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NEGLIGENT RETENTION CAUSE OF ACTION PROPERLY DISMISSED.

The Fourth Department, over an extensive dissent, determined plaintiffs’ negligent hiring/retention cause of action against the city and city police department was properly dismissed. The action stemmed from incidents of sexual abuse by a police officer (O’Shei). It was alleged the officer should not have been retained after suffering brain injury:

Plaintiffs contend that the City defendants failed to do an appropriate evaluation of O’Shei’s neuropsychological status after the second motor vehicle accident. Recovery on a negligent retention theory “requires a showing that the employer was on notice of the relevant tortious propensit[y] of the wrongdoing employee” … , i.e., “that the employer knew or should have known of the employee’s propensity for the conduct which caused the injury” … . Thus, contrary to plaintiffs’ contention, the City defendants were under no common-law duty to institute specific procedures for supervising or retaining O’Shei inasmuch as they did not know of facts that would lead a reasonably prudent person to investigate the employee … .

* * * …[T]his is a retention case, and it is well settled that the common-law duty for retention does not require as high a degree of care as does hiring … . Pater v City of Buffalo, 2016 NY Slip Op 05462, 4th Dept 7-8-16

 

NEGLIGENCE (EMPLOYMENT LAW, NEGLIGENT RETENTION CAUSE OF ACTION PROPERLY DISMISSED)/EMPLOYMENT LAW (EMPLOYMENT LAW, NEGLIGENT RETENTION CAUSE OF ACTION PROPERLY DISMISSED)/MUNICIPAL LAW (POLICE OFFICERS, NEGLIGENT RETENTION CAUSE OF ACTION PROPERLY DISMISSED)/NEGLIGENT RETENTION (EMPLOYMENT LAW, NEGLIGENT RETENTION CAUSE OF ACTION PROPERLY DISMISSED)

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ARBITRATOR EXCEEDED HIS POWERS BY REFUSING TO REVIEW THE ENTIRE RECORD OF THE PROCEEDINGS, AWARD PROPERLY VACATED.

The Fourth Department, affirming Supreme Court, determined the arbitrator exceeded his powers vacation of the award was therefore proper. The arbitration concerned the termination of a deputy sheriff for driving while intoxicated and related charges. The arbitrator refused to consider some of the evidence (finding it inadmissible) and reinstated the deputy:

“Under CPLR 7511 (b) an arbitration award must be vacated if, as relevant here, a party’s rights were impaired by an arbitrator who exceeded his power or so imperfectly executed it that a final and definite award upon the subject matter submitted was not made’ ” … . “It is well settled that a court may vacate an arbitration award only if it violates a strong public policy, is irrational, or clearly exceeds a specifically enumerated limitation on the arbitrator’s power” … . “Outside of these narrowly circumscribed exceptions, courts lack authority to review arbitral decisions, even where an arbitrator has made an error of law or fact’ ” … .

Here, we conclude that the arbitrator clearly exceeded his authority as provided by the CBA [collective bargaining agreement]. The CBA mandated that “[t]he arbitrator shall review the record of the disciplinary hearing and determine if the finding of guilt was based upon clear and convincing evidence.” Rather than comply with that mandate and review the record from the hearing, the arbitrator considered a portion of the record only, deciding to exclude certain evidence from his review. Having failed to review that which he was required to review, the court properly concluded that the arbitrator exceeded his authority and vacated the arbitration award … . Matter of O’Flynn (Monroe County Deputy Sheriffs’ Assn., Inc.), 2016 NY Slip Op 05261, 4th Dept 7-1-16

 

ARBITRATION (ARBITRATOR EXCEEDED HIS POWERS BY REFUSING TO REVIEW THE ENTIRE RECORD OF THE PROCEEDINGS, AWARD PROPERLY VACATED)/MUNICIPAL LAW (ARBITRATOR EXCEEDED HIS POWERS BY REFUSING TO REVIEW THE ENTIRE RECORD OF THE PROCEEDINGS, AWARD PROPERLY VACATED)/EMPLOYMENT LAW (ARBITRATOR EXCEEDED HIS POWERS BY REFUSING TO REVIEW THE ENTIRE RECORD OF THE PROCEEDINGS, AWARD PROPERLY VACATED)

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COMPLAINT ADEQUATELY ALLEGED CAUSES OF ACTION FOR AGE DISCRIMINATION AND A HOSTILE WORK ENVIRONMENT.

The Second Department determined plaintiff had stated causes of action for age discrimination and a hostile work environment. The court outlined the relevant law and applied the facts alleged to the legal principles. The law was described as follows:

To state a cause of action alleging age discrimination under the New York Human Rights Law (Executive Law § 296), a plaintiff must plead facts that would tend to show (1) that he or she was a member of a protected class, (2) that he or she was actively or constructively discharged or suffered an adverse employment action, (3) that he or she was qualified to hold the position for which he or she was terminated or suffered an adverse employment action, and (4) that the discharge or adverse employment action occurred under circumstances giving rise to an inference of age discrimination … . * * *

To state a cause of action alleging a hostile work environment under Executive Law § 296, a plaintiff must plead facts that would tend to show ” that the complained of conduct: (1) is objectively severe or pervasive—that is, creates an environment that a reasonable person would find hostile or abusive; (2) creates an environment that the plaintiff subjectively perceives as hostile or abusive; and (3) creates such an environment because of the plaintiff’s [protected class]'” … . The United States Supreme Court has observed that courts examining hostile work environment causes of action should consider, among other things, ” the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance'” … . Godino v Premier Salons, Ltd., 2016 NY Slip Op 05118, 2nd Dept 6-29-16

EMPLOYMENT LAW (COMPLAINT ADEQUATELY ALLEGED CAUSES OF ACTION FOR AGE DISCRIMINATION AND A HOSTILE WORK ENVIRONMENT)/AGE DISCRIMINATION (EMPLOYMENT LAW, COMPLAINT ADEQUATELY ALLEGED CAUSES OF ACTION FOR AGE DISCRIMINATION AND A HOSTILE WORK ENVIRONMENT)/HOSTILE WORK ENVIRONMENT (EMPLOYMENT LAW, COMPLAINT ADEQUATELY ALLEGED CAUSES OF ACTION FOR AGE DISCRIMINATION AND A HOSTILE WORK ENVIRONMENT)/HUMAN RIGHTS LAW  (EMPLOYMENT LAW, COMPLAINT ADEQUATELY ALLEGED CAUSES OF ACTION FOR AGE DISCRIMINATION AND A HOSTILE WORK ENVIRONMENT)

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PRE-ANSWER MOTION TO DISMISS PETITION ALLEGING WRONGFUL TERMINATION OF A PROBATIONARY CORRECTIONS OFFICER SHOULD NOT HAVE BEEN GRANTED.

The First Department, reversing Supreme Court, over an extensive dissent, determined a pre-answer motion to dismiss the petition of a probationary corrections officer alleging wrongful termination should not have been granted. Petitioner had repeatedly informed his superior that an inmate had swallowed soap and bleach and needed medical care. After the inmate died, petitioner was terminated:

 

Petitioner Raymond Castro commenced this article 78 proceeding to contest respondent New York City Department of Correction’s (DOC) termination of his employment as a probationary correction officer. His termination occurred after an inmate died because petitioner’s superior, a captain, thwarted the efforts of several people, including Officer Castro, to assist the inmate with his medical condition. Officer Castro cooperated in the investigation of the inmate’s death and the federal prosecution of his superior. As fully detailed below, on the present record, Officer Castro’s conduct, both in response to the inmate’s medical emergency and during the investigation of the inmate’s death, appears appropriate. Likewise, Officer Castro’s termination, without an explanation, appears questionable and in bad faith. Under the circumstances, this Court is unable to conclude that his claim of wrongful termination as a probationary correction officer is without foundation to warrant a pre-answer dismissal based solely on the ground that it fails to state a cause of action. * * *

A probationary employee may be dismissed for almost any reason, or for no reason at all, and the employee has no right to challenge the termination in a hearing or otherwise, absent a showing that he or she was dismissed in bad faith or for an improper or impermissible reason … . The burden falls on the petitioner to demonstrate by competent proof that bad faith exists, or that the termination was for an improper or impermissible reason … . Matter of Castro v Schriro, 2016 NY Slip Op 05105, 1st Dept 6-28-16

 

EMPLOYMENT LAW (PROBATIONARY EMPLOYEE, PRE-ANSWER MOTION TO DISMISS PETITION ALLEGING WRONGFUL TERMINATION OF A PROBATIONARY CORRECTIONS OFFICER SHOULD NOT HAVE BEEN GRANTED)/MUNICIPAL LAW (EMPLOYMENT, PRE-ANSWER MOTION TO DISMISS PETITION ALLEGING WRONGFUL TERMINATION OF A PROBATIONARY CORRECTIONS OFFICER SHOULD NOT HAVE BEEN GRANTED)/PROBATIONARY EMPLOYEE (PROBATIONARY EMPLOYEE, PRE-ANSWER MOTION TO DISMISS PETITION ALLEGING WRONGFUL TERMINATION OF A PROBATIONARY CORRECTIONS OFFICER SHOULD NOT HAVE BEEN GRANTED)

ARCHDIOCESE NOT LIABLE FOR ACTIONS OF NURSING HOME FOR WHICH PLAINTIFF WORKED UNDER THE SINGLE-EMPLOYER DOCTRINE, SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED.

The First Department explained when employer liability can be imposed under the single-employer doctrine. Although not discussed in the decision, the underlying lawsuit appears to allege employment discrimination. Plaintiff sued the Archdiocese in addition to the nursing home for which she worked. The First Department determined the Archdiocese's motion for summary judgment should have been granted:

The single-employer doctrine and the four factor test used in its application were originally created by the NLRB to determine whether two intertwined entities should be treated as a single employer in the labor dispute context, and subsequently upheld by the U.S. Supreme Court … . The Second Circuit adopted the doctrine for the purpose of determining whether a parent company can be considered an employer for the purpose of employment discrimination liability … . While the four factor test analyzes (1) interrelation of operations, (2) centralized control of labor operations, (3) common management, and (4) common ownership, the primary focus is on the second factor of centralized control of labor operations … . Centralized control of labor operations requires some showing of a central human resources department … . Here plaintiff fails to plead that the Archdiocese provided any human resources services for the nursing home, and plaintiff's allegations that church personnel regularly work at the nursing home, without more, do not suffice to show the Archdiocese controlled the Nursing Home Defendants's labor operations … . Batilo v Mary Manning Walsh Nursing Home Co., Inc., 2016 NY Slip Op 05096, 1st Dept 6-28-16

EMPLOYMENT LAW (ARCHDIOCESE NOT LIABLE FOR ACTIONS OF NURSING HOME FOR WHICH PLAINTIFF WORKED UNDER THE SINGLE-EMPLOYER DOCTRINE, SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED)/SINGLE EMPLOYER DOCTRINE (ARCHDIOCESE NOT LIABLE FOR ACTIONS OF NURSING HOME FOR WHICH PLAINTIFF WORKED UNDER THE SINGLE-EMPLOYER DOCTRINE, SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED)

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COMMISSIONER OF LABOR PROPERLY ISSUED A WAGE ORDER INCREASING THE MINIMUM WAGE FOR CERTAIN FAST FOOD WORKERS TO $15 AN HOUR.

The Third Department, in a full-fledged opinion by Justice Devine, determined the Commissioner of Labor had the authority to mandate a minimum wage ($15 an hour) for certain fast food workers in New York:

The Commissioner is authorized to make the assessment as to whether the minimum wage should be increased for employees in specific occupations, does so with help from an agency having special competence in the area and a wage board tasked with investigating the relevant questions as set forth by the Legislature, and thereafter issues a wage order setting a minimum wage in a specific occupation if such would further the policy objectives delineated by statute. The Commissioner complied with that procedure, and the fact that the Legislature failed to agree on an increase in the statutory minimum wage in the leadup to the issuance of the wage order in no way reflects dispute or confusion as to the longstanding authority of the Commissioner to set a minimum wage for employees in a given occupation … . Matter of National Rest. Assn. v Commissioner of Labor, 2016 NY Slip Op 04498, 3rd Dept 6-9-16

EMPLOYMENT LAW (COMMISSIONER OF LABOR PROPERLY ISSUED A WAGE ORDER INCREASING THE MINIMUM WAGE FOR CERTAIN FAST FOOD WORKERS TO $15 AN HOUR)/LABOR LAW (COMMISSIONER OF LABOR PROPERLY ISSUED A WAGE ORDER INCREASING THE MINIMUM WAGE FOR CERTAIN FAST FOOD WORKERS TO $15 AN HOUR)/MINIMUM WAGE (COMMISSIONER OF LABOR PROPERLY ISSUED A WAGE ORDER INCREASING THE MINIMUM WAGE FOR CERTAIN FAST FOOD WORKERS TO $15 AN HOUR)/FAST FOOD WORKERS (COMMISSIONER OF LABOR PROPERLY ISSUED A WAGE ORDER INCREASING THE MINIMUM WAGE FOR CERTAIN FAST FOOD WORKERS TO $15 AN HOUR)

DISLOYAL OR FAITHLESS PERFORMANCE OF EMPLOYMENT DUTIES (FAITHLESS SERVANT DOCTRINE) ENTITLED EMPLOYER TO THE RETURN OF COMPENSATION PAID TO THE EMPLOYEE DURING THE PERIOD OF THE THEFT.

The Third Department, in a full-fledged opinion by Justice Peters, determined plaintiff-employer was entitled to summary judgment on both liability and damages in this “disloyal or faithless performance of employment duties” case. Defendant-employee stole $50,000 from his employer. The employer sought recovery of the compensation paid to the employee over the six-year period of the theft and relief from the obligation to provide health insurance. Supreme Court granted summary judgment on liability but ruled the employee's otherwise unblemished career raised a question of fact about damages. The Third Department held Supreme Court's damages ruling was error:

New York law with respect to the disloyal or faithless performance of employment duties has developed for well over a century. Firmly rooted in this state's jurisprudence is the principle that “an employee is to be loyal to his [or her] employer and is 'prohibited from acting in any manner inconsistent with his [or her] agency or trust and is at all times bound to exercise the utmost good faith and loyalty in the performance of his [or her] duties'” … . Under what is commonly referred to as the faithless servant doctrine, “[o]ne who owes a duty of fidelity to a principal and who is faithless in the performance of his [or her] services is generally disentitled to recover his [or her] compensation, whether commissions or salary” … . Thus, where an employee “engage[s] in repeated acts of disloyalty, complete and permanent forfeiture of compensation, deferred or otherwise, is warranted” … . * * *

The Court of Appeals has made clear that forfeiture of compensation is required even when some or all of “the services were beneficial to the principal or [when] the principal suffered no provable damage as a result of the breach of fidelity by the agent” … . City of Binghamton v Whalen, 2016 NY Slip Op 04289, 3rd Dept 6-2-16

EMPLOYMENT LAW (DISLOYAL OR FAITHLESS PERFORMANCE OF EMPLOYMENT DUTIES ENTITLED EMPLOYER TO THE RETURN OF COMPENSATION PAID TO THE EMPLOYEE DURING THE PERIOD OF THE THEFT)/DISLOYAL OR FAITHLESS PERFORMANCE (EMPLOYMENT LAW, DISLOYAL OR FAITHLESS PERFORMANCE OF EMPLOYMENT DUTIES ENTITLED EMPLOYER TO THE RETURN OF COMPENSATION PAID TO THE EMPLOYEE DURING THE PERIOD OF THE THEFT)/FAITHLESS SERVANT DOCTRINE (DISLOYAL OR FAITHLESS PERFORMANCE OF EMPLOYMENT DUTIES ENTITLED EMPLOYER TO THE RETURN OF COMPENSATION PAID TO THE EMPLOYEE DURING THE PERIOD OF THE THEFT)

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PLAINTIFF ENTITLED TO WHISTLEBLOWER PROTECTION UNDER LABOR LAW 741.

The Second Department determined plaintiff was properly found to have been entitled to whistleblower protection under Labor Law 741. Plaintiff complained about an infusion procedure during liver transplant surgery which plaintiff believed threatened the safety and health of the patient. Thereafter plaintiff was demoted and given no further work:

Labor Law § 741 prohibits an employer from taking retaliatory action against an employee because the employee discloses, threatens to disclose, objects to, or refuses to participate in “any activity, policy or practice of the employer or agent that the employee, in good faith, reasonably believes constitutes improper quality of patient care” (Labor Law § 741[2][a], [b]). ” Improper quality of patient care' means, with respect to patient care, any practice, procedure, action or failure to act of an employer which violates any law, rule, regulation or declaratory ruling adopted pursuant to law, where such violation relates to matter which may present a substantial and specific danger to public health or safety or a significant threat to the health of a specific patient” (Labor Law § 741[1][d]). It is a defense that “the personnel action was predicated upon grounds other than the employee's exercise of any rights protected by this section” (Labor Law § 741[5]). Galbraith v Westchester County Health Care Corp., 2016 NY Slip Op 04176, 2nd Dept 6-1-16

LABOR LAW-CONSTRUCTION LAW (PLAINTIFF ENTITLED TO WHISTLEBLOWER PROTECTION UNDER LABOR LAW 741)/EMPLOYMENT LAW (PLAINTIFF ENTITLED TO WHISTLEBLOWER PROTECTION UNDER LABOR LAW 741)/WHISTLEBLOWER STATUTE (PLAINTIFF ENTITLED TO WHISTLEBLOWER PROTECTION UNDER LABOR LAW 741)

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MAYOR DID NOT HAVE THE AUTHORITY TO IGNORE DETERMINATION MADE BY AN APPOINTED HEARING OFFICER, PETITIONER FIREFIGHTER ENTITLED TO GENERAL MUNICIPAL LAW BENEFITS.

The Third Department determined the village mayor did not have the authority to ignore the ruling of a hearing officer who found petitioner, a former firefighter, was entitled to General Municipal Law 207-a benefits based upon an on-the-job injury. When the mayor appointed the hearing officer, there was no indication the hearing officer's finding was merely advisory:

Based on the record, we conclude that Supreme Court's initial finding that the Village was not bound by the Hearing Officer's determination was in error. First, and contrary to respondents' argument, without any statutory or negotiated prohibition or direction, the Village was authorized to delegate its decision-making authority to the Hearing Officer … .  Second, that the Mayor did, in fact, appoint the Hearing Officer to make a final determination and not a recommendation is apparent from the record before us. Neither the 2010 nor the 2012 appointment was in any way qualified so as to limit the respective Hearing Officers to an advisory role.  Matter of McKay v Village of Endicott, 2016 NY Slip Op 04085, 3rd Dept 5-26-16

MUNICIPAL LAW (MAYOR DID NOT HAVE THE AUTHORITY TO IGNORE DETERMINATION MADE BY AN APPOINTED HEARING OFFICER, PETITIONER FIREFIGHTER ENTITLED TO GENERAL MUNICIPAL LAW BENEFITS)/EMPLOYMENT LAW (GENERAL MUNICIPAL LAW, FIREFIGHTERS, MAYOR DID NOT HAVE THE AUTHORITY TO IGNORE DETERMINATION MADE BY AN APPOINTED HEARING OFFICER, PETITIONER FIREFIGHTER ENTITLED TO GENERAL MUNICIPAL LAW BENEFITS)/GENERAL MUNICIPAL LAW (FIREFIGHTERS, MAYOR DID NOT HAVE THE AUTHORITY TO IGNORE DETERMINATION MADE BY AN APPOINTED HEARING OFFICER, PETITIONER FIREFIGHTER ENTITLED TO GENERAL MUNICIPAL LAW BENEFITS)/FIREFIGHTERS (GENERAL MUNICIPAL LAW, MAYOR DID NOT HAVE THE AUTHORITY TO IGNORE DETERMINATION MADE BY AN APPOINTED HEARING OFFICER, PETITIONER FIREFIGHTER ENTITLED TO GENERAL MUNICIPAL LAW BENEFITS)

BAR AND SECURITY COMPANY COULD BE LIABLE FOR AN ASSAULT BY A SECURITY GUARD UNDER THE DOCTRINE OF RESPONDEAT SUPERIOR.

The First Department, reversing Supreme Court, determined defendants' motion for a directed verdict should not have been granted. Plaintiff alleged he was punched and severely injured by a man dressed like other security guards at a bar. The bar (Hiro) and the security company (NEC) could be liable under the doctrine of respondeat superior. A new trial was ordered:

The trial court erred in granting Hiro's motion for a directed verdict, since there is evidence to support a reasonable jury's finding that plaintiff's assailant was a Hiro employee or an NEC employee who was supervised by Hiro, for whose acts Hiro could have been found liable upon the theory of respondeat superior … . An attack on plaintiff by a security guard could be found to be within the scope of the guard's employment … . Plaintiff's inability to identify his assailant, who left after the incident, does not preclude him from recovery … . Jones v Hiro Cocktail Lounge, 2016 NY Slip Op 04110, 1st Dept 5-26-16

EMPLOYMENT LAW (BAR AND SECURITY COMPANY COULD BY LIABLE FOR AN ASSAULT BY A SECURITY UNDER THE DOCTRINE OF RESPONDEAT SUPERIOR)/ASSAULT (BAR AND SECURITY COMPANY COULD BY LIABLE FOR AN ASSAULT BY A SECURITY UNDER THE DOCTRINE OF RESPONDEAT SUPERIOR)/SECURITY GUARDS  (BAR AND SECURITY COMPANY COULD BY LIABLE FOR AN ASSAULT BY A SECURITY UNDER THE DOCTRINE OF RESPONDEAT SUPERIOR)/RESPONDEAT SUPERIOR (BAR AND SECURITY COMPANY COULD BY LIABLE FOR AN ASSAULT BY A SECURITY UNDER THE DOCTRINE OF RESPONDEAT SUPERIOR)

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