New York Civil Service Attorney Law Blog : New York Civil Service Lawyer & Attorney : Kevin P. Sheerin : Article 78 : Serving New York City, Long Island, Manhattan, Bronx, Brooklyn, Queens, Staten Island

Matter of Idella Abram v New York State Division of Human Rights, City of Buffalo and Buffalo State Police Department

Petitioner brought about this Article 78 proceeding to annul a determination of the New York State Division of Human Rights (Division) which ruled that she failed to establish that respondents discriminated against her based on a disability or retaliated against her based on her filing of a complaint with the Equal Employment Opportunity Commission (EEOC). Petitioner was a 19 year veteran of the Buffalo Police Department (BPD) with a long-standing animosity between her and her supervisor Lieutenant Guy Zagara. In May 2003, petitioner filed a complaint with the EEOC against Zagara who learned of the complaint later that summer. In September 2003, petitioner was injured when she hit her knee with the door of a patrole vehicle. She applied for injured on duty status (IOD) but was denied. Petitioner was allegedly reinjured in November while subduing an unruly man. Again, petitioner filed for IOD status and was denied, mainly due to a report by Zagara asserting that he was at the scene of the accident and did not see petitioner engaging in any action that could have resulted in an injury.

Petitioner then filed a complaint with the Division. After a hearing the Administrative Law Judge determined that the petitioner failed to prove a prima facie case of either discrimination or retaliation and therefore dismissed the complaint. The Division adopted this decision and the petitioner then filed this Article 78 appeal.

Review of an administrative decision is limited to consideration of whether the determination was supported by substantial evidence. The Court felt that contrary to petitioner’s contentions, the determination was supported by substantial evidence and must be upheld. While the petitioner established that she was disabled, she failed to meet the burden of proof that she could perform the essential functions of her job with reasonable accommodation and the employer is not obligated to create a new light-duty position for a disabled employee. In respect to the retaliation claims, since several months passed between the filing of her EEOC complaint and the denial of her IOD status applications, the Court felt no causal connection could be established.

Accordingly, the Supreme Court confirmed the determination, without costs, and dismissed the petition.

Read more about this Article 78 discrimination retaliation case here.

To read about more Article 78 cases go to http://www.sheerinlaw.com/?id=78.

For other interesting information in the personal injury file go to www.negligenceatty.com.

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Ambrosino v Village of Bronxville

In 2007, the plaintiff, Joseph Ambrosino, was terminated from his job with the Village of Bronxville Department of Public Works (DPW). Plaintiff’s Union then filed a grievance which was denied by the DPW Superintendent, the first step of the grievance process, and then denied by the Village Administrator, the second step. The plaintiff then skipped the third and final step of advisory arbitration and went straight to commencing an instant action against the Village and the DPW Superintendent alleging discrimination and breach of contract. The Supreme Court dismissed his petition on the grounds that he did not exhaust his administrative remedies.

Plaintiff then commenced this appeal. The Court found that the original dismissal of the petition on the grounds of failure to exhaust administrative remedies was only partly acceptable. While plaintiff did fail to complete the entire grievance process he was not given the opportunity to plead his case concerning the allegations of discrimination. Therefore the second cause of action was properly dismissed but the first cause of action should not have automatically been denied due sua sponte.

Accordingly, the Court modified the order by deleting the provision, sua sponte, dismissing the first cause of action and affirmed the order as modified without costs or disbursements.

Read article here.

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Matter of Momot v Rensselaer County, Hudson Valley Community College

Petitioner, John Momot, commenced this appeal to review a determination by the Supreme Court dismissing his petition finding no probably cause to support claim of unlawful discriminatory practice relating to education.

Petitioner was a student at Hudson Valley Community College. He filed a complaint with the State Division of Human Rights alleging that Hudson Valley discriminated against him by engaging in a conspiracy with various government agencies to use young female students to tempt him, distort his reputation, and dismiss him from the college. The Division determined that petitioner’s allegations were unfounded and absurd. Petitioner then commenced a proceeding to challenge the determination. The Supreme Court dismissed the petition and this appeal ensued. The Court did not find the determination to be arbitrary and capricious and found no evidence to support petitioner’s accusations.

Accordingly, the Court affirmed the decision.

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Tardif v Town of Southold

Plaintiff, John Tardif, brought about an action to recover damages for age discrimination in this appeal of the Supreme Court decision granting defendants’ motion for summary judgment dismissing the complaint. Plaintiff alleged that the Town of Southold and the Town’s police department did not appoint him as a police officer due to discrimination on the basis of his age. Plaintiff argued that he had “the best qualifications” and “the number one test score” on the police officer examination.

Defendants argued that they did not discriminate against plaintiff due to his age but that the reason they did not hire him was because he submitted deceptive responses in his police officer application. The defendants thus established that they had a legitimate, nondiscriminatory reason for not hiring plaintiff. Plaintiff failed to raise triable issues of fact concerning whether he was deprived of his constitutional right to due process, whether he was entitled to a name-clearing hearing, whether he was deprived of a protected liberty interest, and whether he was denied equal protection.

Accordingly, the Court affirmed the order granting summary judgment dismissing the complaint, with costs.

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Lisa Craib, a 43 year old woman with Asberger’s syndrome, worked at McDonald’s for 21 years. Last March, Craib was told she was “no longer part of the team” and fired. She, along with two other disabled employees, was fired two days after the Shattuck Avenue McDonald’s was sold to Nick Vergis. The previous owner, Mike Maddy, was sympathetic to her disability and contacted California’s Employment Development Department to enlist a job coach to aid Craib with her “performance issues”. Craib filed a discrimination complaint last week under the Americans with Disabilities Act and protested in front of the Downtown Berkeley McDonald’s on Tuesday. If the case is heard in federal court, Craib could be eligible for compensatory damages. 

Read entire article here.

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Levine v Smithtown Central School District

Defendants brought about a motion for summary judgment to dismiss plaintiff, Melissa Levine’s alleged disability discrimination action. Plaintiff was a school psychologist at the Tacken Elementary School in her final probationary year. After sustaining a concussion while trying to restrain a student, plaintiff was on leave from October through November of 2001. Then plaintiff was absent from work from December 2001 through the end of the school year due to bi-polar disease and Lyme disease. When the time came for Levine’s supervisor to evaluate her, she was not recommended for tenure and instead was recommended for termination. Plaintiff asked for an extension of her probation but was denied.

Plaintiff brought about this appeal and alleged that she was discharged due to her disability. Defendants argued that she was terminated due to poor performance prior to her prolonged absence. Additionally, in order to meet the ADA’s definition disability, a person must have a physical or mental impairment that substantially limits at least one major life activity, must have a record of this impairment, and must be regarded as having the impairment. Plaintiff failed to provide evidence that her impairment substantially limited any major life activity, her sole record of impairment was her doctor’s notes that stated a diagnosis and recommendation for continued sick leave, and her only evidence that she was regarded as impaired was the defendants’ alleged perception that she could not perform her job. In summary, Levine failed to provide sufficient evidence to permit a trier of fact to conclude that she was disabled within the meaning of the ADA.

Accordingly, the Supreme Court granted defendants’ motion for summary judgment and dismissed the plaintiffs’ claim.

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Matter of Patricia Luca v Nassau County

Patricia Luca’s conflicts with Nassau County began in November 2000 when she was subject to sexual harassment at the county jail in East Meadow where she is employed. According to Luca, a fictitious scenario using her name was distributed while she was attending a workshop with colleagues. This scenario humiliated her and made her the butt of lewd comments. Luca filed a lawsuit regarding this incident and received an out-of-court settlement.

Luca claims that her challenging the county resulted in her being prevented from achieving her dream job of becoming a Nassau County police officer. She took the police officer exam in 1994 and was eligible to be hired but her name was passed over until she reached the max age and was no longer eligible. Luca sued Nassau County for a second time charging retaliation by the county.

After seven years in court, Patricia Luca was awarded a total of $949,973.86 in damages and lost pay, legal fees, and other costs.

Read the full article here.

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