was listed at all. Auditors found no collections were lost, misused or misappropriated, but because complete and reliable collections were not always maintained, there is an increased risk of city collections being lost, misused or misappropriated.

 

Piseco Common School District – Authorized Investments (Hamilton County)

District officials did not invest in accordance with statutory requirements. As a result, district investments were at an increased risk of loss. District officials did not adhere to the district’s investment policy and invested $35,000 in an investment account that is not statutorily authorized. The board re-adopted its investment policy annually but did not ensure the district’s investments complied with the policy’s list of eligible investments. In addition, the board did not develop procedures to address investment requirements.

 

Village of Afton – Claims Auditing and Disbursements (Chenango County)

The board did not properly audit claims, and as a result, payments were made prior to audit, for unsupported claims and for inappropriate purposes. Of the 98 claims totaling $155,528 reviewed: 53 claims totaling $13,356 were paid prior to audit and one claim totaling $793 did not include adequate supporting documentation, such as itemized receipts. The village reimbursed the former mayor for two payments totaling $1,500 for the village’s accounting software that she paid for with her personal credit card. The village should not reimburse anyone other than current village officials or employees. In addition, auditors reviewed 50 disbursements totaling $11,480 and determined that the board did not properly monitor non-payroll disbursements. As a result, there is an increased risk that errors or inappropriate transactions could occur and remain undetected.

 

Beacon Central School District – Information Technology (IT) (Dutchess County)

District officials did not ensure network user accounts were adequately managed. Unnecessary enabled network user accounts are additional entry points into a network and, if accessed by attackers, could potentially be compromised or used for malicious purposes. In addition to sensitive IT control weaknesses that were communicated confidentially to district officials, auditors found that officials did not disable 281 unneeded network user accounts of the 1,280 accounts reviewed. The accounts included 153 student accounts, 89 nonstudent accounts, and 39 shared and service accounts.

 

Copiague Union Free School District – Information Technology (Suffolk County)

District officials did not properly manage nonstudent network user accounts and financial software access controls. As a result, data and personal, private and sensitive information accessible by those accounts were at a greater risk for unauthorized access, misuse or loss. Auditors found that officials did not disable 316 nonstudent network user accounts (24%) that were not needed, including two user accounts assigned to employees that left the district more than 17 years ago. In addition, the district did not ensure that employees had the appropriate access to the financial software necessary to perform their job functions or provide IT security awareness and data privacy training annually to all officials and employees with access to financial and other sensitive data.

 

OnTECH Charter High School – Information Technology (Onondaga County)

School officials did not ensure IT systems were adequately secured and protected against unauthorized use, access and loss. In addition to sensitive IT control weaknesses that were communicated confidentially to officials, the board and officials did not adequately manage user accounts and permissions. As a result, the six computers tested had unneeded user accounts and unnecessary administrative permissions. Officials also did not monitor Internet usage for compliance with the school’s acceptable use policy. As a result, there is an increased risk of school computers being exposed to malicious software. In addition, officials did not develop and adopt an IT contingency plan and provide staff with IT security awareness training.

###

Judicial review of the cancellation of an offer of promotion alleged to have been the result of unlawful discrimination because of race

A federal district court for the Northern District of New York summarily dismissed Petitioner's claims for race discrimination under Title VII of the Civil Rights Act of 1964 (“Title VII”) and the New York State Human Rights Law (“NYSHRL”), as well as his claims for disability discrimination under the Americans with Disabilities Act of 1990 (“ADA”) and the NYSHRL.

Petitioner had been an employee of the Albany Fire Department [AFD] since 1993, serving as a firefighter in a number of capacities until his promotion captain in 2010 when he was offered a provisional promotion to battalion chief, the third highest-ranking position at the AFD. The promotion was to take effect after a swearing-in ceremony.

Shortly before the ceremony, Petitioner was drinking, while off-duty, and became so intoxicated that first responders found him “incoherent". AFD subsequently rescinded the promotion offer it had made to Petitioner. Petitioner challenged AFD's action but a federal district court’s summary judgment dismissed his complaint. 

Petitioner appealed the district court's ruling, contending that he sufficiently established his claims for race discrimination. The United States Court of Appeals, Second Circuit, rejected Petitioner's appeal and, affirming the district court's decision, said:

1. "Here, the record supports the district court’s determination that the AFD was entitled to summary judgment on Plaintiff’s race discrimination claims";

2. "While Plaintiff purports to challenge the district court’s dismissal of his disability-related claims under the ADA and the NYSHRL, his briefing on appeal does not address either of those claims. Therefore, [Plaintiff] has abandoned any challenge to the dismissal of these claims";

3. Based on its independent review of the record, the Circuit Court concluded that "[Plaintiff] established a prima facie case of race discrimination ... as an African-American employee, is a member of a protected class; met his 'minimal' burden of presenting evidence that he 'possesses the basic skills necessary for performance of the' battalion chief position";

4. "[The] rescission of [Plaintiff's] promotion offer constitutes an adverse employment action ... [i]n addition to terminations of employment and demotions, failure to promote ... may also qualify as [an] adverse action";

5. Plaintiff "produced evidence from which a reasonable jury could find that his base pay and benefits would have been greater as battalion chief than as captain"; and

6. Plaintiff's allegation that he was “replace[d] ... with an individual outside [his] protected class” is sufficient to raise an inference of discrimination at the initial prima facie stage."

Turning to the arguments advanced by ADF in its defense, the Circuit Court opined that ADF "has articulated a legitimate, non-discriminatory rationale for rescinding [Plaintiff's] promotion offer. Before he was slated to become battalion chief, [Plaintiff] consumed at least seven pints of beer ... and proceeded to 'expos[e] himself' outside of a [public establishment], ... prompting first responders to call an ambulance for 'a very old male who [was] highly intoxicated and ... pooped on himself,' ... and who was 'incoherent with his pants down around his ankles'....”

Following that incident, said the court, "AFD determined that [Plaintiff’s] promotion to battalion chief would undermine the AFD’s internal morale and its public perception, as well as [Plaintiff’s] effectiveness as a leader."

In these circumstances, opined the Circuit Court of Appeals, "the AFD has stated a sufficient, non-discriminatory rationale for the adverse employment action" and "[Plaintiff] on the other hand, has failed to produce sufficient evidence showing either that the AFD’s proffered reason was false, or more generally, that discrimination was the real reason for the rescission."

Noting that Plaintiff contended that the AFD’s promotion of "a Caucasian employee, constitutes disparate treatment," the Circuit Court said it agreed with the district court that Plaintiff and his Caucasian employee were not similarly situated." The Caucasian employee "was promoted to captain in April 2020, years after he was arrested and charged with an aggravated DWI in 2017." Plaintiff, in contrast, "engaged in misconduct days before he was slated to become battalion chief. Only in [Plaintiff's] case, then, was the AFD faced with the prospect of promoting an employee who had just publicly humiliated himself and the AFD. Moreover, [Plaintiff] was slated for promotion to a more senior position (battalion chief), which involved being a shift commander in charge of several field companies and members of the AFD." 

Thus, opined the Circuit Court, "[Plaintiff] has not established that the circumstances of [the Caucasian employee's] promotion were so similar so as to give 'at least minimal support to [Plaintiff’s] claims that the [rescission] may have been based on race' ... discrimination.”

Finally, the Circuit Court said Plaintiff fails to establish a genuine issue of material fact as to whether he was treated less favorably than [the Caucasian employee] and even assuming they were similarly situated, [Plaintiff] "points only to the fact that the person ultimately selected to be battalion chief ... scored second on the civil service exam after [Plaintiff]".

In the words of the Circuit Court of Appeals, "No reasonable jury could discern from this record, taken as a whole, that the AFD rescinded [Plaintiff's] promotion offer due to his race. Accordingly, the district court properly dismissed [Plaintiff's] race discrimination claims."

Click HERE to access the Circuit Court of Appeals decision posted on the Internet.

 

Challenging being medically disqualified for employment in a position

The New York City Department of Sanitation [DSNY] terminated an employee [Plaintiff] after he was found to be "medically disqualified" for his position. Plaintiff  challenged DSNY's action but Supreme Court granted DSNY's motion to dismiss Plaintiff's Article 78 petition. The Appellate Division unanimously affirmed the Supreme Court's decision.

The Appellate Division said that DSNY had demonstrated that their finding that Plaintiff was medically disqualified for the position of sanitation worker due to his medical condition was not discriminatory under the New York State and City Human Rights Laws [HRLs] "because no reasonable accommodation would enable [Plaintiff] to perform the duties of the position safely and effectively".

The Appellate Division noted that although Plaintiff did not request any specific accommodation of his disability until commencing this litigation, both the State and City HRLs required an employer "to engage in an interactive dialogue regarding possible accommodations once they became aware of [an employee's disability], citing Executive Law §296[3][a]; 9 NYCRR 466.11[j][4]; Administrative Code of City of NY § 8-107[15][a]; and Estate of Benitez v City of New York, 193 AD3d 42, leave to appeal denied 37 NY3d 906. The Appellate Division also noted the DSNY engaged a dialogue with the Plaintiff during the internal appeals process.

Following an individualized examination of plaintiff, DSNY's medical director considered and rejected a possible accommodation, the use of gloves, explaining that the "use of gloves will only exacerbate [Plaintiff's] condition" and Plaintiff's condition would prohibit him from performing the duties of a sanitation worker even with continued treatment, due to the nature of his disability, which was a chronic condition, because the duties of a sanitation worker, which involve exposure to germs and chemicals, would "render treatment ineffective" and make Plaintiff vulnerable to infection.

Citing Matter of Altieri v City of N.Y. Civ. Serv. Commn., 57 AD3d 248, [leave to appeal denied, 12 NY3d 711], the Appellate Division opined that Plaintiff's submissions "from his treating physician did not create an issue of fact rebutting these findings, and DSNY was entitled to rely on the opinion of its medical director even in the presence of [Plaintiff's] physician's conflicting opinion".

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