Failing to investigate without more is not an adverse employment action

Failing to investigate without more is not an adverse employment action
Source: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/
Reproduced with permission. Copyright © 2010, Mitchell H. Rubinstein, Esq., Adjunct Professor of Law, St. Johns Law School and New York Law School, All rights reserved.

Fincher v. Depository Trust & Clearing Corp., ____F.3d____ (2d Cir. May 14, 2010), is an important case, here. In this Title VII case, the 2d held that employer’s failure to investigate a complaint of alleged employment discrimination is not an adverse employment action taken in retaliation for the filing of the complaint. As the court states:

“We are of the view nonetheless that, at least in a run-of-the-mine case such as this one, an employer's failure to investigate a complaint of discrimination cannot be considered an adverse employment action taken in retaliation for the filing of the same discriminationcomplaint.

“We thus adopt the position previously taken by several district courts in this Circuit. See, e.g., Thomlison v. Sharp Elecs. Corp., No. 99 Civ. 9539, 2000 WL 1909774, at *4,2000 U.S. Dist. LEXIS 18979, at *12-13 (S.D.N.Y. Dec. 18, 2000). "Affirmative efforts to punish a complaining employee are at the heart of any retaliation claim." Id., 2000 WL1909774, at *4, 2000 U.S. Dist. LEXIS 18979, at *12.

“An employee whose complaint is not investigated cannot be said to have thereby suffered a punishment for bringing that same complaint: Her situation in the wake of her having made the complaint is the same as it would have been had she not brought the complaint or had the complaint been investigated but denied for good reason or for none at all. Put another way, an employee's knowledge that her employer has declined to investigate her complaint will not ordinarily constitute a threat of further harm, recognizing, of course, that it would hardly provide a positive incentive to lodge such a further challenge.

”We do not mean to suggest that failure to investigate a complaint cannot ever be considered an adverse employment action….”

Mitchell H. Rubinstein

The text of the decision is posted on the Internet at:
http://www.ca2.uscourts.gov/decisions/isysquery/ac0eefa7-991f-4892-bce6-6153b07bd531/1/doc/08-5013-cv_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/ac0eefa7-991f-4892-bce6-6153b07bd531/1/hilite/

Claiming unemployment insurance benefits during the school's summer recess

Claiming unemployment insurance benefits during the school's summer recess
Huff v Sweeney, 222 A.D.2d 919

Teacher’s aides who are provided with a reasonable assurance of reemployment following a summer recess are ineligible for unemployment insurance benefits during the recess period.

Dennis Huff, challenged a denial of such benefits by the Unemployment Insurance Appeals Board. Huff, a teacher’s aide employed by the Buffalo City School District, was told that his employment would temporarily come to an end at the end of the school year and that his employment would resume in September.

Huff applied for unemployment insurance but his application was rejected on the grounds that “he had been given reasonable assurance that he would be rehired on the same terms in the fall.” The Appellate Division affirmed the Unemployment Insurance Appeals Board’s decision disqualifying Huff for benefits.

County department’s refusal to implement County's grievance committee’s determination held contrary to the CBA's grievance

County department’s refusal to implement County's grievance committee’s determination held contrary to the CBA's grievance procedure
Vaillancourt v Putnam County, 250 A.D.2d 617

Grievance procedures typically provide for a series of steps ultimately leading to arbitration. Pre-arbitration determinations are made by the employer’s designated representative, which may be a hearing officer or a panel.

Typically the appointing authority accepts and implements the findings of its designated representative. But what happens if the employee’s grievance is sustained by the employer’s designated representative, but employer refuses to implement it? This somewhat unusual circumstance is examined in the Vaillancourt case.

Patricia Vaillancourt filed a grievance after her employer, Putnam County, refused to grant her a lateral transfer from the County Department of Mental Hygiene to the County Department of Social Services.

The County Grievance Committee ruled in her favor at Step III of a five-step grievance procedure. But the Commissioner of the Department of Social Services refused to implement the Committee’s decision. When the County Executive refused to take action implementing the decision, Vaillancourt’s union sued.

Initially, the union lost. A State Supreme Court justice dismissed the union’s petition, observing that the union never took advantage of the fifth step of the grievance procedure -- proceeding to arbitration. The Supreme Court found that this constituted a failure to exhaust the available “administrative remedy.”

On appeal the Appellate Division reversed the lower court’s ruling. It said that the collective bargaining agreement provided for a “Step 4” appeal to the County Executive in the event the Grievance Committee dismissed the grievance. In contrast, the Court noted, “the agreement did not afford the County the same right in the event that the Committee sustained [Vaillancourt’s] grievance.”

Since the Grievance Committee sustained Vaillancourt’s grievance, the court concluded that this had been the final resolution of the grievance. The Appellate Division therefore held that Vaillancourt was entitled to have the decision in her favor enforced and that there was no need to go to arbitration.

There was a different outcome in a grievance case with similar procedural facts [Weed v Orange County, 209 A.D.2d 627; 209 A.D.2d 628].

Weed had been injured on the job and applied for leave with full pay, claiming he was eligible for such leave under the terms of the collective bargaining agreement then in effect. The Orange County Commissioner of Personnel disapproved Weed’s request. Weed filed a contract grievance and won at Step I, when his supervisor ruled in his favor. The Commissioner refused to implement the Step I decision and Weed sued.

The Appellate Division dismissed Weed’s petition, citing the language of the contract. Under the terms of the agreement “the Commissioner of Personnel is given sole discretion in granting paid leave.” Therefore, the issue was not grievable in the first place.

Presumably the Court would have enforced the decision by Weed’s immediate supervisor had the contract not reserved the authority to make paid leave decisions exclusively in the Commissioner.

Appointing an individual to serve as an election commissioner

Appointing an individual to serve as an election commissioner
Wood v County of Cortland, 72 AD3d 1447

County Legislature has the authority to appoint an Election Commissioner where the mechanism for making such an appointment set out in Election Law § 3-204 did not result in an appointment.

Freedom of information requests related to disciplinary actions

Freedom of information requests related to disciplinary actions
Western Suffolk BOCES v Bay Shore UFSD, 250 A.D.2d 772

After the Bay Shore Union Free School District refused to honor Western Suffolk BOCES’ Freedom of Information [Section 87, Public Officers Law] request for the employment history of a teacher, BOCES won an order in State Supreme Court directing the District to provide it with certain documents, including some, but not all, material demanded by BOCES. Apparently some of the material demanded concerned disciplinary matters while other papers dealt with a “stipulation of settlement.”

The district, the teacher and BOCES all appealed. Although the district subsequently withdrew its appeal, the teacher continued his objection to the release of the material in the “sealed record” while BOCES pressed for those documents in the “sealed record on appeal” that the Supreme Court declined to have the district provide.

The Appellate Division modified the lower court’s order. It said that BOCES could not have certain pages in the “sealed record” that the lower court had ordered released and with respect to some other pages, the names of parents and students had to be redacted [obliterated] from the documents before BOCES could have them.

Specifically, the Appellate Division said that the lower court should not have directed the release of pages in the “sealed record” which recite or refer to unproven disciplinary charges. In contrast, the Appellate Division said that while BOCES was entitled to a copy of the “stipulation of settlement,” the names of the students and their parents mentioned in the stipulation should not be disclosed to BOCES.

Stipends that are not found to be “regular salary” or “summer session salary” excluded in determining educator’s final average salary

Stipends that are not found to be “regular salary” or “summer session salary” excluded in determining educator’s final average salary
O'Brien v New York State Teachers' Retirement System, 2010 NY Slip Op 51398(U), Decided on August 4, 2010, Supreme Court, Albany County, Judge Henry F. Zwack [Not selected for publication in the Official Reports]

Typically a schoolteacher has a 10-month professional obligation and school districts generally permit the educator to elect to receive his or her annual compensation over ten months in 21 periods or over twelve months in 26 payroll periods. In the event the educator elects to receive his or her annual salary in 26 payroll periods, the school district usually commences the 26 biweekly payroll mode for a person having a ten-month professional obligation [typically September 1 to the June 30 next following] in September. The individual actually would be underpaid for the period September through the following June 30 and payments received during July and August would constitute payment for past services already performed.*

In this CPLR Article 78 proceeding New York State Teacher's Retirement System [TRS] retiree Florence O’Brien contended that TRS improperly calculated her final average salary. She claimed that that TRS should have included the payments she had received in the 2006-07, 2007-08 and 2008-09 school years -- $4,000.00, $5,000.00 and $6,000.00 respectively --pursuant to the terms of a collective bargaining agreement.

The collective bargaining agreement provided for these stipends under what was called a "24-12" plan and O’Brien claimed that the stipends were for her work developing and teaching summer school programs.

TRS disagreed, arguing that "24-12" plan allows a teacher to receive his or her salary in 24 payments over 12 months, as opposed to only over the course of the academic year. In contrast, the collective bargaining agreement, said TRS, required participating teachers to "complete a total of 8 hours of work during each July and August." Accordingly, the System decided that such stipend payments “are not properly considered regular salary.”

TRS also noted that O’Brien’s work during the three relevant summers was not reported pursuant to the summer school salary schedule.**

Observing that “It is well established that when a court is reviewing an administrative determination, it ‘may not substitute its judgment for that of the agency making the determination but must determine whether the agency's decision has a rational basis and is not arbitrary and capricious,’” Judge Zwack ruled that the System’s determination that the stipends paid to O'Brien under the 24-12 plan was non-regular compensation was neither arbitrary nor capricious.

Significantly, the court noted that:

1. The stipend was in addition to base salary;

2. The payments under the 24-12 plan were not based on performance of teaching service and were fixed based upon a teacher's length of service;

3. The main purpose of the 24-12 plan appears to be to offer teachers an option to receive salary over the entire calendar year; and

4. That there was a separate arrangement for summer school teaching and compensation.

5. Accordingly, Judge Zwack sustained the Retirement System’s determination.

* If, on the other had, the district commenced its payroll for such personnel in July, such employees would be receiving payments during July and August for work yet to be performed during the following academic year, i.e., the following September-June school year period. In Guilderland CSD v Trombetta [Not selected for publication in the Official Reports] the court said that "Where a school district employee is paid more than the per diem value of his or her annual salary, and thereafter fails to complete the temporal period of work he or she is obligated to perform, there must be a per diem adjustment of salary paid, so as to equate salary paid with work performed, and a return to the school district of any overpayment computed on such basis."

** TRS conceded that “summer school compensation constitutes regular salary,” but concluded that the stipend payments claimed by O’Brien for the purposes of determining her “final average salary” were payments separate and distinct from summer school compensation.

The text of the decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_51398.htm
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Amending local civil service commission rules

Amending local civil service commission rules
Formal Opinion of the Attorney General, 98-F3

The New York City Council “jurisdictionally reclassified” a number of city positions without first holding a public hearing concerning the change. New York City’s Director of Personnel advised the State Civil Service Commission that under the circumstances he believed that the State Commission had “no authority to disapprove the proposed changes and should simply note them in its records.”

The State Commission asked the Attorney General for his views concerning the State Commission’s authority under the circumstances. The Attorney General began his analysis by noting that in such matters the courts “have required strict compliance with Section 20.2,” citing Joyce v Ortiz, 108 AD2d 158.

Section 20 of the Civil Service Law sets out the procedures to be followed by a local civil service commission or personnel officer wishing to amend its “personnel rules.” It provides that such rules may be amended only after a public hearing and requires the approval of the State Civil Service Commission. Finally, to have the “force and effect of law,” the amendment must be filed with the Secretary of State to complete the process. Such rules, including the Rules promulgated by the State Commission itself, also provide for the enumeration of positions placed in the exempt, noncompetitive or labor classes by the local commission. All positions in the classified service are automatically in the competitive class unless placed in a different jurisdictional classification by the State Legislature or the State Civil Service Commission.

The key to resolving the issue turned on whether a municipal legislative body was to be equated to the State Legislature for the purposes of Section 20.2, because that Section provides an exception for the Legislature. Section 20.2 specifically indicates that no public hearing is required upon the adoption or modification of a rule required “by reason of a change in any statute in order to confirm the rule to the statute.”

The Attorney General concluded that exception set out in Section 20.2 for conforming to a change in the law “is best given effect by reading ‘statute’ as a reference to a State law, rather than a local enactment.” Accordingly, he advised the State Commission that a political subdivision of the state must comply with the notice, hearing and approval procedures set out in Section 20 if it wishes to amend its personnel rules, including adopting amendments establishing new titles in other than the competitive class and jurisdictionally reclassifying existing positions.

A disciplinary hearing determination cannot be annulled by the court if the record supports the determination

A disciplinary hearing determination cannot be annulled by the court if the record supports the determination
Marden v Town of Bedford, 249 A.D.2d 547

The Town of Bedford Supervisor asked the Town’s Chief of Police, David M. Marden, to provide him with a copy of a report concerning alleged police misconduct. When the chief failed to comply with the directive, a number disciplinary charges were served on him. Among these were charges that alleged that Marden failed to comply with a lawful order to provide the report on five occasions: February 12, 16, 23, 27 and 28. Found guilty of misconduct, Marden was dismissed from his position.

Marden appealed. The Appellate Division said that Marden could not be guilty of insubordination on February 12 and 16, because the report in question had not been completed until February 21. Accordingly, the finding of guilt concerning charges involving these dates were not supported by substantial evidence.

The Appellate Division sustained the findings of misconduct with respect to Marden’s refusal to comply with the Supervisor’s directives on February 23, 27 and 28.

The court said an administrative determination made after a hearing cannot be annulled unless it is shown that there is no substantial evidence in the record to support the determination. Here it was found that the hearing record supported the determination that Marden “willfully refused to comply with a proper directive to turn over the investigative report....”

As to the penalty imposed, dismissal, the Appellate Division held that the penalty satisfied the Pell standard [Pell v Board of Education, 34 NY2 222] as Marden’s dismissal was not so disproportionate to the offense as to be shocking to one’s sense of fairness.

Public employees personal E-mails exempt from disclosure from FOIL

Public employees personal E-mails exempt from disclosure from FOIL
Source: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/
Reproduced with permission. Copyright © 2010, Mitchell H. Rubinstein, Esq., Adjunct Professor of Law, St. Johns Law School and New York Law School, All rights reserved.

The Wisconsin Supreme Court held in Schill v. Wisconsin Rapids School District, 2010 WI 86 (July 16, 2010), that purely personal e-mails of public employees sent from workplace computers and e-mail accounts are protected from disclosure to a third party under the state Public Records Law. While the justices differed in whether such emails are even public records, a majority of the court determined that a public records custodian “should not release contents of emails that are purely personal and evince no violation of law or policy.”

This is a significant decision. Few businesses could operate today without the use of email. It is also likely that employees will sometimes use an employer's email system for personal use. Whether an email is “purely personal” will be based on a case-by-case determination, as the court makes clear that the contents of apparently personal e-mails could require disclosure if the email has some connection to a government function.

The decision involves only disclosure of personal email to third parties under the Public Records Law. The case does not involve the right of government employers to monitor, review or have access to the personal emails of public employees using the government email system.

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

The Court’s complete opinion can be found at:
http://www.wicourts.gov/sc/opinion/DisplayDocument.pdf?content=pdf&seqNo=52285
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Confidentiality of police records

Confidentiality of police records
Baez v City of New York, NYS Supreme Court, [Not selected for publication in the Official Reports]

A number of law enforcement agencies have procedures similar to those of the New York City Police Department Patrol Guide Section 118-9, which compels an officer to participate in an interview process coupled with the promise that the statement provided by the officer will not be used against him or her in any criminal proceeding. Characterized as GO-15 or IAD interviews, these NYPD statements are typically comprehensive and provide a substitute for a deposition.

In the Baez case New York State Supreme Court Justice McKeon set out the guidelines usually followed with respect to the release of such statements to the press and, or, to the public.

Justice McKeon said that the release of such records is governed by three statutes: Public Officers Law Section 87 (Freedom of Information Law or FOIL); Civil Rights Law Section 50-a (Right of Privacy for personnel records of police officers and others); and CPLR Section 3101 (Scope of Disclosure).

As to FOIL, Justice McKeon held that Section 87 allows access by any member of the public to governmental agency records, unless they are specifically exempted from disclosure by statute or constitute inter-agency or intra-agency materials, which are not inter alia final agency policy or determinations. He concluded that these types of records fall within that exemption from disclosure to the public under FOIL as predecisional interagency materials.

Civil Rights Law Section 50-a, said Justice McKeon, declares personnel records of police officers to be confidential material, not subject to disclosure without the express written consent of the officer or as mandated by lawful court order. It was noted, however, that the use of such records by a governmental entity, such as releasing summary of internal investigation of instances of police misconduct, is not precluded by Section 50-a because that use is unrelated to the purpose of the statute.

Justice McKeon next considered CPLR Section 3101, the discovery statute. This section, it was noted, provides that “[u]pon objection by a person entitled to assert the privilege, privileged matter shall not be obtainable.” The Court concluded that based on the protections provided by these statutes, “GO-15 statements and IAD records are considered confidential per statute unless they are released through consent or by lawful court order.” Justice McKeon also observed that “confidential” in Civil Rights Law Section 50-a is analogous to “privileged” within the meaning of CPLR Section 3101.

Justice McKeon also ruled that such statements are exempted from disclosure to the general public under the Freedom of Information Law, Public Officers’ Law Section 87.

The full opinion is available at:
http://nypublicpersonnellawarchives.blogspot.com/