Friday, April 28, 2017

Court Awards Attorney Fees For Failure To Comply With FOIL

Competitive Enterprise Institute v. The Attorney General, ____Misc. 3d___, 2017 NY  Slip Op 2713 (Albany Co. April 19, 2017), illustrates an important legal point; attorneys fees can be awarded for the failure to comply with the Freedom of Information Law (aka "FOIL"). As the court stated:

In determining an award of fees and costs in a FOIL proceeding, the Court is mindful "that the decision whether to award such fees is discretionary even when the statutory prerequisites have been established" (Matter of Carnevale v City of Albany, 68 AD3d 1290, 1293 [3d Dept 2009]), that an "award of attorney's fees is intended to 'create a clear deterrent to unreasonable delays and denials of access[ and thereby] encourage every unit of government to make a good faith effort to comply with the requirements of FOIL' " (Matter of South Shore Press, Inc. v Havemeyer, 136 AD3d 929, 931 [2d Dept 2016], quoting New York Civil Liberties Union v City of Saratoga Springs, 87 AD3d 336, 338 [3d Dept 2011], and that the award should be should be reasonable and take into consideration appropriate factors including "the time, effort and skill required; the difficulty of the questions presented; the responsibility involved; counsel's experience, ability and reputation; the fee customarily charged in the locality; and the contingency or certainty of compensation"(Shrauger v Shrauger, 146 AD2d 955, 956 [3d Dept 1989]).

Thursday, April 27, 2017

2d Circuit Continues To Hold That Title VII Does Not Outlaw Sexual Orientation Discrimination

Zarda v. Moore, Jr., ____F.3d____(2d Cir. April 18, 2017), is an important decision to be aware of because the Court continues to hold that Title VII does not outlaw discrimination on the basis of sexual orientation. The Court reasoned in part:

[There is a] longstanding tension in Title VII caselaw. While this Court has stated that Title VII does not prohibit discrimination based on sexual orientation, Simonton v. Runyon, 232 F.3d 33, 36 (2d Cir. 2000), the Supreme Court has held that Title VII does forbid discrimination based on a failure to conform to “sex stereotypes,” Price Waterhouse v. Hopkins, 490 U.S. 228, 251 (1989). See also Dawson v. Bumble & Bumble, 398 F.3d 211, 217-19 (2d Cir. 2005) (reaffirming Simonton). In light of these precedents, Zarda premised his Title VII cause of action on the ground that he had been terminated for failing to conform to sex stereotypes. Specifically, Zarda alleged that his employer “criticized [Zarda’s] wearing of the color pink at work” and his practice of painting his toenails pink, notwithstanding Zarda’s “typically masculine demeanor.” 
*      *     *
During these proceedings, the Equal Employment Opportunity Commission (“EEOC”) issued a decision setting forth the agency’s view that discrimination based on sexual orientation constitutes sex discrimination in violation of Title VII. See Baldwin v. Foxx, E.E.O.C. Decision No. 0120133080, 2015 WL 4397641, at *5 (July 16, 2015). 
*     *     *
 Nonetheless, we decline Zarda’s invitation to revisit our precedent. A separate panel of this Court recently held that Simonton can only be overturned by the entire Court sitting in banc, see Christiansen v. Omnicom Grp., No. 16-478, 2017 WL 1130183, at *2 (2d Cir. Mar. 27, 2017), and the same is true in the case at bar,

I predict that eventually the 2d Circuit will overrule itself. Perhaps, it may even happen in this case if the Court grants an en banc hearing.

Firefighter Can Proceed With First Amendment Claim Notwithstanding Disciplinary Decision

McNamara v. City of Long Beach, ____F. Supp. 2d____(E.D.N.Y. 2017) (registration required to see full case), is an important decision.

A firefighter brought a 1983 action in federal court alleging that he was discharged in violation of the First Amendment. The court allowed the case to proceed notwithstanding the fact that the employee was brought up on disciplinary charges, presumably under Civil Service Law Section 75, and was terminated. As the court explained:
Defendants first argue that "the presumption articulated by the Second Circuit in Collins v. New York City Transit Authority precludes [plaintiff] from showing a 'causal connecction'
between his protected forms of expression and his discharge." (Defs.' Mem. in Supp. at 8.) In Collins, in the context of analyzing a Title VII employment retaliation case, the court found that "a decision [against the plaintiff] by an independent tribunal that is not itself subject to a claim of bias will attenuate a plaintiff's proof of the…causal link" between the plaintiff's activity and the defendant's purported retaliatory conduct. 305 F.3d 113, 119 (2d Cir. 2002). Collins goes on to say that "to survive a motion for summary judgment, [plaintiff] must present strong evidence that the decision was wrong as a matter of fact…or that the impartiality of the proceeding was somehow compromised." Id. Relying on Collins, defendants argue that plaintiff's claims must be dismissed because he has not plead facts suggesting that the hearing before Schnirman resulting in his termination was compromised or that Schnirman's decision was wrong as a matter of fact. However, notwithstanding the question of whether Collins applies in the First Amendment retaliation context, it is inapplicable here as that case was decided at the summary judgment stage. Defendants provide no authority suggesting that the Court should apply Collins at the motion to dismiss stage, and as a result, the Court will not consider the hearing outcome in determining whether plaintiff has adequately alleged a causal connection between plaintiff's expression and his discharge.

Wednesday, April 26, 2017

Civil Service Law Sec. 75 Decision-Employee Cannot Be Found Guilty of Uncharged Conduct

Nitti v. County of Tioga, ____A.D.3d____, 2017 NY Slip Op 02868 (3d Dep't. April 13, 2017), is an interesting Civil Service Law Section 75 decision which addresses important legal principals. Specifically, in order to discipline a public employee with civil service protection, the public employer must bring the employee up on specific charges and the hearing is limited to those specific charges. Stated another way, an employee cannot be found guilty of uncharged conduct. Additionally, even if the employee is found guilty of the charged misconduct, the penalty must be proportionate to the offense. If it is shocking to the courts sense of fairness it can be vacated.

Tuesday, April 25, 2017


PERB has recently published a copy of their proposed amended rules.
As most lawyers who practice before PERB realize, many of their rules are outdated.
I am pleased to report that this may be about to change. Among the important changes are the fact that PERB may allow parties to file papers electronically.

Employee Who Lost His Job Because Of Prior Criminal Conviction Entitled To His Job Back

Matter of Dudley v. City of New York, ___Misc. 3d ____, 2017 NY Slip Op 27129(N.Y. Co.2017).
This is an interesting decision where a substance abuse counselor who worked at Rikers Island successfully for 8 years was entitled to get his job back after he was terminated because of a prior criminal conviction. As the court explained:

It is undisputed that respondents' initial decision to revoke petitioner's license, or security clearance, was based solely on the results of the results of a criminal background check and a prior conviction, without any determination as to whether there is a direct relationship between his misdemeanor conviction and his license, or security clearance, or that the continuation of the license would pose an unreasonable risk to the safety or welfare of others. It is also undisputed that DOC's  letter or memorandum detailing the factors to be considered on an appeal of a revocation does not reflect or reference all of the factors set forth in Correction Law § 752. As a consideration of all of the factors is required, and absent any evidence that respondents so complied, the revocation of petitioner's license, or security clearance, and denial of his appeal are arbitrary and capricious as a matter of law. (Matter of Acosta v New York City Dept. of Educ., 16 NY3d 309 [2011] [failure to consider each factor constitutes failure to comply with Correction Law]). In Acosta, the Court of Appeals found that the respondent had acted arbitrarily and capriciously in denying the petitioner's application for a security clearance, as it had failed to consider each factor. (Id. at 320).
Having violated article 23-A, respondents also violated the New York State and City Human Rights Laws. (Cf. Matter of Belgrave, 137 AD3d at 442 [as respondent did not violate Correction Law, provisions of New York State and City Human Rights Laws inapplicable]).
Moreover, assuming that respondents considered the factors listed in their appeal letter, all of them weigh in petitioner's favor as his allegedly disqualifying conviction was for misdemeanor assault more than 25 years ago, his last criminal conviction was approximately 18 years ago, his eight-year tenure at Rikers Island is without blemish, and his appeal is supported by a recommendation from his supervisor. Also relevant is his relatively advanced age, and his background, which particularly suits him to counseling drug-addicted prisoners.

Monday, April 24, 2017

Probationary Teacher Can Be Terminated For Any Reason As Long As It Is Not An Unlawful Reason

Matter of Co-Brellis v. Board of Education, ___A.D. 3d___, 2017 NY Slip Op 02599 (1st Dep't. April 4, 2017), is illustrative of a basic principle of law; probationary teachers and other public employees can be terminated without a hearing so long as the termination is not in bad faith or in violation of the law. As the court explained:

A "probationary employee may be discharged for any or no reason at all in the absence of a showing that [the] dismissal was in bad faith, for a constitutionally impermissible purpose, or in violation of law" (Matter of Brown v City of New York, 280 AD2d 368, 370 [1st Dept 2001]). Where there is evidence to rationally support an unsatisfactory rating, the rating must be upheld (see Matter of Murnane v Department of Educ. of the City of N.Y., 82 AD3d 576 [1st Dept 2011]).

Notice of Claim Required for State Law Discrimination Claims in Federal and State Courts

Croci v. Town of Haverstraw, 175 F. Supp. 3d 373 (S.D.N.Y. 2016), is an important decision to be aware of.

It is common for employees who assert a employment discrimination under federal law to also assert employment discrimination and other claims under state law.This case holds that if the public employer requires a Notice of Claim must be filed with respect to that state claim even if the case is filed in federal court. The court reasoned, in part:

 [I]n a federal court, state notice-of-claim statutes," like those contained in Town Law § 67 and General Municipal Law §§ 50-e and 50-i, "apply to state-law claims." Hardy v. N.Y.C. Health & Hosps. Corp., 164 F.3d 789, 793 (2d Cir.1999) (emphasis omitted); see also Ong v. Park Manor (Middletown Park) Rehab. & Healthcare Ctr., No. 12-CV-974, 2015 WL 5729969, at *44 (S.D.N.Y. Sept. 30, 2015) (same); Warner v. Vill. of Goshen Police Dep't, 256 F.Supp.2d 171, 175 (S.D.N.Y.2003) ("The notice of claim requirements apply equally to state tort claims brought as pendent claims in a federal civil rights action."). Plaintiffs are required to serve the notice of claim "within [90] days after the claim arises." N.Y. Gen. Mun. Law § 50-e(1)(a). This notice of claim requirement is "construed strictly by New York state courts," and a "[f]ailure to comply with these requirements ordinarily requires a dismissal for failure to state a cause of action." Hardy, 164 F.3d at 793-94 (internal quotation marks omitted). While "New York's notice of claim requirements are not applicable to [§] 1983 claims brought in federal court ... the requirements do apply to state law personal injury claims that are brought in federal court as related to [§] 1983 cases." Gibson 389 v. Comm'r of Mental Health, No. 04-CV-4350, 2006 WL 1234971, at *5 (S.D.N.Y. May 8, 2006). . 

The Discipline Book

Harvey and Eric Randall just updated their wonderful treatise called "The Discipline Book" which is available on Amazon now. https...