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Town Could Not Unilaterally Revoke Its Policy of Providing Vehicles for Certain Town Employees—Any Such Change Must Be Negotiated

The Court of Appeals, in a full-fledged opinion by Judge Read, over a dissent, determined the Public Employees Relation Board (PERB) properly ruled the town could not revoke its policy of providing vehicles for use by certain town employees pursuant to a provision of the Town Code. The town argued that it could unilaterally revoke the vehicle assignments because the provision which purported to allow the vehicle assignments was illegal (the dissent agreed).  The Court of Appeals held that the provision was not illegal and, therefore, any change in the vehicle assignment policy must be negotiated with the union:

…[T]he Town asks us to rule in its favor on the ground that a public employer does not violate section 209-a (1) (d) of the Taylor Law [Civil Service Law} when it unilaterally discontinues a past practice with respect to a term and condition of employment that is illegal under local law. Whatever the merits of the Town's position, we do not reach and need not consider them because the relevant past practice was not, in fact, illegal under the local law. Accordingly, PERB reasonably applied its precedent to determine that the Town engaged in an improper practice when it unilaterally discontinued the permanent assignment of “take home” vehicles to employees who enjoyed this benefit before the Town adopted and implemented the 2008 fleet/vehicle policy, and PERB's determination was based on substantial evidence.  Matter of Town of Islip v New York State Pub Empl Relations Bd., 2014 NY Slip Op 04030, CtApp 6-5-14

 

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Ambiguous Termination Notice Will Not Trigger Four-Month Article 78 Statute of Limitations

The First Department explained that when a notice of termination of an at-will employee is ambiguous with respect to finality, the ambiguity is construed against the employer and the four-month statute of limitations for an Article 78 proceeding is not triggered:

Ordinarily, where the employment of an at-will employee, like petitioner, is terminated, the four-month statute of limitations applicable in article 78 proceedings (CPLR 217) begins to run from the date of the termination, notwithstanding the availability of optional administrative review proceedings … . However, where an administrative agency “create[s]; []; ambiguity and [the]; impression of nonfinality,” that ambiguity regarding finality is to be resolved against the agency … .

* * * We find that, notwithstanding the fact that the letter otherwise conveyed the concrete impact ordinarily associated with finality for statute of limitations purposes …, respondent created sufficient ambiguity as to finality such that the language must be construed against it and the petition must be deemed timely. Matter of Burch v New York City Health & Hosp Corp, 2014 NY Slip Op 04060, 1st Dept 6-5-14

 

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State and City Human Rights Law Retaliation Claims Were Not Precluded by Dismissal of Federal Retaliation Claims Pursuant to the Family and Medical Leave Act—Different Protected Activities Involved

The First Department, in a full-fledged opinion by Justice Richter, determined plaintiff’s state and city human rights law retaliation claims against her employer were not precluded by the dismissal of her federal action under the Family and Medical Leave Act (FMLA):

Under the doctrine of collateral estoppel, a party is precluded from relitigating in a subsequent action an issue clearly raised and decided against that party in a prior action … . To successfully invoke this doctrine, two requirements must be met. First, the issue in the second action must be identical to an issue which was raised, necessarily decided and material in the first action. Second, the party to be precluded must have had a full and fair opportunity to litigate the issue in the earlier action … . Where a federal court declines to exercise jurisdiction over a plaintiff’s state law claims, collateral estoppel can still bar those claims provided that the federal court decided issues identical to those raised by the plaintiff’s state claims … . The party seeking to invoke collateral estoppel bears the burden of establishing identity of issue … . Applying these principles, we conclude that defendants have not met their burden of showing that plaintiff’s state and city claims of retaliatory termination are barred by collateral estoppel. The retaliation claims asserted here are entirely distinct from those raised and decided in the federal action. There, the court only decided whether plaintiff was retaliated against for exercising her FMLA rights. Here, however, plaintiff does not claim retaliation based on her exercise of FMLA rights, but instead alleges retaliation, under the State and City Human Rights Laws, based on entirely different instances of protected activity. Specifically, plaintiff alleges she was discharged for filing a written complaint about her reprimand for allegedly reading a book during work hours, and for verbally complaining about an alleged inappropriate comment. Because the federal court’s decision did not address either of these claimed bases for retaliation, it cannot be said that the federal action “necessarily decided” the same issues raised by the State and City retaliation claims, and thus collateral estoppel does not apply… .  Ji Sun Jennifer Kim v Goldberg, Weprin, Finkel, Goldstein, LLP, 2014 NY Slip Op 03961, 1st Dept 5-3-14

 

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Probationary Employee Fired in Bad Faith for Union Work—Supreme Court Had the Power to Reinstate Her But Not to Grant Her Tenure

The Second Department determined a probationary teacher demonstrated she was terminated in bad faith.  The court noted that Supreme Court did not have the power to grant the probationary teacher tenure, something only the administrative agency has the power to do:

A probationary employee may be discharged 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 … . The petitioner bears the burden of presenting competent proof of the alleged bad faith, the violation of statutory or decisional law, or the constitutionally impermissible or illegal purpose … . Here, the petitioner met her burden of demonstrating that the discontinuation of her probationary employment was made in bad faith, showing that the discontinuation followed a letter she wrote to the principal, in her capacity as a union chapter leader, requesting to make up her missed preparation periods. Although, generally, evidence of unsatisfactory performance rebuts a showing of bad faith …, in response to the petitioner’s showing, the appellants failed to establish that the discontinuance of the petitioner’s probationary employment was the result of poor performance. The record demonstrates that the petitioner began [*2]to receive “Unsatisfactory” ratings only after she asked the principal to make up her missed preparation periods, and it was at that point that the evaluations of the petitioner’s performance began to precipitously decline. Accordingly, the Supreme Court properly annulled the determination and reinstated the petitioner to her former position, with retroactive seniority, backpay, and benefits … .

However, the appellants correctly contend that the Supreme Court exceeded its authority by granting the petitioner tenure effective as of January 25, 2009. ” While the court is empowered to determine whether the administrative body acted arbitrarily, it may not usurp the administrative function by directing the agency to proceed in a specific manner, which is within the jurisdiction and discretion of the administrative body in the first instance'” … . Matter of Capece v Schultz, 2014 NY Slip Op 03834, 2nd Dept 5-28-14

 

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Voluntary Firefighter Should Not Have Been Suspended Without a Hearing Pursuant to the General Municipal Law

The Second Department determined a voluntary firefighter was entitled to a hearing pursuant to the General Municipal Law.  The firefighter was suspended (without a hearing) for six months for acting in a disorderly manner in an a manner unbecoming a member of the fire department:

…[T]here is no merit to the appellants’ contention that they did not have to comply with the hearing requirements of General Municipal Law § 209-l because this matter did not involve the petitioner’s “removal” from the Fire Company. Subsection (3) of General Municipal Law § 209-l provides that:

“[r]emovals on the ground of incompetence or misconduct, except for absenteeism at fires or meetings, shall be made only after a hearing upon due notice and upon stated charges and with the right to such officer or member to a review pursuant to article seventy-eight of the civil practice law and rules. Such charges shall be in writing and may be made by any such authority. The burden of proving incompetency or misconduct shall be upon the person alleging the same.”

“[A] volunteer firefighter must be afforded due process in disciplinary proceedings” … . This is true whether the penalty that is ultimately imposed entails the firefighter’s permanent removal from his or her position, or a suspension from the position. As set forth in General Municipal Law § 209-l(5), “[t];he officer or body having the power to remove the person charged with incompetence or misconduct may suspend such person after charges are filed and pending disposition of the charges, and after the hearing may remove such person or may suspend him or her for a period of time not to exceed one year” (emphasis added). The plain meaning of this provision is that a volunteer firefighter may only be temporarily suspended, without a hearing, from the time that the charges are filed until the ultimate disposition of the charges, but that a hearing is required to actually dispose of the charges, and that a final penalty of suspension, not to exceed one year, may only be imposed after that hearing. Consequently, the appellants were required to comply with the procedures set forth in General Municipal Law § 209-l … . Matter of McEvoy v Oyster Bay Fire Co No 1, 2014 NY Slip Op 03688, 2nd Dept 5-21-14

 

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Whether Color-Blind Bus Driver Should Be Given a Road Test to Determine Driving Abilities Was a Proper Subject of Arbitration Pursuant to the Collective Bargaining Agreement

The Second Department determined that whether a bus driver (Cruz), who had been found by a physician to be color-blind, should be given a road test to determine the safety of his driving was the proper subject of arbitration under the collective bargaining agreement.  The NYC Transit Authority (TA) argued that the driver should not undergo a road test and the physician should determine whether the driver met the vision requirements of Vehicle and Traffic Law 509-g (1) and related regulations.  The union filed a grievance on behalf of the driver arguing the TA’s refusal to cooperate with the administration of the road test violated the collective bargaining agreement (CBA):

In the public sector context, determining whether a grievance is arbitrable requires a court to first determine whether ” there is any statutory, constitutional or public policy prohibition against arbitration of the grievance'” … . If there is no prohibition against arbitration, then the court must determine “whether the parties in fact agreed to arbitrate the particular dispute by examining their collective bargaining agreement” … .

Contrary to the TA’s contention, no statute or public policy absolutely prohibits an arbitrator from deciding whether Cruz should undergo a road test before it is determined whether Cruz meets the vision requirements. Moreover, the parties’ agreement to arbitrate this dispute is supported by the terms of the CBA. The relevant arbitration provisions of the CBA are broad, and there is a reasonable relationship between the subject matter of the dispute and the general subject matter of the CBA … . Any alleged ambiguity in the CBA as to whether the physician could recommend that Cruz undergo a road test ” is . . . a matter of contract interpretation for the arbitrator to resolve'” … .  Matter of New York City Tr Auth v Transport Workers Union of Greater NY Local 100, 2014 NY Slip Op 03689, 2nd Dept 5-21-14

 

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Church’s Decision to Terminate Minister Constitutionally Protected Under “Ministerial Exception”

The First Department determined a minister who brought a wrongful termination action was, according to the terms of the personnel manual, an at will employee.  In addition the claim was barred by the ministerial exception under which a church’s decisions concerning the employment of a minister are constitutionally protected:

…[T]he ministerial exception also bars plaintiff’s claim, which primarily involves intra-church matters. “Under the ministerial exception’ …, a church’s decision to hire, to fire, and to prescribe the duties of its minister are commonly held to be constitutionally protected” … . Mills v Standing Gen Commn on Christian Unity & Interreligious Concerns, 2014 NY Slip Op 03437, 1st Dept 5-13-14

 

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Complaint Pursuant to the “Whistleblower” Statute Need Not Identify the Particular Statute or Regulation Alleged to Have Been Violated by the Employer

The Court of Appeals, in a full-fledged opinion by Judge Pigott, determined that a complaint brought under the “whistleblower”  provision of the Labor Law (section 740) need not identify the particular statute or regulation alleged to have been violated by the employer:

Labor Law § 740 (2), commonly referred to as the “whistleblower statute,” provides, in relevant part, that “[a]n employer shall not take any retaliatory personnel action against an employee because such employee . . . discloses, or threatens to disclose to a supervisor or to a public body an activity, policy or practice of the employer that is in violation of law, rule or regulation” that either “creates and presents a substantial and specific danger to the public health or safety, or . . . constitutes health care fraud” (Labor Law § 740 [2] [a]). The narrow issue on this appeal is whether a complaint asserting a claim under that provision must identify the specific “law, rule or regulation” allegedly violated by the employer. We conclude that there is no such requirement. * * *

To be sure, in order to recover under a Labor Law § 740 theory, the plaintiff has the burden of proving that an actual violation occurred, as opposed to merely establishing that the plaintiff possessed a reasonable belief that a violation occurred … . And, the violation must be of the kind that “creates a substantial and specific danger to the public health or safety” … . However, for pleading purposes, the complaint need not specify the actual law, rule or regulation violated, although it must identify the particular activities, policies or practices in which the employer allegedly engaged, so that the complaint provides the employer with notice of the alleged complained-of conduct. Webb-Weber v Community Action for Human Servs Inc, 2014 NY Slip Op 03428, CtApp 5-13-14

 

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Release Time Certificates, Allowing Full Pay for Police Officers Doing Union Work, Properly Rescinded Based Upon the Indictment of the Officers

The First Department, in a full-fledged opinion by Justice Andrias, over a two-justice dissent, determined that police officers who were indicted in connection with a ticket-fixing scheme were properly denied Release Time certificates based upon the indictments.  Release Time certificates are issued by the Office of Labor Relations (OLR) pursuant to the Mayor’s Executive Order 75 (EO 75) and allow full-time leave with pay and benefits for union work:

The right of union-designated employees to be released from their job duties to perform union or joint labor-management activities is established in EO 75, which generally vests the City with broad oversight of employee representatives. Section 4(4) of EO 75 provides:

“Organizing, planning, directing, or participating in any way in strikes, work stoppages, or job actions of any kind, are excluded from the protection or coverage of this Order. Any employees assigned on a full or part-time basis or granted leave of absence without pay pursuant to this Order who participate in such excluded activity may have such status suspended or terminated by the City Director of Labor Relations.”

Section 4(10) provides: “Employees assigned on a full-time or part-time basis or granted leave without pay pursuant to this Order shall at all times conduct themselves in a responsible manner.” Section 5 provides that “[n]othing contained in this Order shall be deemed to have the effect of changing the character of any subject matter hereof which is a managerial prerogative and as a non-mandatory subject of collective bargaining.”

Enforcement of EO 75 is committed to the OLR Commissioner, who may issue implementing rules and regulations. The indictments of the individual petitioners on charges related to a ticket-fixing scheme that include allegations of grand larceny, official misconduct, tampering with public records, and criminal solicitation constitute a sufficient basis for the City to determine that the individual petitioners did not “at all times conduct themselves in a responsible manner” … . Accordingly, OLR was entitled to unilaterally rescind the Release Time certificates. Matter of Patrolmen’s Benevolent Assn of the City of New York Inc v City of New York, 2014 NY Slip Op 03464, 1st Dept 5-13-14

 

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Assault by NYC Firefigthers in a Restaurant Raised Questions of Fact Whether the City Defendants Were Liable for the Injuries to the Plaintiffs Based Upon Negligent Hiring, Training, Supervision and/or Retention/Fact that Suit Could Not Be Based Upon Respondeat Superior (Actions Outside the Scope of Employment) Did Not Preclude Suit Based Upon City’s Own Alleged Negligence (!)

The Second Department determined plaintiffs, who were injured when assaulted by NYC firefighters in a restaurant, had made allegations against the city and the fire department which raised questions of fact about negligent hiring, supervision, training and retention. The firefighters, including supervisors, had just come from a New York City Fire Department annual dinner held at another restaurant.  Apparently two firefighters (Reilly and Warnock) attacked the plaintiffs after a drink had been accidentally spilled on a firefighter. The court explained that the doctrine of respondeat superior would not apply because the firefighters were not acting within the scope of their employment at the time of the assault.  But the court determined the causes of action against the City defendants for negligent hiring, supervision, training and retention could go forward!

“The doctrine of respondeat superior renders an employer vicariously liable for torts committed by an employee acting within the scope of the employment. Pursuant to this doctrine, the employer may be liable when the employee acts negligently or intentionally, so long as the tortious conduct is generally foreseeable and a natural incident of the employment” … . “An employee’s actions fall within the scope of employment where the purpose in performing such actions is to further the employer’s interest, or to carry out duties incumbent upon the employee in furthering the employer’s business'” … . “An act is considered to be within the scope of employment if it is performed while the employee is engaged generally in the business of the employer, or if the act may be reasonably said to be necessary or incidental to such employment” … . Where, however, an employee’s actions are taken for wholly personal reasons, which are not job related, the actions cannot be said to fall within the scope of employment … . In instances where vicarious liability for an employee’s torts cannot be imposed upon an employer, a direct cause of action against the employer for its own conduct, be it negligent hiring, supervision, or other negligence, may still be maintained … .

Here, the Supreme Court properly granted that branch of the City defendants’ motion which was for summary judgment dismissing the causes of action alleging vicarious liability. The City defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that the tortious conduct of Reilly and Warnock was not within the scope of their employment … . In opposition, the plaintiffs failed to raise a triable issue of fact … . However, as to the causes of action alleging negligent hiring, supervision, training, and retention, the City defendants did not establish their entitlement to judgment as a matter of law. They failed to submit any evidence demonstrating that they did not know or have reason to know of Reilly’s or Warnock’s alleged propensity for assaultive conduct … . Furthermore, the City defendants failed to submit evidence demonstrating that any such alleged negligence was not a proximate cause of the injured plaintiffs’ injuries … . Selmani City of New York, 2014 NY Slip Op 02764, 2nd Dept 4-23-14

 

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