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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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In an Employment Discrimination Case, Plaintiff Is a Member of a Protected Class By Virtue of His Wife’s Religion

The Second Department, in a full-fledged opinion by Justice Leventhal, over a dissent, determined plaintiff had raised a question of fact whether he was the subject of employment discrimination in violation of the Executive Law (State Human Rights Law).  Plaintiff’s wife is Jewish and plaintiff is not. Plaintiff’s co-workers are alleged to have made anti-Semitic remarks and plaintiff alleged his firing was a manifestation of discrimination against members of the Jewish faith.  The question of first impression before the court was whether plaintiff is a member of a protected class by virtue of his wife’s religion.  The Second Department found that he is:

To establish a prima facie case of discrimination under the State Human Rights Law, a plaintiff who has been terminated from employment must demonstrate (1) that he or she is a member of the class protected by the statute, (2) that he or she was actively or constructively 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 … . * * *

The defendants assert that there is no authority to support a claim of discrimination based upon the religious belief of a spouse under the State Human Rights Law. While there is no authority addressing this issue under the State Human Rights Law, several federal courts have construed Title VII to protect individuals “who are the victims of discriminatory animus towards third persons with whom the individuals associate” … . * * *

While the plaintiffs’ allegations call to mind the infamous Nuremberg Laws enacted in 1935, which stripped German Jews of their civil rights and citizenship and prohibited persons of “German or related blood” from marrying or having sexual relations with German Jews, we are aware that the defendants’ alleged conduct is not akin to Town-initiated discrimination. State Human Rights Law claims under Executive Law § 296 are “analytically identical to claims brought under Title VII” …, and thus we see no reason to construe the State statute more restrictively than the federal statute. Accordingly, the plaintiff sufficiently demonstrated his membership in a protected class by virtue of the defendants’ alleged discriminatory conduct stemming from his marriage to a Jewish person. Indeed, we note that discrimination against an individual based on his or her association with a member of a protected class also constitutes an infringement upon that individual’s First Amendment right to intimate association, which receives protection as a fundamental element of personal liberty (see Roberts v United States Jaycees, 468 US 609, 617-618 [“choices to enter into and maintain certain intimate human relationships must be secured against undue intrusion by the State because of the role of such relationships in safeguarding the individual freedom that is central to our constitutional scheme”]; Matusick v Erie County Water Auth., 757 F3d 31 [2d Cir] [where plaintiff, a white male, alleged that he was discriminated against and terminated from his employment because of his engagement to an African-American female, the United States Court of Appeals for the Second Circuit recognized, for the first time, that a constitutionally protected right to intimate association based upon marriage engagement could be the predicate for a claim that the defendants, while acting under color of state law, deprived the plaintiff of his First and Fourteenth Amendment rights in violation of 42 USC § 1983]). Chiara v Town of New Castle, 2015 NY Slip Op 00326, 2nd Dept 1-14-15

 

Provisions in Personnel Handbook Refuted Petitioner’s Allegation that Respondent Failed to Follow the Disciplinary Procedures in the Handbook Prior to Terminating Petitioner/In Addition, Limitations on the Right to Terminate an At-Will Employee Will Not Be Inferred Solely from Policy Manuals or the Existence of an Internal Grievance Procedure

The Second Department determined that the provisions of the personnel handbook did not require the employer to follow a particular disciplinary procedure before terminating the petitioner.  Furthermore, the court noted that any limitation of the right to terminate an at-will employee will not be inferred solely from policy manuals or the existence of a grievance procedure:

“Absent an agreement establishing a fixed duration, an employment relationship is presumed to be a hiring at will, terminable at any time by either party” … . “A disciplined or terminated employee may seek article 78 review to determine whether the employer contravened any of its own rules or regulations in taking . . . disciplinary action” … .

Here, the petitioner alleged that the respondents, who had employed him since June 2009, acted arbitrarily and capriciously by failing to follow certain disciplinary procedures set forth in their personnel handbook prior to terminating his employment on May 3, 2013. Accordingly, the petition states a cause of action (see CPLR 3211[a][7]). However, the documentary evidence submitted by the respondents established a complete defense to the proceeding (see CPLR 3211[a][1]), as it “utterly refute[d]” the petitioner's factual allegations, “thereby conclusively establishing a defense as a matter of law” … . Specifically, the respondents' personnel handbook provided that “[t]he steps of the progressive discipline process are not guaranteed,” and that management reserves the right to decide what disciplinary action is appropriate, including whether to proceed immediately to termination. Hence, the very document relied upon by the petitioner defeated his contention that the respondents were required to strictly comply with the disciplinary procedures articulated in that document. Moreover, “[a] limitation on the employer's right to terminate at-will employment will not be inferred solely from the existence of policy manuals or the existence of an internal grievance procedure” … . Matter of Oliner v Sovereign Bank, 2014 NY Slip OP 09002, 2nd Dept 12-24-14

 

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Questions of Fact Raised Re: Whether Plaintiff’s Decedent’s Brother and Plaintiff’s Decedent Were Employees of the Defendants (Who Then May Be Liable Under the Doctrine of Respondeat Superior) or Independent Contractors

The Second Department determined a question of fact had been raised about whether the brother of plaintiff's decedent was defendants' employee or an independent contractor.  Defendants are the owners of a single family home who hired plaintiff's decedent's brother and plaintiff's decedent to cut down a tree on the property. Plaintiff's decedent was killed when he was thrown head-first into a tree during the tree-felling process. Plaintiff's decedent sued defendants under negligence, violation of Labor Law sections 200 and 240, and wrongful death theories.  Plaintiff's decedent sought to hold defendants liable under the doctrine of respondeat superior (as the employer of decedent's brother, who negligently performed his work, causing plaintiff's decedent's death). Plaintiff's decedent and his brother were hired by the defendants at the suggestion of a mason, Cano, who worked for the defendants.  Cano relayed defendants' instructions concerning the tree removal to plaintiff's decedent's brother:

“The general rule is that an employer who hires an independent contractor is not liable for the independent contractor's negligent acts” … . “The determination of whether an employer-employee relationship exists turns on whether the alleged employer exercises control over the results produced, or the means used to achieve the results. Control over the means is the more important consideration” … . Whether a party is an independent contractor or an employee is usually a factual issue for a jury … .

The defendants failed to establish their prima facie entitlement to judgment as a matter of law, since the evidence they submitted in support of their motion did not demonstrate the absence of any triable issues of fact … . In support of their motion, the defendants submitted the deposition transcript of the decedent's brother, who testified that the defendant Sean Jencik, in addition to specifying which trees were to be removed, provided instructions as to how the work was to be performed so that the trees would not fall on to the roadway, which were conveyed to him in Spanish through Cano. Moreover, the decedent's brother testified that the defendants gave the money to pay him and the other workers involved with the tree removal to Cano, who then paid them. Sirignano v Jencik, 2014 NY Slip Op 08977, 2nd Dept 12-24-14

 

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Negligent Training and Supervision Causes of Action Properly Survived Summary Judgment/Lawsuit Stemmed from Sexual Contact Between an Employee of Defendant Residential Facility and Plaintiff, Who Was 14 Years Old

In a case stemming from an employee's (Williams') sexual contact with the plaintiff, a 14-year-old resident of defendant Berkshire Farm Center and Services for Youth, the Third Department determined the negligent training and supervision causes of action properly survived summary judgment:

In order to succeed on a claim of negligent training and supervision of an employee, it must be demonstrated that the employer “knew or should have known of the employee's propensity for the conduct which caused the injury” … and that the allegedly deficient supervision or training was a proximate cause of such injury … . In support of its motion seeking the dismissal of plaintiff's negligent training and supervision claims, defendant presented testimony from its employees — including those who assumed supervisory positions — indicating that there were no prior indicia or reports of any inappropriate conduct by Williams toward the youths residing in the detention facility and that the news of the incident with plaintiff came as a complete surprise … . * * *

…Review of the testimony of defendant's employees reveals that there was a general reluctance on the part of several staff members to report policy violations to supervisors or register complaints regarding staff conduct. Two staff members, in particular, testified that the director was not responsive to reports of improper conduct and she disregarded staff concerns regarding, among other things, scheduling male counselors to work alone during overnight shifts while there were female residents — some of whom were characterized as highly sexually active — in the facility. One staff member testified that he was aware of an incident in which Williams told plaintiff that she was “sexy” as she was returning to her room in a towel after having taken a shower, but he did not confront Williams or report it to his supervisors. Other evidence exists evincing Williams' propensity to engage in inappropriate contact with youths in the facility, including one occasion where it was discovered that a female resident had written Williams' phone number on a slip of paper. Rather than make a comprehensive inquiry about the matter, defendant limited its investigation to questioning the female and Williams. Despite the nature of the incident, defendant's director denied having any concerns about Williams' interaction with the residents. Other testimony by staff members described Williams as a counselor who appeared to relish having authority over the children and he acted aggressively toward them and without apparent concern for their interests. Specifically, one counselor averred that he observed Williams tell a female resident that he would “be with her” under different circumstances and that, although this staff member reported the exchange to a supervisor, Williams was not disciplined. Other complaints to supervisors regarding Williams' improper conduct appear to have gone unaddressed, causing one counselor to opine during his deposition that such reports “went in one ear and out the other.” Viewing this evidence, as well as counselor testimony that defendant did not test or otherwise ensure that its staff members were knowledgeable and compliant with its written policies and instructional materials, in a light most favorable to plaintiff, we find that material issues of fact preclude summary judgment on these causes of action … . Hicks v Berkshire Farm Ctr & Servs for Youth, 2014 NY Slip Op 0889, 3rd Dept 12-18-14

 

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Teacher Who Was Encouraged by the Superintendent to Resign Her Tenured Teaching Position to Take A Library-Position Which Was Subsequently Eliminated Did Not Thereby Voluntarily Waive Her Seniority Rights—She Was Entitled to Reinstatement In Her Tenured Teaching Position With Back Pay

The Third Department determined that a teacher (petitioner) who, at the request of the school superintendent resigned her teaching position to take a library media specialist (LMS) position, did not waive her seniority rights.  After the LMS position was eliminated and petitioner was terminated, petitioner brought an Article 78 proceeding to reinstate her as a tenured teacher. Supreme Court granted the petition and the Third Department affirmed:

Respondents maintain that Supreme Court erred in finding that the termination of petitioner’s employment was arbitrary and capricious and irrational, inasmuch as petitioner freely waived her seniority rights when she resigned from her position as an English teacher. Although an employee may waive his or her seniority rights by resigning or retiring, “such a relinquishment must be knowing and voluntary” … . An effective waiver of such rights must be free from any indicia of duress or coercion … .

The record demonstrates that, when petitioner was encouraged by the interim Superintendent to take the LMS position, she expressed her reluctance to leave her position as an English teacher and asked if she could take a leave of absence rather than resign. The interim Superintendent indicated that a leave of absence would not suffice and that petitioner’s resignation was required. After tendering her letter of resignation, which the Board accepted a month after appointing her to the LMS position, petitioner received a longevity pay increase, continued to accrue sick and personal leave time that had carried over from her English teaching position and also received a severance payment from the District that would not have been made if petitioner had voluntarily severed her employment. Notably, when petitioner moved into the LMS position, she assumed such position without any interruption in service … . Where, as here, an employee does not take the necessary “affirmative steps to terminate all aspects of his or her employment by a school district,” no waiver of seniority and tenure rights will be found … . Accordingly, as the Commissioner’s dismissal of petitioner’s appeal was arbitrary and capricious and lacking a rational basis, Supreme Court’s judgment annulling that determination shall remain undisturbed … . Matter of Kwasnik v King, 2014 NY Slip Op 08697, 3rd Dept 12-11-14

 

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Court’s Limited Arbitration-Review Powers Described—Collateral Estoppel Precluded the District from Raising the “Faithless Servant Doctrine” in a Related Lawsuit Because the Arbitrator Concluded the Doctrine Did Not Apply

The Third Department affirmed the arbitrator's decision that the school district employee, who had attempted to retire after allegations that she stole school district property surfaced, was entitled to health benefits.  The court determined, given that the faithless servant doctrine was litigated fully during the arbitration and deemed inapplicable, and given the arbitrator's conclusion the employee was entitled to her contractual health benefits, the school district was collaterally estopped from amending its complaint in the related court proceedings to include the faithless servant doctrine:

…Vacatur of the arbitration award is not warranted. “It is well established that an arbitrator's award is largely unreviewable” … . Vacatur of an arbitration award is only appropriate where “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'” … . Union-Endicott Cent Sch Dist v Peters, 2014 NY Slip Op 08533, 3rd Dept 12-4-14

 

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