Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

Saturday, June 30, 2012

Court’s role in reviewing an arbitration award limited when the parties have agreed to submit the matter to arbitration


Arbitration between Albany Police Supervisor's Assn. and the City of Albany, 2012 NY Slip Op 03704, Appellate Division, Third Department

The Appellate Division affirmed a ruling by Supreme Court denying the Albany Police Supervisor’s Association’s CPLR Article 75 application to vacate an arbitration award and confirmed the award.
A member of the negotiating unit represented by the Association was served with disciplinary charges that eventually resulted in the termination of the member’s employment with the Albany Police Department.
Essentially the member was charged with allegedly failing to inform and misled superior officers about what had transpired with respect to an incident involving another Albany Police Department police officer. The arbitrator found the member guilty of nine of the 14 charges filed against him and concluded that his termination was the appropriate penalty.
In affirming the arbitration award the Appellate Division noted that "In circumstances when the parties agree to submit their dispute to an arbitrator, courts generally play a limited role," citing New York State Correctional Officers & Police Benevolent Assn. v State of New York, 94 NY2d 321 wherein the Court of Appeals said that "[A]n arbitrator's award should not be vacated for errors of law and fact committed by the arbitrator and the courts should not assume the role of overseers to mold the award to conform to their sense of justice."*
Here, said the court, the arbitrator's findings that member was untruthful when questioned by a superior officer concerning the event is supported by the record and did not result from the arbitrator grossly expanding the charges or other arbitral misconduct.
As to the penalty imposed, dismissal, the Appellate Division rejected the Association’s argument that the penalty was so disproportionate as to constitute arbitral misconduct as "unpersuasive.”
* A court may vacate an arbitration award only if it violates a strong public policy, is irrational, or clearly exceeds a specifically enumerated limitation on the arbitrator's power" (Matter of Falzone [New York Cent. Mut. Fire Ins. Co.], 15 NY3d 530
The decision is posted on the Internet at:


Reprinted by permission New York Public Personnel Law

Mitchell H. Rubinstein

June 30, 2012 in Arbitration Law | Permalink | Comments (0)

Friday, June 29, 2012

School Law Jobs

School Law Jobs
Job Title Employer Job Location
Associate General Counsel Sacramento County Office of Education Rancho Cordova, California
Special Education Attorneys Harbottle Law Group Orange County, California
Assistant General Counsel Atlanta Public Schools Atlanta, Georgia
Director, Council of Urban Boards of Education National School Boards Association Alexandria, Virginia
Hiring? Learn more about our School Law Jobs listings. Please note that we no longer host job descriptio


June 29, 2012 in Lawyer Employment | Permalink | Comments (0)

Thursday, June 28, 2012

DC Circuit Holds Mapping of Cochlear Implants is not a ”Related Service”

Petit v. United States Dep’t of Educ., ___F.3d___ (D.C. Cir. Apr. 13, 2012). This is an important special education law issue.

Mitchell H. Rubinstein

June 28, 2012 in Special Education Law | Permalink | Comments (1)

Fifth Circuit: Statements to Undercover Officer Are Not Testimonial

In Brown v. Epps, No. 11-60051 (5th Cir., June 27, 2012), the Fifth Circuit Court of Appeals held that statements unknowingly made to an undercover officer, confidential informant, or cooperating witness, are not testimonial for Confrontation Clause purposes. 

In Brown, the defendant sought post-conviction relief from a Mississippi state court drug conviction.  At his trial, the State offered over objection a taped telephone converations between the man that bought the drugs from Brown and an an unidentified government informant.  The district court granted Brown's post-conviction relief, finding the taped converations to be hearsay, and futher finding that the evidence violated Brown's right of confrontation.

The Fifth Circuit reversed this holding.  The question before the court was whether or not the unidentified persons' statements in the recording were testimonial under Crawford v. Washington, 541 U.S. 36 (2004) and its progeny.  Crawford held that a defendant's right to confront witnesses against him is violated when the State introduces "testimonial statements of a witness who did not appear at trial..." 

The Crawford court described a statement as testimonial for Confrontation Clause purposes when the statement is "made under circumstances which would lead an objective witness to reasonably believe that the statement would be available for use at a later trial."  The Fifth Circuit applied Crawfordto conclude that the recorded statements challenged by Brown were made to further a criminal enterprise, not to be preserved or usedat a later trial.  Further, the unidentified person's statements were not part of a prior proceeding such as a preliminary hearing or before a grand jury, or otherwise exhibited characteristics testimonial in nature. 

While the case seems at first glance to be a straightforward application of Crawford, the appeals court did recognize subtle, yet critically important distinctions.  For example, in footnote 37, the court acknowledges a split within the Seventh Circuit on whether or not recorded statements by the informant are testimonial with one panel holding an informants' statements setting up a drug transaction are testimonial and another panel concluding the opposite. 

Crawford presents challenges for criminal defense attorneys and prosecutors (and trial judges) - cases such as Brown are good review material to help us all identify and properly handle Confrontation Clause issues as they arise.

Craig Estlinbaum

June 28, 2012 | Permalink | Comments (0)

DC Circuit Upholds EPA Gashouse Regulations

In what on writer called a "stinging rebuke to industry and [the challenging] states," a three-judge DC Circuit court panel Tuesday upheld the Environmental Protection Agency's ("EPA's") greenhouse gas regulations.

The case, Coalition for Responsible Reg v. EPA, No. 09-1322 (D.C. Cir. June 26, 2012), following the United States Supreme Court's 5-4 decision in Massachusetts v. EPA, 549 U.S. 497 (2007) which compelled the EPA to regulate air pollutants under the Clean Air Act's ("CAA's") authority.  The EPA in turn issued an Endangerment Finding, determining that greenhouse gases may "reasonably be anticipated to endanger public health or welfare" (citing the CAA) and the Tailpipe Rule, setting emission standards for cars and some trucks. The EPA also ordered certain stationary greenhouse gas producers to obtain construction and operating permits.  Finally, the EPA issued a Timing and Tailoring Rule providing that only the largest stationary producers would be initially subject to the permit requirements.

The Petitioners which included some states and industry groups challenged the rules on ground that the EPA had improperly interpreted the CAA.  Yesterday, the appeals court panel consisting of Judges Sentelle (Reagan appointment), Rogers (Bush II) and Tatel (Clinton), rejected those challenges, allowing the EPA rules to stand.

The next meaningful step for the challengers in this case is the United States Supreme Court, as en banc review of this unanimous decision seems very unlikely.  The Massachusetts case was decided five-to-four, and four justices are required to grant certiorari. Inasmuch as the court's composition has changed with two justices from the Massachusetts majority (Stevens, the opinion's author, and Souter) having left the court, I would say there is some chance the Massachusetts dissenters will vote to grant certiorari in the case.

Craig Estlinbaum

June 28, 2012 in Administrative Law, Constitutional Law, Federal Law, Interesting Cases, Recent Developments | Permalink | Comments (0)

Breaking News!! Supreme Uphold Most of Obamacare!

The decision, which is 193 pages long is here. I have not had time to read it and I cannot imagine that the newspapers that are commenting on it had time to read it either. The individual mandate was upheld, but not on the basis of the Commerce Clause. Rather, it was based upon the power of Congress to tax. The Court appears to have struck the provision which expanded Medicaid. 

Mitchell H. Rubinstein 

June 28, 2012 in Supreme Court | Permalink | Comments (0)

Wednesday, June 27, 2012

Employee terminated for cause entitled to back pay for the period she was suspended without pay in excess of 30 days


The Westchester County Health Care Corporation adopted the recommendation of a hearing officer, made after a hearing pursuant to Civil Service Law §75, finding the employee guilty of certain charges of misconduct and insubordination. It then terminated the individual from its employ.
Te Appellate Division sustained Supreme Court’s dismissal of an Article 78 petition challenging the disciplinary termination of an employee with respect to the merits of the appeal. The court held that contrary to the individual’s contention, Westchester’s determination that the individual was guilty of certain charges of misconduct and insubordination was supported by substantial evidence in the record.
The court also rejected the individual’s claim that she was denied a fair hearing due to the alleged bias of the hearing officer as being without merit, finding that there was no evidence in the record to support her contention that the hearing officer was biased.
As to the penalty imposed, dismissal, the court ruled that termination was “not so disproportionate to the offenses committed by the petitioner as to be shocking to one's sense of fairness, thus constituting an abuse of discretion as a matter of law.”
Although the Appellate Division sustained Supreme Court’s dismissal of an Article 78 petition challenging the disciplinary action, the court remanded the matter to the lower court for its determination regarding any back pay due the dismissed individual.
Here, said the court, the individual “correctly contends that she is entitled to back pay for the period she was suspended without pay in excess of 30 days, excluding delay, if any, occasioned by her, and less unemployment insurance benefits received for that period, if any,” citing Civil Service Law §75[3].
The decision is posted on the Internet at:


Reprinted with permission New York Public Personnel Blog

Mitchell H. Rubinstein

June 27, 2012 in New York Law, Public Sector Labor Law | Permalink | Comments (0)

Tuesday, June 26, 2012

2d Circuit Upholds Rule Limiting One Pro Union Button

NLRB v. Starbucks, ____F.3d___(2d Cir. May 10, 2012), is an important decision concerning the wearing of union buttons as work. The Board held that limiting employees to wearing one button was a ULP. The 2d Circuit disagreed. As the 2d Circuit explained:

We conclude that the Board has gone too far in invalidating

Starbucks’s one button limitation. As the Board has previously

recognized, “Special circumstances justify restrictions on union

insignia or apparel when their display may . . . unreasonably

interfere with a public image that the employer has established.”

Starwood Hotels & Resorts Worldwide, Inc., 348 N.L.R.B. 372, 373

(2006) (internal quotation marks omitted). Starbucks is clearly

entitled to oblige its employees to wear buttons promoting its

products, and the information contained on those buttons is just as

much a part of Starbucks’s public image as any other aspect of its

dress code. But the company is also entitled to avoid the


distraction from its messages that a number of union buttons would

risk. The record reveals that one employee attempted to display

eight union pins on her pants, shirts, hat, and apron. Wearing

such a large number of union buttons would risk serious dilution of

the information contained on Starbucks’s buttons, and the company

has a “legitimate, recognized managerial interest[]” in preventing

its employees from doing so. District Lodge 91, 814 F.2d at 880.

The company adequately maintains the opportunity to display prounion

sentiment by permitting one, but only one, union button on

workplace clothing. Starbucks has met its burden of establishing

that the one button restriction is a necessary and appropriate

means of protecting its legitimate managerial interest in

displaying a particular public image through the messages contained

on employee buttons.

Mitchell H. Rubinstein


June 26, 2012 in NLRB | Permalink | Comments (0)

Monday, June 25, 2012

1983 Claim Dismissed Based Upon Student Being Bullied

Estate of Asher Brown v. Cypress Fairbanks Indep. Sch. Dist., ____F.Supp. 2d____(S.D. Tex. May 23, 2012), is an interesting case.  A federal court in Texas granted a school district’s motion dismissing a parent’s Section 1983 due process claim which alleged that through its failure to enforce anti-bullying policies at the student’s middle school, the school district failed to protect the student from harm, who ultimately committed suicide.

Law review commentary on this important issue would be most welcome.

Mitchell H. Rubinstein


June 25, 2012 in Education Law, Law Review Ideas | Permalink | Comments (1)

Two Symposium Issues From South Texas Law Review

Not one, but two symposia issues from South Texas Law Review hit my mailbox last week.

The first, "Physical Evidence:  Best Practices from Crime Scene to Conviction or Acquittal and Beyond," follows the Law Review's very interesting Fall 2010 live symposium.  This issue features articles by South Texas professor Catherine Greene Burnett, internationally acclaimed forensic scientist Dr. Henry C. Lee, noted forensic pathologist Cyril H. Wecht, M.D., J.D., and two Texas Court of Criminal Appeals judges -- Hon. Michael E. Keasler and Hon. Barbara Hervey, among others.

The second issue, "Amending Article Two:  Reversing the Curse" features five articles examining the lengthy and ultimately unsuccessful effort by the American Law Institute to amend Uniform Commercial Code Article 2.  Professors Henry Gabriel (Elon), Scott Burnham (Gonzaga), John E. Murray, Jr. (Duquesne) and Fred H. Miller (Oklahoma) joined K & L Gates's Holly K Towle with presentations.

Craig Estlinbaum

June 25, 2012 in Current Affairs, Law Review Articles | Permalink | Comments (1)

Georgia Supreme Court Affirms Right to Be Present at Civil Trial

Last week, the Supreme Court of Georgia issued an important decision affirming a civil litigant's right to be present at trial.

The case is Kesterson v. Jarrett, No. S11G0590 (Ga. June 18, 2012), wherein the parents of a child suffering from severe cerebral palsy allegedly resulting from medial malpractice challenged a jury's take-nothing decision favoring the obstretricdian and hospital after the trial court excluded the child from the courtroom.  The intermediate court affirmed, but the high court reversed, sending the case back to the trial court for a new trial.

Prior to trial in this case, the defendants moved to have the child excluded on grounds that her presence would result in an "undue prejudicial impact on the jury as to the liability issue." and because the child could not "meaningfully participate in and comprehend the proceedings."  A key precedent for both the trial and intermediate court was Helminski v. Ayerst Labs., 766 F.2d 208, 218 (6th Cir. 1985).

The Georgia Supreme Court reversed in 6-1 decision, affirming the child's right to be present, despite her severe impairment and despite that her parents, as next friends, were allowed to be present.  The takeaway:

There is, in other words, a personal element to the right to be present. The right is based not only on what the party can do to the case, but on what the case will do to the party. It is the party's interests that are being determined by the jury and the judge, and it is the party's life that will be directly affected by the outcome of the case.Thus, even if a person is deemed incompetent as a matter of law (for example, a young child like Kyla) or as a matter of fact (as Kyla may be), and must therefore be represented by a parent, guardian, or custodian, the person is still considered to be the "real party in interest." Even if she is unable, or the law does not allow her, to make the decisions about her case, she remains a person directly affected by the verdict. The individuals whose legal disputes are brought to our courts for decision cannot be treated merely "as an exhibit, as a piece of evidence," regardless of their legal competence.

The Court stated that concerns about prejudice arising from a party's presence should be addressed through jury instructions or other procedures without infringing on a party’s right to be present.

Craig Estlinbaum

June 25, 2012 in Civil Procedure, Interesting Cases, State Law | Permalink | Comments (0)

Sunday, June 24, 2012

6th Circuit Issues Major Decision on Supervisory Status of Charge Nurses

Frenchtown Acquisition Co., Inc. v. NLRB, ____F.3d____(6th Cir. June 20, 2012), is a major decision. The 6th Circuit affirms the NLRB decision which found that charge nurses at a long-term-care and rehabilitation facility were not supervisors under the NLRA. 

The decision is particularly well written and is a primer on how to judge whether an individual is a supervisor. The court approves of the standard set forth in Oakwood Healthcare, 348 NLRB 686 (2006) which defined the term independent judgment as used in the statute.

Interestingly, in rejecting the employer's argument that the charge nurses had the right to discipline employees, the court held that "a single instance of discipline does not support a finding of supervisory status." The mere correction of an Aide work, without more was also not considered discipline. 

Additionally, interviewing a candidate for a position, does not indicate that you have the authority to hire, as those terms are defined in the Act.

All and all, this decision is worth a read for those of you interested in traditional labor law.

Mitchell H. Rubinstein

June 24, 2012 in Labor Law, NLRB | Permalink | Comments (0)

Saturday, June 23, 2012

11th Circuit Denies Summary Judgment in Case Involving Discharge of Pregnant Religious School Teacher


A religious school teacher who became pregnant after engaging in premarital sex, and then married her fiance within the month, was entitled to her day in court because it was unclear whether the reason for her termination was her having engaged in premarital sex or her pregnancy. Hamilton v Southland Christian School, Inc, ____F.3d____(11th Cir. May 16, 2012).  The circuit reversed the lower court’s grant of summary judgment to the school on the employee’s pregnancy discrimination claim. 

Mitchell H. Rubinstein


June 23, 2012 in Employment Discrimination | Permalink | Comments (0)

Friday, June 22, 2012

School Law Jobs

School Law Jobs
Job Title Employer Job Location
Special Education Attorneys Harbottle Law Group Orange County, California
Assistant General Counsel Atlanta Public Schools Atlanta, Georgia
Labor and Employment Consultant Oregon School Boards Association Salem, Oregon
Director, Council of Urban Boards of Education National School Boards Association Alexandria, Virgini


June 22, 2012 in Lawyer Employment | Permalink | Comments (0)

Thursday, June 21, 2012

NLRB Issues Primer On Supervisory Status


Alternative Concepts, 358 NLRB No. 38 (April 27, 2012), is an interesting case. The Board reaffirms the Oakwood line of cases and summarizes the applicable law as follows:

The Board set out the analytical framework for determiningsupervisory status in Oakwood Healthcare, 348 NLRB 686 (2006), in which it defined the statutory terms“assign,” “responsibly to direct,” and “independentjudgment.” See also Croft Metals, 348 NLRB 717, 721–722 (2006), and Golden Crest Healthcare Center, 348NLRB 727, 728, 731 (2006). The burden of provingsupervisory status rests on the party asserting that suchstatus exists. Oakwood Healthcare, 348 NLRB at 694,citing Dean & Deluca New York, 338 NLRB 1046, 1047(2003). The party seeking to prove supervisory statusmust establish it by a preponderance of the evidence. 1047–1048; Springfield Terrace LTD, 355 NLRB 937,941 (2010). Mere inferences or conclusionary statements,without detailed, specific evidence, are insufficientto establish supervisory authority. Golden CrestHealthcare Center, 348 NLRB at 731; Lynwood Manor,350 NLRB 489, 490 (2007).

Like the other statutory indicia of supervisory status,the authority to assign and responsibly to direct otheremployees are not determinative of supervisory statusunless they are exercised using independent judgment.To exercise “independent judgment,” an individual mustact or effectively recommend action “free of the controlof others,” using a degree of discretion rising above “themerely routine or clerical.” Oakwood Healthcare, 348NLRB at 693.In Oakwood Healthcare, 348 NLRB at 689, the Boardexplained that assignment means designating an employeeto a place (such as a location, department, orwing), appointing an employee to a time (such as a shiftor overtime period), or giving an employee significantoverall duties as opposed to ad hoc instructions that theemployee perform a discrete task. There must be specificevidence that a putative supervisor “has the abilityto require that a certain action be taken; supervisory authorityis not established where the putative supervisorhas the authority merely to request that a certain actionbe taken.” Golden Crest Healthcare Center, 348 NLRBat 729.The Board in Oakwood Healthcare, 348 NLRB at 691,also interpreted the meaning of the phrase “responsiblyto direct”: “If a person on the shop floor has ‘men underhim,’ and if that person decides ‘what job shall be undertakennext or who shall do it,’ that person is a supervisor,provided that the direction is both ‘responsible’ and carriedout with independent judgment.” The Board furtherheld that, for direction to be “responsibl[e],” the persondirecting the performance of a task must be accountablefor its performance. To establish accountability for purposesof responsible direction, the party with the burdenof proof must show that “the employer delegated to theputative supervisor the authority to direct the work [ofothers] and the authority to take corrective action, if necessary,”and also that “there is a prospect of adverse consequencesfor the putative supervisor” if the putativesupervisor “does not take these steps.”12 Id. at 692. Evidenceof actual accountability must be present to proveresponsible direction. Alstyle Apparel, 351 NLRB 1287,1287 (2007); Golden Crest Healthcare Center, 348 NLRB at 731.B.We find that neither the crew dispatchers nor line controllers are statutory supervisors. 

Mitchell H. Rubinstein

June 21, 2012 in NLRB | Permalink | Comments (0)

Supremes Issue Major Agency Fee Payer Decision

Knox v. SEIU____U.S.____(June 21, 2012)

June 21, 2012 in Public Sector Labor Law | Permalink | Comments (0)

Wednesday, June 20, 2012

Termination without notice or hearing by operation of law


Supreme Court, New York County, dismissed an Article 78 petition seeking to annul the termination of New York City Department of Corrections correction officer without notice or hearing or, in the alternative, an order compelling the Corrections Department to conduct an evidentiary hearing. The Appellate Division unanimously affirmed the lower court’s ruling.
According to the decision, the correction officer had pleaded guilty in Pennsylvania to stalking, a first degree misdemeanor under Pennsylvania law. The Department of Corrections had terminated him pursuant to Public Officers Law §30(1)(e),deeming that the correction officer had been terminated “by operation of law” by reason of his conviction of the misdemeanor in Pennsylvania.
Public Officers Law §30(1)(e) provides that a public office automatically becomes vacant upon the officeholder's conviction of a felony, or a crime involving a violation of his or her oath of office.
The Appellate Division held that the correction officer’s Pennsylvania conviction involved a violation of his oath of office and thus his office automatically became vacant by operation of law pursuant to §30(1)(e), resulting in his lawful termination from his postion without notice and hearing.
The decision is posted on the Internet at:

Reprinted with permission New York Public Personnel Law

Mitchell H. Rubinstein

June 20, 2012 | Permalink | Comments (0)

Tuesday, June 19, 2012

Right To Control Test Applied In Unemployment Case

Matter of Best v. Commissioner of Labor, ___A.D.3d___(3d Dp't. May 17, 2012), applies the right to control test in determining employee status. As the court explained:


The existence of an employer-employee relationship is established "when the evidence shows that the employer exercises control over the results produced or the means used to achieve the results," with control over the means the more important factor to consider (Matter of Empire State Towing & Recovery Assn., Inc. [Commissioner of Labor], 15 NY3d 433, 437 [2010]; see Matter of Leazard [TestQuest, Inc.-Commissioner of Labor], 74 AD3d 1414, 1414 [2010]). Moreover, incidental control over the results produced, alone, will not constitute substantial evidence that an employment relationship exists (see Matter of Empire State Towing & Recovery Assn., Inc. [Commissioner of Labor], 15 NY3d at 437; Matter of International Student Exch. [Commissioner of Labor], 302 AD2d 834, 835-836 [2003]).

Here, the record establishes that the subcontractors were free to turn down work and work for Lusignan's competitors. After accepting a job, the subcontractors would receive the supplies and work plans from the store or general contractor and Lusignan provided no training or direction as to how the work was to be performed. The work schedule was determined by the store or general contractor and the subcontractors set their own work hours, could take days off at their own discretion and were not required to report to Lusignan on a regular basis. The subcontractors were responsible for furnishing their own tools and Lusignan did not reimburse them for expenses. Lusignan only paid the subcontractors after he had been paid for a job, paid no benefits and did not maintain insurance to cover the subcontractors. Finally, the store or general contractor would handle customer complaints.

Accordingly, while somefactors cited by the Board constituted evidence of incidental control, the record as a whole does not contain sufficient evidence to establish overall control over important aspects of the subcontractors' work so as to indicate an employer-employee relationship (see Matter of Leazard [TextQuest, Inc.-Commissioner of Labor], 74 AD3d at 1415-1416; Matter of Rosen [Vidicom, Inc.-Commissioner of Labor], 73 AD3d 1352, 1354 [2010], lv denied 15 NY3d 706 [2010]).

Mitchell H. Rubinstein


June 19, 2012 in Employment Law | Permalink | Comments (0)

Monday, June 18, 2012

Employee Looses State Law Military Discrimination Claim

Many people may not know that under New York law it is unlawful to discriminate against an employee who is in the military. Matter of Kaplan v. NYS Division of Human Rights, ____A.D.3d___(2d Dept. May 16, 2012), does a nice job summarizing the law in this important area. As the court explained:

To establish liability under Executive Law § 296(1)(a) arising from the termination of employment, a complainant must establish, before the DHR, a prima facie case of discrimination by a preponderance of the evidence (see Stephenson v Hotel Empls. & Rest. Empl. Union Local 100 of AFL-CIO, 6 NY3d 265, 270), by showing that the complainant (1) is a member of a class protected by the statute; (2) was actively or constructively discharged; (3) was qualified to hold the position from which he or she was terminated; and (4) was terminated under circumstances which give rise to an inference of discrimination (id., citing Ferrante v American Lung Assn., 90 NY2d 623, 629). The burden of establishing a prima facie showing has been described as "de minimus" [*3](see Abdu-Brisson v Delta Air Lines, Inc., 239 F3d 456, 467, cert denied 534 US 993; Vinokur v Sovereign Bank, 701 F Supp 2d 276, 286-287). Once such a showing has been made, the burden shifts to the employer to rebut the prima facie case by providing a legitimate, nondiscriminatory reason for the complainant's discharge (see Stephenson v Hotel Empls. & Rest. Empls. Union Local 100 of AFL-CIO, 6 NY3d at 270, citing Ferrante v American Lung Assn., 90 NY2d at 629). In response to such a rebuttal, the complainant must show by a preponderance of the evidence that the employer's reasons for the challenged termination were pretextual (see Vinokur v Sovereign Bank, 701 F Supp 2d at 287), with the complainant having the burden of persuasion on the ultimate issue of discrimination (see Texas Dept. of Community Affairs v Burdine, 450 US 248, 253; Stephenson v Hotel Empls. and Rest. Empls. Union Local 100 of AFL-CIO, 6 NY3d at 271).

The complainant here met her burden of demonstrating a prima facie case of discrimination based on military status by demonstrating that the petitioner terminated her for being late on days which included days she served ADSW duty, and that the petitioner remarked that he was tired of dealing with issues relating to her military status, which give rise to an inference of discrimination (cf. Stephenson v Hotel Empls. & Rest. Empls. Union Local 100 of AFL-CIO, 6 NY3d at 271; Matter of Putnam/Northern Westchester Bd. of Coop. Educ. Servs. v Westchester County Human Rights Commn., 81 AD3d 733). However, in response to the complainant's prima facie showing, the petitioner demonstrated that he terminated her for a legitimate, nondiscriminatory reason which was not based on her military status (see Ferrante v American Lung Assn., 90 NY2d at 629).

Mitchell H. Rubinstein

June 18, 2012 in Employment Discrimination | Permalink | Comments (0)

Sunday, June 17, 2012

Town Law’s shorter statute of limitation to bring an Article 78 action challenging an adverse disciplinary determination trumps longer Civil Service Law’s statute of limitations


Robida v Ziemba, 2012 NY Slip Op 01041, Appellate Division, Fourth Department 
Town of Cheektowaga police officer David K. Robida was served with disciplinary charges pursuant to both Civil Service Law §75 and Town Law §155. A hearing was held in accordance with those statutes.
Ultimately the Town Board adopted a resolution that terminated Robida pursuant to Town Law §155.
Town Law §155 specifically provides that a CPLR Article 78 proceeding to review a determination pursuant to the statute must be commenced within 30 days of the determination; §75 of the Civil Service Law provides that such a proceeding must be commenced within four months after the determination becomes final. *
The Appellate Division said that it was undisputed that Robida commenced his action more than 30 days after the Town Board's determination. Accordingly, said the court, “it is time-barred.”
The court rejected Robida’s argument that the time limits set out in §75 controlled and thus his petition was timely, ruling that “the 30-day limitations period set forth in Town Law §155 is not limited to those disciplinary proceedings that were brought solely pursuant thereto.”
The Appellate Division explained that the statute of limitations for a CPLR Article 78 proceeding pursuant to which Robida sought to annul th Board's determination is governed by CPLR §217(1), which provides that, "u]nless a shorter time is provided in the law authorizing the proceeding," the proceeding must be commenced within four months after the determination to be reviewed becomes final.
As in this instance the "shorter time" was set out in Town Law §155, which authorized the disciplinary proceeding, Robida was required to file his petition challenging the Town’s determination within 30 days of the Board's decision becoming final.
* §76.1 of the Civil Service Law provides that an appeal from an adverse disciplinary decision made pursuant to §75 of the Civil Service Law may be made to the civil service commission having jurisdiction within twenty days after service of written notice of the determination to be reviewed or in accordance with the provisions of Article 78 of the CPLR. An even shorter statute of limitations is set out in §3020-a.5 of the Education Law for appealing a disciplinary arbitration decision pursuant to Article 75 of the CPLR – 10 days. 
The decision is posted on the Internet at:

reprinted by permission New York Public Personnel Law

Mitchell H. Rubinstein

June 17, 2012 in Public Sector Employment Law | Permalink | Comments (0)