Queens College of the City University of New York not subject to the City’s Human Right because it is a State entity

Queens College of the City University of New York not subject to the City’s Human Right Law because it is a State entity
Jattan v Queens Coll. of City Univ. of N.Y., 2009 NY Slip Op 05746, decided on July 7, 2009, Appellate Division, Second Department

Lincoln Jattan, sued Queens College of the City University of New York to recover damages for employment discrimination in violation of the New York State Human Rights Law [Executive Law § 297[9] and the federal Civil Rights Law [42 USC §1983 ]. Jattan alleged he was subjected to religious discrimination and retaliation for bringing a lawsuit.

In a prior appeal, Jattan v Queens Coll. of City Univ. of N.Y., 307 AD2d 335, the Appellate Division dismissed Jattan’s claims under 42 USC §1983 with respect to Queens College because it was "a senior college and an instrumentality of the State of New York"* and therefore was not a "person" amenable to suit within the meaning of 42 USC §1983. Only Jattan’s claim with respect to the New York State Human Rights Law survived.

In the course of this litigation, Jattan asked Supreme Court for permission to amend the amended his complaint to add a cause of action pursuant to the New York City Human Rights Law, and for an award of an attorney's fee in the sum of $135,465, and expenses in the sum of $2,284.77, pursuant to Administrative Code of the City of New York § 8-502(f).

The Appellate Division vacated the lower court’s action, denying the amended complaint to add a cause of action pursuant to the New York City Human Rights Law and remitted the case to the Supreme Court for a new determination of the amount of prejudgment interest to be awarded.
After a jury trial, the jury found Queens College liable for back pay in the sum of $325,000 from March 1996 until July 2005, which decision is not an issue on this appeal.

The Appellate Division, however, said Supreme Court’s granting Jattan leave to amend his complaint to assert a cause of action pursuant to the New York City Human Rights Law and granted him attorney's fee and expenses pursuant to the New York City Human Rights Law, was incorrect.

The court explained that although the “State Legislature waived sovereign immunity when it passed the New York State Human Rights Law and made its provisions applicable to the State,” the City of New York does not have the power to waive the State's sovereign immunity by passing an anti-discrimination code provision applicable to instrumentalities of the State.

Accordingly, because it is now an instrumentality of the State, Queens College is not subject to the provisions of the New York City Human Rights Law. Thus Jattan was not entitled to an award of an attorney's fee and expenses pursuant to Administrative Code of the City of New York §8-502(f).

The decision notes that interest from the date Jattan’s employment was unlawfully terminated until the date of the verdict was payable as “the law is that courts may award prejudgment interest on awards of back pay in a case brought under the New York State Human Rights Law … from the date that the plaintiff would have received the money.” However, as back pay accrues in installments. As Jattan would have received his paychecks if his employment had not been unlawfully terminated, ... "[w]here such damages were incurred at various times, interest shall be computed upon each item from the date it was incurred or upon all of the damages from a single reasonable intermediate date" [CPLR 5001(b)].

* Queens College was formerly a unit within the City University of the City of New York. The City University became, and is currently, an integral entity within the State University of New York.

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2009/2009_05746.htm

Appointment to the Office of Lieutenant Governor

Appointment to the Office of Lieutenant Governor
A NYPPL review

On July 6, 2009 the Attorney General issued the following statement:

“Statement Of Attorney General Andrew Cuomo Regarding Lieutenant Governor Appointment Proposal

"The State Constitution explicitly prescribes what occurs when there is a vacancy in the Office of Lieutenant Governor. In such circumstance, article 4, §6 states that “the temporary president of the senate shall perform all the duties of the lieutenant-governor during such vacancy . . . .”

“Article 4, §1 of the Constitution expressly provides that “the lieutenant-governor shall be chosen at the same time, and for the same term” as the Governor. The Legislature did not authorize a Governor to bypass this provision of the Constitution and fill a vacancy in the Office of Lieutenant Governor pursuant to Public Officers Law §43. That statute, which provides for Gubernatorial appointment to fill certain vacancies, applies only when there is “no provision of law for filling the same”. With respect to the Lieutenant Governor, however, the Constitution leaves no gap concerning a vacancy in that office - article 4, §6 expressly addresses that circumstance.

“In sum, we understand the apparent political convenience of the proponents’ theory due to the current Senate circumstances. In our view, however, it is not constitutional. In addition, contrary to the proponents’ goal, we believe it would not provide long term political stability but rather the opposite, by involving the Governor in a political ploy that would wind through the courts for many months.”

On July 8, 2009, Governor Paterson issued a statement announcing the appointment of Richard Ravitch to serve as Lieutenant Governor. The Governor, in a letter of the same date, explained:

"Since June 10, my Counsel has examined the legal basis for this appointment. We have consulted with eminent lawyers and scholars. The State Constitution grants authority to the Legislature to provide a means for filling vacancies in elective office. The Legislature has provided that means by passing Section 43 of the Public Officers Law, which states: “if a vacancy shall occur, otherwise than by expiration of term, with no provision of law for filling the same, it the office be elective, the governor shall appoint a person to execute the duties thereof until the vacancy shall be filled by an election.

"With no statutory or constitution provision prohibiting the Governor from filling a vacancy in the Lieutenant Governor’s office, I am taking action under the authority granted to me by the Constitution and the Public Officers Law."

Public Officers Law §43 provides as follows:

Filling other vacancies.

If a vacancy shall occur, otherwise than by expiration of term, with no provision of law for filling the same, if the office be elective, the governor shall appoint a person to execute the duties thereof until the vacancy shall be filled by an election. But if the term of such officer shall expire with the calendar year in which the appointment shall be made, or if the office be appointive, the appointee shall hold for the residue of the term [emphasis supplied].

Section 2 of the Public Officers Law, Definitions, provides, in pertinent part, “ §2. Definitions. The term "state officer" includes every officer for whom all the electors of the state are entitled to vote ….” All “electors of the state are entitled to vote” for Lieutenant Governor.

In contrast, the fourth unnumbered paragraph of Article IV, Section 6, of the Constitution provides, in pertinent part, as follows:

In case of vacancy in the office of lieutenant-governor alone, … the temporary president of the senate shall perform all the duties of lieutenant-governor during such vacancy or inability. If, when the duty of acting as governor devolves upon the temporary president of the senate, there be a vacancy in such office … the speaker of the assembly shall act as governor during such vacancy or inability [emphasis supplied].

This provision appears to preclude the Governor from acting pursuant to Section 43 of the Public Officers Law. Section 43 authorizes the Governor to make the necessary appointment only in the event there is “no provision of law for filling the same." In this instance, however, the fourth unnumbered paragraph appears to provide for the devolution of the duties of the Lieutenant Governor “in case of vacancy in [that office] alone” where upon the Temporary President of the Senate "shall perform all the duties of lieutenant-governor during such vacancy" [emphasis supplied].

Further, were the Governor authorized to appoint an individual to the vacant Lieutenant Governor position under the current set of circumstances, it would, on its face, frustrate, or at least create a conflict, with respect to other provisions set out in Article IV addressing situations where there is a “vacancy in the offices of both governor and lieutenant-governor…”

An earlier posting of NYPPL, [ see http://publicpersonnellaw.blogspot.com/2009/07/filling-vacancy-of-lieutenant-governor.html ] opined:

Article III, §9 of the State Constitution provides that “A majority of each house shall constitute a quorum to do business. Each house shall determine the rules of its own proceedings, and be the judge of the elections, returns and qualifications of its own members; shall choose its own officers; and the senate shall choose a temporary president and the assembly shall choose a speaker" [emphasis supplied].

As the Constitution does not mandate that the Senate "choose" a member of the Senate to be its temporary president, it could be argued that an individual not a sitting Senator could be so chosen by the Senate.

Perhaps this is "the way out" -- the Senate "chooses" a non-senator as its Temporary President "to perform the duties of the Lieutenant Governor," which avoids the court confrontation that would probably follow were the Governor to appoint an individual to the Lieutenant Governor vacancy.

The relevant provisions of the State Constitution are set out below.

Article IV, § 6.

The lieutenant-governor shall possess the same qualifications of eligibility for office as the governor. The lieutenant-governor shall be the president of the senate but shall have only a casting vote* therein. The lieutenant-governor shall receive for his or her services an annual salary to be fixed by joint resolution of the senate and assembly.

In case of vacancy in the offices of both governor and lieutenant-governor, a governor and lieutenant-governor shall be elected for the remainder of the term at the next general election happening not less than three months after both offices shall have become vacant. No election of a lieutenant-governor shall be had in any event except at the time of electing a governor.

In case of vacancy in the offices of both governor and lieutenant-governor or if both of them shall be impeached, absent from the state or otherwise unable to discharge the powers and duties of the office of governor, the temporary president of the senate shall act as governor until the inability shall cease or until a governor shall be elected.

In case of vacancy in the office of lieutenant-governor alone, or if the lieutenant-governor shall be impeached, absent from the state or otherwise unable to discharge the duties of office, the temporary president of the senate shall perform all the duties of lieutenant-governor during such vacancy or inability. If, when the duty of acting as governor devolves upon the temporary president of the senate, there be a vacancy in such office or the temporary president of the senate shall be absent from the state or otherwise unable to discharge the duties of governor, the speaker of the assembly shall act as governor during such vacancy or inability.

The legislature may provide for the devolution of the duty of acting as governor in any case not provided for in this article.

Article III, §9

A majority of each house shall constitute a quorum to do business. Each house shall determine the rules of its own proceedings, and be the judge of the elections, returns and qualifications of its own members; shall choose its own officers; and the senate shall choose a temporary president and the assembly shall choose a speaker.

* A "casting vote" is a vote given to the presiding officer of a council or legislative body in order to resolve a deadlock and which can be exercised only when such a deadlock exists.

Filling the vacancy of Lieutenant Governor

Filling the vacancy of Lieutenant Governor
Article III, Section 9, New York State Constitution

With all of the discussions on whether it is possible to appoint an individual to the position of Lieutenant Governor, here is one additional possibility:

Article III, §9 of the State Constitution provides that “A majority of each house shall constitute a quorum to do business. Each house shall determine the rules of its own proceedings, and be the judge of the elections, returns and qualifications of its own members; shall choose its own officers; and the senate shall choose a temporary president and the assembly shall choose a speaker" [emphasis supplied].

As the Constitution does not mandate that the Senate "choose" a member of the Senate to be its temporary president, it could be argued that an individual not a Senator could be so chosen by the Senate.

Perhaps this is "the way out" -- the Senate "chooses" a non-senator as its Temporary President "to perform the duties of the Lieutenant Governor," which avoids the court confrontation that would probably follow were the Governor to appoint an individual to the Lieutenant Governor vacancy.

Having the Senate choose a Temporary President, who may or may not be an incumbent Senator appears to be Constitutional, all the more so as that individual would exercise only a "casting vote."

N.B. A "casting vote" is a vote given to the presiding officer of a council or legislative body in order to resolve a deadlock and which can be exercised only when such a deadlock exists.

Injury in the line of duty

Injury in the line of duty
Matter of Stymiloski v DiNapoli, 2009 NY Slip Op 05675, Decided on July 2, 2009, Appellate Division, Third Department

Paul A. Stymiloski, a police officer employed by the Village of Ossining in Westchester County, was engaged in a routine patrol at 6:00 A.M. on December 20, 2005 when he observed that a vehicle parked near the entrance of a 24-hour pharmacy was on fire.

After fire department personnel arrived and the fire was fully extinguished, Stymiloski, and two firefighters — at the direction of the fire chief who feared that the fire might reignite — began pushing the vehicle even farther away from the building and Stymiloski fell on ice that had formed as a result of the fire department's use of water to put out the fire. As a result of his fall, Stymiloski suffered an injury to his left shoulder and filed applications for accidental disability and performance of duty disability retirement benefits.

Awarded performance of duty disability retirement benefits, Stymiloski’s application for accidental disability retirement benefits was denied on the grounds that he had not sustain an accident within the meaning of Retirement and Social Security Law §363.

In CPLR Article 78 proceeding challenging the Retirement System’s rejection of his Stymiloski’s application for accidental disability retirement benefits, the Appellate Division sustained the Retirement System’s determination.

The court, noting that a claimant bears the burden of proving entitlement to accidental disability retirement benefits and System's determination will be upheld if it is supported by substantial evidence.

In this instance, said the court, Stymiloski told the Retirement System’s Hearing Officer that both moving the car and following the direction of a fire chief at the scene of a fire were within the realm of his normal responsibilities as a police officer. He also testified that when the incident occurred it was approximately 19 degrees outside and he witnessed the fire department douse the fire with water.

Under such circumstances, said the court, “we perceive no basis to disturb [Retirement System’s] conclusion that Stymiloski 's injury resulted "from an expected or foreseeable event arising during the performance of routine employment duties," and thus does not demonstrate eligibility for an award of benefits based upon RSSL §363.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2009/2009_05675.htm

Scheduling and arranging for an alternate date for scheduled written civil service tests

Scheduling and arranging for an alternate date for scheduled written civil service tests
Source: New York State Department Of Civil Service State Personnel Management Manual 1230 Alternate Date For Written Test, July, 2009 update

As a general rule, the New York State Department of Civil Service will arrange for an alternate written test date for a candidate who can establish one of the following:

1. A death in the immediate family or death of a member of the household in which the candidate resides within the week immediately preceding the announced written test date.

2. Religious beliefs which preclude a candidate from taking an examination on the announced date.

3. Military duty.

4. A conflict with a previously scheduled commitment to participate as a member of a ceremonial party, such as a wedding, baptism, bar or bat mitzvah, or graduation, or as a member of the family or household of the individual for whom the ceremony is being held.

5. A conflict with a professional or educational examination. Examples of professional examinations include the Certified Public Accountant or Professional Engineer examinations. Examples of educational examinations include the Scholastic Aptitude Test and Graduate Record Examination.

6. A conflict with a previously scheduled vacation, professional conference, or retreat for which a deposit of at least $100 (one hundred dollars) was made prior to the date the examination announcement was issued.

7. A conflict with a court-ordered appearance.

8. Hospital confinement or medical emergency or health problem of the candidate or member of the immediate family or household in which the candidate resides, if documented by an attending physician.

9. Emergency weather conditions, verified by the local public safety agency, that result in the closing of specified roads, highways, or independent transportation services which prevent a candidate from reaching the test center.

The Department has added the following provisions to its basic policy statement:

In the event that a test is rescheduled by the Department of Civil Service due to weather or other conditions, these same alternate test date criteria will be used to evaluate requests for an alternate to the rescheduled date. Exceptions may be made where the candidate’s plans for a vacation, professional conference, retreat, or event, which otherwise meet the criteria, were made after the announcement issue date but before the candidate was notified of the rescheduled test date.

In addition, the Department has expanded the Section to include:

1. A new paragraph 411 providing that: “As soon as a candidate is aware of a conflict prior to the scheduled test date, the candidate should notify the Test Administration Unit in writing or by phone call. The address is: Test Administration Unit, NYS Department of Civil Service, Alfred E. Smith State Office Building, Albany NY 12239. The telephone number is (518) 474-6470. The request should contain a complete explanation of the reason the candidate cannot take the test on the scheduled date and include appropriate supporting documentation. It is essential that the Test Administration Unit receives these requests before the date of the written test. Requests received on the date of the written test or thereafter will not be considered, unless they involve unforeseen emergencies. Medical emergencies or illness occurring on the date of the examination must be documented by a medical professional seen on the date of the examination.”

2. A new paragraph 412 providing that: “For emergency situations which occur on the scheduled written test date, the candidate must notify the Test Administration Unit ((518) 474-6470 in the Albany area or toll free at 1-877-697-5627 [press 2, then press 1] no later than close of business the Monday following the Saturday on which the written test was held. If the candidate is unable to call because of serious illness, or because of a death in the candidate's family or household, a family or household member, or, if the candidate is a state employee, a representative from the candidate's personnel office may, on the candidate's behalf, notify the Test Administration Unit of the need for an alternate test date.”

3. A new paragraph 413 providing that “If a serious illness or injury renders a candidate physically unable to take a test for a lengthy period of time, that candidate may still request an alternate test date provided a candidate for a promotion examination is tested prior to returning to the workplace.”

4. A new paragraph 421 providing that “A candidate who is granted an alternate date has a responsibility to avoid exposure to the test content and to take the test as soon as practicable following the announced test date. The pre-rating review and regularly scheduled alternate test date are a Saturday following the announced test date, generally the next Saturday. The risk of exposure to test content is increased after the pre-rating review, and processing is significantly slowed by candidates who are tested on an alternate test date. Thus, an alternate test date will generally not be granted later than the date of the pre-rating review/alternate test date.”

If because of extraordinary circumstances a candidate is granted an alternate test for a date occurring after the regularly scheduled pre-rating review/alternate test date, arrangements will be made to test a candidate for an open competitive examination on the first available, regularly occurring test date as is practicable and a candidate for a promotion examination prior to the candidate's return to work. Under no circumstances, however, can a promotion candidate be tested after they have returned to work following the pre-rating review or regularly scheduled alternate date.”

4. The memorandum advises that “Questions from candidates regarding alternate test date policy should be referred to the Department of Civil Service Test Administration Unit at (518) 474-6470.”

Vacating an arbitration award in situations where the decision exceeds a specific, enumerated limitation on the arbitrator's power

Vacating an arbitration award in situations where the decision exceeds a specific, enumerated limitation on the arbitrator's power
Matter of Massena Cent. School Dist. v Massena Confederated School Employees' Assn., NYSUT, AFL-CIO, 2009 NY Slip Op 05674, decided on July 2, 2009, Appellate Division, Third Department

Eric Fetterly had a dispute with Massena Central School District concerning his (1) Absenteeism, (2) the impact of his workers' compensation leave on his leave credits. Fetterly filed three grievances that the Massena Confederation of School Employees’ Association ultimately submitted to arbitration on Fetterly's behalf, claiming violations of the collective bargaining agreement.

The arbitrator ruled in favor of the Association on all three grievances.

The School District moved to vacate the award pursuant to CPLR §7511(b)(1)(iii), contending that the arbitrator exceed his authority in promulgating the three awards, relying on what it contended was the controlling provision in the Collective Bargaining Agreement, which provided as follows:

"The arbitrator shall regard the provisions of [the CBA] as the basic principles and fundamental law governing the relationship of the parties. The arbitrator's function is to interpret the provisions of [the CBA] and to decide cases of alleged violation of such provisions. The arbitrator shall not supplement, enlarge, diminish, or alter the scope of meaning of [the CBA] and its appendices as it exists from time-to-time, or any provisions therein, nor entertain jurisdiction of any subject matter not covered thereby (except to the extent necessary to determine his [or her] jurisdiction). Without limiting the foregoing, the subjects of health insurance and retirement are by this section excluded from arbitration."

Supreme Court granted the district’s motion, holding that the arbitrator has exceeded his authority in making the three awards.

The Appellate Division agreed in part, noting that arbitration awards may be vacated only “where the arbitrator's award violates a strong public policy, is irrational or clearly exceeds a specifically enumerated limitation on the arbitrator's power.

The CBA defined a grievance as "a complaint by an employee or [the district] of an alleged violation of any of the terms and conditions of [the CBA]." The CBA then limits the scope of arbitration, providing: "Not all grievances are subject to arbitration. The scope of arbitration and the jurisdiction of the arbitrator are defined under 'Jurisdiction of the Arbitrator.'"

The first grievance required the arbitrator to determine whether Fetterly had earned vacation and additional leave credits during his workers' compensation leave. At the outset, the arbitrator found: "The [CBA] is silent on the question of how, or even if, a workers' compensation absence affects an employee's vacation entitlements….” He found that Fetterly was an "eligible employee" within the meaning of the CBA and that workers' compensation leave did not interrupt his continuous service.

The Appellate Division agreed that in this ruling the arbitrator had exceed his authority. Although the arbitrator had jurisdiction to determine if “the CBA was ‘silent’ on the subject of the grievance, once he determined that it was “silent” he was forbidden by the explicit terms of the agreement, which both created and limited his power, to entertain jurisdiction of the controversy. Accordingly, said the Appellate Division, Supreme Court therefore correctly vacated that element of the award on the ground that it "manifestly exceeds a specific, enumerated limitation on the arbitrator's power."

Such was not the case, however, with respect to the second and third stipulated issues submitted to arbitration.

As to the second grievance, the arbitrator determined that the dispute was a grievance within the meaning of the CBA because the parties had so treated it throughout the five-step grievance process and because the grievance's "Specifics of Violation" alleged violations of the CBA.

However, consistent with the stipulation of the issue to be resolved as submitted by the parties, he did not reach the merits of this grievance.

Accordingly, said the Appellate Division, Supreme Court was incorrect in vacating this segment of the award.

The Appellate Division noted that the arbitrator’s characterization of the contract provision as "frustratingly vague" does not permit the court to substitute its judgment for the arbitrator's as to whether the provision covered the subject at issue. Indeed, said the Appellate Division, the arbitrator's interpretation of the CBA on this point would have been "insulated from judicial review even if he had misconstrued or disregarded its plain meaning."

Turning to the third grievance, the Appellate Division said that the arbitrator found that the district’s placement of a letter, the contents of which the Association claimed constituted disciplinary action, in Fetterly's personnel file violated paragraph C of article XV of the CBA.

The arbitrator ruled that insertion of the letter in the file "ignores article XVIII [of the CBA] and the long-established principles it warrants." The union argued the letter placed in Fetterly’s file was a reprimand that constituted discipline without just cause in violation of the CBA. The arbitrator rejected the district's argument that “the letter was merely a counseling memorandum and that its purpose was to counsel or advise rather than to discipline” Fetterly.

Supreme Court held that the arbitrator exceeded his authority in considering the intent of district's superintendent in writing the letter and that its placement in Fetterly's file did not violate the CBA. In addition, Supreme Court held that “the letter did not constitute discipline or dismissal” but was a “counseling memoranda,” which could be placed in an employee personnel.*

As the CBA directs the arbitrator to "hear a case or cases in full with findings of fact," the Appellate Division said that it was appropriate for the arbitrator to consider the superintendent's intent along with other factors, such as the letter's tone and content and the absence from the record of clear evidence that any counseling had taken place, in the course of resolving the parties' disagreement as to whether the letter constituted "discipline" within the meaning of the CBA.

The Appellate Division ruled that the arbitrator’s determination that the letter's intent was disciplinary is a factual finding which, even if erroneous, is not subject to judicial review. Further, even if the arbitrator's decision that the letter was disciplinary in nature resulted from an error of law, vacatur would not be warranted, since "absent a provision in the arbitration clause, arbitrators are not bound by principles of substantive law and rules of evidence."

The Appellate Division modified Supreme Court’s ruling, reversing so much of that decision that vacated the arbitrator's determinations on Grievance Two and Grievance Three.

* In Holt v Board of Education, 52 N.Y.2d 625, the Court of Appeals said that performance evaluations and letters of criticism placed in the employee’s personnel file were not “disciplinary penalties” and thus could be placed there without having to first hold a disciplinary proceeding. In contrast, where “constructive criticism” imposed, in effect, a penalty, it constitutes disciplinary action and such action has been found to serve to frustrate an employee’s right to due process as set out in Section 75 of the Civil Service Law, Section 3020-a of the Education Law or a contract disciplinary procedure. The decisions of the Commissioner of Education in Irving v Troy City School District, CEd 14,373, and Fusco v Jefferson County School District, CEd 14,396. illustrate this concept.

The Irving is posted on the Internet at: http://www.counsel.nysed.gov/Decisions/volume39/d14373.htm

The Fusco decision is posted on the Internet at:
http://www.counsel.nysed.gov/Decisions/volume39/d14396.htm

The Fetterly decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2009/2009_05674.htm

Designating a hearing officer to consider Civil Service Law Section 75 disciplinary charges

Designating a hearing officer to consider Civil Service Law Section 75 disciplinary charges
Matter of Perryman v Village of Saranac Lake, 2009 NY Slip Op 05660, Decided on July 2, 2009, Appellate Division, Third Department

Donald G. Perryman, the Village of Saranac Lake Chief of Police, was suspended and charged with misconduct and incompetence* pursuant to Civil Service Law §75. The Village’s Board of Trustees, at a special meeting and while in executive session, agreed to appoint Robert Hite, Esq. as the Hearing Officer to preside over three matters, including the disciplinary action being taken against Perryman. Returning to “open session,” a motion was made to adopt a resolution “appointing the Hearing Officer referenced in executive session” without specifically naming either Hite or the subjects of the hearings.**

The minutes of that meeting indicate that the motion was made by one Board member and seconded by another and that a third Board member affirmatively voted "yes." The Village Attorney sent a letter to Hite advising him of his appointment by the Board.

Hite held a hearing on the charges and issued a report finding petitioner guilty of misconduct and recommending his termination. Ultimately the Board adopted a resolution adopting Hite's report and terminated Perryman’s employment. Perryman appealed, contending, among other allegations, that Hite did not have the authority to conduct the disciplinary hearing pursuant to Civil Service Law §75(2) and that his findings were not based on substantial evidence.

The Appellate Division said that Perryman’s Article 78 petition challenging the validity of Hite’s appointment essentially involved two questions: (1) was the Board action at its special meeting designating Hite as the hearing officer to hold the hearing valid, and (2) if such action was valid, did the Board properly delegated its authority in writing as required by Civil Service Law §75(2).

The court said that the answer to both questions was yes.

§75(2) provides that disciplinary charges may only be heard by "the officer or body having the power to remove the person against whom such charges are preferred, or by a deputy or other person designated by such officer or body in writing for that purpose." In this instance the court said that the "officer or body" that has the power to remove Perryman is the Board. As the Board consists of five members, three "yes" votes were required in order to pass a resolution to delegate to Hite the authority to conduct a hearing on the charges against Perryman.

Rejecting Perryman’s contention that the appointment of Hite “was invalid for failing to garner a three-vote majority,” the Appellate Division decided that although “the minutes reflect that only one member formally said the word "yes" while the two other voting members moved to approve the resolution and seconded it, the unrefuted affidavit submitted by the Village Clerk and the moving and seconding board members established that it was the general practice in the Village that the actions of making or seconding motions by Board members were considered "yes" votes unless stated otherwise.” Accordingly, said the court, “Given this undisputed proof, we see no reason to disregard such affidavits and reach a conclusion on this point different from what was clearly intended by the Board members.”

The decision also notes that the public actions of entities such as the Village Board should not be invalidated "unless there is some resulting uncertainty about what was enacted to someone's detriment." As there is no evidence of any uncertainty or confusion about the designation of Hite to conduct petitioner's disciplinary hearing, “Any other result would needlessly exalt ‘form over substance’.”

As to the merits of the Board's determination, the Appellate Division ruled that the credible evidence adduced at the hearing demonstrated that Perryman “was aware that the Village police officers in question had been drinking before the accident and that he attempted to conceal such information from the investigating authorities, thereby engaging in a pattern of misconduct,” and, in addition, that Perryman “engaged in misconduct by failing to conduct an internal investigation of the incident to address the conduct of the police officers in question, who not only operated a Village vehicle while intoxicated, but failed to disclose this information in the reports they wrote regarding the accident.” Significantly, the Appellate Division said that “the fact that [Perryman] ‘presented an alternative explanation for the course of events’ is not a basis for disturbing the Board's determination.”

The court also rejected Perryman’s argument that the Board's determination should be invalidated because the Board must have “failed to review the record given its size and the fact that Hite's report and recommendation was received one day before the Board voted on it.”***

The court said that the determinations made by the Board are entitled to a presumption of regularity and Perryman failed to show that the Board “made no independent appraisal and reached no independent conclusion.” Further, the decision notes that “[the Board] was not required to read all . . . pages of the hearing transcript and each document submitted … Thus, [Perryman's] unsubstantiated claims that the Board failed to review the record are insufficient to overcome the presumption of regularity."

* The charges against Perryman alleged that he had attempted to conceal information concerning two Village police officers involved in a car accident while on duty in an unmarked Village police car following their undisputed consumption of alcohol from the investigating authorities.

** See In Scharf v Levittown UFSD, 294 AD2d 50, wherein the Appellate Division held that the naming of a specific hearing officer in disciplinary charges served upon an employee, coupled with a written resolution adopted by the school district's Board of Education incorporating the Notice of Charges by reference, satisfied the requirement that Section 75 hearing officers be designated in writing.

** The appointing authority must have the transcript of the disciplinary hearing available to it before it can make its determination [Ernst v Saratoga County, 234 AD2d 766].

The decision is posted on the Internet at:http://www.courts.state.ny.us/reporter/3dseries/2009/2009_05660.htm

Recap of Supreme Court's labor & employment law decisions

Recap of Supreme Court's labor & employment law decisions
Source: Posted on the Internet in CCH Workday at http://cch-workday.blogspot.com:80/ . Reproduced with permission. Copyright© CCH 2009, All rights reserved.

Locke v Karass. A union representing Maine's state employees may charge fee-paying nonmembers for the national, or "extra-local" litigation expenses incurred by its parent union, a unanimous Supreme Court ruled, holding that the First Amendment permits such charges (January 21, 2009).

Crawford v Metro Gov’t of Nashville. Continuing its recent trend of broadening Title VII's anti-retaliation provision, the High Court unanimously ruled that the Act’s retaliation protections extend to employees who speak out about discrimination and harassment not of their own accord, but when answering questions during an employer-ordered internal investigation. Because the employee’s conduct was protected under Title VII’s opposition clause, the Court declined to address whether her conduct was also governed by the anti-retaliation provision’s participation clause (January 26, 2009).

Ysursa v Pocatello Educ Ass’n. An Idaho law banning public employee payroll deductions for union political activities did not violate labor unions’ free speech rights, the Supreme Court ruled, noting the distinction between state suppression of speech and instances in which states decline to promote speech (February 24, 2009).

14 Penn Plaza LLC v Pyett. Affirming its decidedly pro-arbitration policy, the Supreme Court held that courts must enforce collective bargaining agreements that “clearly and unmistakably” require union members to arbitrate their claims arising under the Age Discrimination in Employment Act. Such agreements are enforceable under the ADEA since the Act does not preclude arbitration of claims brought pursuant to the statute (April 1, 2009).

Flores-Figueroa v United States. In a case informing on federal worksite immigration enforcement operations, a unanimous Supreme Court ruled that an undocumented worker who presented false Social Security and Alien Registration numbers to obtain employment may not be convicted of identity theft under the federal “aggravated identity theft” statute unless the federal government shows that the worker had actual knowledge that the means of identification belonged to another person (May 4, 2009).

Arthur Anderson LLP v Carlisle. In an investor suit, the Supreme Court held that a litigant who was not a party to an arbitration agreement may invoke Sec. 3 of the Federal Arbitration Act to compel arbitration if applicable state law would allow enforcement of contracts by (or against) a nonsignatory through assumption or third-party beneficiary theories (May 5, 2009).

AT&T Corp v Hulteen. The Pregnancy Discrimination Act does not require employers to set current pension benefits at a level that will restore service credits to female employees for pregnancy leaves taken prior to the passage of the PDA. In one of the last opinions to be authored by Justice Souter, the High Court held that employers do not necessarily violate the PDA when paying pension benefits calculated in part under an accrual rule – applied prior to the PDA's enactment – that gives fewer service credits for pregnancy leaves than for other medical leaves. Because AT&T’s benefit calculation rule accorded with the terms of a bona fide seniority system under Title VII, the company was insulated from a legal challenge (May 18, 2009).

Ashcroft v Iqbal. “Civil rights plaintiffs will have to be more thoughtful about how they frame their complaints to avoid pleading themselves out of court” following the Supreme Court’s ruling in an antitrust case, notes plaintiff’s lawyer Paul Mollica in his Daily Developments in EEO Law blog. Though not an employment case, the High Court’s ruling makes clear that the heightened pleading standards set forth in its 2007 decision in Bell Atlantic Corp v Twombly applies to all civil actions, not just antitrust cases, and that "threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." (May 18, 2009).

Gross v FBL Fin Servs Group. Declining to import the mixed-motives burden-shifting rubric applied under Title VII, the Supreme Court ruled that an employee claiming disparate treatment under the ADEA must establish by a preponderance of evidence that age was the “but-for” cause of the adverse employment action challenged. Even when the employee has produced some evidence that age was one motivating factor in the employer's decision, the burden of persuasion does not shift to the employer to show that it would have taken the same action regardless of age, held the Court (June 18, 2009).

State Comptroller Thomas P. Dinapoli on processing payment to State Senators for certain monies

State Comptroller Thomas P. Dinapoli on processing payment to State Senators for certain monies
Source: Office of the State Comptroller press release

The State Comptroller has directed his staff to stop processing any Senate vouchers, including those for the Senators’ travel expenses. As of July 2, 2009 the Comptroller reports that more than 250 vouchers, totaling $560,000 are awaiting processing.

As to the issue of withholding the compensation due the Senators, the Comptroller said that there are “complicated legal and constitutional issues” to be reviewed and that his staff has been meeting with Governor Paterson’s staff to resolve those issues.

In addition, the Comptroller said that he has taken action to hold up transmittal of the Senators’ compensation and has initiated legal action in an effort to obtain a declaratory judgment clarifying his obligations with respect to making such payments as would otherwise be the case.

§5 of the Legislative Law provides for the compensation of members. Effective January 1, 1999, each member of the legislature is to receive an annual salary of $75,000, payable in twenty-six bi-weekly installments. In the event a budget is not passed by the Legislature by the first day of the State’s fiscal year, such payments are to be suspended except that payroll deductions for federal taxes, state taxes, social security taxes, city taxes, payments on retirement loans, retirement contributions, contributions to health insurance or other group insurance programs, child support and court ordered payments shall be processed and paid as otherwise required.

Once the budget has been passed by the Legislature normal bi-weekly salary installment payments are resumed and an amount equal to the accrued, withheld and unpaid installments “shall be promptly paid to each member.”

Presumably the Comptroller would adopt a similar procedure in the event the basic compensation of the Senators is discontinued by the Comptroller or by the court.

“My fiancée got me fired”: The evolution of retaliation claims

“My fiancée got me fired”: The evolution of retaliation claims*
Source: Posted on the Internet in CCH Workday at http://cch-workday.blogspot.com/ . Reproduced with permission. Copyright© CCH 2009, All rights reserved.

"With the Sixth Circuit’s recent pro-employer ruling on associational retaliation, and a current split on the matter unfolding among the circuits, this issue may well be headed to the Supreme Court next term…to a Court under Chief Justice Roberts that has been decisively pro-employee in its retaliation decisions.

"But is this case really much ado about nothing?In Thompson v North American Stainless, LP, a male employee, who alleged that he was fired shortly after his fiancée filed an EEOC sex-bias charge against their shared employer, had no reprisal claim under Title VII. The plain and unambiguous statutory language of Title VII’s anti-retaliation provision requires employees to personally engage in protected activity, held a 10-6 en banc Sixth Circuit, affirming a district court’s grant of summary judgment for the employer.

"The majority observed that the plain language of Title VII will protect most close relationships because “‘[i]n most cases, the relatives and friends who are at risk of retaliation will have participated in some manner in a co-worker’s charge of discrimination.” Here, though, the employee did not claim that he engaged in any statutorily protected activity either on his own behalf or on behalf of his fiancée.In so holding, the Sixth Circuit joined the Third, Fifth and Eighth Circuits, which have previously considered and rejected similar associational retaliation claims.

"Note, however, the EEOC takes the position in its Compliance Manual that Title VII prohibits retaliation against someone so closely related to, or associated with, the person exercising his or her statutory rights that it would discourage that person from pursuing those rights. For example, “it would be unlawful for [an employer] to retaliate against an employee because his or her spouse, who is also an employee, filed an EEOC charge.”

"Both spouses, in such circumstances, could bring retaliation claims, said the agency. Does this mean simply having that close association to the charging party, without engaging in protected activity, is enough to also assert an associational retaliation claim?

"It seems that way, according to the EEOC. The Seventh and Eleventh Circuits have also interpreted Title VII’s anti-retaliation provision broadly to protect associated third parties from retaliation.

"What does all this mean? Well, in its holding, the majority wrote: “[the] plaintiff and the EEOC request that we become the first circuit court to hold that Title VII creates a cause of action for third-party retaliation on behalf of friends and family members who have not engaged in protected activity.” (Emphasis added).

"Personally, I think the majority got it right by not doing so. The Sixth Circuit appears not to question the legality of associational retaliation claims, but believes that merely having an “association” with the charging party, without also personally engaging in some protected activity, is not enough.

"The employee did not personally oppose any alleged discrimination. And we won’t get into whether “silent opposition” is opposition, even if some dissenting judges seem to think it is. If, however, the employee had engaged in some kind of participation activity, like help his fiancée complete her EEOC sex-bias charge, and participate in any interview with the agency, he likely would have been able to get past summary judgment on his retaliatory discharge claim. But, the employee admitted he did not personally oppose any alleged discrimination or participate in her charge. So, no dice.

"None of this means employers should rest on their laurels. The Supreme Court seems to like retaliation cases and may take this one just to clarify the issues. Besides, there is this circuit split, a split that may have more to do with whether closely associated individuals have personally engaged in a protected activity, not with whether the reach of Title VII’s anti-retaliation provision includes associational discrimination claims. Of note, the employee’s attorney indicated that he is considering filing a cert petition.

"In the meantime, a little retaliation-prevention training couldn’t hurt, since the EEOC reported that the number of retaliation claims filed with the agency jumped from 22,663 in FY 2007 to 32,690 in FY 2008, a nearly 23-percent increase. This was the second highest increase in charge filings, next to age discrimination."


* NYPPL Comments: In an action that could be subtitled “My supervisor’s fiancée got my promotion,” the Second Circuit ruled that disappointed candidates for promotion could not maintain their lawsuit alleging “fiancée favoritism” violated their civil rights.

In Decintio v Westchester County Medical Center, 807 F2d 304, the 2nd Circuit held that the provisions of Title VII "proscribe discrimination based on a person's gender, but not sexual affiliations and, therefore, ... preferential treatment accorded to an employee because of a consensual romantic relationship with a supervisor does not give rise to a cause of action for sexual discrimination on behalf of another employee." The U.S. Supreme Court allowed the decision to stand when it refused to hear Decintio's appeal [see 484 U.S. 825.]

In contrast, in Kersul v Skulls Angels Inc., 130 Misc2d 345, a case involving "a female employee dismissed and replaced by another female worker with whom the supervisor was alleged to have had a close personal relationship and who had received unwarranted promotions and other benefits," the court recognized "a cause of action for sexual discrimination" under Section 296 of New York State's Executive Law, [the Human Rights Law].

The Court, however, noted that EEOC issued a policy statement on "Employer Liability under Title VII for Sexual Favoritism [N-915-048] in which it concludes that on the basis of the Decintio and similar Federal court decisions, "Title VII does not prohibit isolated incidents of preferential treatment based on consensual romantic relationships and, although unfair, does not constitute discrimination against other female or male employees."

The Kersul Court indicated that there are two basic types of sexual harassment that could constitute such a violation:

1. Sexual misconduct directly linked to the grant or denial of an economic quid pro quo where "such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment [Meritor Savings Bank v Vinson, 477 US 57]; and

2. Sexual favoritism which becomes pervasive to the extent of creating a hostile work environment [Priest v Rotary, 634 FSupp 571].

See, also, Fella v County of Rockland, 297 A.D.2d 813, where the court, citing DeCintio, explained that there is no sexual discrimination or harassment involved "where the conduct complained of by the employee involves an isolated act of preferential treatment of another employee due to a romantic, consensual relationship."

Employee denied unemployment insurance benefits after resigning despite assurances of continued employment notwithstanding a layoff

Employee denied unemployment insurance benefits after resigning despite assurances of continued employment notwithstanding a layoff
Matter of Ruggiero v Commissioner of Labor, 2009 NY Slip Op 05236, decided on June 25, 2009, Appellate Division, Third Department

Elaine Ruggiero learned that resigning from one's position in anticipation of being laid off does not constitute good cause for leaving one's employment when she attempted to overturn the Commissioner of Labor’s determination denying her application for unemployment insurance.

According to the decision, Ruggiero submitted her resignation after she was told that the program that she had been teaching would not be offered during the next academic year. Believing that she would not be able to exercise bumping rights over the positions of less senior employees, she did not ask her employer if other positions were available. The Appellate Division said that “by failing to do so, she neglected to take reasonable measures to protect her employment.”

Based on testimony from her former employer’s representative, Ruggiero was required to pay “a recoverable overpayment” and, in addition, a penalty was imposed based upon the finding that she made a willful misrepresentation to receive benefits.*

The employer’s representative testified that Ruggiero had sufficient seniority to exercise bumping rights over other employees in positions in the same tenure area and that “the employer planned to transfer her to one of these positions and advised her that she would be teaching something in the fall, but was not sure of the subject area.” Despite this assurance, Ruggiero submitted her resignation.

The Appellate Division held that there was substantial evidence to support the Board's finding that Ruggiero voluntarily left her employment without good cause.

Another aspect of unemployment insurance claims: a claim for benefits filed by an educator who is unemployed between school semesters. However, Labor Law subdivisions 10 (professional educators) and 11 (non-professional educators) of §590.11 provide that such persons who are given a reasonable assurance of reemployment for the following school semester are ineligible for benefits if they are unemployed between successive semesters.

For example, in Huff v Sweeney, Appellate Division, 222 A.D.2d 919, the Appellate Division ruled that teacher's aides who are provided with a reasonable assurance of reemployment following a summer recess are ineligible for unemployment insurance benefits during the recess period.

Applying the provisions of Section 590.11 of the Labor Law, the Unemployment Insurance Appeals Board had ruled that Huff was ineligible for such benefits for the summer because the Buffalo City School District had given him a reasonable assurance that he would be rehired under the same terms and conditions of employment in the next academic year.

The same rule applies to substitute teachers as the court held in In re Papapietro, 34 A.D.3d 956. Here the Appellate Division sustained a decision by the Unemployment Insurance Appeals Board rejecting a claim for benefits filed by John Papapietro under the authority of Labor Law Section 590.10. The Board determined that Papapietro, a per diem substitute teacher employed by the Rochester City School District, was sent a letter “assuring him of continued employment as a per diem substitute teacher [during the following academic year] with expected earnings of not less than 90% of his earnings for the [prior] school year.”

* Ruggiero’s application for benefits stated that she lost her employment due to a lack of work which, in view of her employer’s assurance of her of continued employment, the court characterized as a “willful misrepresentation to obtain benefits.”

The decision is posted on the Internet at:http://www.courts.state.ny.us/reporter/3dseries/2009/2009_05236.htm

Employer can avoid disparate-impact liability based evidence that its test was valid

Employer can avoid disparate-impact liability based evidence that its test was valid
Ricci Et Al. V. DeStefano, USSC, No. 07–1428, decided June 29, 2009 [Together with No. 08–328, Ricci et al. v. DeStefano et al.]

NYPPL's summary of the Ricci v DeStefano decision by the United State Court of Appeals, Second Circuit, was captioned “The Merit System and public employment – does it have a future?” [see http://publicpersonnellaw.blogspot.com/search?q=ricci].

New York State’s Constitution mandates that “appointments and promotions in the civil service of the state and all of the civil divisions thereof, including cities and villages, shall be made according to merit and fitness to be ascertained, as far as practicable, by examination which, as far as practicable, shall be competitive” [Article V, Section 6] and other states have adopted similar provisions with respect to appointment and promotion in the public service.

The Second Circuit, however, rejected Ricci’s challenging the City of New Haven’s refusal to certify the results of a fire department promotion examination not because the test was not job-related but because the test results had a disparate impact on African Americans.

In a 5-4 decision spanning 89 pages, the Supreme Court overturned the Second Circuit’s ruling, suggesting that the traditional merit system for public employment may have a future after all if the tests administered in compliance with the concept of merit and fitness are professionally developed and job related and not designed to discriminate because race, religion, national origin or other prohibited reasons.

In the New Haven case, when the examination* results showed that white candidates had outperformed minority candidates, some firefighters argued the tests should be discarded because the results showed the tests to be discriminatory. They threatened a discrimination lawsuit if the City made promotions based on the tests. Other firefighters, however, contended that the tests were "race-neutral" and job related, and they, in turn, threatened to file a discrimination lawsuit if the City ignored the test results. Relying on statistical evidence demonstrating adverse impact on minorities, New Haven ignored the test results, thereby denying promotions to the candidates who had performed well, and voided the examinations.

The majority of the Supreme Court concluded that the race-based action taken New Haven’s is prohibited by Title VII unless the employer can demonstrate, by strong evidence, that had if it had not taken such action, it would have been liable under the disparate-impact statute.

New Haven, said the court, cannot meet that threshold standard. Thus the City’s action in discarding the tests was a violation of Title VII.

By way of background, the Supreme Court noted that the City had employed an outside, independent entity, Industrial/Organizational Solutions, Inc. (IOS) -- an Illinois company that specializes in designing entry-level and promotional examinations for fire and police departments -- to develop and administer the examinations, at a cost to the City of $100,000.

In the words of the court: there is “no genuine dispute that the examinations were job-related and consistent with business necessity.”

The Supreme Court rationalized: If an employer cannot rescore a test based on the candidates’ race, then it follows, a fortiori, that it may not take the greater step of discarding the test altogether to achieve a more desirable racial distribution of promotion-eligible candidates in the absence of strong evidence that the test was deficient and that discarding the results is necessary to avoid violating Title VII’s disparate impact provision.

According, said the court, “restricting an employer’s ability to discard test results (and thereby discriminate against qualified candidates on the basis of their race) also is in keeping with Title VII’s express protection of bona fide promotional examinations.”

The Supreme Court, reversing the Second Circuit’s ruling, stated that “under Title VII, before an employer can engage in intentional discrimination for the asserted purpose of avoiding or remedying an unintentional disparate impact, the employer must have a strong basis in evidence to believe it will be subject to disparate-impact liability if it fails to take the race-conscious, discriminatory action” [emphasis supplied].

If, after it uses the test results of a challenged examination, the employer is sued on a disparate-impact theory, it appears clear that the employer can avoid disparate-impact liability based on strong evidence that had it not certified and used the results of the examination, it would have been subject to disparate treatment liability.

* The employer may act upon the results of any professionally developed ability test provided that such test, its administration or action upon the results is not designed, intended or used to discriminate because of race.” [AT&T Corp. v. Hulteen, 556 U. S. ___, May 18, 2009, (slip op. at page 8 – see http://www.supremecourtus.gov/opinions/08pdf/07-543.pdf ).

The decision is posted on the Internet at:
http://www.supremecourtus.gov/opinions/08pdf/07-1428.pdf