- High Court Sides with HMY on RFPs
- Don’t Be the Monkey’s Uncle: Complete Your Investigation
- Teacher’s Termination “Shocked the Conscience”
High Court Sides with HMY on RFPs
In a case challenging the award of school bus contracts to transport special needs pre-school children, this firm successfully convinced the State’s highest Court to apply, for the first time, the “no deviation” rule, well-established in the competitive bidding context, to the request for proposal (“RFP”) context, in a 5-2 ruling of the New York Court of Appeals. Acme Bus Corp. v. Orange County, ___ N.Y.2d ___, 2016 WL 6837923 (Nov. 22, 2016).
When a county, town, village or school district needs goods or services above certain threshold dollar amounts, the law requires that the contract be procured through competitive bidding or an RFP. In competitive bidding, the contract is awarded to the “lowest responsible bidder.” With an RFP, there is flexibility to consider factors other than lowest cost in awarding a contract – factors like experience, competence, financial strength, references, and the like. Where the law allows the use of RFPs – mainly for the procurement of professional or skilled services − many unicipalities favor them because they can select a vendor or consultant in the “best interests” of the public, based on non-cost criteria, even if that vendor or consultant is more expensive than others who competed for the contract.
It has long been the rule in New York that municipalities must follow their own rules in awarding contracts through competitive bidding. After the bids are opened, a municipality may not deviate from contract specifications or change the formula used to evaluate and determine the lowest cost bidder. As the courts have explained, the rule against deviation protects the integrity of the competitive bidding process and guards against favoritism, fraud, corruption and extravagance. Allowing procurement officers to deviate from bid specifications invites award manipulation by steering contracts to favored bidders.
In this case, Orange County established a 100-point evaluation system for determining the RFP winner – 20 points were awarded for lowest cost, and 80 points were awarded in a variety of performance categories. With respect to lowest cost, the RFP stated: “The Offeror submitting the lowest cost proposal will be awarded 20 points. Awarding points to the remaining Offerors will be based on percentage to points ratio.”
When the proposals were opened, however, our client, Acme Bus Corp., whose cost proposal was more than 20% higher than the lowest cost proposer, was awarded only 8 points out of 20 when, according to the County’s formula, it should have been awarded at least 14 points in that category. If Acme’s proposal had been correctly scored, because of Acme’s strength in the performance categories (worth a total of 80 points), Acme would have been the “highest scoring proposer” overall, notwithstanding that two other bus companies scored higher in the cost category (worth 20 points) because their proposed costs were lower.
Acme sued, and internal records produced by the County confirmed that the County had changed the formula, after the proposals had been opened, in order to save money and award the contracts to the lower cost proposers. The County took the position that it could ignore its own evaluation criteria in the “best interests” of the County and it was not bound to follow its own scoring rules. The Supreme Court of Orange County and the Appellate Division agreed with the County, but the Court of Appeals reversed, stating:
We now hold that an award of a contract pursuant to Municipal Law § 104-b is arbitrary and capricious if the municipality evaluates a proposal using a standard that deviates from a standard expressly set forth in the RFP. *** Our holding promotes the goals of fairness and the prevention of fraud and corruption in the bidding process. The offeror is given notice of the standards to be applied and acts accordingly. When different standards are applied, the process is subverted. Changing the expressly defined rules mid-way gives rise to speculation of fraud or corruption. Acme Bus Corp., 2016 WL 6837923.
This decision will have a major impact on RFPs throughout the State where many municipalities took the RFP process as a license to do whatever they wanted in making an RFP contract award – ignoring or changing evaluation criteria or contract specifications – wrapped in the cloak of “best interests.” Now, even where RFP contracting is concerned, and notwithstanding the flexibility to emphasize non-cost performance criteria in evaluating proposals, it is clear that municipalities must at least follow their own published standards, rules and procedures.
Don’t Be the Monkey’s Uncle: Complete Your Investigation
In Vasquez v. Empress Ambulance Service, Inc., the Second Circuit Court of Appeals recently wrote that “in the space of twenty-four hours, Andrea Vasquez faced unwelcome sexual advances in the workplace, complained about that conduct to her employer, and lost her job. After receiving unsolicited sexual photographs from a co-worker one night shift, Vasquez promptly informed her supervisor and filed a formal complaint of sexual harassment, which her employer promised to investigate that same morning. Within a few hours, however, Vasquez’s co-worker had discovered her complaint and had provided the employer with false documents purporting to show Vasquez’s consent to and solicitation of a sexual relationship. In reliance on those documents, and notwithstanding Vasquez’s offers to produce evidence in refutation, Vasquez’s employer immediately fired her on the ground that she had engaged in sexual harassment.”
In July 2013, Vasquez was hired by Empress Ambulance Service, Inc. to work as an emergency medical technician on an ambulance crew. In October of that year, Vasquez met Tyrell Gray, who worked for Empress as a dispatcher and who almost immediately began making romantic overtures to Vasquez. Over the course of their acquaintance, Gray “constantly asked Vasquez out on dates,” “attempted to flirt with her, ” and “repeatedly … put his arm around her or touched her shoulders,” causing Vasquez “to be extremely uncomfortable” as she tried to reject his advances. “This conduct came to a head in January 2014. On January 8, while Vasquez and Gray both worked in Empress’s office, Gray approached Vasquez, placed his arm around her, and asked ‘When are you going to let me take you out?’ When Vasquez replied that she had a boyfriend and was not interested in a romantic relationship, Gray insisted that ‘I bet I can make you leave your man’ and promised to ‘send … something between you and me.’ Around midnight that night, while out on shift, Vasquez received a picture message from Gray: a photograph of his erect penis, captioned ‘Wat u think.’ Vasquez did not respond to this message or to a follow-up text message from Gray as she continued her work. When Vasquez returned to the office at the conclusion of her shift, however, she was ‘extremely embarrassed, distraught, and crying.’ And she promptly informed an Empress field supervisor about Gray’s conduct. Promising that ‘we’re going to deal with this,’ the supervisor walked Vasquez to a computer in Empress’s office and asked that she compose and send a formal complaint right away, which Vasquez began to do.” To aid in their investigation, Vasquez offered to show Gray’s messages on her cell phone, but the supervisor rejected her offer.
In the intervening hours, Gray ‘manipulated a text message conversation on his iPhone to make it appear as though a person with whom he had legitimately been engaging in consensually sexual text banter was Vasquez.’ He then ‘took screen shots of portions of the conversation, printed them off,’ and ‘presented it to the management’ of Empress as evidence that he and Vasquez had been in a consensual sexual relationship.
“By the time Vasquez met with a committee of her union representative, Empress’s owner, and Shepard to discuss the incident later that morning, the committee had already considered Gray’s documents and had concluded that Vasquez was ‘having an inappropriate sexual relationship’ with Gray. Shepard informed Vasquez that Empress ‘knew the truth,’ as they had spoken with Gray and had seen his ‘proof’ of her improper conduct by means of ‘pictures and text messages.’” Vasquez ‘adamantly denied’ the allegations and asserted that Gray was lying, but was told that the committee had all seen the photograph and knew it was her in the photo.” They wouldn’t let Vasquez see the photo and when she again offered to show the committee her own cell phone, in an attempt to prove that no such messaging had occurred, the committee declined. They then fired Vasquez for engaging in sexual harassment.”
Vasquez commenced and action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000-e et seq. (“Title VII”), and New York State Human Rights Law, N.Y. Exec. Law § 290 et seq. (“NYSHRL”), alleging that she was wrongfully terminated in retaliation for complaining of sexual harassment.
The federal district court dismissed Vasquez’s claims, holding that Vasquez’s employer could not have engaged in retaliation because it could not be held responsible for the retaliatory animus of Vasquez’s co-worker, a low-level employee with no decision making authority.
The Second Circuit recently reversed, applying the “cat’s paw” theory of liability for the first time to claims under Title VII, holding that an employee’s retaliatory intent may be “imputed to an employer where, as alleged here, the employer’s own negligence gives effect to the employee’s retaliatory animus and causes the victim to suffer an adverse employment decision.”
“The phrase derives from an Aesop fable, later put into verse by Jean de La Fontaine, in which a wily monkey flatters a naïve cat into pulling roasting chestnuts out of a roaring fire for their mutual satisfaction; the monkey, however, ‘devours … them fast,’ leaving the cat ‘with a burnt paw and no chestnuts’ for its trouble.” The “cat’s paw” metaphor now “refers to a situation in which an employee is fired or subjected to some other adverse employment action by a supervisor who himself has no discriminatory motive, but who has been manipulated by a subordinate who does have such a motive and intended to bring about the adverse employment action. Because the supervisor, acting as agent of the employer, has permitted himself to be used ‘as the conduit of the subordinate’s prejudice,’ that prejudice may then be imputed to the employer and used to hold the employer liable for employment discrimination. In other words, by merely effectuating or ‘rubber-stamping’ a discriminatory employee’s ‘unlawful design,’ the employer plays the credulous cat to the malevolent monkey and, in so doing, allows itself to get burned—i.e., successfully sued.”
Empress could have avoided liability had it simply accepted Vasquez’s offer to view her cell phone. The lesson? Employer’s should not be the “cat” and should diligently investigate all claims.
Teacher’s Termination “Shocked the Conscience”
In Williams v. City of New York, a tenured school teacher filed a petition to vacate an arbitration award that terminated his employment for inappropriate inquiries of his 8th grade female students regarding their female relatives. The Supreme Court in New York County denied the teacher’s petition and he appealed. The Appellate Division recently held that the penalty of termination was so disproportionate to that offense as to shock the conscience of the Court, and the arbitration award that terminated his employment was vacated.
Apparently, Williams, while an eighth-grade physical education teacher, initiated conversations with at least two of his female students asking them if they had older sisters, and, if so, how old they were, whether they had boyfriends, and whether they had photographs of them, and even accepted the phone number of one student’s 23 year old sister. He also told a student that her mother had called him “handsome” while passing him on the street. One student testified that William’s conduct made her feel “uncomfortable,” and another said that his conduct “aggravated” her. Of the 12 specifications with which he was charged, the Hearing Officer dismissed five, including charges that he had engaged in similar behaviors in the 2010–2011 school year, that he actually contacted the sister whose telephone number he received, and that he told the students: “My wife said I can look but I can’t touch.”
The Hearing Officer found Williams to be “insufficiently remorseful,” that his actions revealed “moral failings,” and that, although termination might be “too severe, it was the only penalty that could ‘jolt’ Williams into an understanding of the seriousness of his misconduct.”
The Appellate Court held that “based on all the circumstances of the case, including the lack of any prior allegations of misconduct against petitioner during 13 years of service and the fact that the misconduct does not violate any specific rule or regulation, we find the penalty of termination sufficiently disproportionate to the offenses to shock the conscience.”
The Court reasoned that Williams “had never been warned or reprimanded regarding the conduct at issue, and, contrary to the conclusion of the Hearing Officer, there is no evidence that a warning or reprimand or other penalty short of termination would not have caused petitioner to cease the objectionable conduct immediately.”
“While we share some of our dissenting colleague’s concern regarding petitioner’s behavior and his failure to express any deeper understanding of the inappropriate nature of his actions, we do not agree that the law supports petitioner’s termination at this time. This is in part because we do not agree that petitioner’s communication with his students, while inappropriate, can be fairly characterized as ‘romantic/sexual in nature,’ or as being for the purpose of ‘soliciting female companions for his sexual gratification,’ as the dissent puts it. The Hearing Officer herself found only that petitioner made ‘inappropriate inquiries of his 8th grade female students regarding their female relatives, in furtherance of a personal agenda having nothing to do with school or his responsibilities as a teacher.’ She did not find that petitioner actually intended to, or did, have any ‘romantic/sexual’ interactions with anyone. Rather, she concluded that petitioner’s questions about the students’ sisters ‘in sum and substance … amount to expressing an interest in meeting’ their sisters, and she made clear that no one testified to his using ‘those precise words.’ There is no evidence that he made any sexual comments to his students.”
“Here, petitioner showed very poor judgment, but he has not been shown to have violated any law, or even any rule or regulation of the Department of Education. Our decision today does not excuse petitioner’s behavior, but directs a less serious punishment. Should it continue, termination may well be in order in the future.”
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