Posted on September 8, 2010 by Kevin Sheerin

Petitioner Granted Back Pay With Interest

John Tipaldo v Christopher Lynn, etc., et al.

Pursuant to Article 78, plaintiff appealed an order by the Supreme court that granted his back pay without interest in his Civil Service Law § 75-b action. The plaintiff is also asking for the court to grant his reinstatement to the prior position.

In August 1996, plaintiff, John Tipaldo, was promoted to the position of Acting Assistant Commissioner for Planning by the New York City Department of Transportation (DOT). Plaintiff, which was a salary of $55,000 and if the position became permanent, he would receive a $25,000 increase. Six months later, plaintiff was demoted from the new position. As determined in the Civil Service Law § 75-b action, the demotion was in retaliation for the plaintiff reporting a supervisor violated bidding rules. Due to the demotion, the plaintiff new position never became permanent and he never received the $25,000 salary increase.

At the trial court, plaintiff presented an expert economics testimony to establish the total amount of back pay the plaintiff was entitled to. The expert determined that if the plaintiff had not been demoted he would have received the $25,000 increase and would have been making $81,000. The expert also calculated the amount of money the plaintiff would have earned through the time of trial if he was not demoted by comparing two managers with similar position and salary to that of the plaintiff and applied a statutory interest rate of 9% to the lost earning. The expert arrived at a total of $662,721.

The Appellate Court found that the back pay calculated by the plaintiff’s expert had sufficient support and that the plaintiff was likely to have received the raise.

Therefore, it was determined that the predetermination interest is available for those who claim under the Civil Service Law § 75-b. Further, it Supreme Court granted an interested award because the defendants did not offer any counter argument as to why the plaintiff’s expert testimony is flawed. Finally, the Supreme Court order that the plaintiff be reinstated “to the same position held before the retaliatory personnel action, or to an equivalent position.”

Read more about this Article 78 case here.

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

Tags: , , , , , , , , , , ,
Posted on March 23, 2010 by Kevin Sheerin

Article 78 discrimination and retaliation case dismissed

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.

Tags: , ,
Posted on June 17, 2008 by Kevin Sheerin

Nassau correction officer awarded close to one million dollars

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.

Tags: , , , ,