June 30, 2010

State Comptroller DiNapoli reports that school aid payments have been made

State Comptroller DiNapoli reports that school aid payments are being processed
Source: Office of the State Comptroller

New York State Comptroller Thomas P. DiNapoli reported that school aid to school districts and BOCES totaling nearly $1.6 billion, is being processed. These payments are typically made by June 1, but because of the State’s “cash crunch in March” the Governor delayed these payments until the end of June.

The Governor also delayed the March school aid payments until June 1, which totaled about $2.1 billion.

A list of the State Aid distributed to each BOCES and to each school district is posted on the Internet at:

Appointment of an eligible from an expired eligible list is impossible as a matter of law

Appointment of an eligible from an expired eligible list is impossible as a matter of law
Matter of Farrison, 2010 NY Slip Op 51113(U), Decided on June 24, 2010, Supreme Court, New York County, Judge Hunter [Not selected for publication in the Official Reports]

John D. Farrison filed a petition pursuant to CPLR Article 78 seeking an appointment as a New York City Correction Officer. Farrison contended that the Department of Correction's [DOC] decision not to select him from the eligible list resulting from Correction Officer Examination 2004 for such an appointment to one of three available vacancies was arbitrary, capricious, and contrary to law.

Supreme Court dismissed Farrison’s petition, commenting that the redress he sought would require that he be appointed from the eligible list resulting from Correction Officer Examination No. 4002, a list that had expired prior to his initiation of his Article 78 action.

In view of this, Judge Hunter said Farrison claim that that DOC's decision not to appoint as a Correction Officer was arbitrary, capricious, and contrary to law, is without merit. The court explained that once a civil service eligible list expires, it cannot be revived and an individual whose name appears on an expired eligibility list cannot be appointed to a civil service position on that basis.

As the Court of Appeals said in Cash v Bates, 301 NY 258, appointment to a civil service title from an expired civil service eligible list a "legal impossibility."*

In addition, Judge Hunter cited Hancock v. City of New York, 272 AD2d 80, in which the Appellate Division, held that a "plaintiff, whose name appears on a now-expired civil service list, is no longer entitled to be hired as a correction officer, notwithstanding that he was improperly declared to have been ineligible for the job."

* To provide for a remedy for the "impossiblitity" of appointing an individual from an expired eligible list, Section 243.7 of the Military Law authorizes the establishment of "special eligible lists" to accommodate situations involving an eligible list that expired while a candidate is on ordered military service. It provides that "Any person whose name is on any eligible list ... while in military duty ... is reached for certification during his [or her] military duty ... [his or her name] shall be placed on a special eligible list in the order of his [or her] original standing ... [and such special eligible] list shall be certified before certification shall be made from a subsequent open competitive or promotion eligible list for the same position .... Such names shall remain on such special eligible list for a period of two years after the termination of such military duty...."

The decision is posted on the Internet at:

Is a disciplinary hearing required after a public officer has been convicted of a crime in order to dismiss the individual from his or her position?

Is a disciplinary hearing required after a public officer has been convicted of a crime in order to dismiss the individual from his or her position?
Roberson v Ward, App. Div., First Dept., 278 A.D.2d 180; motion for leave to appeal denied, 96 N.Y.2d 717

When must a public officer,* arrested and convicted of a crime, be given a disciplinary hearing in contrast to being summarily terminated? As the Roberson decision demonstrates, it depends on the nature of the offense.

In Bratton v Foley, 92 NY2d 981, the Court of Appeals held that a police officer is removed from his or her position by operation of law if he or she is convicted of a particular crime falling in the "oath of office" or “the conviction of a felony “ category pursuant to Public Officers Law Section 30.1(e).**

In contrast, said the high court, for other convictions -- i.e., those not constituting a violation of the police officer's oath of office, or in cases where Section 30.1(e) is not cited as authority for the termination, "a public hearing is required...." If the police officer is not given such a hearing, he or she may demand one.

The lesson in the Roberson decision is that in the latter type of situation, the police officer must make a timely demand for the hearing.

In 1989 Cedric T. Roberson, was “automatically terminated” from his position as a New York City police officer upon his misdemeanor conviction of menacing in the third degree. Apparently the department relied on an administrative rule as authority for his "automatic termination" rather than Section 30.1(e) of the Public Officers Law.

Some ten years later he asked the court to annul his dismissal, claiming that he was entitled to a "hearing" before he could be terminated from his position.In response to Roberson's claim that he was entitled to a pretermination hearing as announced in Bratton, the court said that "the proceeding is barred by laches...."***

According to the ruling, "[i]t is no excuse for any subsequent delay in challenging his termination that he believed, as a result of advice from his attorney, who opined that any proceeding he might bring to challenge his termination would be futile unless his menacing conviction was overturned on appeal, which did not occur."

What is a "reasonable delay?" It appears that to be "reasonable," it must be a delay of less than two years. According to the decision, Robinson also attempted to obtain a copy of the "order of termination" pursuant to the Freedom of Information Law subsequent to his termination from the police force. However, said the court, this two-year delay "was also unreasonable."

* Although not all public employees are public officers, all public officers are public employees. A police officer is a public officer.

** However, the public officer is entitled to a so-called Bratton Hearing under certain circumstances. A Bratton Hearing flows from Public Officers Law §30.1(e), which provides that a public officer removed from office following his or her conviction of a felony, or a crime involving a violation of his or her oath of office, other than an elected officer, “may apply for reinstatement to the appointing authority upon reversal or the vacating of such conviction where the conviction is the sole basis for the vacancy. After receipt of such application, the appointing authority shall afford such applicant a hearing to determine whether reinstatement is warranted.”

*** A party is guilty of laches if he or she unreasonably delays taking action to enforce his or her legal right[s].

Conducting an administrative hearing

Conducting an administrative hearing
Flood v NYSERS, App. Div., First Dept., 279 A.D.2d 304

Clearly an individual may not be found guilty of disciplinary charges not alleged in the notice of discipline served on the employee. Similarly, a hearing officer in an administrative hearing may not rely on evidence in the record in making his or her determination if the other party was not permitted to challenge or rebut such evidence.

Theresa Flood, a teacher's assistant, was injured aboard a bus during a field trip in November 1990. The New York State Employee's Retirement System denied her application for accidental disability retirement benefits on the grounds that she had not been "incapacitated ... as the natural and proximate result of an accident sustained in ... service". Flood appealed and the issues were framed by the initial Hearing Officer designated to consider the matter as follows:

1. Was there an accident?

2. Is the applicant permanentlyincapacitated? and

3. If so, is the incapacity a proximate result ofthe accident?

The appeal was eventually considered by a different Hearing Officer. Flood's attorney framed the issue before the new hearing officer as simply whether Flood's disability was "the natural and proximate result of an accident sustained in . . . service".

The new hearing officer agreed, cutting off any questioning on "incapacity" on the grounds that there was no "notice to the applicant on that point." He said "causation" was the sole issue to be resolved.

At the conclusion of the hearing the second hearing officer, after acknowledging that the hearings had been limited to the issue of causation, said that "all three questions (accident, incapacity and causation) were once again at issue." His decision, based on the Retirement System's expert's testimony: Flood had failed to establish a "permanent incapacity." That being the case, he denied her appeal without considering the issue of proximate cause.

The Appellate Division vacated the hearing officer's determination, pointing out that Flood "never had an opportunity to pursue or challenge [NYSERS's] testimonial evidence because the issue at the hearing, as framed in the notice, was limited to the question of causation."

The Appellate Division said that "[i]f the issues are to be expanded to cover accident and incapacity as well, then the interests of fairness dictate that [Flood] should have an opportunity to cross-examine the witness and present her own evidence in that respect."

The matter was returned to the Retirement System for a new hearing.

Demanding negotiations concerning changes in the employer's payroll system

Demanding negotiations concerning changes in the employer's payroll system
CSEA and Nassau County, 31 PERB 3032

Nassau County employees in a negotiating unit represented by the Civil Service Employees Association [CSEA] had been receiving their regular pay in one check and any payment for overtime in a second, supplemental check.

The County unilaterally discontinued its practice of issuing two separate paychecks to employees entitled to overtime when it adopted a new payroll system. The new system allowed it to combine an employee’s regular pay and his or her overtime pay, and other payments due the employee, in a single paycheck. The new payroll system also resulted in other processing and payment schedule changes.

CSEA filed an unfair labor practice charge with PERB contending that the payroll change initiated by Nassau County changed or affected mandatory subjects of negotiations and therefore Nassau was barred from making the change unilaterally.

PERB upheld its ALJ’s dismissal of the charge, ruling that Nassau County did not violate the Taylor Law by unilaterally deciding to include overtime [and other payments] in the employees regular paycheck.

Another issue involved the recording of leave accruals and usage. CSEA claimed that the County had discontinued providing unit members with a report of their time and leave record at the beginning of each year. The employees would then use the report to record their accrual and use of leave credits.

PERB said that this had not changed. Rather, the County had discontinued manually entering time and leave information on time cards for record keeping purposes and maintained that information using its new payroll system program. Employees wishing to check their leave and accrual records could do so by viewing a computer screen or reading a computer print out rather than reviewing a traditional “time card.”

Significantly, PERB said that an employer may maintain a record of attendance of its employees and the maintenance of such a record is not mandatorily negotiable.

Binding arbitration demanded for deciding General Municipal Law Section 207-c claims

Binding arbitration demanded for deciding General Municipal Law Section 207-c claims
Watertown v PERB, 95 N.Y.2d 73

In the course of collective bargaining under the Taylor Law the Watertown Police Benevolent Association [PBA] demanded that the question of a police officer’s eligibility for disability benefits pursuant to General Municipal Law Section 207-c be submitted to arbitration.*

When Watertown declined to negotiate the proposal on the grounds that it was not a mandatory subject of negotiations, PBA filed an unfair practice charge with PERB. PERB decided that “because 207-c benefits are a form of wages, procedures which condition, restrict or potentially deny an employee’s receipt of those benefits are terms and conditions of employment and, therefore, are subject to mandatory bargaining” [30 PERB 3072].

PERB also decided that arbitration was an appropriate means of resolving such disputes, holding that “the method for review of a municipality’s determination of eligibility under 207-c is such a procedure.”

Noting that Watertown conceded that “the establishment of 207-c procedures is subject to mandatory negotiations (because the procedure affect terms and conditions of employment), Justice Donahue rejected Watertown’s argument that “the interjection of arbitration in the 207-c eligibility process ‘simply guts’ the municipality’s right to determine eligibility and that [Civil Practice Law and Rules Article 78] is the exclusive method of review.”**

The Court of Appeals agreed, holding that he procedures for contesting the employer’s determinations made pursuant to General Municipal Law Section 207-c were mandatory subject of bargaining.

* General Municipal Law Section 207-c provides disability benefits for police officers injured in the line of duty, including the continuation of the officer in full pay status and the payment of his or her medical expenses associated with the injury. Section 207-a of the General Municipal Law provides for similar benefits for firefighters injured in the line of duty.

** A challenge to an arbitration award is processed pursuant to Article 75 of the Civil Practive Rules and Law rather than via an Article 78 action.

June 29, 2010

Provisional employee has no right to continued employment as a provisional

Provisional employee has no right to continued employment as a provisional appointee
Singletarly v NYC Dept. of Homeless Services, Supreme Court IA PART 27, Justice Gammerman, [Not selected for publication in the Official Reports]

In the Singletarly case Judge Gammerman sets out the basic rules concerning the rights of a provisional employee to continued employment as a provisional employee. In a nutshell, the court held that provisional appointments cannot, “with one rare exception inapplicable here,* ripen into a permanent appointment” and provisional employees have no civil service status and acquire no vested rights by virtue of their temporary or provisional service.

Singletarly was serving as a permanent Fraud Investigator, a position in the noncompetitive class. The New York City Department of Homeless Service provisionally appointed him to a vacant Associate Fraud Investigator position, a competitive class position, effective February 20, 1998.

On June 8, 1998 the Department reinstated him to his permanent title, Fraud Investigator. Claiming that this change constituted a “demotion,” thus entitling him to notice and a hearing within the meaning of Section 75 of the Civil Service Law, Singletarly sued.

Justice Gammerman dismissed Singletarly petition, noting that as his “appointment was a provisional appointment from the non-competitive class” and as he never took or passed a civil service examination** for any position or title, nor was he on or selected from an eligibility list” ... Singletarly “has no entitlement to any position or to any particular title.”

Describing Singletarly’s status as a provisional employee as that of “an employee at will” Justice Gammerman concluded that Singletarly “could be terminated from any position without good cause.”***

The court also briefly analyzed the status of a provisional employee, commenting that when there is no appropriate eligibility list available for filling a [wholly] vacancy in the competitive class the position may be filled on a provisional basis.

A provisional employee, however, has no expectation of tenure rights, including the right to notice or hearing prior to termination, or being given the reason for his or her termination. Thus, said the court, “a provisional employee may be terminated at any time without charges proffered, a statement of reasons given or a hearing held.”

* The “rare exception” referred to by the Justice Gammerman is probably the one leading to the decision in Roulett v Town of Hempstead Civil Service Commission, 40 AD2d 611. In Roulett the court held that the continued provisional employment of a person eligible for permanent appointment to the position when the individual is qualified for permanent appointment from a nonmandatory eligible list results in that individual being deemed permanent in the position upon the completion of the period of probation otherwise required [Section 64.5, Civil Service Law].

** Section 52 of the Civil Service Law authorizes the State Department of Civil Service to allow noncompetitive and labor class employees in the service of the State to compete in promotion examinations when such examinations are held in conjunction with open competitive examinations for the same title.

*** This, however, may not be entirely accurate with respect to Singletarly insofar as termination from his noncompetitive class position is concerned if he (1) is a veteran who served in time of war or is an exempt volunteer firefighter or (2) satisfies the requirements set out in Section 75.1(c) of the Civil Service Law. Further, a collective bargaining agreement negotiated pursuant to the Taylor Law may give persons not otherwise protected by Section 75 certain pre-termination due process rights.

Judicial review of the disciplinary penalty imposed on an employee by the appointing authority

Judicial review of the disciplinary penalty imposed on an employee by the appointing authority
Matter of Rutkunas v Stout, 8 N.Y.3d 897

Anthony Rutkunas, a senior maintenance mechanic (carpenter) with the Westchester County Department of Parks, was found guilty of disciplinary charges that alleged that he (1) failed to bring wood to a job site; (2) failed to complete certain work, despite being asked to do so and (3) threw a coffee cup and at least two, four-inch nails from a height of “approximately fifteen feet in the direction of other employees who were working below him,” two of which struck an employee in the back and chest.

The Hearing Officer recommended a suspension without pay for a minimum of sixty days but noted that termination would be “equally appropriate.” The appointing authority, Joseph Stout, Commissioner of the Westchester County Department of Parks, Recreation, and Conservation, adopted the finding of the Hearing Officer but chose to terminate Rutkunas from his position rather than suspend him without pay.

Supreme Court ruled that Stout did not abuse his discretion in imposing the sanction of termination, stating “It cannot seriously be argued that the penalty is so disproportionate to the offense as to be shocking to one's sense of fairness.”

The Appellate Division disagreed, ruling that although the determination that the Rutkunas was guilty of misconduct was supported by substantial evidence, but “Under the circumstances, including, but not limited to, [Rutkunas’] lack of a prior disciplinary history, minimal prospects of alternative employment, and the devastating impact the sanction of termination imposes on his ability to support his family, the penalty of dismissal was so disproportionate to the offense committed as to be shocking to one's sense of fairness.”

The Appellate Division remanded the case to the Commissioner, stating that a penalty less severe than termination of Rutkunas employment should be imposed. The Commissioner appealed.

The Court of Appeals reversed the Appellate Division’s ruling, holding that Rutkunas’ petition should be dismissed “in its entirety…”

The decision notes that Rutkunas’ conduct jeopardized the health and safety of his coworkers and of the public patrons of the facility at which he worked. Accordingly, said the Court of Appeals, “we cannot conclude that the penalty of dismissal imposed . . . shocks the judicial conscience as a matter of law,” citing a number of decisions, including Matter of Will v Frontier Central School District Board. of Education. 97 NY2d 690, and Matter of Pell v Board of Education, 34 NY2d 222.

The court observed that: “The Appellate Division has no discretionary authority or interest of justice jurisdiction in this Article 78 proceeding to review the penalty imposed by respondent Commissioner of the Westchester County Department of Parks, Recreation, and Conservation,” citing Matter of Kelly, 96 NY2d at 38.

June 28, 2010

Preexisting condition does not bar receiving GML §207-c if the claimant shows that the job duties were a direct cause of the disability

Preexisting condition does not bar receiving GML §207-c if the claimant shows that the job duties were a direct cause of the disability
D'Accursio v Monroe County, 2010 NY Slip Op 05455, Decided on June 18, 2010, Appellate Division, Fourth Department

Paul D’Accursio, a "Deputy Sheriff Jailor" with the Monroe County Sheriff's Department, filed a petition pursuant to CPLR Article 78 proceeding seeking to annul the denial of his application for General Municipal Law §207-c benefits. His application had been rejected on the ground that D’Accursio did not sustain the injury on which he based his claim in the performance of his job duties.

Supreme Court properly concluded that the determination was arbitrary and capricious and granted the petition.

The Appellate Division agreed, holding that General Municipal Law § 207-c, which provides for the payment of full regular salary or wages to certain law enforcement officers injured in the performance of their duties or taken sick as a result of the performance of their duties so as to necessitate medical or other lawful remedial "does not require that [officers] additionally demonstrate that their disability is related in a substantial degree to their job duties."

Citing White v County of Cortland, 97 NY2d 336, the Appellate Division ruled that “an officer ‘need only prove a direct causal relationship between job duties and the resulting illness or injury."

Further, the court observed that a preexisting condition does not bar recovery under section 207-c if the officer establishes "that the job duties were a direct cause of the disability."

Sustaining Supreme Court’s ruling the Appellate Division said that it concluded that D’Accursio had established "such a direct causal relationship and thus demonstrated his entitlement to benefits under General Municipal Law §207-c."

The decision is posted on the Internet at:

Did I say “and”? I meant “or” – Department of Labor’s Reinterpretation of In Loco Parentis requirements under FMLA

Did I say “and”? I meant “or” – Department of Labor’s Reinterpretation of In Loco Parentis requirements under FMLA
Source: The FMLA Blog - Copyright © 2010. 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.

On June 22, 2010, the US Department of Labor reinterpreted the existing requirements for an in loco parentis relationship for FMLA leave due to the birth, adoption, foster care placement or serious health condition of a son or daughter. The FMLA permits an eligible employee-parent to take FMLA leave to bond with a newborn or newly adopted/foster care placed son/daughter, or to care for a son or daughter with a serious health condition.

Parent includes in loco parentis relationships- meaning situations where there is not a biological or legal relationship between parent and child, but the person assumes the role of the parent toward the child. Under the existing regulation, 29 CFR 825.122(c)(3), an in loco parentis relationship has two requirements: (1) day-to-day care of the child; and (2) financial support.

In the memorandum, the DOL announced that the regulations only requires that the employee who intends to assume the responsibilities of a parent to either provide day-to-day care for the child OR financial support, but not both. The DOL's "interpretation" is at direct odds with the plain reading of the regulation.

Mr. Bosland Comments:
The DOL Memorandum received a lot of Press because of it confirmed that same-sex partners who satisfy the definition could be an in loco parentis parent for purposes of FMLA leave. While that has always been a distinct possibility, it is noteworthy that the DOL has put in it writing. The substantive change is that the DOL has reduced the burden for establishing an in loco parentis parental relationship with a child from two requirements to one by interpreting "and" in the existing regulation to mean "or." My guess is that the DOL will formalize the change when it gets around to issuing regulations to implement the 2010 National Defense Authorization Act changes to military family leave.

The DOL Memorandum is available on the Internet at:

Drug dependency not a disability under New York’s Human Rights Law

Drug dependency not a disability under New York’s Human Rights Law
Matter of Michael Kirk v City of New York, 47 AD3d 406

Michael Kirk was terminated from his position with the New York City Fire Department after testing positive for cocaine in a random drug test.

The Appellate Division rejected Kirk’s contention that the Department’s random drug testing policy is unconstitutional and decided that the penalty of termination for substance abuse “does not shock the conscience,” citing Reinhard v City of New York, 34 AD3 376, leave to appeal denied, 8 NY3d 808.

The court pointed out that while alcohol dependency qualifies as a disability under the New York State Human Rights Law, drug abuse does not and Kirk was unable to prove that his drug abuse was causally related to his alcoholism.

The decision is posted on the Internet at:

Two-part test applied in resolving union’s improper practice charge

Two-part test applied in resolving union’s improper practice charge
Matter of Social Service Employees Union, Local 371, (Aubrey Norris) v New York City Bd. of Collective Bargaining, 47 AD3d 417

The Appellate Division upheld a determination by the New York City Board of Collective Bargaining that denied Local 371’s claim that the New York City Administration for Children’s Services [ACS] committed an improper practice petition when it denied a union official access to its headquarters to perform his duties as a union official.

Aubrey Norris, a Local 3761 officer, claimed that security officers employed by ACS “had interfered with access to ACS headquarters to perform his duties as a union official, in violation of the New York City Collective Bargaining Law (Administrative Code of City of NY § 12-306[a]).”

The Board decided that Norris failed to establish a violation under the applicable two-part test: [1] proof that the employer's agent responsible for the allegedly discriminatory act had knowledge of the employee's protected union activity, and [2] that such activity was a motivating factor for the employer's action.

The Board found that while it was undisputed these ACS employees knew of Norris's union activity, the evidence indicated their actions were motivated by personal animus toward Norris rather than toward him as a union representative, noting that other union representatives had no difficulty gaining access to the building for union business, and Norris was never actually prevented from entering the building.

The decision is posted on the Internet at:

Former employees alleged they were the target of selective prosecution in administrative disciplinary action

Former employees alleged they were the target of selective prosecution in administrative disciplinary action
Bey v New York City Civil Service Commission, Supreme Court, Justice Madden, 2001 NY Slip Op 30058(U), [not officially reported]

New York City conducted an investigation to determine which employees were claiming tax-exempt status or were claiming an excessive number of exemptions. About 1,400 City employees were identified, including the Bey correction officers.

Pedro Rivera Bey, Oba Hassan Wat Bey, Edward Ebanks, Herbert L. Hinnant, and Michael Nichols [hereinafter collectively referred to as Bey] are former tenured New York City Correction Department officers.

Identifying themselves as "Black and of Moorish national origin,” and believing that they were exempt from federal and state taxes, they filed Federal and New York State tax forms claiming exemptions from income tax withholdings. Some of these correction officers also filed IRS forms for nonresident aliens or filed self-made forms entitled "Certificates of Foreign Status for Moorish-Americans."

In April 1998, the Correction Department served disciplinary charges alleging that the Bey employees had engaged in conduct unbecoming an officer by: 1) knowingly submitting Federal and State tax forms falsely claiming exemption from taxation; 2) submitting false tax information with the intent to defraud the State of New York; and 3) violating their oaths of office by submitting documents disclaiming their United States citizenship.

The City's Office of Administrative Trials and Hearings [OATH] held a joint hearing for 17 Correction Department employees pursuant to Civil Service Law Section 75. OATH found that Bey and his co-plaintiffs were guilty of all charges filed against them except their alleged "disclaiming of their United States citizenship." The Department imposed the penalty recommended by OATH: termination.

In response to an appeal filed by the Bey employees pursuant to Section 76 of the Civil Service Law, the City's Civil Service affirmed the Correction Department's dismissal Bey correction officers.

Bey's appeal to State Supreme Court set out several claims but only one survived: the claim that "[t]he charges, the hearing procedures and the discharge of the [Bey officers] violated their statutory and constitutional rights." The Supreme Court justice ruled that Bey raised a triable issue when he alleged that employees who were not Moorish-Americans and who engaged in the same or similar misconduct, were permitted to change their W-4s and, further, these employees were not discharged.

Justice Madden ruled that assuming that the allegations in Bey's petition were true, it is sufficient to raise the only issue here subject to judicial review pursuant to Article 78 of the Civil Practice Law and Rules: the constitutional claim of selective prosecution.

In making a claim of selective prosecution, the individual alleges that he or she has been denied his or her constitutional right to equal protection of the laws as guaranteed by the 14th Amendment and the New York State Constitution forbidding a public authority from applying or enforcing an admitted valid law "with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circum­stances.

According to the decision, both the "unequal hand" and the "evil eye" requirements must be proven: i.e., there must be not only a showing that the law was not applied to others similarly situated but also "that the selective application of the law was deliberately based upon an impermissible standard such as race, religion or some other arbitrary classification."

The court said that Bey's petition alleges that he and his co-correction officers were singled out based upon their race, religion and, or, national origin, because the Correction Department and other City agencies permitted "other employees" who were not "Moorish-American" to change their withholding forms, and no disciplinary charges were filed against them and they were not discharged.

As these allegations were found sufficient to state a cause of action for impermissible discriminatory prosecution, the court dismissed all of Bey's allegations except those dealing with the selective prosecution claim and said that a trial was required to resolve this issue.

The decision is posted on the Internet at:

June 25, 2010

In the absence of any “expressed” contractual limitations, an arbitrator is free to fashion a fitting and necessary remedy to a contract dispute

In the absence of any “expressed” contractual limitations, an arbitrator is free to fashion a fitting and necessary remedy to a contract dispute
Matter of City of New York v District Council 37 AFSCME, 2010 NY Slip Op 05671, Decided on June 24, 2010, Appellate Division, First Department

An arbitrator ruled that a number of individuals employed as New York City Public Health Advisors (PHAs) by the City’s Department of Health and Mental Hygiene were entitled to $1,800 for each year since the filing of the grievance claiming that they had been performing out-of-title work.

The City appealed, contending that any monetary remedy for the out-of-title work should be “the difference in pay between existing titles covered under the parties' collective bargaining agreement, and not some "new term" of compensation "created" by the arbitrator.” The City argued that the remedy provided by the arbitrator was “in excess of her powers under the collective bargaining agreement and contrary to the public policy that compensation be negotiated.”

Supreme Court dismissed the City’s appeal and the Appellate Division sustained the lower court’s determination.

The Appellate Division said that regardless of any arbitral precedent there might be for such a limitation on the arbitrator's remedy-fashioning powers under collective bargaining agreements like this one, “it plainly can have no application where, as here, there is no dispute that the hybrid out-of-title duties performed by the PHAs do not match the job specifications of any other existing titles.”

Under the circumstances, said the court, “an arbitrator's powers are not limited, as the City appears to argue, to a cease and desist order.”

As there was no “plain and express contractual limitation” in the collective bargaining agreement limiting the powers of the arbitrator, “the arbitrator properly directed the parties to negotiate; when the negotiations reached an impasse, the arbitrator properly invited the parties to submit proof of the value of the out-of-title services performed, including their last best offers; and, on that basis, fashioned fitting and necessary relief.”

The decision is posted on the Internet at:

Having a residence in the jurisdiction not always the same as having a domicile in the jurisdiction

Having a residence in the jurisdiction not always the same as having a domicile in the jurisdiction
Matter of Johnson v Town of Amherst, 2010 NY Slip Op 05447, Decided on June 18, 2010, Appellate Division, Fourth Department

The Town of Amherst’s Town Code required its employees to be “domiciliaries of the Town.”

James I. Johnson’s family’s home, however, was in Elba, New York and the evidence in the action showed that he “listed the Elba address on his New York State income tax forms, that he had no intention of moving his family to [Amherst] and that he established residency in [Amherst] solely to comply with the original residency requirements of his employment.”
As a result Johnson was terminated from his position with Amherst for failing to comply with the Code’s requirement that he be a domiciliary of the Town.

Johnson sued and asked the court to annul his termination by the Town of Amherst based on its “residency requirement” that Town employees to be domiciliaries of the Town. Supreme Court sustained the Town’s decision and the Appellate Division affirmed the lower court’s ruling.
The Appellate Division explained that "[D]omicile means living in [a] locality with intent to make it a fixed and permanent home."*

Noting that "[j]udicial review of an administrative determination following a hearing required by law is limited to whether the determination is supported by substantial evidence," the Appellate Division said that the evidence presented at the hearing established that Johnson’s family lived in a home in Elba, and that he established a residency in the Town “solely to comply with the original residency requirements of his employment.”

The court concluded that the determination that Johnson is a domiciliary of Elba rather than the Town is supported by substantial evidence and dismissed his appeal.

The Appellate Division also commented that Johnson was fully apprised of the evidence that the Town would consider in making its determination and that he was given "numerous opportunities to respond and to present his own evidence" to establish that he, in fact, was domiciled in Amherst but that he failed to come forward with such evidence.

* Although an individual may have, and maintain, a number of different residences simultaneously, he or she can have, and maintain, only one domicile at a given time.

The decision is posted on the Internet at:

Sovereign immunity

Sovereign immunity
Alston v State of New York, Ct. of Appeals, 97 N.Y.2d 159

The doctrine of sovereign immunity generally shields a state from suit absent its consent. In Alden v Maine, 527 US 706, the Supreme Court of the United States found that State sovereign immunity is "implicit in the constitutional design." States have claimed sover­eign immunity with respect to their being sued in federal court for alleged violation of various acts of Congress including the Fair Labor Standards Act. New York's claim of sovereign immunity was a critical element in resolving the Alston case.

In 1991, Benjamin Alston and 102 other State parole officers sued the State, claiming that it had failed to pay them overtime in violation of the Fair Labor Standards Act. In 1997, the United States District Court, Northern District of New York, dismissed the action based on the US Supreme Court's ruling in Seminole Tribe of Florida v Florida, 517 US 44. In Seminole the high court said that Article I of the Constitution did not give Congress the power to defeat a states' Eleventh Amendment sovereign immunity from suits commenced or prosecuted in Federal courts.

Alston appealed to the Second Circuit United States Court of Appeals, but the parties agreed to a voluntary dismissal of the action in view of the fact that the Second Circuit had ruled against other claimants in a similar case.

In 1998, Alston filed the same lawsuit in the New York's State Court of Claims. The Court of Claims dismissed the complaint holding that it lacked subject matter jurisdiction because Alston's petition was untimely.

The Appellate Division affirmed the Court of Claims' ruling. It said that "when New York waived its immunity subject to a six-month Statute of Limitations for FLSA claims brought against it as provided by the Court of Claims Act Section 10 ..., such limitation could not be overridden by the Article I powers delegated to Congress, whereby a two or three-year Statute of Limitations was created for FLSA claims." In other words, Alston should have filed his petition with the Court of Claims within six months of the "accrual of his cause of action." The Court of Appeals sustained the Appellate Division's determination.

In the words of the Court of Appeals:

"The issue before us is whether, under the terms of the waiver of sovereign immunity found in Court of Claims Act Section 8, the State retained its immunity as to these claims because claimants failed to comply with the time limitations set forth in Court of Claims Act Section 10(4), upon which the [State's] waiver was conditioned."

The court's conclusion: the State retained its immunity. Why? Because, explained the court, although Section 8 of the Court of Claims Act provides that "the state hereby waives its immunity from liability and action and hereby assumes liability and consents to have the same determined in accordance with the same rules of law as applied to ac­tions in the supreme court against individuals or corporations, provided the claimant complies with the limitations of this article."

Accordingly, the State's waiver of sovereign immunity was not absolute, but was condi­tioned upon a claimant's compliance with the limitations on the waiver, including the relevant filing deadlines.

The Court of Appeals ruled that "because claimants failed to file their claims in the Court of Claims within six months after their accrual ... and did not timely seek relief from the court under Court of Claims Act 10(6), the State was entitled to dismissal of this claim on sovereign immunity grounds.

Terminating an employee during a disciplinary probation period

Terminating an employee during a disciplinary probation period
Fortner v NYC Dept. of Corrections, 280 A.D.2d 381

In many cases disciplinary charges are "settled" by the employee agreeing to serve a "disciplinary probationary period." The majority of such settlements set out the terms and conditions of the probation and typically provide for the termination of the individual without any further hearing if he or she violates the terms of the settlement.

Steven T. Fortner was serving a disciplinary probation period following the settlement of disciplinary charges that had been filed against him by the New York City Department of Corrections.

The department terminated him, contending that "he violated the terms of his limited probation as set forth in his negotiated plea agreement."

Fortner sued, alleging that he had been terminated in bad faith. The court disagreed, finding that Fortner produced no evidence to support his claim that his dismissal was motivated by bad faith.

Fortner had also asked the court to annul his termination and have the matter remitted to the Department "for reconsideration of the sanction."

The Appellate Division decided that such action was not appropriate under the circumstances since Fortner's termination did not "shock the judicial conscience."

Further, said the court, terminating Fortner for violating the terms of his disciplinary probationary period did not constitute an abuse of discretion on the part of the appointing authority.

The lesson here is that the courts will sustain the termination of an individual serving a disciplinary probation period without a hearing if the employee is discharged for violating or failing to comply with the terms of the disciplinary probation agreed upon.

Suppose the court finds that the employee's termination was inconsistent with the terms and conditions of his or her disciplinary probationary period?

As the Taylor decision indicates [Taylor v Cass, 505 NYS2d 929], in such a situation the individual will be reinstated with back salary.

The Taylor court determined that under the terms of Taylor's disciplinary probation, he could be terminated without any hearing if, in the opinion of his superior, Taylor's job performance was "adversely affected" by his "intoxication on the job."

The court said the appointing authority gave two reasons for it terminating Taylor for violating the terms of his disciplinary probationary period:

1. Taylor's "failing to give a fair day's work"; and

2. Taylor's "sleeping during scheduled working hours."

However, the court found that Taylor's termination was improper because Taylor was not terminated for the sole reason specified in the settlement: his intoxication on the job adversely affecting his performance of the job.

Sometimes the disciplinary probation established resulting from the settlement of the disciplinary action does not limit the appointing authority's discretion in terminating the employee. The Wright case demonstrates such a situation.

In Wright v City of New York, 596 NYS2d 372, the Appellate Division ruled that an employee who had agreed to a disciplinary probation in settlement of disciplinary charges filed against him that provided that his probation status would be the same as any other probationary employee was not entitled to a pre-termination hearing when he was dismissed because of subsequent incidents.

In other words, under the terms of Wright's disciplinary probation he was treated as a "new employee" and he could be summarily terminated for any lawful reason.

June 24, 2010

Governor Paterson accepts final report of Task Force on Public Retiree Health Insurance

Governor Paterson accepts final report of Task Force on Public Retiree Health Insurance
Source: Office of the Governor

On June 23, 2101 Governor David A. Paterson accepted the final report of the Task Force on Public Employee Retirement Health Care Benefits. Established by Executive Order No. 15.

The Task Force was tasked with reviewing issues such as the level and cost of benefits received by New York State public employees and retirees, the degree to which those benefits have been impacted by difficult fiscal times, the current legal framework governing retiree health benefits, potential avenues for addressing rising health care costs, and various proposals for reform.

The Task Force included representatives of various executive agencies, the Comptroller, the Legislature, local governments, labor and retiree groups. It was chaired by Richard Berman, who has previously served as director of the New York State Office of Health Systems Management, Director of the Division of Housing and Community Renewal, chair of the Westchester Medical Center, and President of Manhattanville College.

Governor Paterson said that the Task Force made the following recommendations:

• Encourage employer coalitions with labor participation pursuant to Article 47 of the Insurance Law.

• Permit the establishment of State administered prescription drug carve out plans for retired public employees.

• Implement a co-payment structure which encourages primary and preventative care by reducing financial barriers to managing disease.

• Provide a premium contribution to plan members who live outside of the service area of the employer's plan for other coverage of the retired employee's choosing.

• Continue to provide, where appropriate, incentives for providers and consumers to implement electronic medical records.

• No payment by retiree health plans, coupled with a prohibition of balance billing by providers, for "never events."

• Build relationships with and encourage use of health education and disease self management programs that promote healthy behaviors such as exercise, smoking cessation and other evidence based chronic disease self management programs.

• Require that insurers and plan administrators provide claims experience, consistent with statutory privacy protections, to local governments on request, thereby providing employers with greater audit authority.

• Actively pursue third party liability (e.g., coordination of benefits, subrogation).

• Encourage employers to provide information and assistance to retired public employees to enable them to fully leverage Medicare benefits such as health screenings and to make informed decisions about coverage.

• Establish a State insurance exchange including, but not limited to retired public employees with no coverage.

• Provide jurisdiction to the Insurance Department for oversight of the reserves and solvency of self-funded government plans.

• Encourage employers to allow retired employees who meet the plan's eligibility requirements to enroll in the employer's plan regardless of whether they were covered as an active employee.

• Implement more aggressive oversight of health care costs by the State and Federal governments.

• Create a standing task force which would represent in a fair and balanced manner the interests of retired public employees, their former employers, taxpayers and the public at large.

The Governor reported that the Task Force was unable to reach a consensus on the best approach to reform proposals that would limit the ability of public employers to diminish public retiree health benefits. Instead, it includes three position papers that set forth varying recommendations of particular Task Force participants.

A copy of the Final Report is available on the Internet at:

Civil Service Law prohibits assigning out of title work to an employee in other than an emergency situation

Civil Service Law prohibits assigning out of title work to an employee in other than an emergency situation
Woodward v GOER, 279 A.D.2d 725

The Governor's Office of Employee Relations [GOER] denied the out-of-title work grievance filed by a Grade 22 Senior Correction Counselor, Larry Woodward.According to the decision, Woodward, whose duties essentially involved "the social, educational and vocational rehabilitation of prisoners," was assigned to conduct Tier III disciplinary hearings involving inmates.

One of 10 civilian supervisory-level employees assigned such duties, Woodward conducted an average of 61 tier III disciplinary hearings per year between May 1, 1994 and June 1, 1999.
In September 1994 Longwood asked that either his name be removed from the list of individuals assigned to conduct Tier III hearings or that he be compensated for performing the tasks of a Hearing Officer, a grade 25 position.

When GOER denied his grievance, relying on an advisory opinion by the State Department of Civil Service's Director of Classification and Compensation indicating that "the grieved assignment [did] not constitute out-of-title work * * * [as] [t]he limited assignment of [petitioner ] to serve as a disciplinary hearing officer [was] a logical and proper extension of the duties of a Senior Correction Counselor and other civilians at this organizational level of correctional facility staffing". Accordingly, GOER denied Woodward's grievance.

Woodward's union, the Public Employees Federation, filed an Article 78 action seeking to annul GOER's denial of the out-of-title grievance and to obtain a determination that Woodward is entitled to back pay at the grade 25 level.

A State Supreme Court judge annulled GOER's determination and remitted this matter to it for a "redetermination and appropriate award of back pay." GOER appealed. The Appellate Division affirmed the lower court's determination, ruling that out-of-title work, other than that performed on an emergency basis, is prohibited by Civil Service Law Section 61(2).
Section 61(2) essentially provides that:

"[n]o person shall be appointed, promoted or employed under any title not appropriate to the duties to be performed and, except upon assignment by proper authority during the continuance of a temporary emergency situation, no person shall be assigned to perform the duties of any position unless he has been duly appointed, promoted, transferred or reinstated to such position in accordance with the provisions of this chapter and the rules prescribed thereunder".

The court, however, pointed out that "not all additional duties constitute out-of-title work, and the mere fact that there may be some overlap between two particular positions does not mandate a finding that a petitioner is being compelled to perform out-of-title work."

The Appellate Division said that test to be used in considering complaints involving alleged out-of-title work is whether "the record as a whole provides a rational basis for the determination that the duties [the employee] performed were 'substantially similar' to those detailed in his job description and that he was not performing out-of-title work."

In this instance the court concluded that the Department of Civil Service specifications for Senior Correction Counselor, did not encompass "presiding over quasi-judicial adversarial proceedings, hearing and receiving evidence, making appropriate findings of fact and conclusions of law and imposing punishment."

In the words of the court, such duties "simply cannot be said to be reasonably related to or viewed as a logical extension of [Longwood's] duties as a Senior Correction Counselor.

Accordingly, Supreme Court appropriately concluded that respondents' determination denying Woodward's out-of-title grievance lacked a rational basis and was wholly arbitrary and capricious. Significantly, the Appellate Division noted that the Supreme Court did refer to a regulation, 7 NYCRR 253.1, which permits a facility superintendent to designate employees to conduct such disciplinary hearings.

However, said the court, "such designation is valid only to the extent that it does not violate Civil Service Law Section 61(2)." In other words, a regulation may not be relied to support a decision if it is inconsistent with the specific mandates of a statute.

Ultimately back pay was awarded to Woodward for his out-of-title work in conducting tier III hearings.

An employee placed on Section 72 leave for ordinary disability subsequently terminated for "abandonment of position"

An employee placed on Section 72 leave for ordinary disability subsequently terminated for "abandonment of position"
Fronczak v NYS Dept. of Correctional Services, CA2, LEXIS 2167

Section 72 of the Civil Service Law -- leave for ordinary disability -- permits an appointing authority to place on employee on involuntary leave without pay if he or she is found unable to perform the duties of his or her position as a result of an illness or a disability that is not an occupational injury or disease as defined in the Workers' Compensation Law.*

The Fronczak case involved the placement of a state worker on an involuntary leave pursuant to Section 72 of the Civil Service Law.

Daniel T. Fronczak sued the New York State Department of Correctional Services [DOCS], claiming that this action violated Americans with Disabilities Act, 42 USC Sections 12112-12117 and subjected him to unlawful retaliatory adverse employment actions in violation of 42 USC 1983.

According to the decision by the U.S. Circuit Court of Appeals, Fronczak was a correctional officer employed by DOCS at its Wyoming facility.

Critical of the facility's handling of hazardous waste materials, he began "exhibiting both bizarre and threatening behavior."

In 1993 DOCS asked Fronczak to undergo a psychiatric examination to determine his ability to perform the duties of his job.

Dr. Jeffrey Bernstein, employed by the New York Department of Civil Service's Employee Health Service, examined Fronczak and determined that Fronczak was:"in need of psychiatric care ... was a risk for not being able to manage the inmates, possibly even losing control, further control of his emotions and his temper, and having difficulty working with co-workers ... [t]hat he was unable from a psychiatric perspective to continue his duties as a corrections officer."

Based on this evaluation, in 1993 Fronczak was placed on an involuntary leave of absence. He unsuccessfully appealed the determination to the Civil Service Commission.

Section 72.2 provides that an employee placed on leave pursuant to Section 72.1 may, within one year after the date of commencement of such leave of absence, or thereafter at any time until his or her employment status is terminated, make application to the civil service department or municipal commission having jurisdiction over the position from which such employee is on leave, for a medical examination by a medical officer selected for that purpose by such department or commission.

In 1996, after a further evaluation, Fronczak was found fit to perform the duties of a corrections officer and, in accordance with DOCS policy, was required to undergo seven weeks of retraining prior to resuming active employment as a corrections officer.

During this training period Fronczak had "an altercation with an instructor" and ultimately "gathered his belongings, and departed" the facility.

Fronczak was sent a letter warning him that as provided under the terms of the collective bargaining agreement then in place, his absence for ten days would be considered "a constructive resignation."

When Fronczak failed to return with the ten-day period, DOCS notified him by mail that his absence had been deemed a constructive resignation and that his employment with DOCS was terminated.

After losing his administrative appeals before the State Civil Service Commission and exhausting his federal administrative remedies through the Equal Employment Opportunity Commission (EEOC), Fronczak filed a lawsuit in federal district court.

As set out in the Circuit Court's opinion:

"A liberal reading of [Fronczak's] complaint reveals the following alleged causes of action: (1) by placing Fronczak on involuntary leave in 1993 and terminating him in 1996, DOCS retaliated against Fronczak's exercise of his First Amendment rights, in violation of 42 USC Section 1983, for his complaints concerning its waste management; (2) the same 1993 involuntary leave and 1996 termination resulted from discrimination on the basis of a perceived mental disability in violation of the ADA."**

A federal magistrate judge dismissed Fronczak's petition on the grounds that he failed to establish a prima facie case that he had been discharged either as the result of discrimination on the basis of a perceived disability or in retaliation for his filing waste management complaints.

Instead, the magistrate concluded, "[t]he undisputed record reflects that ... [Fronczak] was discharged because he failed to show up for work." The Circuit Court sustained the magistrate's determination.

However, the Circuit Court went further. The court said that:

"assuming arguendo that Fronczak has presented a prima facie case of discrimination on the basis of a perceived mental disability in 1993, DOCS has come forward with a legitimate nondiscriminatory explanation for placing him on involuntary leave at that time, namely that he was not capable of performing the essential job duties of a corrections officer."

In addition, said the court, Fronczak did not present any evidence indicating that DOCS' proffered explanation was a pretext for discrimination.

The court's conclusion: After considering "all of Fronczak's claims and finding them without merit," the judgment of the district court is affirmed.

* Section 71 of the Civil Service Law provides for leaves of absences in connection with an "occupational injury or disease" within the meaning of the Workers' Compensation Law

** The US Supreme Court ruled that the states enjoy Eleventh Amendment immunity from lawsuit in federal court alleging violations of the Americans With Disabilities Act [Garrett v. University of Alabama, 193 F.3d 1214].

­­­­­­­­­­­­­­­­­­­­Employee terminated after being found guilty of off-duty misconduct

­­­­­­­­­­­­­­­­­­­­Employee terminated after being found guilty of off-duty misconduct
Losada v Safir, 278 A.D.2d 59

The Appellate Division sustained the disciplinary termination of New York City police officer Fernando Losada based on a finding that Losada, while off-duty, was in a traffic-related altercation during which he "wrongfully punched and kicked the driver of the other vehicle, causing him physical injury."

Another element: Losada was found guilty of filing a criminal complaint regarding the incident "that falsely portrayed the other driver as the aggressor, which resulted in the other driver being arrested and placed in detention."

The court said that the penalty of dismissal does not shock its sense of fairness, particularly given that this was Losada's second adjudication of violent misconduct within 16 months.

Employee terminated after failing to follow the employer's policy denied unemployment insurance benefits

Employee terminated after failing to follow the employer's policy denied unemployment insurance benefits
Matter of Cruz , 288 A.D.2d 813

Angel Cruz was dismissed from his position of Director of Public Safety and Security at the City University's Queens College campus. The reason for his termination: he failed to report allegations of sexual harassment made against members of his staff to the Colle­ge's Sexual Harassment Panel. The College's policy required supervisors to report such incidents to the Panel.

The Unemployment Insurance Appeal Board subsequently rejected Cruz's claim for unemployment insurance benefits after finding that he was discharged for "disqualifying misconduct."

The Appellate Division affirmed the Board's ruling, holding that "[i]t is well settled that a claimant's knowing failure to comply with the employer's established policies and pro­cedures can constitute disqualifying misconduct, especially in cases where such failure could jeopardize the employer's best interest."

According to the decision, Cruz admitted that he had twice failed to report allegations of sexual harassment that had been filed against members of his staff. His failure to do so, said the court, prevented the College from taking prompt action to address the allegations, thereby exposing it to potential liability.

Under these circumstances, the Appellate Division said that there was "no reason to dis­turb the decision of the Board finding that [Cruz] lost his job under disqualifying circum­stances."

June 23, 2010

Former employee’s ADA retaliation claim survives the dismissal of her violation of the ADA complaint

Former employee’s ADA retaliation claim survives the dismissal of her violation of the ADA complaint
Ragusa v Malverne Union Free School Dist., USCA, 2nd Circuit, No. 08-5367-cv, June 21, 2010, [Unpublished]

Malverne Union Free School District mathematics teacher Biljana Ragusa sued the District, the school board and former school superintendent Mary Ellen Freeley, alleging that she had been the victim of unlawful discrimination because of her gender, age, and disability.

A federal district court judge granted the School Districts motion for summary judgment [Ragusa v. Malverne Union Free Sch. Dist., 582 F. Supp. 2d 326], finding that Ragusa failed to adduce sufficient evidence to permit a rational factfinder to conclude that she was disabled within the meaning of the ADA, that she had been subjected to a hostile work environment because of disability or that the district had retaliated against her because of her “engaging in ADA-protected activity.”

The Circuit Court sustained the district court’s ruling in part, stating that agreed with its finding that “Ragusa’s discrimination claim failed because of insufficient evidence that she is a ‘qualified individual’ with a ‘disability’ within the meaning of the ADA.”*

Ragusa had alleged that surgery to remove a benign brain tumor left her impaired in the “major life activities” of seeing, hearing, speaking, and walking.” The court, however, ruled that the evidence did not support a finding of “substantial limitation” and that the only medical evidence in the record consisted of a physician’s note clearing Ragusa to return to work following her surgery.

Further, said the court, Ragusa failed to raise a “jury question” as to whether the school district and its officers and employees “regarded her as disabled” because of an impairment that substantially limited a major life activity.

Although Ragusa contended that she received critical evaluations concerning her teaching performance, the Circuit Court decided that such criticisms reflected that the district considered her “ineffective” and not disabled.

As to Ragusa’s allegations concerning “retaliation,” the court ruled that although she presented a prima facie case of retaliation, the school district rebutted this claim by providing a non-retaliatory rationale” for her dismissal, thereby shifting the burden of going forward to Ragusa to show that the explanation offered by the district was pretextual.**

The Circuit Court concluded that Ragusa had sufficiently demonstrated the possibility of “pretext” with respect to her 2004-2005 teaching assignment and vacated the district court’s decision dismissing her claim of retaliation and remanded the matter to the federal district court for further consideration.

* The Circuit Court noted that Congress amended the ADA in 2008 to expand its coverage but said that it had decided the case on the version of the statute in effect “during the time period at issue, which ended with Ragusa’s termination on June 30, 2005, noting that, in general, a statute “shall not be given retroactive effect unless such construction is required by explicit language or by necessary implication,” citing Bercerril v Pima County Assessor’s Office, 587 F3d 1162.

** Ragusa did not have to be disabled within the meaning of the ADA to pursue her retaliation claim as she demonstrated that she held a “good faith, reasonable belief that the underlying actions of the employer violated the ADA [see Sarno v Douglas Elliman-Gibbons and Ives, Inc., 183 F3d 155].

The decision has been posted on the Internet by the NYS Bar Association at:

NLRB holds that union commited an unfair labor practice by disciplining a member for reporting another employee's safety violation

NLRB holds that union commited an unfair labor practice by disciplining a member for reporting another employee's safety violation
Source: Adjunct Law Prof Blog;
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.

Operating Engineers, 355 NLRB No. 25 (April 19, 2010), is an interesting case. The Board ruled 3-0 that a union violated Section 8(b)(1)(A) by fining a member $2,500 for reporting another employee's safety violation. As the Board stated:

The Respondent contends that by disciplining Overtonit did not restrain or coerce him in the exercise of his rights under Section 7 of the Act because Overton acted alone and not concertedly.

The Board has consistently found Section 8(b)(1)(A) violated, however, where a union disciplines an employee for reporting a work-rule infraction by another employee, if the disciplined employee is under a duty to make such reports, notwithstanding that the disciplined employee acted alone. See Teamsters Local 439 (University of the Pacific), 324 NLRB 1096 (1997); Carpenters District Council of SanDiego (Hopeman Bros.), 272 NLRB 584 (1984); Chemical Workers Local 604 (Essex International), 233 NLRB 1239 (1977), enfd. mem. 588 F.2d 838 (7th Cir. 1978).

We find these precedents controlling.

Mitchell H. Rubinstein

Randall Comments: Although NLRB determinations are neither binding on PERB nor controlling with respect to constituting a precedent for the purposes of the Taylor Law (see Section 209-a.3, Civil Service Law), this decision is instructive as its rationale may be adopted by PERB, arbitrators and the courts under similar circumstances.

United States Supreme Court holds city’s review of employee messages on city pager was reasonable under the circumstances

United States Supreme Court holds city’s review of employee messages on city pager was reasonable under the circumstances
Source: Meyers Nave PLC. Reproduced with permission. Copyright © 2010, Meyers Nave. All rights reserved

In City of Ontario v. Quon, the U.S. Supreme Court issued a narrow ruling that the City's review of a SWAT officer's text messages sent over a City-issued pager was reasonable in the circumstances of that case, and thus did not violate the Fourth Amendment to the Constitution. But the Court avoided answering two broader questions about how courts should analyze non-investigatory, work-related searches by public employers—questions on which public entities had hoped Quon would provide guidance. The questions Quon left open are: (1) when do public employees have a “reasonable expectation of privacy” in their offices or electronic communications; and (2) if an employee has such an expectation, what is the test for whether an employer’s search was reasonable?

The City of Ontario adopted a written policy governing use of City computers, the Internet and email. The policy prohibited all but light personal use of City-owned electronic equipment, and specified that employees had no reasonable expectation of privacy or confidentiality in such use. The City then bought text pagers for its SWAT officers, and told them that the electronic communications policy applied to the pagers.

When a few SWAT officers exceeded the character limit on the City's pager plan, the lieutenant in charge of billing said he would not review their messages to separate the personal from the work-related, so long as officers who exceeded the limit paid the overage charges. Sergeant Quon interpreted this billing practice to mean that his text messages were no longer subject to the City-wide electronic communications policy. A few months later, the Police Chief ordered an audit of the text messages of officers who had consistently exceeded the character limit in the City’s pager plan, in order to determine if the limit was too low. The auditing officer redacted all messages sent during non-work hours. Sergeant Quon sued the City, contending that the review of his messages violated the Fourth Amendment.

A Fourth Amendment analysis involves two questions: (1) did the person have a reasonable expectation of privacy in the place searched; and (2) if so, was the search reasonable? In Quon, Justice Kennedy’s majority opinion approached both questions with extreme caution. The Court declined to set broad rules for when an employee’s expectations of privacy in electronic communications on employer-provided equipment will qualify as “reasonable” in the eyes of society, given the still-evolving role of electronic communications.

The Court also declined to decide what test to apply in future cases to determine if a public employee has a reasonable expectation of privacy in his or her office or electronic communications. The Court noted two possible approaches: a case-by-case evaluation to decide if an employee has a reasonable expectation of privacy under the circumstances, or a rule that the Fourth Amendment always applies to public employees’ offices or electronic communications. Quon does not choose between those approaches. Instead, the Court simply assumed for the sake of argument that Quon had a reasonable expectation of privacy in the text messages.

The Court similarly assumed that the City's review of the text messages was a ”search” subject to the Fourth Amendment, and that the principles governing the search of a public employee's office apply equally to searches in the electronic sphere. (Quon, Slip Op. at 12.)

The Court then discussed whether the search was permissible. At the outset, the Court noted a point raised by the League of California Cities and the California State Association of Counties in amicus briefs prepared by Meyers Nave. While warrantless searches are generally considered automatically unreasonable, one well-established exception to that rule is the "special needs" exception for government workplaces. (Quon, Slip Op. at 12.) That exception made a warrant unnecessary in Quon’s case, so the question was whether the search was reasonable.

The Court noted two possible approaches to whether a given search is reasonable—again, without deciding which approach to adopt for future cases. Under the first approach, a court must examine all the circumstances and ask: 1) was the search justified at its inception; and (2) were the measures adopted by the agency reasonably related to the objectives of the search and not excessively intrusive? (Quon, Slip Op. at 12.) Under the second approach, all “government searches to retrieve work-related materials or to investigate violations of workplace rules—searches of the sort that are regarded as reasonable and normal in the private-employer context” are always reasonable. (Id. at 9.)

Under the first approach, the Court found the search in Quon justified at its inception because the City had a legitimate interest in ensuring that the character limit on the City’s pager plan was appropriate. (Quon, Slip Op. at 13.)

The Court also found the scope of the search reasonable because the Department limited the search to two months’ worth of messages, and redacted all off-duty messages. (Ibid.) The Court added that, although it was assuming for argument’s sake that Quon had some reasonable expectation of privacy in the text messages, Quon could not reasonably have assumed that his messages could never be searched. (Ibid.) A reasonable law enforcement employee would realize that the text messages might be audited to determine whether the pager was being appropriately used, or to assess the SWAT team's performance in a particular emergency. (Id. at 14.) The Court then readily found that, for the same reasons, the search was reasonable under the second, “searches regarded as reasonable and normal for private employers” approach. Thus, it did not decide which of the two approaches courts must use in the future.

Justice Scalia filed a concurring opinion contending that the majority opinion improperly gave lower courts a “heavy-handed hint” about how to address the “reasonable expectation of privacy” issue. (Quon, Slip Op. (Scalia, J., concurring), at 2.) The Quon majority spent three pages discussing whether Quon’s expectation of privacy was reasonable in the circumstances—before ultimately saying that it was not going to decide that question, or even decide whether that question is relevant. Justice Scalia warned that lower courts will read this as a hint that, in future cases, they should follow the same case-by-case approach. (Ibid.)

Basically, Quon leaves governmental agencies with no clear standards to use in applying electronic communication policies. As Justice Scalia suggests, Quon will mean that, in each future case, public entities will very likely have to argue whether a given employee had a reasonable expectation of privacy in a particular office or electronic communication medium.

At most, governmental agencies can now be assured that: (1) a search warrant is not required for non-investigatory, work-related searches of electronic communications sent via publicly owned equipment, based on the "special needs" exception to the warrant requirement; and (2) if they take reasonable precautions to limit the intrusiveness and scope of a search to what is necessary to achieve its purpose, courts will likely find the search reasonable. However, the uncertainty and risk of litigation in this area mean that public entities should proceed with caution and consult legal counsel if possible before searching employees’ workspaces or electronic communications.

For more information on the Quon opinion or related legal issues regarding public employers and employees, contact Joseph Quinn or Nancy Thorington at 800.464.3559.

The American Recovery and Reinvestment Act of 2009 (ARRA), as amended

The American Recovery and Reinvestment Act of 2009 (ARRA), as amended
Source: US Department of Labor, Employee Benefits Security Administration

The Act, as amended, provides for premium reductions for health benefits under the Consolidated Omnibus Budget Reconciliation Act of 1985, commonly called COBRA. Eligible individuals pay only 35 percent of their COBRA premiums and the remaining 65 percent is reimbursed to the coverage provider through a tax credit.

To qualify, individuals must experience a COBRA qualifying event that is the involuntary termination of a covered employee's employment.

The involuntary termination must generally occur during the period that began September 1, 2008 and ends on May 31, 2010.

An involuntary termination of employment that occurs on or after March 2, 2010 but by May 31, 2010 and follows a qualifying event that was a reduction of hours that occurred at any time from September 1, 2008 through May 31, 2010 is also a qualifying event for purposes of ARRA.

The premium reduction applies to periods of health coverage that began on or after February 17, 2009 and lasts for up to 15 months. See Continuing Extension Act of 2010.

June 22, 2010

Section 3020-a disciplinary appeals

Section 3020-a disciplinary appeals
Austin v NYC Board of Education, 280 A.D.2d 365

The Austin decision by the Appellate Division, First Department, sets out the standards followed by the courts in considering appeals from Section 3020-a disciplinary determinations. Typically these standards are considered in connection with motions by the parties to confirm or vacate the hearing officer's decision.

The ruling also addresses an issue that is frequently of concern in such disciplinary proceedings: the acceptance and consideration of hearsay evidence by the hearing officer.

Wallace Austin was served with disciplinary charges pursuant to Section 3020-a of the Education Law. He was found guilty of certain of the charges and specifications. A State Supreme Court justice overturned the hearing officer's ruling on the basis that it was not supported by substantial evidence in the record. The Appellate Division, however, said that the lower court had applied an incorrect standard in reviewing Austin's petition and vacated the lower court's determination.

According to the Appellate Division's decision, the lower court had applied the standard applicable in reviewing challenges to administrative determinations brought pursuant to Article 78 of the Civil Practice Law and Rules [CPLR].

The Article 78 standard for review: Was the administrative determination supported by substantial evidence in the record.

In contrast, the standard of review of Section 3020-a disciplinary decisions is controlled by CPLR Article 75, not the standards to be met in resolving a challenge brought pursuant to CPLR Article 78.

Essentially a CPLR Article 75 proceeding concerns challenges to arbitration awards while an Article 78 proceeding tests whether an administrative determination was arbitrary or capricious.
The Appellate Division pointed out that Section 3020-a(5) specifically requires that a court's review of a Section 3020-a hearing officer's decision in accordance with the standard spelled out in CPLR 7511.

The sole grounds set out in Article 75 for overturning such a determination:

1. Proof of corruption, fraud or misconduct in procuring an award;

2. The partiality of the arbitrator;

3. The arbitrator exceeded his or her authority; or

4. The arbitrator failed to follow the procedures set out in Article 75.

In addition to these statutory standards justifying the vacating of the arbitration award, the courts have declared arbitration awards that violate a strong public policy null and void.

The Appellate Division said that since Austin failed to show any misconduct, bias, excess of power or procedural defects on the part of the hearing officer, [or any violation of a strong public policy] his petition must be dismissed.

In addition, the court observed that the rules governing Section 3020-a disciplinary hearing procedures do not require compliance with technical rules of evidence. Accordingly, a hearing officer may accept and consider hearsay evidence in such an administrative proceeding.

The Appellate Division also commented that "the hearing officer credited the testimony of the Principal and Assistant Principal and found [Austin's] testimony to be inconsistent and incredible."

There are other critical elements to be remembered in connection with appealing a Section 3020-a disciplinary determination.

For example, in addition to the limited grounds for vacating the arbitration award listed in Section 7511, Section 3020-a sets a very short statute of limitations for filing a petition to overturn or modify the award as well as setting other limitations in appealing such decisions.

Section 3020-a.5 provides that:

1. Not later than ten days after receipt of the hearing officer’s decision, the employee or the employing board may make an application to the New York state supreme court to vacate or modify the decision of the hearing officer pursuant to CPLR Section 7511.

2. The court’s review shall be limited to the grounds set forth in Article 75. Further, the hearing panel’s determination shall be deemed to be final for the purpose of such proceeding.3. In no case shall the filing or the pendency of an appeal delay the implementation of the decision of the hearing officer.

Keeping in mind the 10-day limitation for perfecting an appeal from a Section 3020-a decision, it should be remembered that the basic rules concerning effective service of a final determination for the purposes of filing a timely appeal are as follows:

1. If the individual is not represented by an attorney or by a union official, the individual must be served to begin the statute of limitations running.

2. If an employee is represented by an attorney, the administrative body may send a copy of the determination to the employee but it must serve the attorney to begin the running of the statute of limitations.

3. If the employee is represented by a person who is not an attorney, the administrative body may send a copy to the representative but it must serve the employee to start the statute of limitations running.

State law claims survive ADA claim dismissal

State law claims survive ADA claim dismissal
Giordano v City of New York, CA2, 274 F.3d 740

The Giordano case illustrates the fact that sometimes it is possible to maintain a discrimination lawsuit under state law notwithstanding the fact that the federal courts have dismissed similar claims alleging violations of federal law.

In such situations the state courts should make the determination based on state law and not consider the action taken by the federal courts with respect to the issues presented for adjudication.

In Giordano, a federal district court justice ruled that the fact that a police officer may be unable to work as a full-time patrol officer for one police department does not mean that he or she is impaired with respect to working in law enforcement for another police agency or in the private sector and thus is not disabled within the meaning of the ADA.

David Giordano sued the New York City Police Department under both federal and New York State human rights laws. He alleged that the Department terminated him in viola­tion of the ADA and New York State's Human Rights Law when it mistakenly "regard[ed] him as disabled" because of his took the drug Coumadin, an anticoagulant, daily and terminated his employment.

Giordano also contended that in discharging him without giving him a personal physical examination and by continuing to employ another full-duty police officer, Thomas Rowe, who also takes Coumadin daily, the Department violated his constitutional rights under the Due Process and the Equal Protection Clauses of the Fourteenth Amendment.

Giordano appealed the federal district court's granting the Department's motion for summary judgment, dismissing all of his claims that the Department had violated both federal and state discrimination law provisions.

The Circuit Court sustained the lower court's dismissal of Giordano's complaint with respect to federal law but ruled that "the district court erred by dismissing on the merits [Giordano's] pendent state law claims under the New York State Executive Law and the New York City Administrative Code."

Reversing the district court's ruling in part, the Circuit Court decided that "these claims would be more appropriately adjudicated in state court" and remanded the case back to the district court with its directions that the district court dismiss the remaining claims without prejudice to their being brought in an appropriate state forum. The basis for the court's dismissal of Giordano's ADA and other federal claims:

1. Giordano failed to offer evidence from which a reasonable juror could conclude that the Department "regarded him as disabled" within the meaning of the ADA; and

2. There was nothing in the record to suggest that the alleged disparate treatment of Giorda­no and Officer Rowe resulted from any illicit motivation of the Department.

The Supervising Chief Surgeon of Department recommended that Giordano "not be permitted to perform any patrol duties and be considered for disability retirement" based on the views of a number of physicians, including two department vascular surgeons, because the anticoagulation needed for Giordano's prosthetic aortic valve could result in catastrophic bleeding from even minor injuries.

Why did Giordano's state law claims survive? According to the ruling, New York's state and municipal laws define "disability" in broader terms than does the ADA. In contrast to the ADA, New York State's Human Rights Law did not require that Giordano show that his disability "substantially limits a major life activity."

This means, said the court, that a person may be disabled within the meanings of New York's state and municipal laws even if his or her impairment does not substantially limit a major life activity.

As a procedural matter, the Circuit Court noted that the statute governing supplemental jurisdiction, [28 USC 1367] did not require dismissal of pendent state-law claims such as Giordano's where all of the federal claims have been dismissed. However, said the court, "if it appears that the state issues substantially predominate, whether in terms of proof, the scope of the issues raised, or of the comprehensiveness of the remedy sought, the state claims may be dismissed without prejudice and left for resolution to state tribunals." This solution was determined to be appropriate in Giordano's situation.

Why? The Circuit Court decided that "the state-law claims should be dismissed so that state courts can, if so called upon, decide for themselves whatever questions of state law this case may present" and "we do not think that those courts should be bound, or think themselves bound, by principles of collateral estoppel or otherwise, to any findings or conclusions reached by the district court in its discussion of whether, as a matter of law, Giordano was qualified to perform the essential functions of his job."

Probationary termination

Probationary termination
Higgins v La Paglia, 281 A.D.2d 679, appeal dismissed, 96 N.Y.2d 854

The Ulster County Sheriff Michael L. Paglia terminated correction officer Bradley Higgins at the end of his one-year probationary period. Higgins filed a grievance and initiated an Article 78 action seeking to overturn the Sheriff's decision.

Higgins claimed that he held tenure and thus was entitled to "notice and hearing" before he could be terminated. He cited a statement in the Ulster County Employees' Handbook that defined the probationary term as being a minimum of eight weeks and a maximum of 26 weeks.

The court rejected this argument, pointing out that the statement in the handbook contravenes the Ulster County Civil Service Rules and Regulations dealing with probation.

Finding that Higgins was a probationary employee at the time of his termination, the court said that he could be dismissed without a hearing unless he proffered sufficient evidence to create a question of fact as to whether his discharge was unrelated to work performance, motivated by a constitutionally impermissible purpose or made in bad faith.

Appling the correct test in resolving a challenge to an administrative determination

Appling the correct test in resolving a challenge to an administrative determination
Matter of Heather Duncan v Klein, 38 A.D.3d 380

Heather Duncan held certification as a school bus escort and worked for the New York City Office of Pupil Transportation. The Office alleged that Duncan hit a student with her umbrella and recommended that her school bus escort certification be revoked.

A “disciplinary conference” was held pursuant to the Chancellor's Regulation C-100. It was determined that there was a “pulling/pushing match” over the umbrella and that such conduct was “unprofessional and unsafe.” The penalty recommended: “a suspension for the time already served with no back pay.”

Rather than suspend Duncan, the Chancellor elected to impose the penalty recommended by the Office of Pupil Transportation and revoked Duncan’s certification. Duncan sued in an effort to have her certification restored to her.

The test the Appellate Division said applied in this case was whether the Chancellor’s action “was arbitrary and capricious” in contrast to applying the “substantial evidence” test to the Chancellor’s determination.

As the court explained, the disciplinary conference was not conducted pursuant to the Constitution or any statute. Therefore, it was properly reviewed under the arbitrary and capricious standard rather than substantial evidence standard. Applying that “arbitrary and capricious” standard, the court said that the record provides “a rational basis for disbelieving Duncan’s version of the facts and finding, instead, that she actively hit the student and was not merely defending herself.”

The court concluded that the penalty of revocation her certification did not shock one’s conscience and dismissed Duncan’s appeal.

The decision is posted on the Internet at:

June 21, 2010

FMLA leave for domestic partners: the new federal employee leave regulations a stalking horse

FMLA leave for domestic partners: the new federal employee leave regulations a stalking horse
Source: The FMLA Blog -
Copyright © 2010. 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.

During the last presidential campaign, candidate Obama favored expansion of the FMLA to allow an employee to take job-protected leave to care for a same sex domestic partner suffering with a serious health condition. Pending legislation (H.R. 3047) seeks to make such a change law. Currently, the Defense of Marriage Act excludes same-sex marriages, including civil unions or domestic partnerships, from FMLA coverage (by defining a "spouse" as member of the opposite sex).

Given the President's expressed support for changes to the FMLA, and the Democrats control of Congress (at least until mid-term elections this November), it is possible that legislation to modify the FMLA, including the addition of domestic partnerships, might be seriously considered.

With regard to expansion of the FMLA to cover same-sex partnerships, what that legislation might look like may be gleaned from recent regulatory changes made by the US Office of Personnel Management (OPM) allowing some federal employees to take leave (but not FMLA leave) for a domestic partner. See 75 FR 33491-33497 (June 14, 2010). The regulations are effective July 14, 2010.

On June 17, 2009, President Obama directed OPM to clarify that existing employment benefits enjoyed by federal workers extended to same-sex domestic partners. OPM did so by altering the definition of a "family member" to include a domestic partner in a committed relationship.

The benefits extended included the federal employees ability to use sick leave, funeral leave, voluntary leave transfer, voluntary leave bank, and emergency leave transfer in relation to .
Domestic partner means an adult in a committed relationship with another adult, including both same-sex and opposite-sex relationships.

Opposite-sex domestic partnerships would cover common law marriages in States that do not recognize common law marriages. In States that already recognize common law marriages, the inclusion of opposite-sex domestic partnerships suggests coverage for committed relationships that fall short of a common law marriage.

Committed relationship means one in which the employee, and the domestic partner of the employee, are each other's sole domestic partner (and are not married to or domestic partners with anyone else); and share responsibility for a significant measure of each other's common welfare and financial obligations. This includes, but is not limited to same-ex and opposite-sex relationships granted legal recognition by a State or the District of Columbia as a marriage or analogous relationship (e.g., civil union).

OPM rejected suggestions that it issue regulations governing what documentation an agency may request to substantiate a covered domestic partnership. It noted that agency's typically do not ask for documentation to substantiate leave to prove an employee's relationship with a parent, brother, sister, or spouse. OPM implied that, absent suspicion of leave abuse, it should follow that practice where an employee claims the need for leave for a domestic partner. Where leave abuse is suspected, OPM indicated that agencies have the existing authority to request documentation to substantiate a request for leave, and that they should follow the same procedures for all employees where they suspect leave abuse.

Mr. Bosland Comments: OPM's definition of a domestic partner in a committed relationship is, in my opinion, needlessly vague and over broad. Specifically, it is unclear what it means to "share responsibility for a significant measure of each other's common welfare and financial obligations." The terms are undefined. Other than rejecting application of the definition to a roommate, OPM fails to give examples to animate the meaning of this key phrase. Certainly, the phrase applies to common law marriages, civil unions, or domestic partnerships in States that recognize such relationships. It is unclear, at least to me, why OPM would not adopt a definition that ties the relationship to the attributes of a common law marriage, domestic partnership, or civil union, as those terms have been recognized by some States for years. Absent such a tether, OPM invites a flood of litigation to flesh out the contours of a committed relationship, particularly in the area above roommate and below recognized common law marriage, civil union, or domestic partnership. The point of a regulation is to give employers and employees useful guidance so that they know what to expect and can conform their conduct to meet legal obligations. This regulation, in my opinion, falls short of meeting that standard.

The above regulatory changes do not apply to the FMLA - yet. That will require modification of the Defense of Marriage Act (DOMA). If, however, this is any example of the standard to be applied in the event the DOMA and FMLA are modified to include domestic partnerships, employers and employees should be prepared for the tsunami of litigation that will ensue over the level of commitment to the relationship. The good news is that such a change should make the attorneys very happy.


Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the decisions summarized here. Accordingly, these summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.
NYPPL Blogger Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
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