You are here: / Employment Law
,

THERE WERE QUESTIONS OF FACT WHETHER THE SUPERVISORS’ FAILURE TO TAKE APPROPRIATE ACTION ON COMPLAINTS OF SEXUAL DISCRIMINATION BY THE COMPANY PRESIDENT CONSTITUTED AIDING AND ABETTING DISCRIMINATION AND RETALIATION.

The Second Department, reversing Supreme Court, determined the sexual discrimination and retaliation causes of action against supervisors, to whom plaintiffs complained about the alleged sexual harassment by the president of the company, should not have been dismissed. It was alleged the supervisors failed to take appropriate action on the complaints and thereby aided and abetted the discrimination and (re: one supervisor) the retaliation causes of action:

​

An employee who did not participate in the primary violation itself, but who aided and abetted that conduct, may be individually liable based on those actions under both the NYSHRL [New York State Human Rights Law] and the NYCHRL [New York City Human Rights Law] … . The NYSHRL and the NYCHRL each provide that it is “an unlawful discriminatory practice for any person to aid, abet, incite, compel or coerce the doing of any of the acts forbidden [thereunder], or to attempt to do so” … . Where a defendant provided, or attempted to provide, assistance to the individual or individuals participating in the primary violation, he or she may be found liable for aiding and abetting discriminatory conduct … .

“[T]he law is clear that a supervisor need not make derogatory comments or unwelcome sexual advances to subject himself or herself to liability under the [NYSHRL]. Rather, . . . a supervisor’s failure to take adequate remedial measures can rise to the level of actual participation’ under [the NYSHRL]” … . Indeed, a failure to conduct a proper and thorough investigation or to take remedial measures upon a plaintiff’s complaint of discriminatory conduct is sufficient to impose liability on an aiding and abetting theory … . * * *

​

… [The]submissions demonstrated that triable issues of fact exist as to whether [defendant supervisor] had the “power to do more than carry out personnel decisions made by others”… and, thus, may be held individually liable for the alleged retaliation. Ananiadis v Mediterranean Gyros Prods., Inc., 2017 NY Slip Op 05058, 1st Dept 6-21-17

 

EMPLOYMENT LAW (HUMAN RIGHTS LAW, SEXUAL DISCRIMINATION, THERE WERE QUESTIONS OF FACT WHETHER THE SUPERVISORS’ FAILURE TO TAKE APPROPRIATE ACTION ON COMPLAINTS OF SEXUAL DISCRIMINATION BY THE COMPANY PRESIDENT CONSTITUTED AIDING AND ABETTING DISCRIMINATION AND RETALIATION)/SEXUAL DISCRIMINATION (EMPLOYMENT LAW, THERE WERE QUESTIONS OF FACT WHETHER THE SUPERVISORS’ FAILURE TO TAKE APPROPRIATE ACTION ON COMPLAINTS OF SEXUAL DISCRIMINATION BY THE COMPANY PRESIDENT CONSTITUTED AIDING AND ABETTING DISCRIMINATION AND RETALIATION)/RETALIATION (EMPLOYMENT LAW, SEXUAL DISCRIMINATION, THERE WERE QUESTIONS OF FACT WHETHER THE SUPERVISORS’ FAILURE TO TAKE APPROPRIATE ACTION ON COMPLAINTS OF SEXUAL DISCRIMINATION BY THE COMPANY PRESIDENT CONSTITUTED AIDING AND ABETTING DISCRIMINATION AND RETALIATION)/AIDING AND ABETTING (SEXUAL DISCRIMINATION AND RETALIATION, EMPLOYMENT LAW, THERE WERE QUESTIONS OF FACT WHETHER THE SUPERVISORS’ FAILURE TO TAKE APPROPRIATE ACTION ON COMPLAINTS OF SEXUAL DISCRIMINATION BY THE COMPANY PRESIDENT CONSTITUTED AIDING AND ABETTING DISCRIMINATION AND RETALIATION)/HUMAN RIGHTS LAW (EMPLOYMENT LAW, SEXUAL DISCRIMINATION, RETALIATION, THERE WERE QUESTIONS OF FACT WHETHER THE SUPERVISORS’ FAILURE TO TAKE APPROPRIATE ACTION ON COMPLAINTS OF SEXUAL DISCRIMINATION BY THE COMPANY PRESIDENT CONSTITUTED AIDING AND ABETTING DISCRIMINATION AND RETALIATION)

,

SCHOOL DISTRICT’S UNILATERALLY CONTRACTING WITH AN OUTSIDE AGENCY FOR A PREKINDERGARTEN PROGRAM WAS NOT AN IMPROPER PRACTICE UNDER THE EDUCATION LAW (TAYLOR LAW).

The Third Department, in a full-fledged opinion by Justice Devine, reversing (modifying) Supreme Court, determined the respondent school district’s unilaterally contracting with an outside party for a prekindergarten program, without first negotiating with the teachers’ union, did not constitute an improper practice:

​

Respondent Lawrence Union Free School District (hereinafter the District) implemented a universal prekindergarten program pursuant to Education Law § 3602-e. Program tasks were first performed by employees working in a collective bargaining unit exclusively represented by petitioner [teachers’ union] but, in 2012, the District unilaterally contracted with an outside eligible agency to staff and operate it. Petitioner filed an improper practice charge with respondent Public Employment Relations Board (hereinafter PERB) alleging a violation of the Public Employees’ Fair Employment Act (… the Taylor Law… ), namely, that the District did not negotiate in good faith about outsourcing the work … . * * *

​

The Legislature … created a “comprehensive package for a school district’s decision to” fashion a prekindergarten program plan and “withdr[e]w that decision from the mandatory bargaining process,” crafting a mechanism for public consultations that included affected collective bargaining units and left little time for traditional collective bargaining… . A school district was empowered by Education Law § 3602-e (5) (d) to contract without interference in implementing a plan crafted after that process … .

​

… “[T]here is no absolute bar to collective bargaining over” the outsourcing of prekindergarten work to an outside agency… and, as we have held, an agreement reached after collective bargaining on the subject is enforceable… . Inasmuch as the clear language of Education Law § 3602-e compels the conclusion that negotiation is not required to begin with, however, PERB was right to determine that the absence of negotiation did not constitute an improper practice under the Taylor Law. This does not preclude petitioner from seeking impact negotiations in the future. Matter of Lawrence Teachers’ Assn., NYSUT, AFT, NEA, AFL-CIO v New York State Pub. Relations Bd., 2017 NY Slip Op 04944, 3rd Dept 6-15-17

 

EDUCATION-SCHOOL LAW (TAYLOR LAW, SCHOOL DISTRICT’S UNILATERALLY CONTRACTING WITH AN OUTSIDE AGENCY FOR A PREKINDERGARTEN PROGRAM WAS NOT AN IMPROPER PRACTICE UNDER THE EDUCATION LAW (TAYLOR LAW))/EMPLOYMENT LAW (TEACHERS’ UNION, TAYLOR LAW, SCHOOL DISTRICT’S UNILATERALLY CONTRACTING WITH AN OUTSIDE AGENCY FOR A PREKINDERGARTEN PROGRAM WAS NOT AN IMPROPER PRACTICE UNDER THE EDUCATION LAW (TAYLOR LAW))/COLLECTIVE BARGAINING AGREEMENT (EDUCATION-SCHOOL LAW, PREKINDERGARTEN PROGRAM, SCHOOL DISTRICT’S UNILATERALLY CONTRACTING WITH AN OUTSIDE AGENCY FOR A PREKINDERGARTEN PROGRAM WAS NOT AN IMPROPER PRACTICE UNDER THE EDUCATION LAW (TAYLOR LAW))/PREKINDERGARTEN PROGRAM (EDUCATION-SCHOOL LAW, TAYLOR LAW, TEACHERS’ UNION, SCHOOL DISTRICT’S UNILATERALLY CONTRACTING WITH AN OUTSIDE AGENCY FOR A PREKINDERGARTEN PROGRAM WAS NOT AN IMPROPER PRACTICE UNDER THE EDUCATION LAW (TAYLOR LAW))/TAYLOR LAW (EDUCATION-SCHOOL LAW, PREKINDERGARTEN PROGRAM, TEACHERS’ UNION, SCHOOL DISTRICT’S UNILATERALLY CONTRACTING WITH AN OUTSIDE AGENCY FOR A PREKINDERGARTEN PROGRAM WAS NOT AN IMPROPER PRACTICE UNDER THE EDUCATION LAW (TAYLOR LAW))/IMPROPER PRACTICE (EDUCATION-SCHOOL LAW, COLLECTIVE BARGAINING AGREEMENT, TEACHERS’ UNION, PREKINDERGARTEN PROGRAM,  SCHOOL DISTRICT’S UNILATERALLY CONTRACTING WITH AN OUTSIDE AGENCY FOR A PREKINDERGARTEN PROGRAM WAS NOT AN IMPROPER PRACTICE UNDER THE EDUCATION LAW (TAYLOR LAW))

,

PLAINTIFF’S GENDER DISCRIMINATION SUIT SHOULD NOT HAVE BEEN DISMISSED.

The First Department, reversing Supreme Court, determined plaintiff’s gender discrimination suit should not have been dismissed:

As ostensibly nondiscriminatory reasons for terminating plaintiff, defendants pointed to plaintiff’s alleged management deficiencies; her alleged insubordination, by, among other things, refusing a directive to extend her vacation; and her alleged concealment of her romantic relationship with a subordinate.

In response, plaintiff raised issues of fact as to pretext … . Among other things, plaintiff points out that her termination on June 30, 2011, represented a drastic shift from the favorable performance review which she received only three weeks earlier. Indeed, plaintiff was on vacation for nearly a week of that three-week time period. Nothing in the record explains why any defects in plaintiff’s management style, identified in her otherwise favorable performance review, suddenly warranted her termination. Defendants’ assertion that plaintiff was insubordinate and hostile is belied by the record, which shows nothing more than innocuous e-mail exchanges between plaintiff and her superior … during the several days prior to the termination. Finally, defendants’ assertion that plaintiff’s concealing of her relationship with her subordinate was a ground for termination is belied by, among other things, emails exchanged only a week earlier, demonstrating that the subordinate would be reporting to another manager, in order to avoid any appearance of impropriety.

Plaintiff has also pointed to evidence of gender bias, in the form of [her superior’s] holding women, including plaintiff, to a different standard than men in the workplace. Nor were these mere “stray remarks.” To the contrary, [her superior] told plaintiff that she lacked “emotional intelligence and empathy toward others,” which were perceived as shortcomings in her ability to manage her subordinates, and which were “amplified because [she was] in a high profile seat and female.” Barone v Emmis Communications Corp., 2017 NY Slip Op 04787, 1st Dept 6-13-17

EMPLOYMENT LAW (HUMAN RIGHTS LAW, GENDER DISCRIMINATION, PLAINTIFF’S GENDER DISCRIMINATION SUIT SHOULD NOT HAVE BEEN DISMISSED)/HUMAN RIGHTS LAW (EMPLOYMENT LAW, PLAINTIFF’S GENDER DISCRIMINATION SUIT SHOULD NOT HAVE BEEN DISMISSED)/GENDER DISCRIMINATION (EMPLOYMENT LAW, HUMAN RIGHTS LAW, GENDER DISCRIMINATION, PLAINTIFF’S GENDER DISCRIMINATION SUIT SHOULD NOT HAVE BEEN DISMISSED)

,

UNION FOR NURSES EMPLOYED BY NEW YORK CITY WAS ENTITLED TO INFORMATION UNDERLYING DISCIPLINARY CHARGES LODGED AGAINST THE NURSES.

The Court of Appeals, in a full-fledged opinion by Judge Wilson, over a dissenting opinion by Judge Garcia, determined two nurses facing disciplinary action for alleged time-card irregularities were entitled to some of the information upon which the charges were based. The nurses were employed by New York City’s Human Resources Administration (HRA). When the request for the information was denied, the “New York State Nurses Association (NYSNA, or the Union) filed an improper practice petition with the Board of Collective Bargaining of the City of New York (the Board), alleging that it had a right to information, under New York City Collective Bargaining Law (NYCCBL) … “. The Board found most of the requested information should be turned over to the NYSNA and the Court of Appeals agreed:

​

The Board held that section 12-306 (c) (4) [of the NYCCBL] extended to information “relevant to and reasonably necessary for the administration of the parties’ agreements, such as processing grievances, and/or for collective negotiations on mandatory subjects of bargaining,” citing several decisions of PERB [Public Employees Relations Board], the Board’s analogue for state employees … . As noted by the Board, PERB “has consistently upheld the right of a union to seek information for contract administration in the context of disciplinary grievances” … .

* * * Article VI, section 1.D. of the CBA [Collective Bargaining Agreement] defines “grievance” to include: “a claimed wrongful disciplinary action taken against an employee.” Thus, by defining “grievance” to include disciplinary action, the CBA, has, as a matter of contract, incorporated as to disciplinary actions the information requirements applicable to grievances. Matter of City of New York v New York State Nurses Assn., 2017 NY Slip Op 04492, CtApp 6-8-17

MUNICIPAL LAW (EMPLOYMENT LAW, UNION FOR NURSES EMPLOYED BY NEW YORK CITY WAS ENTITLED TO INFORMATION UNDERLYING DISCIPLINARY CHARGES LODGED AGAINST THE NURSES)/EMPLOYMENT LAW (MUNICIPAL EMPLOYEES, UNION FOR NURSES EMPLOYED BY NEW YORK CITY WAS ENTITLED TO INFORMATION UNDERLYING DISCIPLINARY CHARGES LODGED AGAINST THE NURSES)/DISCIPLINARY PROCEEDINGS (MUNICIPAL LAW, EMPLOYMENT LAW, UNION FOR NURSES EMPLOYED BY NEW YORK CITY WAS ENTITLED TO INFORMATION UNDERLYING DISCIPLINARY CHARGES LODGED AGAINST THE NURSES)

, ,

CAUSE OF ACTION SEEKING PUNITIVE DAMAGES FOR NEGLIGENT HIRING, RETENTION AND SUPERVISION NOT PRECLUDED BY DOCTRINE OF RESPONDEAT SUPERIOR.

The Second Department, in an action stemming from a traffic accident, determined the complaint stated a cause of action for negligent hiring, retention and supervision for which punitive damages were sought. The facts were not discussed, but the court explained when a cause of action for negligent hiring seeking punitive damages is not precluded by the doctrine of respondeat superior:

Here, accepting the facts as alleged in the complaint as true and according the plaintiff the benefit of every possible favorable inference, the complaint sufficiently stated a demand for punitive damages insofar as asserted against the defendant driver. At this stage of the litigation, it is premature to conclude that the allegations in the complaint are insufficient to support the allegation that the defendant driver acted so recklessly or wantonly as to warrant an award of punitive damages … .

” Generally, where an employee is acting within the scope of his or her employment, the employer is liable for the employee’s negligence under a theory of respondeat superior and no claim may proceed against the employer for negligent hiring, retention, supervision or training'” … . However, “such a claim is permitted when punitive damages are sought based upon facts evincing gross negligence in the hiring or retention of an employee” … . Gipe v DBT Xpress, LLC, 2017 NY Slip Op 04258, 2nd Dept 5-31-17

 

NEGLIGENCE (EMPLOYER RESPONSIBLE FOR EMPLOYEE, CAUSE OF ACTION SEEKING PUNITIVE DAMAGES FOR NEGLIGENT HIRING, RETENTION AND SUPERVISION NOT PRECLUDED BY DOCTRINE OF RESPONDEAT SUPERIOR)/EMPLOYMENT LAW (NEGLIGENCE, EMPLOYER RESPONSIBLE FOR EMPLOYEE, CAUSE OF ACTION SEEKING PUNITIVE DAMAGES FOR NEGLIGENT HIRING, RETENTION AND SUPERVISION NOT PRECLUDED BY DOCTRINE OF RESPONDEAT SUPERIOR)/CIVIL PROCEDURE (PUNITIVE DAMAGES, EMPLOYER RESPONSIBLE FOR EMPLOYEE, CAUSE OF ACTION SEEKING PUNITIVE DAMAGES FOR NEGLIGENT HIRING, RETENTION AND SUPERVISION NOT PRECLUDED BY DOCTRINE OF RESPONDEAT SUPERIOR)/PUNITIVE DAMAGES (EMPLOYER RESPONSIBLE FOR EMPLOYEE, CAUSE OF ACTION SEEKING PUNITIVE DAMAGES FOR NEGLIGENT HIRING, RETENTION AND SUPERVISION NOT PRECLUDED BY DOCTRINE OF RESPONDEAT SUPERIOR)/RESPONDEAT SUPERIOR (PUNITIVE DAMAGES, EMPLOYER RESPONSIBLE FOR EMPLOYEE, CAUSE OF ACTION SEEKING PUNITIVE DAMAGES FOR NEGLIGENT HIRING, RETENTION AND SUPERVISION NOT PRECLUDED BY DOCTRINE OF RESPONDEAT SUPERIOR)/NEGLIGENT HIRING, RETENTION, SUPERVISION (PUNITIVE DAMAGES, EMPLOYER RESPONSIBLE FOR EMPLOYEE, CAUSE OF ACTION SEEKING PUNITIVE DAMAGES FOR NEGLIGENT HIRING, RETENTION AND SUPERVISION NOT PRECLUDED BY DOCTRINE OF RESPONDEAT SUPERIOR)/TRAFFIC ACCIDENTS  (EMPLOYER RESPONSIBLE FOR EMPLOYEE, CAUSE OF ACTION SEEKING PUNITIVE DAMAGES FOR NEGLIGENT HIRING, RETENTION AND SUPERVISION NOT PRECLUDED BY DOCTRINE OF RESPONDEAT SUPERIOR)

, ,

SUPREME COURT SHOULD NOT HAVE RELIED ON AN AUTHORIZATION LETTER WHICH WAS NOT IN THE RECORD TO FIND THAT THE ADMINISTRATIVE LAW JUDGE WAS AUTHORIZED TO CONDUCT THE DISCIPLINARY PROCEEDING WHICH RESULTED IN THE TERMINATION OF A CORRECTIONS OFFICER.

The Second Department noted that the administrative law judge (ALJ) in this action which resulted in the termination of petitioner’s employment as a corrections officer must be authorized to conduct the disciplinary proceedings by the commissioner of corrections. The petitioner contested his termination on the ground the ALJ was not so authorized. Supreme Court relied upon a letter of authorization which was not in the record. The Second Department held that was error and remitted the matter to allow the respondent to submit an authorization letter:

Civil Service Law § 75, which governs the procedure applicable to the subject disciplinary proceeding, provides that “[t]he hearing upon such charges shall be held 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” (Civil Service Law § 75[2]). In the absence of a written designation, the removing body or hearing officer has no jurisdiction to recommend the discipline of an employee and any disposition flowing from such a proceeding will be void … . This jurisdictional defect is not waived by a petitioner’s failure to object at a disciplinary hearing … .

Here, in denying the petition and dismissing the CPLR article 78 proceeding, the Supreme Court erred in considering and relying upon the 1992 letter as a written designation pursuant to Civil Service Law § 75(2) since that letter was outside the record, and was not relied upon by the respondents, whose papers were rejected by the court … .

Moreover, the Supreme Court also erred in not considering the respondents’ cross motion to dismiss the petition. Pursuant to CPLR 404(a), the respondents were permitted to raise objections in point of law by a motion to dismiss the petition. Given the improper rejection of the respondents’ papers and the particular circumstances of this case, the court should have afforded the respondents an opportunity to submit a designation letter conferring jurisdiction upon the ALJ who conducted the subject disciplinary hearing prior to determining the petition on the merits. Matter of Lindo v Ponte, 2017 NY Slip Op 04282, 2nd Dept 5-31-17

ADMINISTRATIVE LAW (SUPREME COURT SHOULD NOT HAVE RELIED ON AN AUTHORIZATION LETTER WHICH WAS NOT IN THE RECORD TO FIND THAT THE ADMINISTRATIVE LAW JUDGE WAS AUTHORIZED TO CONDUCT THE DISCIPLINARY PROCEEDING WHICH RESULTED IN THE TERMINATION OF A CORRECTIONS OFFICER)/EMPLOYMENT LAW (CIVIL SERVICE LAW, CORRECTIONS OFFICERS, SUPREME COURT SHOULD NOT HAVE RELIED ON AN AUTHORIZATION LETTER WHICH WAS NOT IN THE RECORD TO FIND THAT THE ADMINISTRATIVE LAW JUDGE WAS AUTHORIZED TO CONDUCT THE DISCIPLINARY PROCEEDING WHICH RESULTED IN THE TERMINATION OF A CORRECTIONS OFFICER)/CIVIL PROCEDURE (CIVIL SERVICE LAW, ADMINISTRATIVE LAW JUDGES, SUPREME COURT SHOULD NOT HAVE RELIED ON AN AUTHORIZATION LETTER WHICH WAS NOT IN THE RECORD TO FIND THAT THE ADMINISTRATIVE LAW JUDGE WAS AUTHORIZED TO CONDUCT THE DISCIPLINARY PROCEEDING WHICH RESULTED IN THE TERMINATION OF A CORRECTIONS OFFICER)/CORRECTIONS OFFICER (DISCIPLINARY PROCEEDINGS, SUPREME COURT SHOULD NOT HAVE RELIED ON AN AUTHORIZATION LETTER WHICH WAS NOT IN THE RECORD TO FIND THAT THE ADMINISTRATIVE LAW JUDGE WAS AUTHORIZED TO CONDUCT THE DISCIPLINARY PROCEEDING WHICH RESULTED IN THE TERMINATION OF A CORRECTIONS OFFICER)/ADMINISTRATIVE LAW JUDGES (CORRECTIONS OFFICERS, DISCIPLINARY PROCEEDINGS, SUPREME COURT SHOULD NOT HAVE RELIED ON AN AUTHORIZATION LETTER WHICH WAS NOT IN THE RECORD TO FIND THAT THE ADMINISTRATIVE LAW JUDGE WAS AUTHORIZED TO CONDUCT THE DISCIPLINARY PROCEEDING WHICH RESULTED IN THE TERMINATION OF A CORRECTIONS OFFICER)/CIVIL SERVICE LAW (EMPLOYMENT LAW, DISCIPLINARY PROCEEDINGS, CORRECTIONS OFFICERS, SUPREME COURT SHOULD NOT HAVE RELIED ON AN AUTHORIZATION LETTER WHICH WAS NOT IN THE RECORD TO FIND THAT THE ADMINISTRATIVE LAW JUDGE WAS AUTHORIZED TO CONDUCT THE DISCIPLINARY PROCEEDING WHICH RESULTED IN THE TERMINATION OF A CORRECTIONS OFFICER)

,

INCONSISTENCIES IN THE RETIREMENT SYSTEM’S EXPERT’S TESTIMONY REQUIRED ANNULMENT OF THE DENIAL OF PETITIONER POLICE OFFICER’S APPLICATION FOR ACCIDENTAL AND PERFORMANCE OF DUTY RETIREMENT BENEFITS.

The Third Department, annulling the determination below, found that petitioner-police officer’s application for accidental and performance of duty retirement benefits should not have been denied. Although the comptroller can accept the opinion of one expert over another, in this case the inconsistencies in the retirement system’s expert’s (Hughes’) testimony did not provide substantial evidence for the finding against the petitioner:

​

On cross-examination, however, Hughes acknowledged that petitioner complained of a number of post-concussion symptoms during his examination and he believed that petitioner was being truthful. When asked if these symptoms would preclude petitioner from performing the specific duties of a police officer, Hughes initially explained that he confined his opinion to “whether [petitioner’s] neck injury and post-concussion syndrome caused by the accident of 3/19/09 resulted in a permanent disability.” Nonetheless, he subsequently confirmed that petitioner’s symptoms could impede his ability to use a firearm, carry out complicated directions and perform other police-related tasks. Ultimately, Hughes agreed that petitioner suffered “an exacerbation or recurrence” of his post-concussion symptoms in July 2010, that would disable him from performing the duties of a police officer.

In our view, Hughes’ inconsistent testimony on the issue of permanent incapacity and failure to account for the July 2010 incident in rendering his opinion does not constitute a rational and fact-based opinion necessary to support the finding that petitioner was not permanently incapacitated from performing his duties as a police officer. To the contrary, the record contains ample medical evidence and documentation, most significantly Ward’s testimony, establishing that petitioner was permanently incapacitated by injuries sustained as a result of the March 19, 2009 incident that were later exacerbated in July 2010. Accordingly, inasmuch as we find that the Comptroller’s determination is not supported by substantial evidence, it must be annulled and the matter remitted for further proceedings … . Matter of Rawson v DiNapoli, 2017 NY Slip Op 04189, 3rd Dept 5-25-17

EMPLOYMENT LAW (POLICE OFFICERS, ACCIDENTAL AND PERFORMANCE OF DUTY RETIREMENT BENEFITS, INCONSISTENCIES IN THE RETIREMENT SYSTEM’S EXPERT’S TESTIMONY REQUIRED ANNULMENT OF THE DENIAL OF PETITIONER POLICE OFFICER’S APPLICATION FOR ACCIDENTAL AND PERFORMANCE OF DUTY RETIREMENT BENEFITS)/EVIDENCE,  (POLICE OFFICERS, ACCIDENTAL AND PERFORMANCE OF DUTY RETIREMENT BENEFITS, INCONSISTENCIES IN THE RETIREMENT SYSTEM’S EXPERT’S TESTIMONY REQUIRED ANNULMENT OF THE DENIAL OF PETITIONER POLICE OFFICER’S APPLICATION FOR ACCIDENTAL AND PERFORMANCE OF DUTY RETIREMENT BENEFITS)/POLICE OFFICERS (ACCIDENTAL AND PERFORMANCE OF DUTY RETIREMENT BENEFITS, INCONSISTENCIES IN THE RETIREMENT SYSTEM’S EXPERT’S TESTIMONY REQUIRED ANNULMENT OF THE DENIAL OF PETITIONER POLICE OFFICER’S APPLICATION FOR ACCIDENTAL AND PERFORMANCE OF DUTY RETIREMENT BENEFITS)/ACCIDENTAL AND PERFORMANCE OF DUTY RETIREMENT BENEFITS (POLICE OFFICERS, ACCIDENTAL AND PERFORMANCE OF DUTY RETIREMENT BENEFITS, INCONSISTENCIES IN THE RETIREMENT SYSTEM’S EXPERT’S TESTIMONY REQUIRED ANNULMENT OF THE DENIAL OF PETITIONER POLICE OFFICER’S APPLICATION FOR ACCIDENTAL AND PERFORMANCE OF DUTY RETIREMENT BENEFITS)/RETIREMENT BENEFITS (POLICE OFFICERS, ACCIDENTAL AND PERFORMANCE OF DUTY RETIREMENT BENEFITS, INCONSISTENCIES IN THE RETIREMENT SYSTEM’S EXPERT’S TESTIMONY REQUIRED ANNULMENT OF THE DENIAL OF PETITIONER POLICE OFFICER’S APPLICATION FOR ACCIDENTAL AND PERFORMANCE OF DUTY RETIREMENT BENEFITS)

, ,

PLAINTIFF STATE TROOPER ENTITLED TO ATTORNEY’S FEES AFTER HER SUCCESSFUL SEX DISCRIMINATION ACTION AGAINST THE STATE UNDER THE EQUAL ACCESS TO JUSTICE ACT.

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, over a concurrence and a two-judge dissent, determined plaintiff state trooper was entitled to attorney’s fees in connection with her successful employment discrimination action against the State under the Equal Access to Justice Act (EAJA):

… [T] he plain language, legislative history and remedial nature of the EAJA together demonstrate that this civil action is eligible for an award of attorneys’ fees. We hold that for cases commenced before the effective date of the 2015 amendment to the Human Rights Law, the EAJA permits the award of attorneys’ fees and costs to a prevailing plaintiff in an action against the State under the Human Rights Law for sex discrimination in employment by a state agency. The plain language of the statute, which is supported by the legislative history, compels the conclusion that “any civil action” encompasses cases brought under the Human Rights Law. It is not for this Court to engraft limitations onto the plain language of the statute. Indeed, “[t]his Court should be very cautious in interpreting statutes based on what it views as a better choice of words when confronted with an explicit choice made by the Legislature” …. . Kimmel v State of New York, 2017 NY Slip Op 03689, CtApp 5-9-17

EMPLOYMENT LAW (PLAINTIFF STATE TROOPER ENTITLED TO ATTORNEY’S FEES AFTER HER SUCCESSFUL SEX DISCRIMINATION ACTION AGAINST THE STATE UNDER THE EQUAL ACCESS TO JUSTICE ACT)/HUMAN RIGHTS LAW (PLAINTIFF STATE TROOPER ENTITLED TO ATTORNEY’S FEES AFTER HER SUCCESSFUL SEX DISCRIMINATION ACTION AGAINST THE STATE UNDER THE EQUAL ACCESS TO JUSTICE ACT)/EQUAL ACCESS TO JUSTICE(PLAINTIFF STATE TROOPER ENTITLED TO ATTORNEY’S FEES AFTER HER SUCCESSFUL SEX DISCRIMINATION ACTION AGAINST THE STATE UNDER THE EQUAL ACCESS TO JUSTICE ACT)/ATTORNEYS (EQUAL ACCESS TO JUSTICE ACT, PLAINTIFF STATE TROOPER ENTITLED TO ATTORNEY’S FEES AFTER HER SUCCESSFUL SEX DISCRIMINATION ACTION AGAINST THE STATE UNDER THE EQUAL ACCESS TO JUSTICE ACT)/SEX DISCRIMINATION (EQUAL ACCESS TO JUSTICE ACT, PLAINTIFF STATE TROOPER ENTITLED TO ATTORNEY’S FEES AFTER HER SUCCESSFUL SEX DISCRIMINATION ACTION AGAINST THE STATE UNDER THE EQUAL ACCESS TO JUSTICE ACT)/CIVIL PROCEDURE LAW (ATTORNEY’S FEES, PLAINTIFF STATE TROOPER ENTITLED TO ATTORNEY’S FEES AFTER HER SUCCESSFUL SEX DISCRIMINATION ACTION AGAINST THE STATE UNDER THE EQUAL ACCESS TO JUSTICE ACT)

,

ATTEMPT TO EXHAUST REMEDIES UNDER THE COLLECTIVE BARGAINING AGREEMENT WOULD HAVE BEEN FUTILE, THEREFORE THE ARTICLE 78 PETITION PRESENTED AN ISSUE RIPE FOR COURT REVIEW.

The Third Department determined the action pursuant to the Civil Service Law was not precluded because an action based on the same facts was still pending under the grievance procedure of the collective bargaining agreement (CBA). The Civil Service Law action was not dependent in any way on the CBA action. The petition challenged the hiring of Walsh as a part-time university police officer (UPO) by the State University of New York (SUNY):

… [T]he petition before us does not challenge any grievance determination by SUNY, nor does it cite a breach of any provision of the CBA as a basis for relief … . Instead, it challenges the appointment of Walsh on the ground that it violated Civil Service Law § 64. Although the remedies sought include an award of back pay for lost overtime assignments, available only under the CBA, counsel for petitioner confirmed, at oral argument of this appeal, that petitioner was no longer seeking such an award. Because petitioner does not allege that SUNY violated the CBA, but instead alleges a statutory violation, it was not required to use the CBA’s grievance procedure … . Article 7 of the CBA limits the grievance process to three types of disputes: first, concerning the application and/or interpretation of the CBA [7.1 (a)]; second, concerning a term or condition of employment [7.1 (b)]; and third, concerning a claim of improper or unjust discipline [7.1 (c)]. None of these provisions can be reasonably viewed as applicable to an (alleged) unlawful appointment by SUNY. Since these provisions are inapplicable, use of the grievance process to challenge the appointment on statutory grounds would have been futile … . Given that the appointment of Walsh is final, is alleged to have resulted in an actual, concrete injury to petitioner and because the question presented is “purely legal,” we find that the matter is ripe for judicial review … . Matter of Police Benevolent Assn. of N.Y. State, Inc. v State of New York, 2017 NY Slip Op 03588, 3rd Dept 5-4-17

EMPLOYMENT LAW (ATTEMPT TO EXHAUST REMEDIES UNDER THE COLLECTIVE BARGAINING AGREEMENT WOULD HAVE BEEN FUTILE, THEREFORE THE ARTICLE 78 PETITION PRESENTED AN ISSUE RIPE FOR COURT REVIEW)/ADMINISTRATIVE LAW (ATTEMPT TO EXHAUST REMEDIES UNDER THE COLLECTIVE BARGAINING AGREEMENT WOULD HAVE BEEN FUTILE, THEREFORE THE ARTICLE 78 PETITION PRESENTED AN ISSUE RIPE FOR COURT REVIEW)/CIVIL SERVICE LAW (EMPLOYMENT LAW, ATTEMPT TO EXHAUST REMEDIES UNDER THE COLLECTIVE BARGAINING AGREEMENT WOULD HAVE BEEN FUTILE, THEREFORE THE ARTICLE 78 PETITION PRESENTED AN ISSUE RIPE FOR COURT REVIEW)/COLLECTIVE BARGAINING AGREEMENT (ATTEMPT TO EXHAUST REMEDIES UNDER THE COLLECTIVE BARGAINING AGREEMENT WOULD HAVE BEEN FUTILE, THEREFORE THE ARTICLE 78 PETITION PRESENTED AN ISSUE RIPE FOR COURT REVIEW)

,

HUMAN RIGHTS LAW PROHIBITION OF EMPLOYMENT DISCRIMINATION BASED UPON A CRIMINAL CONVICTION EXTENDS TO AIDING AND ABETTING DISCRIMINATION BY AN OUT-OF-STATE NON-EMPLOYER.

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, over an extensive dissenting opinion, answered three certified questions from the Second Circuit. Plaintiffs were movers employed by Astro which contracted with Allied (located out of state) . Most of Astro’s work came from Allied. Plaintiffs had been convicted of sex offenses involving young children. After a criminal record screening ordered by Allied, plaintiffs were fired. Plaintiffs then sued Allied under Human Rights Law 296 alleging discrimination based upon their criminal convictions.  The Court of Appeals held: (1) Human Rights Law 296 applies only to discrimination by employers; (2) employers are those who directly control the work of employees; and (3) the provision of Human Rights Law 296 which prohibits aiding and abetting discrimination applies to out-of-state non-employers:

… [W]e need look no further than our own lower courts to determine who is an employer under the Human Rights Law. … In State Div. of Human Rights v GTE Corp., the Appellate Division identified four relevant factors: “‘(1) the selection and engagement of the servant; (2) the payment of salary or wages; (3) the power of dismissal; and (4) the power of control of the servant’s conduct'” … . … [The]”‘… really essential element of the relationship is the right of control, that is, the right of one person, the master, to order and control another, the servant, in the performance of work by the latter'”  … . * * *

Section 296 (6) [prohibiting aiding and abetting discrimination] applies to any “person.” … [N]othing in the statutory language or legislative history limits the reach of this provision to employers. Indeed, the purpose of subdivision (6) was “to bring within the orbit of the bill all persons, no matter what their status, who aid or abet any of the forbidden practices of discrimination or who attempt to do so,” as well as “to furnish protection to all persons, whether employers, labor organizations or employment agencies, who find themselves subjected from any source to compulsion or coercion to adopt any forbidden employment practices” … . Griffin v Sirva, Inc., 2017 NY Slip Op 03557, CtApp 5-4-17

EMPLOYMENT LAW (DISCRIMINATION, HUMAN RIGHTS LAW, PROHIBITION OF EMPLOYMENT DISCRIMINATION BASED UPON A CRIMINAL CONVICTION EXTENDS TO AIDING AND ABETTING DISCRIMINATION BY AN OUT-OF-STATE NON-EMPLOYER)/HUMAN RIGHTS LAW (EMPLOYMENT DISCRIMINATION, PROHIBITION OF EMPLOYMENT DISCRIMINATION BASED UPON A CRIMINAL CONVICTION EXTENDS TO AIDING AND ABETTING DISCRIMINATION BY AN OUT-OF-STATE NON-EMPLOYER)/CRIMINAL LAW (EMPLOYMENT LAW, HUMAN RIGHTS LAW, PROHIBITION OF EMPLOYMENT DISCRIMINATION BASED UPON A CRIMINAL CONVICTION EXTENDS TO AIDING AND ABETTING DISCRIMINATION BY AN OUT-OF-STATE NON-EMPLOYER)

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy