Compilation of adjudicated New York State IDEA impartial hearing decisions published

Compilation of adjudicated New York State IDEA impartial hearing decisions published

Professor Perry Zirkel, University Professor of Education and Law, Lehigh University, has published an annotated list of rulings involving Individuals with Disabilities Education Act (IDEA) and §504 of the Americans with Disabilities Act (ADA) handed down by 2nd Circuit United States Court of Appeals and New York State courts.

Professor Zirkel notes that with the exception of the District of Columbia, New York State is the leading jurisdiction in terms of adjudicated impartial hearings under IDEA.

The case entries are organized in approximate chronological order within common special education categories under IDEA, starting with eligibility, free appropriate public education (FAPE) and least restrictive environment (LRE), and ending with decisions under Section 504. Included are chapters addressing appropriate education, mainstreaming, discipline issues and attorney’s fees.

The compilation is posted on the Internet at http://www.p12.nysed.gov/specialed/dueprocess/NYand2dCirCaseLaw-PZ.pdf and may be downloaded without charge. 

Policy and Guidelines Prohibiting Discrimination and Harassment of Students

Policy and Guidelines Prohibiting Discrimination and Harassment of Students

On September 14, 2012 the Commissioner of Education issued an Emergency Rule entitled “Policy and Guidelines Prohibiting Discrimination and Harassment of Students” [I.D. No. EDU-07-12-00011-E] which took effect September 15, 2012.

The Rule was published in the October 3, 2012 issue of the New York State Register.

For a copy of this Emergency Rule sent via return e-mail, e-mail your request to publications@nycap.rr.comand type “Emergency Rule” in the subject line.

Collective bargaining agreement provided for layoffs of school instructors within separate categories of school instructors rather than within tenure areas

Collective bargaining agreement provided for layoffs of school instructors within separate categories of school instructors rather than within tenure areas

In this Article 78 action an individual laid off when his position was abolished by the school district contended that based on the duties he performed as a "school instructor/transition counselor", he was entitled to seniority rights within the "special subject tenure area" (tenure area) of school social worker. Accordingly, he argued, he was not the person with the least seniority within the school social worker tenure area at the time his position was abolished. Citing 8 NYCRR 30-1.8 [b] [9], he contended that the school district violated Education Law §2585(3) in terminating his employment as a result of its abolishing his position.

When Supreme Court dismissed his Article 78 petition, the individual appealed.

Sustaining Supreme Court’s ruling, the Appellate Division rejected the individual's arguments.

The court ruled that “the collective bargaining agreement (CBA) between the District and the union representing petitioner provided that layoffs of ‘school instructors’ would be affected [sic] within the four separate categories of school instructors identified in the CBA rather than within tenure areas; that separate seniority lists for purposes of layoffs are maintained for school instructors; and that, ‘[i]n the event that positions are abolished, school instructors shall not have rights to displace teachers in regular school programs having less seniority, nor shall teachers have rights to displace school instructors having less seniority.’"*

The Appellate Division ruled that “by accepting employment as a school instructor and entering into the CBA as a result of his membership in the union, the individual had waived any right to be credited for seniority in the tenure area of school social worker, [Antinore v State of New York, 49 AD2d 6].”

* In the event a board of education abolishes a position, the services of the tenured teacher having the least seniority in the school district or BOCES “within the tenure area of the position abolished shall be discontinued.” In City of Plattsburgh v Local 788, 108 AD2d 1045, the Appellate Division held that this element – seniority – for the purposes of layoff can neither be diminished nor impaired by the terms of a collective bargaining agreement.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_06412.htm

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The Layoff, Preferred List and Reinstatement Manual - a 645 page e-book reviewing the relevant laws, rules and regulations, and selected court and administrative decisions is available from the Public Employment Law Press. Click on http://nylayoff.blogspot.com/ for additional information about this electronic reference manual.

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School district may be held liable for the negligent hiring and retention of its employees

School district may be held liable for the negligent hiring and retention of its employees

In an action alleging that a school employee sexually abused a student, Supreme Court denied the school’s and the school district’s motions for summary judgment dismissing the complaint.

The Appellate Division affirmed the lower court’s ruling, explaining that::

1. The school and the school district failed to make a prima facie showing that they were not negligent with respect to the hiring and retention of the school district employee who allegedly sexually abused the student; and

2. The school and the school district failed “to establish, prima facie, that they discharged their duty to provide adequate supervision of the infant plaintiff.”

The Appellate Division noted that although “an employer cannot be held vicariously liable ‘for torts committed by an employee who is acting solely for personal motives unrelated to the furtherance of the employer's business,’ the employer may be held liable for the negligent hiring and retention of the employee.”

Further, said the court, “a school district has a duty to exercise the same degree of care toward its students as would a reasonably prudent parent, and will be held liable for foreseeable injuries proximately related to the absence of adequate supervision,” citing Mirand v City of New York, 84 NY2d 44

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_06289.htm

Proving disciplinary charges

Proving disciplinary charges

An employee was found guilty of some of the thirty specifications of misconduct and incompetence filed against her. The hearing officer found the employee guilty of seventeen of these thirty specifications and recommended that she be dismissed from her position.

Specifications of misconduct and incompetence filed against the employee included allegations of excessive lateness, failure to properly carry out assigned duties, and actions in contradiction of established employer procedure. The hearing officer's findings and recommendations were adopted by the appointing authority and the individual was dismissed from her position. In sustaining the determination, the Appellate Division, Third Department noted that: the findings of a Hearing Examiner will be confirmed if they are supported by substantial evidence in the record even where conflicting evidence may have supported a different determination.

What constitutes "substantial evidence" is the significant issue in such cases. The decision illustrates some of the factors that courts weigh in determining whether there is substantial evidence to support the findings of the hearing officer.

The hearing officer found the employee guilty of seven of the 12 specifications concerning her alleged failure to perform assigned clerical tasks properly. The court, however, concluded that "only six of the seven specifications should be confirmed based upon the testimony proffered by petitioner's supervisor." Why? Because, explained the court, testimony that employee had typed the incorrect labels because the witness recognized the font from the individual’s typewriter was insufficient as there was testimony establishing that there were several typewriters in that office using that particular font. As the witness could not testify that she witnessed the employee preparing these folders and the employee denied that the error was hers, the court said it could not conclude that there was sufficient evidence to support this allegation.

The hearing officer also found the employee guilty of six of thirteen specifications alleging that she improperly performing her duties by exceeding her authority or violating the employer’s policy. In this instance the court held that the record supported the hearing officer's findings, noting that the employee was advised of these problems in her performance in various performance evaluation, together with the need for her to improve in these areas.

With respect to disciplinary specifications focusing on the employee's use of the workplace to conduct personal business and engage in lengthy personal telephone calls, the Appellate Division ruled that the testimony of her superiors, confirmed by a co-worker, was sufficient to prove the allegations.

The court also said that it did not find any error in the hearing officer finding the employee guilty of 36 of the 48 allegations that she had arrived late for work on specified dates. These allegations, said the court, were supported either by the employee's time sheets or by testimony from her superior or co-workers.

The Appellate Division remanded the matter to the employer for its consideration of the appropriate penalty to be imposed in view of its finding the employee not guilty of certain charges and specifications. The court also said that it noted that the employee had been given numerous oral admonitions and counseling memoranda warning her of "further disciplinary action," but held that such actions did not constitute "punishment" such that the present disciplinary proceeding could be deemed duplicative.

The decision is posted on the Internet at:

http://weblinks.westlaw.com/result/default.aspx?cfid=1&cnt=DOC&db=NY-ORCS-WEB&eq=search&fmqv=c&fn=_top&method=TNC&mt=Westlaw&n=2&origin=Search&query=%22FERGUSON+V+TRAFICANTI%2C%22&rlt=CLID_QRYRLT6335626910110&rltdb=CLID_DB219026910110&rlti=1&rp=%2Fsearch%2Fdefault.wl&rs=NYOFF1.0&service=Search&sp=NYOFF-1000&srch=TRUE&ss=CNT&sskey=CLID_SSSA889026910110&sv=Split&tempinfo=word&vr=2.0

Suspension without pay for 270 days disciplinary penalty

Suspension without pay for 270 days disciplinary penalty

Is suspending a employee found guilty of a number of charges of misconduct without pay for 270 days lawful? After all, the Section 75 of the Civil Service Law limits such a suspension without pay for a period not to exceed two months.

The Appellate Division, Second Department, said it was appropriate under the circum­stances and sustained a 270-day suspension without pay disciplinary penalty imposed by the appointing authority on an individual after he was found guilty of:

1. Two counts of engaging in conduct unbecoming an officer,

2. One count of using employer’s equipment other than in the course of official business,

3. Four counts of engaging in unlawful conduct,

4. Two counts of failing to treat as confidential the official business of the employer, and

5. One count of making or submitting, or causing to be submitted, a false official communication, record, or statement.

The Appellate Division said that the officer's guilt with respect to these charges was supported by substantial evidence in the record.

As to the nature of the penalty imposed, the court said that the Police Department's determination regarding appropriate internal discipline to be imposed is entitled to great deference and, "under the circumstances of this case, will not be disturbed."

Although 75 of the Civil Service Law limits the suspension without pay for a period of not to exceed two months, the Appellate Division, citing Coscette v Town of Wallkill, 281 AD2 479, ruled that the penalty of suspension without pay for 270 days was permis­sible pursuant to Civil Service Law 76(4) and Nassau County Administrative Code 8-13.0.

Section 75 provides, as alternative disciplinary penalties, suspension without pay for not to exceed two months, punishment consisting of either a reprimand; or a fine not to exceed $120; or demotion in grade and title; or dismissal. In contrast, an arbitrator setting a disciplinary penalty pursuant to a contract disciplinary procedure is usually authorized to impose an "appropriate penalty" and is not limited to those prescribed in a statute such as Section 75 of the Civil Service Law.

The decisions are posted on the Internet at:

http://weblinks.westlaw.com/result/default.aspx?cfid=1&cnt=DOC&db=NY-ORCS-WEB&eq=search&fmqv=c&fn=_top&method=TNC&n=2&origin=Search&query=%22296+AD2D+575%22&rlt=CLID_QRYRLT4874037579110&rltdb=CLID_DB6435037579110&rlti=1&rp=%2Fsearch%2Fdefault.wl&rs=NYOFF1.0&service=Search&sp=NYOFF-1000&srch=TRUE&ss=CNT&sskey=CLID_SSSA7236537579110&tempinfo=word&vr=2.0

http://weblinks.westlaw.com/result/default.aspx?cfid=1&cnt=DOC&db=NY-ORCS-WEB&eq=search&fmqv=c&fn=_top&method=TNC&mt=Westlaw&n=5&origin=Search&query=%22302+AD2D+600%22&rlt=CLID_QRYRLT2327351539110&rltdb=CLID_DB7388350539110&rlti=1&rp=%2Fsearch%2Fdefault.wl&rs=NYOFF1.0&service=Search&sp=NYOFF-1000&srch=TRUE&ss=CNT&sskey=CLID_SSSA4989950539110&sv=Split&tempinfo=word&vr=2.0

[Leave to appeal denied, 3 N.Y.3d 611]

Determining seniority for the purposes of layoff

Determining seniority for the purposes of layoff
Decisions of the Commissioner of Education, Decision 16,411

As a result of “budgetary constraints," the school board voted to abolish four positions in the elementary tenure area. 

One of the teachers laid off challenged the board determination, contending district improperly excluded two sixth grade teachers from the elementary tenure area seniority list and that those teachers were the least senior in that tenure area. Claiming she had greater seniority in the elementary tenure area, the teacher appealed the school board action to the commissioner of education.*

One the factors that provided critical to the teacher's claim of having greater seniority than the two sixth grade teachers cited by her was that she had been granted an unpaid 23-day leave for maternity during her probationary period.

The Commissioner, noting that Education Law §3013(2) provides that when a board of education abolishes a position, “the services of the teacher having the least seniority in the system within the tenure of the position abolished shall be discontinued” and that Section 30-1.1(f) of the Rules of the Board of Regents defines seniority as follows: “Seniority means length of service in a designated tenure area ...,”  said that the principal issue in this appeal is whether teacher was one of the four least senior teachers in the elementary tenure area. 

With respect to the two teachers the board had “excluded” from the elementary tenure area, the Commissioner found that both were serving in the elementary tenure area and thus both should have been included on the seniority list for that tenure area. 

This ruling, however, did not change the result insofar as the teacher’s appeal was concerned.

The Commissioner pointed out that the record demonstrated that the teacher was still the least senior teacher in the elementary tenure area as a result of her 23 days of unpaid leave taken during her probationary period, noting that “It is well settled that days spent on unpaid leave of absence may not be included in determining seniority.”**

With respect to such absence, one of the arguments advanced by the teacher in support of her appeal was that because she had taken the unpaid leave pursuant to the Family Medical Leave Act [FMLA], her absence must still be included in calculating her seniority.

The Commissioner disagreed, noting that the FMLA specifically provides that an employee “may, but is not entitled to, accrue any additional benefits or seniority during unpaid FMLA leave.”*** The Commissioner quoted from the U.S. Department of Labor's FMLA guidelines wherein it states “The FMLA does not entitle an employee to the accrual of any seniority (or employment benefits) during any period of FMLA leave [.]” 

Finding that the teacher “served 23 days less” than one of the sixth grade teachers and “at least three days less” than the other sixth grade teacher, the Commissioner concluded that the teacher “was the least senior teacher in the elementary tenure area and [thus] was properly excessed.”

* The Commissioner’s decision notes that the superintendent notified the teacher of “an opening in an elementary teaching position” but the teacher had declined reappointment to the position offered.

** With respect to employees in the classified service of the State and public authorities, public benefit corporations and other agencies for which the Civil Service Law is administered by the State Department of Civil Service, 4 NYCRR 4.5(g) grants the appointing authority discretion to excuse certain absences during the individual’s probationary period. However, the minimum and maximum periods of the probationary term of the employee are to be extended by the number of workdays of his or her absence[s] that are not so excused. Many local civil service commissions have adopted a similar rule.

*** See 29 C.F.R. §825.215(d)(2).

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume52/d16411.html

=========================

The Layoff, Preferred List and Reinstatement Manual - a 645 page e-book reviewing the relevant laws, rules and regulations, and selected court and administrative decisions is available from the Public Employment Law Press. Click On http://nylayoff.blogspot.com/ for additional information about this electronic reference manual.

=========================

The New York State Teachers’ Retirement System has a duty to correct errors in the computation of retirement allowances

The New York State Teachers’ Retirement System has a duty to correct errors in the computation of a member's retirement allowance

During the three years immediately prior to retirement, a teacher* participated in the school district’s "Senior Teacher Program,” a three-year program available upon request on a one-time basis to teachers with at least 15 years of employment with the school district. A participating teacher received a stipend of $12,000 per year in addition to his or her base salary and was required to complete preapproved annual projects. 

In this instance the stipend paid to the "participating teacher" was initially included in the calculation of the teacher’s final average salary for purposes of determining her retirement allowance by the New York State Teachers’ Retirement System [NYSTRS] upon her retirement from the school district.

NYSTRS subsequently determined that the stipend paid to the teacher in connection with her participation in the school district's "Senior Teacher Program" should have been excluded from its calculation of the teacher’s “final average salary” for the purposes of determining her appropriate retirement allowance as it constituted "nonregular compensation." When it sought to recoup the “overpayment” resulting from its  inclusion of the stipend in its initial calculation, the teacher sued.

Supreme Court dismissed the teacher’s petition and the Appellate Division affirmed the lower court’s ruling, noting that the retirement system was obligated to correct errors in its computation of retirement benefits. Further, said the court, the recoupment of funds erroneously paid by the retirement system was proper.

Considering the relevant regulation**provided that "[r]egular salary earned shall exclude termination pay and payments which are not part of the salary base and/or are not paid over a period of years; for example, bonuses and one-time-only increments," NYSTRS had concluded that the stipend paid to the teacher in connection with her participation in the school district's "Senior Teacher Program" did not constitute "regular salary earned" because:

1. The contract between the faculty and the school district specifically provided that the stipend was not to be included as part of a teacher's base salary;

2. The stipend was for work done in addition to and outside the scope of a teacher's regular duties; and

3. Participation in the program was available only once during a teacher's employment with the school district.

The Appellate Division said that it found that NYSTRS’s determination had a rational basis and, accordingly, sustained the administrative decision

* In this instance the teacher was a “Tier II” member of the New York State Teachers’ Retirement System.

** See 21 NYCRR 5003.1[a].

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_06355.htm

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli

Issued during the week of September 24 - 30, 2012 [Click on the caption to access the full report]

DiNapoli Proposes Early Warning System To Identify Local Governments In Fiscal Stress

With a growing number of local governments facing significant fiscal stress, State Comptroller Thomas P. DiNapoli announced plans Monday to implement an early warning monitoring system that would identify municipalities and school districts experiencing signs of budgetary strain so that corrective actions can be taken before a full financial crisis develops.

DiNapoli Invests $2.5 Million From State Pension Fund in Ithaca–Based Printing Company CognitiveTPG

New York State Comptroller Thomas P. DiNapoli announced Tuesday that DeltaPoint Capital Management has acquired a majority stake in Ithaca–based CognitiveTPG, a supplier of point–of–sale transaction and barcode printers. The Common Retirement Fund is an investor in DeltaPoint through the In–State Private Equity Program. Photos are available here.

Empire State Plaza Assigns New Director After Audit Reveals Elevator Safety Lapses

Elevators at the Empire State Plaza went unrepaired for months despite 32 maintenance deficiencies, according to an auditreleased Thursday by State Comptroller Thomas P. DiNapoli. The audit prompted the Office of General Services to assign a new director and deputy director of plaza operations to properly oversee elevator maintenance.

DiNapoli: August Cash Report Shows Continued Economic Uncertainty

Tax receipts through August 2012 were $147 million below projections and $204.3 million below collections for the same period last year, reflecting continued volatile economic conditions, according to the August Cash Report released last Wednesday by State Comptroller Thomas P. DiNapoli.

Comptroller DiNapoli Releases Municipal Audits

New York State Comptroller Thomas P. DiNapoli Tuesday announced his office completed the following audits:

Town of Evans;

Town of Fort Edward; and,

Town of Schodack.

Comptroller DiNapoli Releases School Audit

New York State Comptroller Thomas P. DiNapoli Tuesday announced his office completed the audit of the Ark Community Charter School.

Comptroller DiNapoli Releases Audits

New York State Comptroller Thomas P. DiNapoli last Tuesday announced his office completed the following audits:

Department of Transportation;

New York State Thruway Authority;

Department of Health; Office for the Aging; and,

Office of Parks, Recreation and Historic Preservation.

Trial court may not substitute its judgment for that of the arbitrator when the record supports the arbitrator’s ruling

Trial court may not substitute its judgment for that of the arbitrator when the record supports the arbitrator’s ruling

Supreme Court, New York County, vacated, in part, an arbitrator’s finding that a tenured teacher guilty of disciplinary charges alleging sexual misconduct and dismissed certain specifications, vacated the penalty imposed by the arbitrator -- termination of the teacher's employment, and remanding the proceeding for a new hearing before a new arbitrator to determine if the teacher was guilty of the surviving allegations and for a redetermination of the penalty to be imposed in the event the new arbitrator found the teacher guilty of one or more of the surviving disciplinary charges and specifications.

The Appellate Division(1) reinstated the initial arbitrator’s finding of sexual misconduct and (2) reinstated the penalty imposed by the arbitrator, termination.

The court said that judicial review of the arbitrator’s award in this instance is limited to the grounds set out in CPLR §7511(b)1* as required by §3020-a(5) of the Education Law.

The court explained that where, as here, “the arbitration is compulsory,” the excess of power standard under CPLR §7511(b) includes review of "whether the award is supported by evidence or other basis in reason, as may be appropriate, and appearing in the record." Thus, the "determination must be in accord with due process and supported by adequate evidence, and must also be rational and satisfy the arbitrary and capricious standards of CPLR Article 78."

The Appellate Division said there was adequate evidence to support the arbitrator's conclusion that teacher committed sexual misconduct by performing an "action that could reasonably be interpreted as soliciting a sexual relationship" within the meaning of the relevant provisions in the collective bargaining agreement. By finding to the contrary, the Appellate Division said that Supreme Court “impermissibly substituted its own judgment for that of the arbitrator” by crediting the teacher’s testimony that had been rejected by the arbitrator.

In light of the evidence, the Appellate Division said that the penalty of termination, notwithstanding teacher's “prior lack of disciplinary history,” did not shock its sense of fairness.

* §7511 of the Civil Practice Law and Rules provides for “Vacating or modifying” an arbitration award. With respect to “Grounds for Vacating,” §7511 (b)1 provides for the vacation of an arbitration award in the event the court finds that the rights of the party challenging the award were prejudiced by: 

     (i) corruption, fraud or misconduct in procuring the award; or 

     (ii) partiality of an arbitrator appointed as a neutral, except where the award was by confession; or 

     (iii) an arbitrator, or agency or person making the award exceeded his power or so imperfectly executed it that a final and definite award upon the subject matter submitted was not made; or 

     (iv) failure to follow the procedure of this article, unless the party applying to vacate the award continued with the arbitration with notice of the defect and without objection.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_06255.htm

Not all doctor visits constitute “medical treatment” for the purposes of the FMLA

 Not all doctor visits constitute “medical treatment” for the purposes of the FMLA

Jones v. C & D Technologies, Inc., USCA, 7^th Circuit, Docket No. 11-3400. 

Source: The FMLA Blog - http://federalfmla.typepad.com/fmla_blog/

Copyright © 2012. All rights reserved by Carl C. Bosland, Esq. Reproduced with permission. Mr. Bosland is the author of A Federal Sector Guide to the Family and Medical Leave Act & Related Litigation.

Jones had an approved FMLA-covered serious health condition requiring periodic treatment by his physician.  He asked for and was approved FMLA leave for an afternoon appointment to receive medical treatment by one of his physicians.  Although he was scheduled to work the morning, Jones did not show up to work.  Whether Jones timely called in his morning absence was in dispute.  Instead of working, Jones visited another of his physicians.  During the unscheduled morning visit, Jones ensured that his physician forwarded his medical records for his afternoon medical appointment.  As a result of a short conversation in the lobby, Jones also secured a prescription refill note from his doctor during his impromptu morning visit.  Jones was never examined or evaluated during the morning visit with his doctor.  Because he missed working his morning shift, Jones was terminated pursuant to the Company's attendance policy.

Jones sued alleging that his termination interfered with his FMLA rights.  Specifically, Jones argued that he received FMLA-covered "medical treatment" during his morning doctor visit, as evidenced by the prescription refill note.  The Company argued that Jones' morning visit was not "medical treatment" within the meaning of the FMLA. 

An employee is entitled to FMLA leave if she suffers from a "serious health condition" that renders the employee unable to perform the functions of the employee's position.  29 USC 2612(a)(1)(D).  Under the FMLA, an employee who must be absent from work to receive medical treatment for a serious health condition is considered "unable to perform the functions of the employee's position."  29 CFR 825.123(a)(emphasis added).  The parties do not dispute that Jones had an FMLA-covered serious health condition.  Instead, the case focused on whether Jones' impromptu morning visit with his physician constituted "necessary medical treatment."  

      

After initially noting that the statute does not define "treatment," the Court looked to the DOL regulatory definitions of "treatment" in sections 825.113(c) and 825.115 for guidance on the meaning of "treatment" in 825.123(a).  The Court concluded that 825.115 was not helpful in understanding the meaning of "treatment" in 825.123(a) because, while it refers to "continuing treatment," it fails to address the circumstances where a person actually receives medical treatment that prevents them from performing the functions of their position.  Similarly, while acknowledging the reference to a course of prescription medication as evidence of a "regimen of continuing treatment," the Court ultimately concluded that, while relevant to determining the existence of an FMLA-covered serious health condition, it was not helpful to determine whether an employee actually receives "treatment" that prevents him from performing his job.  According to the Court:

Many chronic conditions require a course of prescription medication, but the FMLA requires something more for an employee to become entitled to leave -- inability to perform her job functions.  A course of prescription medication and an inability to perform a job are not mutually exclusive.

Relying on its previous decision in Darst v. Interstate Brands Corp., 512 F.3d 903, 911-12 (7th Cir. 2008), the Court determined that treatment "includes examinations to determine if a serious health condition exists and evaluation of the condition," but not actions such as calling to make an appointment or scheduling substance-abuse rehabilitation."  Applying that standard, the Court concluded that Jones did not receive treatment preventing him from working that morning by visiting his doctor to ensure his referral to another lab was in order.  The Court also found that merely picking up a prescription refill note did not, under the circumstances, constitute FMLA-protected treatment.  The Court observed:

Although we can envision a scenario where obtaining a prescription note in connection with a physician's examination might constitute treatment, this case does not approach that hypothetical.  Here, Dr. Lubak never evaluated or examined Jones, and Jones even conceded in a deposition that he was never "physically examined" that morning.  Jones arrived at Dr. Lubak's clinic unannounced and appeared only to briefly speak with his physician in the office lobby. The entirety of Jones's interaction with Dr. Lubak consisted of the physician's acquiescence to refill a prescription.  There is simply no evidence that Jones was examined, and therefore treated, that morning.

Mr. Bosland Comments:  The decision of the Seventh Circuit is well reasoned.  To be covered by the FMLA, an absence to receive "medical treatment" under 825.123(a) requires, for the Seventh Circuit, the visit be "necessary" and a physical examination, which the Court equates with "treatment."  Jones' unscheduled, non-emergent morning doctor visit was not medically required.  Moreover, checking to ensure that medical paperwork was forwarded to a second doctor and securing a prescription refill after a brief lobby conversation with his physician, did not impress the Court as rising to the level of an "examination" and, therefore, treatment for purposes of the protections of the FMLA.  It will be interesting to see if other courts following the lead of the Seventh Circuit. 

The decision is posted on the Internet at:

http://www.ca7.uscourts.gov/tmp/LV0CM205.pdf

Suspension without pay during a pending disciplinary action

Suspension without pay during a pending disciplinary action
Elmore v Mills, 299 A.D.2d 545, Motion for leave to appeal denied, 9 N.Y.2d 509

Among the several issues considered by the Appellate Division, Third Department in Elmore case was the suspension of a tenured teacher without pay in the course of a disci­plinary action.

Plainview-Old Bethpage Central School District filed disciplinary charges against the educator pursuant to Section 3020-a of the Education Law. Section 3020-a.2(b) provides that in the event a teacher is suspended during pendency of the hearing, such suspension shall be with pay unless the teacher pleaded guilty to, or was convicted of, one of several enumerated crimes.

However, in this instance the Taylor Law contract between the district and the teacher union, in pertinent part, provided that “A teacher who has been suspended from school pursuant to Section 3020-a of the Educa­tion Law shall receive his/her regular full pay to which he/she would otherwise be enti­tled pursuant to … the Collective Bargaining Agreement [CBA] and all fringe benefits for a period of a maximum of fifteen (15) school months (11/2 years salary).... Thereafter, any suspension may be without pay.”

In December 1998, the District, relying on this provision in the CBA, suspended the teacher without pay, effective January 6, 1999, pending the outcome of the disciplinary hearing. The educator, however, had neither pleaded guilty to, nor was convicted of, any of the several crimes enumerated in Section 3020-a. Was the teacher's suspension without pay by the Dis­trict pursuant to the CBA lawful in view of the provisions of Education Law Section 3020-a.2(b)?

Although the Appellate Division declined to rule on this question, holding that because a final determination in the disciplinary action had been made and thus the issue was "moot," the court did elect to discuss a number of elements concerning the question of suspension without pay in a Section 3020-a proceeding. It said that:

A CBA may allow a school district to suspend its teachers without pay as long as the agreement's terms clearly manifest the parties' intent to do so, citing Board of Education of the City of Rochester v Nyquist, 48 NY2d 97.

The CBA relied upon by the District in this case clearly circumscribes a teacher's right to full pay during a protracted suspension.

The CBA provides for restoration of wages and benefits for any such period of leave without pay if the teacher ultimately is not terminated from employment but here the penalty imposed on Elmore was termination.

Thus, said the court, if the issue of the educator's suspension without pay was properly before it, it would find that this provision in the CBA was valid and that under the circumstances the District was authorized to suspend the teacher without pay as provided by the CBA.

 

Searching an employer’s computer for evidence of employee misconduct

Searching an employer’s computer for evidence of employee misconduct
People v David E. Wilkinson; People v Michael Casey, 2008 NY Slip Op 28192, Onondaga County Ct, Fahey, J. [Not selected for publications in the Official Reports.]

Two employees were each charged with the crimes of Defrauding the Government in violation of Section 195.20 of the Penal Law; and two counts of Official Misconductin violation of section 195.00(1) and 195.00(2) of the Penal Law.

Both individuals asked the court to suppress evidence obtained by District Attorney’s “White Collar Crime Unit” as the result of a search of their computers, contending that they did not consent to the search and that the search warrant issued by the County Court was issued without sufficient probable cause. They also argued that the fruits of the search of their computers must be suppressed because they had an expectation of privacy in their computers; that the investigators from the District Attorneys Office did not have the consent of either of them to search the computers; and that the search warrant obtained after the viewing of the document on the Casey computer was the "fruit of the poisonous tree."

Addressing the issue of “consent,” the Court said that both employees “have demonstrated a legitimate and reasonable expectation of privacy in the computers searched.” Finding that the searches were conducted without such consent and that the seizures of the computers resulted solely from the warrantless search of the computer prior to the issuance of a search warrant, the motions made by both Wilkinson and Casey to suppress the resulting evidence was granted by Justice Fahey.

N.B. It should be remembered that this was a criminal proceeding and the rules of evidence are stringent and controlling in such litigation. Such is not the case in administrative disciplinary actions where the hearing officer or arbitrator is not bound by the formal rules of evidence.

Recent examples of the approval of the use of computer, or computer related, evidence to find an employee guilty of administrative disciplinary charges include:

Leo Gustafson v Town of N. Castle, 45 A.D.3d 766, Appellate Division, Second Department - The employee, an assistant building inspector with the Town of North Castle, was charged and found guilty of falsifying official records with respect to where he was while on duty. The individual was assigned a town vehicle for the purpose of making field inspections in connection with his employment. The vehicle had a global positioning system installed that transmitted information to the town’s computer reporting the vehicle’s location and movements. Based on this information, the Town charged the employee with falsifying town records as to his whereabouts. This, said the Appellate Division, constituted substantial evidence to support the determination that the employee was guilty of falsifying town records.

Ghita v Department of Education of the City of New York, 2008 NY Slip Op 30706(U), Supreme Court, New York County, Docket Number: 0110481/2007 [Not selected for publications in the Official Reports] – the employee challenged an arbitrator’s determination terminating his employment with the New York City Department of Education after finding him guilty of downloading a file of pornographic material from his AOL email account and openly viewed such pornographic material from a school computer. Supreme Court rejected the individual’s claim that the arbitrator exceeded his authority under Education Law §3020-a, and the award terminating petitioner's employment is a violation of public policy and New York State Law.

Perry v Comm. of Labor, App. Div. 3rd Dept., 283 A.D.2d 754 – This unemployment insurance claimant challenged a determination by the Unemployment Insurance Appeals Board denying him benefits after finding that his employment was terminated due to his misconduct. The nature of the individual's alleged misconduct: his misuse of his employer's computer equipment. The employee, a human resource specialist, was terminated after his employer discovered that he used his computer terminal to frequently access pornographic websites during working hours.

In addition,a number of courts have considered the question of an employee's right to privacy in using his or her employer's computer equipment. In Fraser v Nationwide Mutual Insurance Co., USDC, 135 F. Supp. 2d 623, the court held that an employee using his or her employer's computer equipment for personal business does not enjoy any "right to privacy" barring the employer’s reviewing the employee's e-mail that is stored in its computer system. Federal District Court Judge Anita B. Brody decided that an employer may peruse an employee's e-mail files that are stored in the system without violating either federal or Pennsylvania wiretap laws.

As to the issue of the expectation of privacy, the appointing authority may wish to periodically advise its officers and employees that they have no right to privacy with respect to any data retrieved from the employer's computers, servers, video tapes, message tapes or other storage devices, electronic or otherwise.

The full text of the Wilkinson - Casey decision is posted on the Internet at:
http://nypublicpersonnellawarchives.blogspot.com/2008/06/searching-employers-computer-for.html

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli

Issued during the week of September 10 - 16, 2012  [Click on the caption to access the full report]

DiNapoli: Tax Cap Reporting Made Easier

State Comptroller Thomas P. DiNapoli announced that the 2012–13 tax cap reporting form has been enhanced to make it easier for local officials to accurately calculate their tax levy limit.

After analyzing reporting errors from the first year of implementation, DiNapoli’s Division of Local Government and School Accountability developed an improved online property tax cap reporting system to address the most problematic areas encountered by local officials.

DiNapoli: Town Deficit Caused By Inaccurate Budgeting

Due to unreasonable budget estimates, the Town of Poughkeepsie was left with a $1.5 million deficit in its major fund balances at the end of 2010, according to an auditreleased by State Comptroller Thomas P. DiNapoli. The town has also failed to repay more than $3 million in inter–fund loans it made between different tax bases.

Comptroller DiNapoli Releases Municipal Audits

New York State Comptroller Thomas P. DiNapoli announced his office completed the following audits:

Eastchester Fire District;

Owasco Fire Department;

Mohawk Fire District;

Town of Colonie;

Town of Hinsdale;

Town of Peru;

Town of Red House;

Town of Waterford; and,

Village of Ballston Spa.

Comptroller DiNapoli Releases School Audits

New York State Comptroller Thomas P. DiNapoli announced his office completed the audits of:

Achievement Academy Charter School;

Green Island Union Free School District; and,

Madison–Oneida BOCES.

Not providing an employee claiming a disability an accommodation that would obviate performing an essential job requirement did not violate the ADA

Not providing an employee claiming a disability an accommodation that would obviate performing an essential job requirement did not violate the ADA

NYC Fire Department v A.G., OATH Index No. 771/12

The New York City Fire Department sought the termination of an employee, A.G., alleging the individual “had been excessively late or absent from work” in that A.G. had been tardy, or absent from work for more than 700 hours in 2010 and in excess of 700 hours in 2011.

The employee’s defense: The Department was in violation of the Americans with Disability Act because it had not provided her with a reasonable accommodation -- a three-hour flex-time schedule -- of  the various disabling medical conditions she claimed were the cause of her poor attendance record.

Although A.G. contended that she could not be disciplined for her attendance problems, OATH Administrative Law Judge Kara J. Miller held that A.G. failed to prove that her alleged medical conditions caused her attendance problems.

Judge Miller, finding that timely attendance was an essential function of A.G.’s job, ruled that the Department was not required to provide an accommodation that would eliminate its attendance requirements as “a reasonable accommodation can never involve the elimination of an essential function of a job,” citing Shannon v. NYC Transit Authority., 332 F.3d 95.

Sustaining the charges, the ALJ recommended that A.G. be terminated from her position.

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/12_Cases/12-0771.pdf