PETITIONER WAS CHARGED WITH MAKING A COMMENT TO A FELLOW EMPLOYEE AT A SOCIAL GATHERING, WAS FOUND GUILTY AND WAS TERMINATED; THE EMPLOYEE TESTIFIED THE REMARK WAS MADE AT THE WORKPLACE; THEREFORE PETITIONER WAS FOUND GUILTY OF CONDUCT THAT WAS NEVER CHARGED; DETERMINATION ANNULLED (THIRD DEPT).

The Third Department, annulling the determination terminating petitioner’s employment with the state, found that petitioner’s due process rights were violated because he was found guilty of conduct that was never charged. Petitioner was charged with making a comment to a fellow employee at a social gathering. But the employee testified the remark was made at the workplace:

Pursuant to Civil Service Law § 75 (1), a civil service employee “shall not be removed or otherwise subjected to any disciplinary penalty . . . except for incompetency or misconduct shown after a hearing upon stated charges.” “The standard of review of such a determination made after a disciplinary hearing is whether it is supported by substantial evidence” … . “The first fundamental of due process is notice of the charges made. This principle equally applies to an administrative proceeding for even in that forum no person may lose substantial rights because of wrongdoing shown by the evidence, but not charged” …  Fundamentally, the determination made in a disciplinary proceeding “must be based on the charges made” and it is error to find a public employee guilty of uncharged specifications of misconduct and impose a penalty thereon … . Matter of Kiyonaga v New York State Justice Ctr. for the Protection of People with Special Needs, 2022 NY Slip Op 02850, Third Dept 4-28-22

Practice Point: Pursuant to the Civil Service Law, a state employee charged with official misconduct is entitled to due process, including notice of the charges. Here the petitioner was charged with making a comment to a fellow employee at a social gathering. The employee testified the remark was made in the workplace, conduct that was never charged. Petitioner was improperly found guilty of misconduct that was never charged and was terminated. The determination was annulled.

 

VAGUE, CONCLUSORY ALLEGATIONS WILL NOT SUPPORT A CONSTRUCTIVE DISCHARGE CAUSE OF ACTION (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the plaintiff did not state a cause of action for constructive discharge from his employment as a civil engineer for the City of New York:

The plaintiff was employed by the New York City Department of Transportation (hereinafter DOT) as an assistant civil engineer from 1997 until 2014, when he resigned. He commenced this action in 2017 alleging, inter alia, that he had been constructively discharged because he had reported other employees’ misconduct … . * * *

“An employee is constructively discharged when her or his employer, rather than discharging the plaintiff directly, deliberately created working conditions so intolerable that a reasonable person in the plaintiff’s position would have felt compelled to resign” … .  Here, affording the complaint a liberal construction, accepting the facts as alleged to be true, and according the plaintiff the benefit of every possible favorable inference … , the complaint fails to state a cause of action alleging constructive discharge, as the allegations are either vague and conclusory … , or pertain to events that occurred after the plaintiff resigned. Dhar v City of New York, 2022 NY Slip Op 02779, Second Dept 4-27-22

Practice Point: Vague and conclusory allegations will not support a cause of action for constructive discharge, i.e., working conditions which are intolerable, “forcing” plaintiff to resign.

 

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THE SCHOOL PRINCIPAL HAD THE AUTHORITY TO MAKE A PROBABLE CAUSE DETERMINATION IN THIS DISCIPLINARY PROCEEDING WHICH RESULTED IN THE TERMINATION OF A TENURED TEACHER (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the NYC Department of Education’s (DOE’s) motion to dismiss the petition to vacate the arbitrator’s award should have been granted. The arbitrator determined the petitioner, a tenured teacher, was properly charged with incompetence, misconduct and neglect of duty and termination the teacher’s employment was appropriate. The teacher petitioner argued unsuccessfully that the initial probable cause determination must be made by the school board, not, as was the case here, the school principal:

… [T]he absence of a vote on probable cause by the “employing board” (Education Law § 3020-a[2]), did not deprive the hearing officer of the jurisdictional authority to hear and determine the underlying disciplinary charges. Rather, … the Chancellor was vested with the authority “[t]o exercise all of the duties and responsibilities of the employing board as set forth in [Education Law § 3020-a]” … , and with the authority to “delegate the exercise of all such duties and responsibilities” … . Matter of Cardinale v New York City Dept. of Educ., 2022 NY Slip Op 02791, Second Dept 4-27-22

Practice Point: In New York City, a school principal has the authority to determine whether there is probable cause to charge a tenured teacher with, for example, incompetence, misconduct and neglect of duty.

 

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PLAINTIFF’S STATE AND CITY HUMAN RIGHTS LAW CAUSES OF ACTION PROPERLY DISMISSED PURSUANT TO THE DOCTRINE OF COLLATERAL ESTOPPEL; THE IDENTICAL CLAIMS UNDER FEDERAL LAW WERE DISMISSED IN FEDERAL COURT ON SUMMARY JUDGMENT; TWO-JUSTICE DISSENT (FIRST DEPT).

The First Department, over a two-justice dissent, determined plaintiff was collaterally estopped from asserting her NYC Human Rights Law causes of act after the dismissal of identical claims made under federal law in federal court. The First Department acknowledged the NYC Human Rights Law causes of action must be analyzed separately and independently from the federal and state human rights law causes of action, but held that collateral estoppel was proper under the facts:

In light of the particular express facts that the federal courts found were conclusively demonstrated by the record on the summary judgment motions before the district court; the nature of the allegations underlying plaintiff’s State and City Human Rights Law claims in this action and the manner in which plaintiff has litigated those claims; and the relevant collateral estoppel case law … , we conclude that, even affording the City Human Rights Law claims the liberal analysis to which they are entitled, plaintiff’s claims under both the State and City Human Rights Laws were properly dismissed under the doctrine of collateral estoppel … . …

In concluding that plaintiff failed to allege discriminatory intent, the motion court correctly held that collateral estoppel applied to facts identical to those necessarily found by the district court to be undisputed when it granted summary judgment dismissing plaintiff’s federal employment discrimination claims ..  …

… [I]n dismissing the discrimination and hostile work environment claims against NYU, the motion court correctly relied on the district court’s finding that defendants Joseph Thometz and Eve Meltzer (the individual defendants) were not supervisors or managers, and thus that [defendant] NYU, as plaintiff’s employer, was not strictly liable for their conduct … . …

… [T]he federal courts found that NYU provided a legitimate, nonretaliatory reason for plaintiff’s termination: plaintiff breached a protective order issued by the district court by sending unsolicited emails to a potential witness in the federal action. Moreover, the federal courts found that plaintiff failed to present evidence that NYU’s reason was pretextual. … . Russell v New York Univ., 2022 NY Slip Op 02765, First Dept 4-26-22

​Practice Point: Although NYC Human Rights Law violations must be analyzed separately and independently from federal and state law violations, here the dismissal of the federal claims in federal court required the dismissal of the state and city claims pursuant to the doctrine of collateral estoppel.

 

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PLAINTIFF SUED BOTH THE COUNTY AND THE SHERIFF FOR ALLEGED EXPOSURE TO CONTAMINATED WATER IN THE SHOWER AT THE JAIL; THE ACTION AGAINST THE COUNTY WAS NOT BROUGHT UNDER A VICARIOUS LIABILITY THEORY (THE COUNTY IS NOT VICARIOUSLY LIABLE FOR THE ACTS OR OMISSIONS OF THE SHERIFF); RATHER THE CAUSE OF ACTION ALLEGED THE COUNTY WAS NEGLIGENT IN ITS OWN RIGHT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff, an inmate at the Orange County Correctional Facility (OCCF), stated a cause of action against the county, as well as the county sheriff. Plaintiff alleged he was exposed to contaminated shower water at the jail. The cause of action against the county was not based on a vicarious liability theory (the county is not vicariously liable for the acts or omissions of the sheriff’s office). Rather plaintiff stated a cause of action alleging the county was negligent in failing to ensure the safety of the water at the jail. That cause of action is distinct from the sheriff’s duty to keep inmates safe. The issue was properly raised for the first time on appeal:

… [T]he complaint did not solely seek to hold the County vicariously liable for the actions and omissions of the sheriff and his deputies. The complaint alleged that the County had a duty to maintain the OCCF, including its water supply, in a safe and proper manner, and that the County’s breach of that duty caused the plaintiff to sustain personal injuries. The County’s duty to provide and maintain the jail building is distinguishable from the sheriff’s duty to receive and safely keep inmates in the jail over which the sheriff has custody … . Contrary to the defendants’ contention, the plaintiff’s argument that the County is liable for its own negligence, as opposed to being vicariously liable for the negligence of the sheriff or his deputies, is not improperly raised for the first time on appeal. Aviles v County of Orange, 2022 NY Slip Op 02384, Second Dept 4-13-22​

Practice Point: The county is not liable for the acts or omissions of the county sheriff under a vicarious liability theory. However, here the allegation that the shower water at the jail was contaminated stated a cause of action against the county for its own negligence. Therefore the action against the county should not have been dismissed.

 

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PLAINTIFF STATED A HOSTILE WORK ENVIRONMENT CAUSE OF ACTION WITH THE ALLEGATION (AMONG OTHERS) THAT HIS ACCENT WAS MOCKED, BUT PLAINTIFF DID NOT DEMONSTATE HIS DEMOTION WAS RELATED TO SUCH ANIMUS; THERFORE THE DISCRIMINATION CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined plaintiff’s employment discrimination claims under the NYS and NYC Human Rights Law stemming from his demotions should have been dismissed:

The discrimination claims should not have been allowed to proceed. Defendants proffered evidence supporting several legitimate reasons for demoting him from his provisional managerial position, including (1) an agency-wide restructuring, (2) plaintiff’s lack of accounting and management skills, and (3) evidence that he was a poor manager whose routinely hostile demeanor demoralized his subordinates, as evidenced by complaints made against him by several of those subordinates …  In the face of this evidence, plaintiff failed to come forward with any evidence raising an issue of fact as to whether these reasons were mere pretext for discrimination (under the State HRL) or whether discrimination was one of the motivating factors for the demotion (under the City HRL) … . Plaintiff presented no evidence of any disparity between defendants’ treatment of him and defendants’ treatment of employees of other races or ethnicities under similar circumstances. While plaintiff’s allegations of remarks that could be interpreted as derogatory or indicative of animus suffice to support the hostile work environment claim … plaintiff fails to identify any evidence connecting such animus, if any, to the decision to demote him … . Kwong v City of New York, 2022 NY Slip Op 02342, First Dept 4-7-22

Practice Point: Facts sufficient to state a cause of action for a hostile work environment do not necessarily state a cause of action for employment discrimination. A connection must be made between the hostile work environment claims (here allegations plaintiff’s accent was mocked) and the discrimination (here a demotion).

 

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A PROBATIONARY FIREFIGHTER INJURED WHILE TRAINING TO COMPLETE A FIRE BASIC TRAINING PROGRAM WAS INJURED IN THE PERFORMANCE OF HIS DUTIES, ENTITLING HIM TO GENERAL MUNICIPAL LAW 207-A DISBILITY BENEFITS (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice McShan, determined Supreme Court properly found petitioner, a probationary firefighter, was entitled to disability benefits pursuant to General Municipal Law 207-a. The fact that petitioner was injured while training for a test required for the completion of a fire basic training program did not mean petitioner was not injured in the performance of his duties, as argued by the city:

Although petitioner’s injury did not occur in the course of his actual performance of the required test, successful completion of the candidate physical ability test was a necessary requirement of petitioner’s position, and petitioner was engaged in the expected and foreseeable task of practicing for that test during a mandatory training program that was part of his duties as a probationary firefighter … . The record further reflects that petitioner was attending the Fire Academy at the direction of the City, that the training was paid for by the City and that petitioner was receiving full pay for his attendance and participation in the program. Mindful that, as a remedial statute, General Municipal Law § 207-a “should be liberally construed in favor of the injured employees the statute was designed to protect” … , we find that the requisite causal relationship exists between petitioner’s job duties and his injury … . Matter of Smith v City of Norwich, 2022 NY Slip Op 02324, Third Dept 4-7-22

Practice Point: A probationary firefighter injured while training to complete a fire basic training program was injured in the “performance of his duties” and is therefore entitled to General Municipal Law 207-a disability benefits.

 

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THE CITY FIREFIGHTERS WHO, AS ESSENTIAL EMPLOYEES, WERE REQUIRED BY EXECUTIVE ORDER TO WORK DURING THE PANDEMIC, SOUGHT TIME-OFF OR MONETARY COMPENSATION EQUIVALENT TO THE TIME-OFF AFFORDED THE NONESSENTIAL CIVILIAN EMPLOYEES WHO WERE SENT HOME DURING THE PANDEMIC PURSUANT TO THE SAME THE EXECUTIVE ORDER; THE THIRD DEPARTMENT DETERMINED ARBITRATION OF THE ISSUE WAS PRECLUDED BY PUBLIC POLICY (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the city firefighters’ claim to entitlement to time off from work or monetary compensation equivalent to the time-off afforded the civilian employees ordered to stay home (due to COVID) was prohibited by public policy. The firefighters were deemed essential employees and were required to report to work by Executive Order. The “nonessential” civilian employees were ordered to stay home by the same Executive Order:

… [W]e cannot agree that petitioner breached the CBA [collective bargaining agreement] by responsibly implementing the Governor’s directives. To hold otherwise would create an untenable result — i.e., it would sanction a finding that petitioner breached the CBA based upon its required compliance with state public policy. Based on the very nature of the pandemic, requiring extreme public health measures as implemented through the executive orders, we conclude that arbitration of the resulting impact on respondent’s members is precluded as a matter of public policy. Matter of City of Troy (Troy Uniformed Firefighters Assn., Local 86 IAFF, AFL-CIO), 2022 NY Slip Op 02174, Third Dept 3-31-22

Practice Point: Here is a rare example of the preclusion of the arbitration of an employment issue by public policy. The firefighters were ordered to work during COVID as essential employees. The nonessential civilian employees were ordered to stay home. Public policy prohibited arbitration of the question whether the firefighters were entitled to equivalent time-off or monetary compensation.

 

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EACH TIME PLAINTIFF’S MARKETING DIRECTOR ENTERED A CONTRACT WITH A COMPANY IN WHICH THE DIRECTOR HAD AN OWNERSHIP INTEREST CONSTITUTED A SEPARATE WRONG UNDER THE CONTINUING WRONG DOCTRINE; THE COMPLAINT STATED CAUSES OF ACTION FOR FRAUD AND BREACH OF FIDUCIARY DUTY (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined the continuing wrong doctrine applied to each time defendant hired Exit for video editing services within six years of filing the complaint. In addition, the complaint stated a cause of action for breach of a fiduciary duty:

This action arises from the conduct of plaintiff’s former director of marketing, Taufiq, in repeatedly contracting with Exit Editorial, Inc. (Exit), owned by Tristan Kneschke (together with Exit, the Exit defendants), for video editing services. Plaintiff claims that Taufiq falsely represented to it that he negotiated with Exit at arms length and that Exit’s prices were reasonable, when in fact its prices were well above market rate, he had an ownership interest in Exit, and he received a cash finder’s fee for each contract with Exit.

Plaintiff’s allegations and supporting affidavits were sufficient to permit an inference that a separate exercise of judgment, and thus a separate wrong, was committed each time Exit was hired, thereby enabling application of the continuing wrong doctrine … . * * *

The breach of fiduciary duty claim against Taufiq should be reinstated, as an agent has a duty to make full disclosure to its principal of any conflicts of interest and there is no requirement of justifiable reliance for such a claim … .Manipal Educ. Ams., LLC v Taufiq, 2022 NY Slip Op 02200, First Dept 3-31-22

Practice Point: An allegation that an employee entered contracts on behalf of his employer with a company of which the employee was a part-owner, without so informing his employer, supports causes of action for fraud and breach of fiduciary duty. Each contract constituted a separate wrong pursuant to the continuing wrong doctrine.

 

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THE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION (DOCCS) DID NOT ADEQUATELY EXPLAIN THE STATUTORY FACTORS SUPPORTING ITS DENIAL OF PETITIONER’S REQUEST FOR A CERTIFICATE OF GOOD STANDING, WHICH WOULD ALLOW THE FORMER INMATE TO WORK AS A SCHOOL BUS DRIVER; THEREFORE THE DENIAL WAS ARBITRARY; MATTER REMITTED FOR FURTHER PROCEEDINGS (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the Department of Corrections and Community Supervision’s (DOCCS’s) denial of petitioner’s application for a certificate of good conduct (CGC) was not supported by the agency’s cursory rulings, rendering the denial arbitrary and requiring remittal for further proceedings. Petitioner, a former inmate with a sexual-offense conviction, sought the certificate of good standing in order to work as a school bus driver:

… [T]he challenged determination is a form letter with blanks to be filled in, and the Assistant Commissioner made no effort to explain his reasoning beyond checking a box next to a sentence stating that petitioner’s application was being denied because “[t]he relief to be granted by the [CGC] is inconsistent with public interest.” There is no question that such a “cursory letter decision,” which mentions only one of the statutory factors set forth in Correction Law § 703-b and offers no discussion of the “grounds for the denial[,] precludes meaningful review of the rationality of the decision” … .

… Correction Law article 23 requires more than a naked reliance on the crime of conviction, and the Assistant Commissioner’s affidavit … reflects that DOCCS “failed to comply with the statute and acted in an arbitrary manner” … . Although the record contains other information regarding the circumstances of petitioner’s conviction and his subsequent history that might render the denial of his application rational, a “court is powerless to sanction the determination by substituting what it deems a more appropriate or proper basis” … . Matter of Streety v Annucci, 2022 NY Slip Op 02170, Third Dept 3-31-22

​Practice Point: If an administrative agency issues a ruling which does adequately explain the statutory factors upon which the ruling is based, making a review of the bases of the ruling impossible, the ruling may be characterized as “arbitrary” and annulled.