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Lowering Health Insurance Benefits for School-District Retirees Below Level Afforded Active Employees Violated the Insurance Moratorium Statute

The Fourth Department determined lowering the health insurance benefits for retired school district employees below the level of benefits afforded active employees violated the Insurance Moratorium Statute:

The moratorium statute sets a minimum baseline or “floor” for retiree health benefits, and that “floor” is measured by the health insurance benefits received by active employees … . In other words, the moratorium statute does not permit an employer to whom the statute applies to provide retirees with lesser health insurance benefits than active employees … . Matter of Anderson v Niagara Falls City School Dist, 2015 NY Slip Op 01098, 4th Dept 2-6-15


Criteria for Determining the Propriety of the Termination of a Probationary State Employee Explained

The Second Department explained the criteria for determining the propriety of the termination of a probationary (state) employee:

“The employment of a probationary employee may be terminated without a hearing and without a statement of reasons in the absence of a demonstration that the termination was in bad faith, for a constitutionally impermissible or an illegal purpose, or in violation of statutory or decisional law” … . Here, the petitioner failed to carry his burden of presenting competent proof that his termination was improper … . The record demonstrates that the petitioner's performance was consistently unsatisfactory despite repeated advice and assistance designed to give him the opportunity to improve, and, thus, that his discharge was not made in bad faith… . Matter of Triola v Daines, 2015 NY Slip Op 00896, 2nd Dept 2-4-15


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Appellate Court Defers to Agency Interpretation of a Statute When Specialized Knowledge Required

The Third Department affirmed the State Budget Director’s determination that state employees normally not entitled to overtime pay are eligible for overtime pay if they worked more than 47.5 hours in a week as a result of Hurricane Sandy.  Petitioners sought overtime pay for those who worked more than 40 hours per week.  The Third Department explained when an appellate court must defer to the statutory interpretation made by a state agency (the court so deferred here):

Initially, we must determine whether the Budget Director’s interpretation of Civil Service Law § 134 (6) is entitled to deference. This Court will defer to the governmental agency responsible for the administration of a statute when interpretation of the language at issue requires the agency’s expertise in the matters covered by the statute, but will accord no such deference when “the question is one of pure statutory reading and analysis, dependent only on accurate apprehension of legislative intent” … . Although the Civil Service Law provides that the “workweek for basic annual salary” for employees who are eligible for overtime shall not exceed 40 hours (Civil Service Law § 134 [1]), overtime-ineligible employees are expressly excluded from the coverage of that section, and nothing else in the legislation defines the phrase “normal workweek” as used in Civil Service Law § 134 (6) for such employees or prescribes the number of hours contained in such a workweek. Under these circumstances, in our view, the number of hours in the “normal workweek” of an overtime-ineligible state employee necessarily implicates the Budget Director’s specialized knowledge of state employment practices and “involves knowledge and understanding of underlying operational practices or entails an evaluation of factual data and inferences to be drawn therefrom” … . Accordingly, this Court will defer to the Budget Director’s determination and uphold it if it is not irrational or unreasonable … . Matter of Kent v Cuomo, 2015 NY Slip Op 00680, 3rd Dept 1-29-15

 

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Proof Requirements for an Employment-Discrimination Action (Executive Law 296) Explained

In finding that the employer demonstrated a non-discriminatory reason for firing the plaintiff, the Third Department explained the employment-discrimination proof requirements and analytical criteria under the Human Rights Law (Executive Law 296 (1)(a)):

To support a prima facie case of discrimination under the Human Rights Law (see Executive Law § 296 [1] [a]), a plaintiff must establish: “(1) that he [or she] is a member of the class protected by the statute; (2) that he [or she] was actively or constructive discharged; (3) that he [or she] was qualified to hold the position from which he [or she] was terminated; and (4) that the discharge occurred under circumstances giving rise to an inference of . . . discrimination” … . Assuming that low threshold is met, “[t]he 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” … . If, in turn, the employer proffers the required nondiscriminatory reasons, “the plaintiff can avoid summary judgment by proving that the employer’s stated reasons were merely a pretext for discrimination by demonstrating both that the stated reasons were false and that discrimination was the real reason” … . “Notably, a challenge by a discharged employee to the correctness of an employer’s decision does not, without more, give rise to the inference that the employee’s discharge was due to . . . discrimination” … . Stated another way, “[i]t is not enough for the plaintiff to show that the employer made an unwise business decision, or an unnecessary personnel move. Nor is it enough to show that the employer acted arbitrarily or with ill will. These facts, even if demonstrated, do not necessarily show that [discrimination] was a motivating factor. [A] [p]laintiff cannot meet his [or her] burden of proving pretext simply by refuting or questioning the defendant[‘s] articulated reason” for terminating the plaintiff’s employment … . Miranda v ESA Hudson Val Inc, 2015 NY Slip Op 00670, 3rd Dept 1-29-15

 

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Question of Fact Whether Plaintiff-Employee Indicated Employer’s Sexual Advances Were “Unwelcome”–Dismissal of Employment Discrimination Complaint Reversed

The Second Department reversed Supreme Court, finding that there were questions of fact whether plaintiff-employee indicated by her conduct that defendant’s (Cohen’s) sexual advances toward plaintiff were “unwelcome” and whether plaintiff’s termination was for a non-discriminatory reason.  Supreme Court erred when it focused on whether plaintiff participated in sexual activity “voluntarily:”

The New York State Human Rights Law (Executive Law § 296, et seq.) and the New York City Human Rights Law (Administrative Code of the City of New York § 8-107) both make it an unlawful discriminatory practice for an employer to refuse to hire, to discharge, or to discriminate in compensation or in terms, conditions, or privileges of employment because of the sex of any individual (Executive Law § 296[1][a]; Administrative Code of the City of New York § 8-107[1][a]). Moreover, under both the State and City Human Rights Laws, it is unlawful to retaliate against an employee for opposing discriminatory practices (see Executive Law § 296[1][e], [7]; Administrative Code of the City of New York § 8-107[7]).

To establish its prima facie entitlement to judgment as a matter of law in a retaliation case commenced pursuant to either the New York State or New York City Human Rights Law, “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” … . To prevail on a motion for summary judgment dismissing a cause of action alleging discrimination in violation of the New York State Human Rights Law, a defendant must demonstrate “either plaintiff’s failure to establish every element of intentional discrimination, or, having offered legitimate, nondiscriminatory reasons for [the] challenged actions, the absence of a material issue of fact as to whether [its] explanations were pretextual” … . With respect to a cause of action alleging discrimination in violation of the New York City Human Rights Law, where a defendant moves for summary judgment and has ” put forward evidence of one or more nondiscriminatory motivations for its actions,’ a court should turn to the question of whether the defendant has sufficiently met its burden, as the moving party, of showing that, based on the evidence before the court and drawing all reasonable inferences’ in the plaintiff’s favor, no jury could find the defendants liable under any evidentiary route” … . * * *

… [T]he evidence submitted by the defendants, which included a transcript of the plaintiff’s deposition testimony, failed to eliminate all triable issues as to whether Cohen used his position to intimidate her into the relationship and as to whether the sexual conduct on his part was, in fact, “unwelcome.” In this regard, the plaintiff, at her deposition, consistently testified that the sexual relations were not welcome, that she felt as though she had no other choice but to participate, and that when she complained to Cohen, he made it very clear that there would be repercussions if she did not participate. In considering this testimony, we recognize that the question of whether particular conduct was “unwelcome” presents “difficult problems of proof and turns largely on credibility determinations committed to the trier of fact” … . The Supreme Court appears to have focused on the voluntariness of the plaintiff’s participation in the claimed sexual episodes. However, “the fact that sex-related conduct was voluntary,’ in the sense that the [plaintiff] was not forced to participate against her will, is not a defense,” and the “correct inquiry is whether [the plaintiff] by her conduct indicated that the alleged sexual advances were unwelcome” … . Overbeck v Alpha Animal Health PC, 2015 NY Slip Op 00736, 2nd Dept 1-28-15

 

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The Meaning of “Manifest Intent” in the Context of a Fidelity Bond Insuring the Employer Against Dishonest Acts by an Employee Explained

The First Department explained what the term “manifest intent” means as the term appeared in a fidelity bond which insured the employer from dishonest acts by an employee. The coverage was triggered only when the employee acted with the “manifest intent” to cause the insured to sustain loss or to obtain financial benefit for the employee or a third party:

Manifest intent involves a continuum of conduct, ranging from embezzlement, where the employee necessarily intends to cause the employer the loss, to the other end of the continuum, which does not trigger fidelity coverage, where “the employee’s dishonesty at the expense of a third party is intended to benefit the employer, since the employee’s gain results from the employer’s gain”… .

Manifest intent to injure an employer exists as a matter of law where an employee acts with substantial certainty that his employer will ultimately bear the loss occasioned by his dishonesty and misconduct… . Keybank Natl Assn v National Union Fire Ins Co of Pittsburgh PA, 2015 NY Slip Op 00614, 1st Dept 1-22-15

 

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Town Willfully Violated Federal Employee-Safety Regulations Re: Working In Permit-Required Confined Spaces—A Town Employee and a Volunteer Fireman Died After Entering a 20-Foot-Deep Manhole

MUNICIPAL LAW/EMPLOYMENT LAW

The Second Department confirmed the determination of the NYS Industrial Board of Appeals finding that petitioner-town had willfully violated provisions of the Code of Federal Regulations (CFR) concerning the safety of employees required or allowed to work in confined spaces.  Here a town worker and a volunteer fireman died of asphyxiation after entering a 20-foot-deep manhole:

“If [an] employer decides that its employees will not enter permit [-required confined] spaces, the employer shall take effective measures to prevent its employees from entering the permit spaces” and shall, inter alia, warn exposed employees of the existence and location of such spaces and the danger posed by them (29 CFR 1910.146[c][3]; see 29 CFR 1910.146[c][2]). Further, “[i]f the employer decides that its employees will enter permit spaces, the employer shall develop and implement a written permit space program that complies with [29 CFR 1910.146]” (29 CFR 1910.146[c][4]).

Here, the evidence established that the petitioner was aware of the requirements of the subject regulations. Although the petitioner allegedly restricted its DPW [Department of Public Works] employees from entering confined spaces, a practice existed in which its DPW employees entered such confined spaces. The evidence also showed that the petitioner did not implement a written permit space program for volunteer firefighters. In addition, the evidence demonstrated that the petitioner’s management made little or no effort to communicate the requirements of the subject regulation to its lower level supervisors and employees. Thus, contrary to the petitioner’s contention, substantial evidence existed in the record to support the IBA’s determination that the petitioner willfully violated 29 CFR 1910.146(c)(3) and (4) … . Matter of Village of Tarrytown v NYS Dept of Labor, 2015 NY Slip Op 00543, 2nd Dept 1-21-15

 

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Defendants Not Liable for Assault by a Contractor-Security Guard—No Showing Defendants Were Aware of Security Guard’s Propensity for Violence—Security Guard’s Actions Were Outside the Scope of Employment

The Second Department reversed Supreme Court finding that summary judgment should have been granted to defendants (a residential facility for the elderly/disabled and a related management company) in an action stemming from an assault by a contractor/security guard.  The evidence did not demonstrate defendants knew or should have known of the contractor’s propensity for violence and the contractor had acted outside the scope of employment:

“[A] party may be held liable for a contractor’s negligence under theories of negligent hiring, negligent retention, and negligent supervision” … . To hold a party liable under theories of negligent retention and negligent supervision, “a plaintiff must establish that the party knew or should have known of the contractor’s propensity for the conduct which caused the injury” … . Here, the appellants demonstrated, prima facie, that they did not know or have reason to know of Lewis’s alleged propensity for violence… . The appellants also demonstrated, prima facie, that they were not vicariously liable for the conduct of Lewis under the doctrine of respondeat superior, since Lewis’s alleged acts were not part of his job and were not incidental to the furtherance of the appellants’ business … . Robert v BHAP Hous Dev Fund Co, 2015 NY Slip Op 00520, 2nd Dept 1-21-15

 

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Where Plaintiff Was “Demoted” In Violation of an Employment Agreement, the Restrictive Covenants in the Agreement Are No Longer Enforceable

The First Department determined the restrictive covenants agreed to by the plaintiff in conjunction with the job he was hired to do did not apply to the job, with diminished responsibility, he was subsequently assigned (in violation of the employment contract):

The significant change in plaintiff’s duties constituted a material breach of his employment agreement … . * * *

The record demonstrates that defendants did not have a legitimate interest in restricting plaintiff from working for a competitor once he was in his demoted position … . Although the employment agreement acknowledged the uniqueness of plaintiff’s services, that acknowledgment was made in connection with plaintiff’s acceptance of a position he no longer held at the time of his resignation. Further, the record is devoid of evidence that plaintiff possessed any trade secrets or confidential customer lists … . Thus, insofar as the restrictive covenants contained in the employment and option agreements prohibited plaintiff from competing …, they are unenforceable. Fewer v GFI Group Inc, 2015 NY Slip Op 00440, 1st Dept, 1-15-15

 

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Negligent Supervision Cause of Action Properly Survived Summary Judgment—Question of Fact Raised Whether Criminal Act by Defendant’s Employee Was Foreseeable

Plaintiff’s child was injured when assaulted by an employee of defendant New York City Transit Authority (NYCTA) during the course of a NYCTA community service program.  The Second Department determined defendant could not be held liable under the doctrine of respondeat superior because the actions of the employee were outside the scope of employment.  However, the cause of action for negligent supervision properly survived the motion for summary judgment because there was a question of fact whether the criminal act of the employee was foreseeable:

“Under the doctrine of respondeat superior, an employer may be vicariously liable for the tortious acts of its employees only if those acts were committed in furtherance of the employer’s business and within the scope of employment” … . Here, the evidence submitted by the NYCTA demonstrated that Clay’s conduct clearly was not in furtherance of the NYCTA’s business and was a departure from the scope of his employment, having been committed for wholly personal motives … . * * *

The Supreme Court properly denied that branch of the NYCTA’s motion which was for summary judgment dismissing so much of the complaint as alleged that it negligently supervised the plaintiff’s child. The standard for determining whether a duty to supervise a minor was breached is “whether a parent of ordinary prudence placed in the identical situation and armed with the same information would invariably have provided greater supervision” … . “Where third-party criminal acts intervene between defendant’s negligence and plaintiff’s injuries, the causal connection may be severed, precluding liability. The criminal intervention of third parties may, however, be a reasonably foreseeable’ consequence of circumstances created by the defendant” … . Mayo v New York City Tr Auth, 2015 NY Slip OP 00342, 2nd Dept 1-14-15

 

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