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Employment Discrimination Claim Stated Under the NYC Human Rights Law But Not Under the State Human Rights Law

Over a partial dissent, the Court of Appeals determined that plaintiff’s employment discrimination claim under the state Human Rights Law (HRL) was properly dismissed but that the claim under the city HRL should not have been dismissed.  The city, unlike the state, places the burden on the employer to show that it could not provide reasonable accommodations to allow a disabled employee to work.  The employee essentially asked for an indefinite leave from work based upon severe depression:

In the context of employment discrimination, the term “disability” as defined in the State HRL is “limited to disabilities which, upon the provision of reasonable accommodations, do not prevent the complainant from performing in a reasonable manner the activities involved in the job or occupation sought or held” (Executive Law § 292 [21]).  A “reasonable accommodation” means actions taken which permit an employee with a disability to perform in a reasonable manner activities involved in the job, and “do not impose an undue hardship on the business” (Executive Law § 292 [21-e]).  To state a claim under the State HRL, the complaint and supporting documentation must set forth factual allegations sufficient to show that, “upon the provision of reasonable accommodations, [the employee] could perform the essential functions of [his or] her job” … .  Indefinite leave is not considered a reasonable accommodation under the State HRL … .

Here, neither plaintiff’s communications with his employer just prior to his termination nor the complaint filed one year later offer any indication as to when plaintiff planned to return to work.  Instead, plaintiff informed his employer that he had not expressed any intention to “abandon” his job and that his return to work date was “indeterminate”; the complaint merely alleges that plaintiff sought “a continued leave of absence to allow him to recover and return to work.”  “Indeterminate” means “not definitely or precisely determined or fixed” … .  * * *

The City HRL, on the other hand, affords protections broader than the State HRL  * * *.

Unlike the State HRL, the City HRL’s definition of “disability” does not include “reasonable accommodation” or the ability to perform a job in a reasonable manner.  Rather, the City HRL defines “disability” solely in terms of impairments (Administrative Code of City of NY § 8–102 [16]).  The City HRL requires that an employer “make reasonable accommodation to enable a person with a disability to satisfy the essential requisites of a job . . . provided that the disability is known or should have been known by the [employer]” (id. at § 8–107 [15] [a]).  Contrary to the State HRL, it is the employer’s burden to prove undue hardship … .  And, the City HRL provides employers an affirmative defense if the employee cannot, with reasonable accommodation, “satisfy the essential requisites of the job” (Administrative Code 8-107 [15] [b]). Thus, the employer, not the employee, has the “pleading obligation” to prove that the employee “could not, with reasonable accommodation, satisfy the essential requisites of the job” … .  Romanello v Intesa Sanpaolo …, 152, CtApp 10-10-13

 

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Stay of Arbitration Properly Denied, Collective Bargaining Agreement Allowed Issue to Be Determined in Arbitration

In affirming Supreme Court’s dismissal of an Article 75 petition seeking a permanent stay of arbitration (with respect to a collective bargaining agreement [CBA]), the Fourth Department explained the operative analysis:

In determining whether an issue is subject to arbitration under a collective bargaining agreement (CBA), a court must apply the two-step analysis set forth in Matter of Acting Supt. of Schs. of Liverpool Cent. Sch. Dist. (United Liverpool Faculty Assn.) (42 NY2d 509, 513).  “First, a court must determine whether there is any statutory, constitutional or public policy prohibition against arbitration of the grievance” … .  If the court determines that there is no such prohibition and thus that the parties have the authority to arbitrate the grievance, it proceeds to the second step, in which it must determine whether that authority was in fact exercised, i.e., whether the CBA demonstrates that the parties agreed to refer this type of dispute to arbitration … .  With respect to the second step, where there is a broad arbitration clause such as the one in the CBA at issue, “[a] determination of arbitrability is limited to ‘whether there is a reasonable relationship between the subject matter of the dispute and the general subject matter of the CBA’ ” … .  “Succinctly, the test centers on two distinct inquiries as to the public parties’ purported entry into the arbitral forum:  may they do so and, if yes, did they do so” … .  Here, with respect to the issue whether petitioner properly followed the procedures mandated by the CBA in terminating the employee in question, we conclude that the court properly determined that the parties had the authority to agree to arbitrate this grievance, and that they in fact agreed to do so.  Matter of Arbitration…, 1019, 4th Dept 10-4-13

 

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No Negligence In School District’s, School’s and Attending Nurse’s Care of Child Who Died After Suffering an Allergic Reaction in School

In a full-fledged opinion by Justice Eng, the Second Department determined the action brought on behalf of a child who died in school after suffering an allergic reaction was correctly dismissed with respect to the Department of Education (DOE) and should have been dismissed with respect to the school and the attending nurse who was tasked with monitoring the child at school.  The lengthy opinion deals in depth with many topics including:  the DOE’s duty, the school’s duty, the nurse’s duty, the finding that the nurse was an independent contractor as opposed to an employee, and the proximate cause issue raised by the inability to determine what caused the allergic reaction.  The child was autistic and suffered from asthma and numerous severe allergies.  The DOE developed a plan (Individualized Education Program) which involved placement of the child in a private school equipped to care for children with special needs and the provision of a nurse who was with the child continuously during the school day.  The Second Department treated all the issues (including the adequacy of the medical care provided by the nurse) exhaustively and determined no questions of fact had been raised about the negligence of any of the defendants. Begley v City of New York, 2013 NY Slip Op 05867, 2nd Dept 9-18-13

 

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Reinstatement of Charge Against Teacher After Dismissal of Charge in Arbitration Proper; Interlocutory Ruling by Arbitrator was “Final” in Effect/Courts Can Impose Higher Level of Scrutiny when Arbitration Mandated by Statute

The Second Department affirmed Supreme Court’s reinstatement of a charge against a teacher (Hogan) which had been dismissed by the arbitrator. The Second Department explained the criteria for court review of an interlocutory ruling of an arbitrator, noting that more scrutiny is appropriate in an arbitration mandated by statute:

Initially, we reject Hogan’s contention that the petition should have been dismissed because courts do not have the authority to review an interlocutory award dismissing one of the charges in an arbitration proceeding brought pursuant to Education Law 3020-a. As a general rule, a court lacks authority to entertain a petition to review an interlocutory ruling of an arbitrator on a procedural matter … . Here, however, the award sought to be reviewed is not one which involves “only a very limited procedural question” … . Rather, the award dismissed the most serious disciplinary charge preferred against Hogan, and the only one of the three charges which alleged that he was guilty of misconduct. The award is final as to that charge, and, if allowed to stand, would prevent the District from adducing evidence in support of the alleged misconduct at the hearing. Under these circumstances, the award dismissing Charge No. 1 can be viewed as a final determination subject to review under CPLR 7511 … .

Furthermore, the Supreme Court properly granted the District’s petition and reinstated Charge No. 1 against Hogan. Where, as here, the obligation to arbitrate arises through statutory mandate (see Education Law § 3020-a), the arbitrator’s determination is subject to closer judicial scrutiny than it would receive had the arbitration been conducted voluntarily … . The award in a compulsory arbitration proceeding must have evidentiary support and cannot be arbitrary and capricious … . Matter of Board of Educ of Hauppauge Union Free Sch Dist v Hogan, 2013 NY Slip Op 05816, 2nd Dept 9-11-13

 

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Teacher Had Not Acquired “Tenure by Estoppel”

In reversing Supreme Court, the Second Department determined a teacher had not acquired tenure by estoppel:

“In general, estoppel is a bar which precludes a party from denying [that] a certain fact or state of facts exists to the detriment of another party who was entitled to rely on such facts and had acted accordingly” … . “Tenure may be acquired by estoppel when a school board accepts the continued services of a teacher or administrator, but fails to take the action required by law to either grant or deny tenure prior to the expiration of the teacher’s probationary term” … . Although Education Law § 3012(1) provides that certain teachers shall be appointed “for a probationary period of three years,” it “does not contain a provision which would prevent a probationary teacher from knowingly and voluntarily waiving the three-year probationary period” … .

Here, as indicated by the petitioner’s own letter to the principal, the petitioner agreed to extend his probationary period for an additional year. Consequently, the petitioner’s probationary period had not expired when the School District terminated his employment and, thus, he had not acquired a tenured position by estoppel.  Matter of Chishom v Hochman, 2013 NY slip Op 05818, 2nd Dept 9-11-13

 

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Error to Exclude Petitioner from Arbitration Proceeding

Although the First Department determined the error was harmless, the court noted that petitioner should not have been excluded from an arbitration proceedings concerning the termination of her employment:

The arbitrator exceeded the scope of his authority by excluding petitioner from certain portions of the arbitration proceedings, over her objection, in violation of Rule 23 of the American Arbitration Association’s Commercial Arbitration Rules  (see CPLR 7511[b][iii]…).

The exclusion of petitioner from approximately 5% of the proceedings was, however, harmless error, since the result would have been the same had she been present. Petitioner’s case rested on her argument that respondents’ reasons for terminating her were merely a pretext to avoid paying her what she believed would be very high commissions. Since the evidence presented during petitioner’s absences from the proceedings had no bearing on that issue, there is no basis for vacating the arbitrator’s finding that petitioner was fired for her repeated, and severe, violations of the conflict of interest provisions of her contract, as well as for her threats against her employer… . Caruso v Viridian Network, LLC, 2013 NY Slip Op 05780, 1st Dept 9-10-13

 

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Employment Contract Deemed Hiring “At Will”—No Fixed Duration

The Second Department affirmed the dismissal of a breach of contract cause of action which alleged defendant breached an employment contract when the position which was the subject of the contract was withdrawn. In finding the agreement described a hiring “at will,” the court described the applicable principles as follows:

“New York adheres to the traditional common-law rule that 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” … . In support of their motion to dismiss the complaint, the defendants submitted the … employment contract, setting forth the terms of the employment relationship. The … employment contract contained a merger clause reciting that the writing encompassed the entire agreement between the parties. Contrary to the plaintiffs’ contention, the …employment contract did not provide for a fixed or definite term of employment, as it expressly provided that [plaintiff] was to be employed “for an indefinite period of time.” Moreover, the …employment contract provided that either party could, without notice, terminate the employment relationship with immediate effect during the first two months after its execution, and thereafter with certain notice. Further, the plaintiffs themselves alleged in the complaint that, pursuant to the … employment contract, [plaintiff’s] employment was “to continue without any specific date for termination.” Thus, [plaintiff] was presumptively an at-will employee …. The plaintiffs failed to allege facts that would rebut the at-will presumption or limit [defendants’] right to freely terminate [plaintiff’s] employment.  Minovici v Belkin BV, 2013 NY Slip Op 05618, 2nd Dept 8-14-13

 

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Although Arbitrator in Statutorily-Required Arbitration Proceeding Properly Found Teacher Engaged in Misconduct, Teacher’s Actions Were Protected by First Amendment

Teachers demonstrated in front of a school while negotiations for a new collective bargaining agreement were on-going.  On a rainy day, some teachers parked their cars in front of the school, displaying signs inside the cars.  Because the teachers were parked where children are usually dropped off by their parents, children were being dropped off in the street. The board of education brought a disciplinary charge against petitioner pursuant to Education Law 3020-a alleging the creation of a health and safety risk.  The matter went to statutorily-required arbitration and the arbitrator found the petitioner had created a health and safety risk.  Petitioner challenged the ruling in this Article 78 proceeding. The Second Department explained the court’s role in reviewing a statutorily-required arbitration, found that the arbitrator’s ruling was supported by the evidence, but determined petitioner’s activity was protected by the First Amendment:

Where, as here, arbitration is statutorily required, “judicial review under CPLR article 75 is broad, requiring that the award be in accord with due process and supported by adequate evidence in the record” … . “The award must also be rational and satisfy the arbitrary and capricious standards of CPLR article 78” … . “Due process of law requires . . . that the [arbitrator’s determination] under the power conferred by statute have a basis not only in his good faith, but in law and the record before him [or her]” … . … In this proceeding… the evidence at the hearing provided a rational basis for the arbitrator’s decision, and the award was not arbitrary and capricious … .Nonetheless, we hold …that the petition should have been granted. The petitioner’s expressive activity regarding collective bargaining issues indisputably addressed matters of public concern …, and the District failed to meet its burden of demonstrating that the petitioner’s exercise of her First Amendment rights so threatened the school’s effective operation as to justify the imposition of discipline… .  Matter of Lucia v Board of Educ of E Meadow Union Free Sch Dist, 2013 NY Slip Op 05633, 2nd Dept 8-14-13

 

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Teacher’s Unsatisfactory Performance Evaluation Annulled—No Supporting Documentation

In an Article 78 proceeding, the First Department reversed the Board of Education’s denial of a teacher’s petition to annul an unsatisfactory performance evaluation because there was no longer any documentation substantiating any instances of corporal punishment in the teacher’s file.  Disciplinary letters concerning allegations of corporal punishment had previously been removed from the teacher’s file by stipulation.  The First Department explained the relevant rules as follows:

It is undisputed that Part 2(I) of DOE’s Human Resources Handbook “Rating Pedagogical Staff Members” provides (1) that a teacher’s evaluation must be supported by documentation in his/her personnel file; (2) that documentation removed from a file through grievance procedures is inadmissible in performance reviews; and (3) that documentation not addressed directly to a teacher is inadmissible in performance reviews, unless it is attached to and part of another document appropriately placed in the teacher’s file. Moreover, materials placed in a teacher’s personnel file must include a signature and date line for the teacher, evidencing that she has read the material and understands that it will be placed in the file, as well as a signature and date line for a witness; unsigned documents are inadmissible in evaluation reviews.  Matter of Friedman v Board of Educ of the City Sch Dist of the City of New York, 2013 NY Slip Op 05598, 1st Dept 8-13-13

 

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Cause of Action Alleging Retaliation for Sexual Harassment Complaint in Violation of New York City Human Rights Law Dismissed

The Second Department affirmed the dismissal of a complaint alleging that defendant Prison Health Service (PHS) retaliated against the plaintiff after she made a sexual harassment complaint.  The retaliation was alleged to have violated the New York City Human Rights Law (NYCHRL).  Plaintiff claimed she was subjected to excessive demands for her professional credentials and health clearance forms and the denial of overtime work.  In explaining the proof requirements, the Second Department wrote:

…”In assessing retaliation claims that involve neither ultimate actions nor materially adverse changes in terms and conditions of employment, it is important that the assessment be made with a keen sense of workplace realities, of the fact that the chilling effect’ of particular conduct is context-dependent, and of the fact that a jury is generally best suited to evaluate the impact of retaliatory conduct in light of those realities” … .

… [T]o make out an unlawful retaliation claim under the NYCHRL, a plaintiff must show that (1) he or she engaged in a protected activity as that term is defined under the NYCHRL, (2) his or her employer was aware that he or she participated in such activity, (3) his or her employer engaged in conduct which was reasonably likely to deter a person from engaging in that protected activity, and (4) there is a causal connection between the protected activity and the alleged retaliatory conduct (see Administrative Code of City of NY § 8-107[7]…). Once the plaintiff has met this initial burden, the burden then shifts to the defendant to present legitimate, independent, and nondiscriminatory reasons to support its actions … . Then, if the defendant meets this burden, the plaintiff has the obligation to show that the reasons put forth by the defendant were merely a pretext… .  Brightman v Prison Health Serv Inc, 2013 NY Slip Op 05510, 2nd Dept 7-31-13

 

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