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“Hostile Work Environment” (Allegedly Offensive Sex-Related Remarks) and “Retaliation for Opposition to Discriminatory Practices” Causes of Action Explained

The Second Department determined defendant-employer was entitled to summary judgment on plaintiff-employee’s “hostile work environment” cause of action (allegedly offensive sex-related remarks) but was not entitled to summary judgment on plaintiff-employee’s “retaliation for opposing discriminatory conduct” cause of action. Defendant was able to demonstrate the allegedly offensive remarks were isolated incidents which did not permeate the work environment.  But a question of fact was raised about the “retaliation” cause of action. Plaintiff was terminated one day after the employer received a letter about the alleged discrimination from plaintiff’s attorney.  The Second Department explained the elements of “hostile work environment” and “retaliation for opposing discriminatory conduct” causes of action:

A hostile work environment exists where the workplace is “permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment” … . Various factors, such as frequency and severity of the discrimination, whether the allegedly discriminatory actions were threatening or humiliating or a “mere offensive utterance,” and whether the alleged actions “unreasonably interfere[ ] with an employee’s work” are to be considered in determining whether a hostile work environment exists … . The allegedly abusive conduct must not only have altered the conditions of employment of the employee, who subjectively viewed the actions as abusive, but the actions must have created an “objectively hostile or abusive environment—one that a reasonable person would find to be so” … . * * *

Under the New York State Human Rights Law, it is unlawful to retaliate against an employee for opposing discriminatory practices (see Executive Law § 296[7]…). In order to make out a cause of action for retaliation, “[a] plaintiff must show that (1) she has engaged in protected activity, (2) her employer was aware that she participated in such activity, (3) she suffered an adverse employment action based upon her activity, and (4) there is a causal connection between the protected activity and the adverse action” … . “To establish its entitlement to summary judgment in a retaliation case, a defendant must demonstrate that the plaintiff cannot make out a prima facie claim of retaliation or, having offered legitimate, nonretaliatory reasons for the challenged actions, that there exists no triable issue of fact as to whether the defendant’s explanations were pretextual” … . La Marca-Pagano v Dr. Steven Phillips, P.C., 2015 NY Slip Op 05162, 2nd Dept 6-17-15

 

 

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Petitioner’s Position Properly Abolished by Enactment of Town Budget

The Second Department determined that the town did not act in bad faith when it abolished petitioner’s position through the enactment of the town budget. The court explained the applicable law:

A public employer may abolish civil service positions to “promote efficiency and economy,” provided that the employer acts in good faith … . Where a public employer has abolished a position, an employee challenging that determination has the burden of proving that the employer engaged in a bad faith effort to circumvent the Civil Service Law … . “Bad faith may be demonstrated by evidence that a newly hired person performed substantially the same duties as the discharged employee” … . “[W]hen there exists a triable issue of fact with regard to bad faith, a full hearing must be held” … .

Here, contrary to the petitioner’s contention, adoption of a municipal budget may properly serve, under certain circumstances, to abolish an employee’s position … . Matter of Grant v Town of Lewisboro, 2015 NY Slip Op 05187, 2nd Dept 6-17-14

 

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Defendant’s Employee Had “Apparent Authority” to Act on Behalf of Defendant Insurance Agency—Plaintiff Justifiably Relied on the Apparent Authority When It Purchased a Fake Policy from Defendant’s Employee–Plaintiff Entitled to Partial Summary Judgment on the Fraud Cause of Action

The Fourth Department, over a two-justice dissent, determined plaintiff was entitled to summary judgment on its fraud cause of action against defendant insurance agency.  An employee of the insurance agency issued a fake workers’ compensation policy to the plaintiff. The Fourth Department found that the actions of the insurance agency provided the employee with “apparent authority” to issue the policy and the plaintiff justifiably relied on that apparent authority.  The relevant law was succinctly explained:

“In an action to recover damages for fraud, the plaintiff must prove a misrepresentation or a material omission of fact which was false and known to be false by [the maker], made for the purpose of inducing the other party to rely upon it, justifiable reliance of the other party on the misrepresentation or material omission, and injury” … . It is undisputed that the insurance policy purportedly issued by AIG was false, and thus plaintiff established that a false representation was made that was known to be false by defendant’s employee. Defendant contends, however, that the justifiable reliance element was not met because it cannot be liable for the acts of its employee, and plaintiff’s reliance on the alleged “apparent authority” of defendant’s employee was not reasonable.

It is axiomatic that “[t]he mere creation of an agency for some purpose does not automatically invest the agent with apparent authority’ to bind the principle without limitation . . . An agent’s power to bind his [or her] principal is coextensive with the principal’s grant of authority” … . “Essential to the creation of apparent authority are words or conduct of the principal, communicated to the third party, that give rise to the appearance and belief that the agent possesses authority to enter into a transaction. The agent cannot by his [or her] own acts imbue himself [or herself] with apparent authority. Rather, the existence of “apparent authority” depends upon a factual showing that the third party relied upon the misrepresentation of the agent because of some misleading conduct on the part of the principal — not the agent’ . . . Morever, a third party with whom the agent deals may rely on an appearance of authority only to the extent that such reliance is reasonable” … . Here, plaintiff contacted defendant seeking workers’ compensation coverage, and defendant assigned its employee who specialized in plaintiff’s type of business to assist plaintiff. We therefore conclude that plaintiff established that it reasonably relied upon the authority of defendant’s employee to act for defendant. Regency Oaks Corp. v Norman-Spencer McKernan, Inc., 2015 NY Slip Op 04959, 4th Dept 6-12-15

 

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Florida’s Law of Restrictive Covenants Re: Non-Solicitation of Customers by a Former Employee Violates New York Public Policy by Favoring Employers at the Expense of Employees

The Court of Appeals, in a full-fledged opinion by Judge Stein, determined the Florida law on restrictive covenants re: non-solicitation of customers by a former employee violated the public policy of New York State.  Therefore the choice-of-law provision in the employee agreement was unenforceable.  The Court of Appeals went on to find that, applying New York law, questions of fact precluded a determination whether the non-solicitation agreement at issue should be enforced.  With respect to the public policy violation, the court explained:

… Florida law requires a party seeking to enforce a restrictive covenant only to make a prima facie showing that the restraint is necessary to protect a legitimate business interest, at which point the burden shifts to the other party to show that the restraint is overbroad or unnecessary (see Fla Stat § 542.335 [1] [c]). If the latter showing is made, the court is required to “modify the restraint and grant only the relief reasonably necessary to protect” the employer's legitimate business interests (Fla Stat § 542.335 [1] [c]). In contrast to this focus solely on the employer's business interests, under New York's three-prong test, “[a] restraint is reasonable only if it: (1) is no greater than is required for the protection of the legitimate interest of the employer, (2) does not impose undue hardship on the employee, and (3) is not injurious to the public. A violation of any prong renders the covenant invalid” … . Whereas Florida shifts the burden of proof after the employer demonstrates its business interests (see Fla Stat § 542.335 [1] [c]), New York requires the employer to prove all three prongs of its test before the burden shifts … . Further, Florida law explicitly prohibits courts from considering the harm or hardship to the former employee (see Fla Stat § 542.335 [1] [g] [1]). This directly conflicts with New York's requirement that courts consider, as one of three mandatory factors, whether the restraint “impose[s] undue hardship on the employee” … .

Additionally, under Florida law, courts are required to construe restrictive covenants in favor of protecting the employer's interests, and may not use any rules of contract interpretation that would require the construction of a restrictive covenant narrowly or against the restraint or drafter (see Fla Stat § 542.335 [1] [h]). In contrast, New York law provides that “[c]ovenants not to compete should be strictly construed because of the 'powerful considerations of public policy which militate against sanctioning the loss of a [person's] livelihood'” … . Brown & Brown, Inc. v Johnson, 2015 NY Slip Op 04876, CtApp 6-11-15

 

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Statutory Prohibition of Court Review of Civil Service Commission’s Determination (Where the Employee Elects to Appeal to the Commission Before Seeking Judicial Review) Does Not Apply When Constitutional Rights Are Implicated or Where the Agency Has Acted Illegally or In Excess of Its Jurisdiction

The Third Department determined, despite a statutory provision prohibiting judicial review when the employee elects to appeal to the Civil Service Commission before seeking judicial review, the courts have the power to review the agency’s determination when the agency has acted in excess of its jurisdiction. Here the petitioner asserted her employment was terminated based on charges brought after the statute of limitations on those charges had passed. The Third Department agreed.  Although there is an exception to the application of the one-year statute of limitations when the charges constitute crimes, here the allegations of misconduct did not include the requisite mens rea for the crime of official misconduct (intent to gain a benefit and knowledge the conduct was unauthorized).  Therefore the one-year statute of limitations applied. With respect to the power to review the agency’s determination, the Third Department wrote:

Civil Service Law § 76 (3) provides that where, as here, an employee has elected to appeal to respondent before seeking judicial review, “[t]he decision of [respondent] shall be final and conclusive, and not subject to further review in any court” (see also Civil Service Law § 76 [1]). Such explicit statutory language ordinarily bars further appellate review … . However, statutory preclusion of all judicial review of the decisions rendered by an administrative agency in every circumstance would constitute a grant of unlimited and potentially arbitrary power too great for the law to countenance … . Thus, even when proscribed by statute, judicial review is mandated when constitutional rights are implicated by an administrative decision or “when the agency has acted illegally, unconstitutionally, or in excess of its jurisdiction”… . Matter of De Guzman v State of New York Civ. Serv. Commn., 2015 NY Slip Op 04712, 3rd Dept 6-4-15

 

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Length of Probationary Term for New County Employees Is Arbitrable Under the Two-Prong Test

Reversing Supreme Court, the Third Department determined the grievance concerning the length of the probationary period for new employees was arbitrable. The union contended the county had imposed a longer period of probation on a new employee than the 26 weeks allowed by the collective bargaining agreement (CBA). The county civil service commission, prior to the execution of the CBA, had adopted a resolution describing the period of probation for new employees as ranging from 8 to 52 to weeks. The Third Department determined there was no statutory, constitutional or public policy prohibition to arbitration of the grievance. And the broad arbitration clause in the CBA covered the grievance at issue:

The threshold determination of whether a dispute is arbitrable is well settled. Proceeding with a two-part test, we first ask whether the parties may arbitrate the dispute by inquiring if there is any statutory, constitutional or public policy prohibition against arbitration of the grievance. If no prohibition exists, we then ask whether the parties in fact agreed to arbitrate the particular dispute by examining their collective bargaining agreement. If there is a prohibition, our inquiry ends and an arbitrator cannot act” … .

To be sure, “[w]hen a county civil service commission, possessing the requisite authority, promulgates a rule establishing the length of a probationary term of service, that rule has the effect of law”… , and the public employer and the union cannot negotiate a contrary provision in a CBA. Here, however, the CBA executed by the County and the Union long after the Commission modified the probationary term is not inconsistent with the new Commission rule, as the probationary term negotiated by the parties falls squarely within the range promulgated by the Commission. Therefore, we discern no statutory or public policy bar to arbitration of the grievance in the first instance … . Hence, we are satisfied that the parties may in fact arbitrate the underlying dispute. As to the second inquiry, i.e., whether the parties actually agreed to arbitrate this particular dispute, we note that the parties’ CBA contains a broad arbitration clause, which encompasses “any claimed violation, misrepresentation or improper application” of the CBA. In light of such language, we similarly are persuaded that the Union’s grievance falls within the scope of disputes that the parties agreed to submit to arbitration … . Matter of County of Greene (Civil Serv. Empls. Assn., Inc., Local 1000, AFSCME, AFL-CIO, Greene County Unit 7000, Greene County Local 820), 2015 NY Slip Op 04709, 3rd Dept 6-4-15

 

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Elements of Actions for (1) Discrimination in Employment and (2) Retaliation for Opposition to Discriminatory Practices Succinctly Described

In determining the employer’s (State of New York’s) motion for summary judgment was properly granted, the Second Department succinctly explained the elements of an action for discrimination in employment and an  action for retaliation for an employee’s opposition to discriminatory practices:

A plaintiff alleging discrimination in employment has the initial burden to establish a prima facie case of discrimination … . To meet this burden, the plaintiff must show that (1) he or she is a member of a protected class; (2) he or she was qualified to hold the position; (3) he or she was terminated from employment or suffered another adverse employment action; and (4) the discharge or other adverse action occurred under circumstances giving rise to an inference of discrimination … . The burden then shifts to the employer “to rebut the presumption of discrimination by clearly setting forth, through the introduction of admissible evidence, legitimate, independent, and nondiscriminatory reasons to support its employment decision” … . To succeed on the claim, “the plaintiff must prove that the legitimate reasons proffered by the defendant were merely a pretext for discrimination by demonstrating both that the stated reasons were false and that discrimination was the real reason” … .

To prevail on a motion for summary judgment in a discriminatory employment action, a defendant must demonstrate either the plaintiff’s failure to establish every element of intentional discrimination, or, having offered legitimate, nondiscriminatory reasons for their challenged actions, the absence of a material issue of fact as to whether their explanations were pretextual … . * * *

It is unlawful to retaliate against an employee for opposing discriminatory practices … . In order to make out a claim for retaliation, a plaintiff must show that (1) he or she has engaged in protected activity; (2) his or her employer was aware of such activity; (3) he or she suffered an adverse employment action based upon the protected activity; and (4) there is a causal connection between the protected activity and the adverse action … . Cotterell v State of New York, 2015 NY Slip Op 04601, 2nd Dept 6-3-15

 

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School Employee’s After-Hours Inappropriate Behavior Involving a Student Was Not Proximately Caused by Negligent Supervision/Retention of the Employee or Negligent Supervision of the Student on the Part of the School District

The Second Department reversed Supreme Court and granted the defendant school district’s motion to dismiss the complaint.  The school’s marching band director, Perna, engaged in inappropriate communications with plaintiff’s child, KS, a student who was in the marching band.  The communications by computer and cell phone took place off school grounds after hours.  The Second Department determined the band director’s after-hours behavior was not proximately caused by negligent retention or supervision of Perna or negligent supervision of KS:

Because the inappropriate conduct by Perna toward KS, the plaintiff’s child, occurred after school hours and off school grounds by means of their personal computers and cellular phones, the causes of action alleging negligent retention and supervision cannot provide a basis for liability against the appellants. Although KS first met Perna through the marching band, KS’s injuries were not proximately caused by any negligent retention or supervision by the appellants … . In opposition, the plaintiff failed to raise a triable issue of fact.

Additionally, the Supreme Court should have granted that branch of the appellants’ motion which was for summary judgment dismissing so much of the complaint as alleged negligent supervision of KS, since the appellants established, prima facie, that the wrongful acts occurred outside of the school grounds … and, in opposition, the plaintiff failed to raise a triable issue of fact. MS, etc. v Arlington Cent. School Dist., 2015 NY Slip Op 04290, 2nd Dept 5-20-15

 

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A Request for an Admission Which Goes to the Heart of the Litigation Is Improper—Defendant Should Have Been Allowed to Withdraw Its Admission that Its Employee Was Acting Within the Scope of His Employment When a Vehicle Accident Occurred

The Second Department determined Supreme Court should have allowed defendant to withdraw admissions made in response to a notice to admit. Plaintiff was involved in an accident with a vehicle driven by an employee of defendant, Islip Pizza.  In response to a notice to admit, the defendant stated that the employee was acting in the scope of his employment at the time of the collision. Because defendant’s liability, under the doctrine of respondeat superior, depended entirely on whether the employee was acting within the scope of his employment, the admission went to the heart of the matters at issue. A request for an admission which deals with an ultimate conclusion is improper (CPLR 3123 (a)). Defendant should have been allowed to withdraw it (CPLR 3123 (b)):

Under CPLR 3123(a), a party may serve upon another party a written request that it admit, among other things, “the truth of any matters of fact set forth in the request, as to which the party requesting the admission reasonably believes there can be no substantial dispute at the trial and which are within the knowledge of such other party or can be ascertained by him upon reasonable inquiry” (CPLR 3123[a]). The legislative policy underlying CPLR 3123(a) is to promote efficiency in the litigation process by “eliminat[ing] from the issues in litigation matters which will not be in dispute at trial. It is not intended to cover ultimate conclusions, which can only be made after a full and complete trial. A notice to admit which goes to the heart of the matters at issue is improper” … . Furthermore, under CPLR 3123(b), a court may at any time permit a party to amend or withdraw any admission “on such terms as may be just” (CPLR 3123[b]…).  Altman v Kelly, 2015 NY Slip Op 04076, 2nd Dept 5-13-15

 

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Denial of Petitioner’s Application for Employment as a School-Bus Driver, Based Upon His Criminal Record, Was Not Arbitrary and Capricious Despite Petitioner’s Good Employment Record and His Obtaining a Certificate of Relief from Civil Disabilities

The Court of Appeals, in a full-fledged opinion by Judge Fahey, over a two-judge dissent, determined petitioner was properly precluded by the Department of Education (DOE) from employment as a school-bus driver, based upon his criminal record.  The offenses were committed when petitioner was in his 40’s and petitioner had had no further contact with the criminal justice system for 15 years.  Petitioner had obtained a certificate of relief from civil disabilities and had a good employment record, which included transporting children.  The Court of Appeals held that the DOE’s action was not arbitrary and capricious because the DOE considered all of the statutory factors in Corrections Law 752.  The Court of Appeals noted that obtaining a certificate of relief from civil disabilities establishes a presumption of rehabilitation, but the certificate does not establish a prima facie right to a license or employment:

The Correction Law sets out eight factors that a public agency or private employer must consider when deciding whether one of the § 752 exceptions applies:

“(a) The public policy of this state, as expressed in this act, to encourage the licensure and employment of persons previously convicted of one or more criminal offenses.

(b) The specific duties and responsibilities necessarily related to the license or employment sought or held by the person.

(c) The bearing, if any, the criminal offense or offenses for which the person was previously convicted will have on his [or her] fitness or ability to perform one or more such duties or responsibilities.

(d) The time which has elapsed since the occurrence of the criminal offense or offenses.

(e) The age of the person at the time of occurrence of the criminal offense or offenses.

(f) The seriousness of the offense or offenses.

(g) Any information produced by the person, or produced on his [or her] behalf, in regard to his [or her] rehabilitation and good conduct.

(h) The legitimate interest of the public agency or private employer in protecting property, and the safety and welfare of specific individuals or the general public.” (Correction Law § 753 [1].)

[The Court of Appeals has held] that “[a] failure to take into consideration each of these factors results in a failure to comply with the Correction Law’s mandatory directive” … . Matter of Dempsey v New York City Dept. of Educ., 2015 NY Slip Op 04028, CtApp 5-12-15

 

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