Adverse changes in the employees’ working environment following their involvement in a protected activity deemed a “constructive discharged”

Adverse changes in the employees’ working environment following their involvement in a protected activity deemed a “constructive discharged”
Albunio v City of New York, 2009 NY Slip Op 07928, Decided on November 5, 2009, Appellate Division, First Department

Following a jury trial, New York State Supreme Court, Judge Martin Shulman awarded Robert Sorrenti $491,706 plus attorney's fees in the amount of $366,323.75.*

In addition, Judge Shulman awarded Lori Albunio $579,728.83 and Thomas Connors $588,113.45.

The City of New York Appealed, only to have the Appellate Division affirmed each of the awards ordered by Judge Shulman.

Albunio and Connors sued the City of New York alleging that reductions in their respective supervisory responsibilities, interference with and loss of their job advancement opportunities, and other acts "reasonably likely to deter a person from engaging in protected activity" followed their having “advocated for Sorrenti.”

Albunio claimed that she was told to find another command and was forced to take a position she viewed as a demotion to a less desirable assignment. Connors contended that his tours of duty were changed in ways that made "no sense" and prevented him from properly supervising staff. Connors also alleged that when he sought “to transfer to another unit, having seen ‘the writing on the wall,’ he was not given the position he had been promised on transfer orders” but instead was assigned to a position he viewed as a demotion.

The Appellate Division said that both Albunio and Connors produced evidence of a causal connection between their protected activity and the adverse employment action they contended had been taken against them as a result. The court noted that “Both had exemplary work records before their having advocated for Sorrenti, but after advocating for him, their authority was eroded, Albunio was stripped of her command, and both were forced to transfer to positions that were they viewed constituted demotions.

The court characterized such treatment as “constructive discharged,” noting that the evidence produced demonstrated that Albunio’s and Connors’ working environments “had been made objectively so intolerable that a reasonable person in their respective positions would have felt compelled to leave.”

* The Appellate Division held that the jury's determination to award Sorrenti $471,706 in compensatory damages was supported by the evidence.

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2009/2009_07928.htm

Evaluating claims for back pay upon reinstatement from a leave of absence

Evaluating claims for back pay upon reinstatement from a leave of absence
Matter of New York State Correctional Officer & Police Benevolent Assn., Inc. v New York State Dept. of Correctional Servs., 2009 NY Slip Op 07720, decided on October 29, 2009, Appellate Division, Third Department

Elsie Pierre, a correction officer, suffered a work-related injury and was placed on workers' compensation leave.

Subsequently the Department of Correctional Services notified Pierre that it intended to seek termination of her employment pursuant to Civil Service Law §71 as she had been absent from work for more than one year.*

Pierre responded that she was fit to return to work but the Department’s physician determined that Pierre was “unfit for duty.” Pierre appealed and ultimately a Hearing Officer ruled that Pierre was fit for duty and recommended that she be reinstated with pay retroactive to June 12, 2006.

Subsequently the Department rejected the Hearing Officer's recommendation that Pierre receive pay retroactive to June 12, 2006 on the basis that there was no independent evaluation of her fitness for duty at that time and directed that she receive pay retroactive to October 12, 2007, the date of the Hearing Officer's decision and recommendations.

Pierre sued, contending that “inasmuch as it was not controverted at the hearing that [she] was fit to return to work as of June 12, 2006, [the Department's] determination to not award her pay retroactive to that date is arbitrary and capricious."

The Appellate Division rejected Pierre’s theory, noting that she was not fit for duty at the expiration of her workers' compensation leave in September 2005, and this is the date as to which she originally requested reinstatement. Further, said the court, although the record may support a finding that she was fit to return to work on June 12, 2006, because she did not comply with the necessary procedures to effect her reinstatement as of that date, she has not yet exhausted her administrative remedies.

Considering the fact that Pierre had never requested reinstatement from June 12, 2006, the Appellate Division concluded that the Department’s decision not award her pay retroactive to that date was supported by substantial evidence in the record.

Finally, said the court, the appropriate date from which Pierre's retroactive pay should have been calculated is the date of the medical evaluation performed in connection with her request for reinstatement made after the Hearing Officer issued his recommendations.

However, as it is likely that such evaluation did not occur on October 12, 2007 — the same day that the Hearing Officer issued his recommendations — the Appellate Division concluded that Department’s determination to use that date was “evidently an exercise of discretion made in an attempt to fashion a compromise with Pierre.”**

Recognizing that remitting the matter to the Department for a determination of the exact date of the evaluation would likely result in a calculation of Pierre's back pay from later than October 12, 2007, thus undermining Department's apparent concession to her, under the particular circumstances presented here, the Appellate Division elected not to disturb the Department's determination to award Pierre pay retroactive to October 12, 2007.

* An individual who has been absent from work for a cumulative period of more than one year as the result of a work-connected injury or disease may be terminated from his or her position pursuant to Section 71 of the Civil Service Law. In contrast, an individual who has been absence for a consecutive period of more than one year due to a non-work related injury or disease may be terminated from his or her position pursuant to Section 73 of the Civil Service Law.

** The Appellate Division noted that the Department had said that "[I]n consideration of the time it has taken post-decision [by the hearing officer], [it] agrees to pay Ms. Pierre back pay for the period of October 12, 2007, the date of the decision, through February 5, 2008, her actual date of return."

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2009/2009_07720.htm

Payments to an employee to induce him or her to resign rather that being served with charges not included in final average salary calculation

Payments to an employee to induce him or her to resign rather that being served with charges not included in final average salary calculation
Horowitz v NYS Teachers' Retirement System, App. Div., 3rd Dept., 293 AD2d 861

The Horowitz case concerns the impact of making a lump-sum payment to an employee as an inducement to his or her submitting a resignation in lieu of being served with disciplinary charges in determining the individual’s final average salary for retirement purposes.

The Jericho Union Free School District offered Marc W. Horowitz the opportunity to resign from his administrative position in lieu of his being served with disciplinary charges. As part of the settlement negotiations related to Horowitz's separation, Horowitz was to receive a lump-sum payment of $123,789 consistent with a benefit set out in a then expired agreement between the District and the Jericho Administrators Association entitled the "Resignation-Retirement Incentive Benefit Program."

The Teachers' Retirement System [TRS] refused to include the $123,789 lump-sum payment to Horowitz as part of his "final average salary" [FAS] for the purpose of determining his retirement allowance. TRS viewed the payment "as an inducement for [Horowitz's] immediate resignation" rather than "compensation for accumulated sick time" as claimed by Horowitz.

Horowitz sued, seeking a court order directing TRS to include the $123,789 in calculating his FAS. The Appellate Division, Third Department, sustained the Supreme Court dismissal of Horowitz's petition. Citing Section 501.11(a) of the Education Law, the Appellate Division said an individual's FAS is defined as "the average annual compensation earnable as a teacher during any five consecutive years of state service." As noted in Moraghan v New York State Teachers' Retirement System, 237 AD2d 703, the purpose of the statute is to prevent artificial inflation of an individual's final average salary by payments made in anticipation of a member's resignation or retirement.

Accordingly, said the court, "a lump-sum payment may be excluded from the calculation of a teacher's five-year final average salary where the circumstances support the conclusion that the payment was made in exchange for resignation rather than in satisfaction of accumulated sick leave", citing Hall v New York State Teachers' Retirement System, 266 AD2d 638, [leave to appeal denied, 94 NY2d 759].

Although Section 5003.2 of the Rules of the Commissioner, [21 NYCRR 5003.2 (b)], provide that "termination pay" is includable computation if it constitutes compensation earned as a teacher," the Appellate Division ruled that 21 NYCRR 5003.2 did not apply in Horowitz's case.

Why not? Because, said the court, the timing of Horowitz's resignation rendered him ineligible for the lump-sum payment provided by the then expired collective bargaining agreement between the District and the Association. This apparently resulted in the District and the Association entering "into a separate agreement designed to facilitate [Horowitz's] resignation."

According to the decision, the so-called "Horowitz Incentive Agreement" provided Horowitz with the same financial benefit that the expired collective bargaining agreement provided to eligible retirees for accumulated sick leave. However, the Horowitz Incentive Agreement described its benefit as "a pay differential equal to one year's salary" rather than the payment of accumulated sick leave credit and Horowitz's resignation was specifically conditioned on the receipt of this payment.

Other distinctive elements noted by the Appellate Division: The Horowitz Incentive Agreement was executed on the same day as the stipulation, provided a benefit for which Horowitz was the only recipient and required Horowitz to act within two business days in order to obtain its benefit.

The Appellate Division ruled that the language and circumstances of the agreements involved here rationally support TRS' findings that the Horowitz Incentive Agreement was tailored to Horowitz's particular situation and was created "solely to induce his resignation." Under these circumstances, said the Appellate Division, Supreme Court did not err in upholding TRS' determination and dismissing Horowitz's petition.

The fact that the amount paid to the employee in connection with a disciplinary settlement was not deemed wages for the purposes of calculating the employee's FAS for retirement should not be viewed as suggesting that such a payment is not compensation subject to withholdings for income tax and other purposes.

Employee’s claim of constructive notice of a triggering event underlying his or her applying for disability retirement rejected

Employee’s claim of constructive notice of a triggering event underlying his or her applying for disability retirement rejected
Matter of Koebel v New York State Comptroller, 2009 NY Slip Op 07727, Decided on October 29, 2009, Appellate Division, Third Department

Teresa M. Koebel, a member of the New York State Employees’ Retirement System, applied for accidental disability retirement benefits based on her representation that she was disabled due to a “posttraumatic stress disorder that resulted from her observation of the terrorist attacks on September 11, 2001 from a location in New Jersey and her subsequent performance of emergency management duties.”

The Comptroller denied Koebel’s application based upon her failure to file a timely written notice of her claims as required by Retirement and Social Security Law §63(c). Koebel appealed, contending that “the widely-known events of September 11, 2001 themselves satisfied the notice requirements of Retirement and Social Security Law §63(c),” i.e., the Comptroller had “constructive notice” sufficient to satisfy the statutory notice requirements.*

Supreme Court dismissed Koebel’s petition, which ruling was affirmed by the Appellate Division.

In the words of the Appellate Division, “Because that statute requires written notice of '[t]he nature and extent of the member's injuries, and [h]is [or her] alleged incapacity' (Retirement and Social Security Law §63[c] [a] [3], [4]), and the events of that day would not give notice of [Koebel’s] particular injury or disability, Supreme Court correctly determined that those events were insufficient to satisfy the notice requirements.”

The Appellate Division ruled that Koebel had neither applied for retirement within the required one-year period nor demonstrated that her impairment came within either of the two categories of good cause listed in 2 NYCRR 331.2, rejection of her application was neither arbitrary nor capricious.**

* The Doctrine of Constructive Notice constitutes a “legal fiction” courts may use to hold that an entity received a required notice even though actual notice was not personally delivered to the entity.

** The Appellate Division noted that Koebel’s “untimely filing” for filing for Workers’ Compensation Benefits had been “excused,” but, citing Matter of Wilson v New York State & Local Policemen's & Firemen's Retirement System, 288 AD2d 602, ruled that such action “was not binding on the Comptroller and did not preclude him from denying her retirement application.”

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2009/2009_07727.htm

News Related to Civil Rights Litigation

News Related to Civil Rights Litigation
Source: iNews © 2009 John D. Sargent - eeoinews@yahoo.com - All Rights Reserved

U.S. Supreme Court

Public Citizen’s most recent Sup Ct Watch list here
SCOTUSblog’s most recent Petitions to Watch here
Ross Runkel’s US Sup Ct Employment Law Cases – Pending & decided here

October Term 2009

Certiorari Granted

Title VII Lewis, et al. v. City of Chicago, No. 08-974

When an employer adopts an employment practice that discriminates against African Americans in violation of Title VII’s disparate impact provision, must a plaintiff file an EEOC charge within 300 days after the announcement of the practice, or may a plaintiff file a charge within 300 days after the employer’s use of the discriminatory practice? (As described at SCOTUSblog)

SCOTUS docket here

Noted here: LawMemo; SCOTUSblog; LA Times; Chicago Tribune; Ford & Harrison; Ogletree Deakins


Selected Cases Pending Certiorari

Title VII Federal Express v. EEOC, No. 08-1500

If Title VII precludes the Equal Employment Opportunity Commission (“EEOC”) from bringing a direct action against an employer once the employee elects to requests the right-to-sue notice and files suit on the claims alleged in his charge, would it be inconsistent with Title VII to allow the EEOC to maintain perpetual jurisdiction to investigate the charge? (As described at Public Citizen)

SCOTUS docket here

Title VII Bennett v. Verizon Wireless, No. 09-141

1. Did the Second Circuit improperly apply the “pretext plus” standard, overruled in Reeves, when it determined Petitioner did not adduce sufficient evidence to defeat Respondent’s motion for summary judgment under Fed. R. Civ. P. 56?

2. What kind of evidence is enough to overcome the Respondent’s legitimate nondiscriminatory explanation for whatever action it took to allow a jury to infer discrimination under Fed. R. Civ. P. 56?

3. What weight should temporal proximity evidence be given beyond the prima facie case stage under Fed .R. Civ. P. 56? (As described at Public Citizen)

SCOTUS docket here


New York State

DECIDED

Suffolk County CC loses bid to dismiss disability discrim suit by security guard who claims school barred him from using a cane on the job unless he agreed to take an overnight shift

Judge Sanctions Firm that sued adversary in sexual discrimination lawsuit

FILED

Elmont Schools female clerk sues for sex discrimination; claims that she was demoted/transferred after complaining about offensive email/video

SETTLED

Thomas Dodge Subaru pays $132K+ to settle EEOC’s sex harassment and retaliation lawsuit

Election of retired public officers and employees to public office

Civil Service Law §150 - Suspension of pension and annuity benefits during public employment

A number of reports of election results indicate that some successful candidates currently employed by a New York State public employer have announced their intention of retiring from their current position in the public service. Some may find themselves confronting the so-called Law of Unforeseen Consequences in that he or she may not be eligible to continue to receive a retirement allowance from a public retirement system of this State upon their being sworn into and assuming their elective office.

As a general rule, Civil Service Law §150 provides that a retiree of a public retirement system of this State shall have his or her retirement allowance suspended upon reemployment by the State or a political subdivision of the State.*

§150, however, excuses from this mandate retirees who receive compensation in connection with jury duty, serving with the office of inspector of election, serving as a poll clerk or ballot clerk pursuant to the Election Law, serving as a notary public or commissioner of deeds, or as an elected public officer [emphasis supplied].**

As noted in 2 NYCRR 374.1,*** there is a public policy basis for the exception with respect to elective office: “to encourage, or at least remove an obstacle that may discourage, retirees from running for and holding elective office.”

However, the “election to public office” exception applies only in the event the individual has already retired – the exception does not apply to those who retire from the public service following their election to public office.

The Retirement System has noted that the Retirement and Social Security Law “clearly envisions that an employee must separate from the service of the public employment upon which his or her benefit eligibility is based in order to commence receiving a retirement allowance based on such employment.”

The Retirement System has also stated that “While Section 150 of the Civil Service Law exempts individuals who are elected to public office after retirement … an individual who wishes to retire … must separate from the payroll … in order to commence receiving his or her retirement allowance.

Accordingly, it seems clear that an individual retiring from his or her public employment after being elected to a public office is not a person “elected to public office after retirement.”

* An individual receiving a retirement allowance from a New York State public retirement system may be eligible to continue to receive his or her retirement allowance pursuant to §§101, 211 or 212 of the Retirement and Social Security Law, §503 of the Education Law or as permitted by a local law or charter. The Optional Retirement Plan available to certain employees of the State University, the City University, the Community Colleges, the statutory contract colleges at Cornell and Alfred Universities and the State Department of Education is not a public retirement system of New York State.

** There is an exception to the exception: any person, subsequent to his or her retirement from an elective public office, who accepts appointment, is re-elected or takes a new oath of office to the same elective public office from which he or she retired is to have his or her retirement allowance suspended until the date he or she vacates such elective public office in the event the compensation earned for any calendar year for that elective public office does not exceed the earning limitation provided for retired persons in §212 of the Retirement and Social Security law. In addition, the age sixty-five unlimited earnings provision set out in §212 of the Retirement and Social Security Law does not apply to “any person, subsequent to his or her retirement from an elective public office, if such person accepts appointment, is re-elected or takes a new oath of office to the same elective public office from which he or she retired.”

*** 2 NYCRR 374 address the retirement of an individual who is serving in an elective office while simultaneously employed by a public employer under certain circumstances.

Authority of the Commissioner of Education to provide certain remedies in an Education Law Section 310 appeal

Decisions of the Commissioner of Education, 15,596; 15,597

From time to time a petitioner will ask the Commissioner of Education to provide redress in addition to sustaining his or her appeal from a decision by school administrators or a school board.

In a recent decision the Commissioner noted that he does not have the authority to sanction or reprimand board members or district staff [see Matter of Eileen A. McCrudden, http://www.counsel.nysed.gov/Decisions/volume49/d15996.htm].

In another ruling, Appeal of K.F. and D.F, the Commissioner noted that he does not have authority to award monetary damages, costs or reimbursements in an appeal pursuant to Education Law §310 [see http://www.counsel.nysed.gov/Decisions/volume49/d15997.htm].

Violating the terms and conditions of a disciplinary probationary period

Davis v Division of Military and Naval Affairs, 291 AD2d 778

Disciplinary action was initiated against Randall Davis by his employer, the New York State Division of Military Affairs and Naval Affairs [DMNA], based on allegations that Davis was guilty of violating DMNA's Internet policy by using DMNA computers to visit inappropriate websites, including pornographic websites, and by using a State-owned computer for "personal business."

The disciplinary action was "settled" and the Division and Davis entered into an agreement that, in relevant part, placed Davis on disciplinary probation for one year and prohibited him from using State-owned computer equipment for personal reasons, including placing personal information on disks or other storage devices owned by the State. The agreement expressly provided that in the event Davis violated any of its terms, he would be subject to "automatic dismissal".

Davis returned to work and shortly thereafter created a file folder in his computer entitled "Rd" and stored various information, including personal information, in that folder. According to the decision, Davis created this folder after normal work hours and placed it in a location on his DMNA computer that was considered to be unusual for this type of file. As a result he was summarily terminated from his position on the grounds that he had violated the terms of his disciplinary probation agreement.

Davis appealed, claiming that his termination was arbitrary and capricious and that the decision to terminate him was made in bad faith. However, noted the Appellate Division, Davis neither challenged the fact that he created the file DMNA said offended the terms of the disciplinary settlement agreement on his state-owned computer nor that he moved nonwork-related website addresses into it.

The Appellate Division observed that Davis "voluntarily entered into the [disciplinary] settlement agreement which placed him in the status of a probationary employee subject to automatic termination if he violated any of its provisions."

Citing Swinton v Safir, 93 NY2d 758, the court said it had to apply a "stringent standard of review" in considering termination cases of probationary employees. It said that "a probationary employee has no right to challenge the termination by way of a hearing or otherwise, absent a showing that he was dismissed in bad faith or for an improper or impermissible reason."

The courts, however, have construed the terms and conditions of disciplinary probationary periods narrowly. For example, in Taylor v Cass, 505 NYS2d 929, a Suffolk County employee won reinstatement with full retroactive salary and Taylor Law contract benefits when the court determined that he had been improperly dismissed while serving a disciplinary probation.

Taylor’s disciplinary probation provided that he could be terminated without any hearing if, in the opinion of his superior, his job performance was “adversely affected” by his “intoxication on the job.”

Taylor, however, was subsequently terminated without a hearing for “failing to give a fair day’s work” and “sleeping during scheduled working hours.”

The Appellate Division said the dismissal was improper because Taylor was not terminated for the sole reason specified in the underlying settlement agreement: intoxication on the job.

____________

For information about NYPPL’s The Discipline Book, go to: http://thedisciplinebook.blogspot.com/2009/03/discipline-book.html

Absence from work without permission during a strike creates a rebuttable presumption that individuals so absent are participating in the strike

Ahern [et al] v Jones, 292 A.D.2d 854

Civil Service Law Section 210(2)(b), the Taylor Law, establishes a presumption that “For purposes of this subdivision an employee who is absent from work without permission, or who abstains wholly or in part from the full performance of his duties in his [or her] normal manner without permission, on the date or dates when a strike occurs, shall be presumed to have engaged in such strike on such date or dates.”*

This, however, is a "rebuttable presumption" and the employee has the burden of proof to demonstrate that he or she was not engaged in the strike notwithstanding his or her absence.

Daniel Ahern and his eight co-petitioners [Ahern] served as teaching assistants with the Syracuse City School District. They were absent from work on a day on which a strike against the district occurred. The Ahern petitioners contended that their respective absences was due to personal illness.

The teaching assistants were subsequently were notified by the District's Superintendent, Stephen C. Jones, of his determination that they had violated Civil Service Law Section 210(1) in that they were absent on the day a strike occurred and therefore were presumed to have participated in the strike.

An employee may appeal the appointing authority's initial determination that he or she had engaged in a strike by filing a sworn affidavit, supported by available documentary proof, containing a short and plain statement of the facts upon which the individual relies to show that such determination was incorrect. Superintendent Jones denied the appeals that Ahern and the other teaching assistants had filed challenging his initial decision and they sued.

The Appellate Division, Fourth Department, unanimously confirmed the Superintendent's determination. The court said that Jones had found that Ahern and the others "had raised questions of fact and appointed a Hearing Officer to conduct a hearing." Following the hearing, the Superintendent "accepted" the Hearing Officer's findings and recommendations and imposed the statutory penalty of a two-day loss of pay for each day of absence.

The decision notes that “At the hearing, [Ahern] had the burden to overcome the presumption that an illegal strike had occurred and the presumption that [he] engaged in the strike. The Hearing Officer determined, based upon the credibility of the witnesses at the hearing, that [Ahern] failed to prove by a preponderance of the evidence that [he] did not violate the statute.”

Finding that the determination that Ahern engaged in a strike in violation of Civil Service Law Section 210(1) was supported by substantial evidence, the Appellate Division dismissed Ahern's appeal.

* §210.1 of the Civil Service Law provides that “No public employee or employee organization shall engage in a strike, and no public employee or employee organization shall cause, instigate, encourage, or condone a strike.”