June 30, 2011

PERB rules employer’s conducting a survey of unit members to determine if a recognized or certified collective bargaining agent should continue to represent the unit an improper employer practice

PERB rules employer’s conducting a survey of unit members to determine if a recognized or certified collective bargaining agent should continue to represent the unit an improper employer practice
Matter of Monroe County v New York State Pub. Empl. Relations Bd., 2011 NY Slip Op 05170

The Public Employment Relations Board found ruled that Monroe County had committed an improper employer practice in violation of the Taylor Law when it conducted a survey “to assess whether to hold a secret ballot election” to determine if CSEA should continue as the union representing certain of the County’s part-time employees.

CSEA had told Monroe that the CSEA unit for part-time employees was in administratorship, i.e., the CSEA local had taken over control of the part-time unit, because the unit no longer had any officers “to run it.”  Although Monroe had agreed to negotiate with CSEA concerning the part-time workers in the unit, it mailed all of its part-time employees represented by CSEA a letter and survey form underlying CSEA’s improper practice charge.

PERB affirmed its hearing officer’s determination that Monroe had "interfered with, restrained and coerced employees in the exercise of protected rights." Monroe appealed, seeking to annul PERB's determination while PERB counterclaimed seeking enforcement of its remedial order.

The Appellate Division concluded that substantial evidence supported PERB's determination that Monroe had violated Civil Service Law §209-a (1) (a) by conducting the survey. The court rejected Monroe’s claim that it was acting appropriately and was justified in sending out the survey based on a provision in the prior collective bargaining agreement.

The provision relied on by Monroe stated that CSEA's "representative status shall continue as long as it represents a majority of the bargaining unit employees, provided that if [Monroe County] receives evidence that thirty percent or more of the unit employees are questioning this status, the parties will conduct a secret ballot election conducted by PERB to determine representative status."

The Appellate Division ruled that PERB’s finding that this language did not provide Monroe with the authority to actively solicit employees' opinions regarding their potential dissatisfaction with CSEA's union representation nor did Monroe have authority under the regulations to seek decertification of CSEA was “rational.” It commented that courts give deference to PERB's interpretation of a collective bargaining agreement, which is within PERB's area of expertise, as long as that interpretation is reasonable, rational and supported by the language of the agreement.

Notwithstanding Monroe’s concerns regarding CSEA's ability to effectively represent its employees in the part-time unit, the Appellate Division decided that PERB “reasonably determined that this concern did not permit [Monroe County] to conduct a survey. Accordingly, said the court, PERB was entitled to a judgment of enforcement of its remedial order.

The decision is posted on the Internet at:

Pension benefits and marital property

Pension benefits and marital property
DeLuca v DeLuca, 97 N.Y.2d 139

Retirement benefits frequently are an important factor in a divorce. In the DeLuca case the Court of Appeals ruled that retirement benefits from the New York City Police Superior Officers Variable Supplements Fund [VSF] are marital property subject to equitable distribution in a divorce proceeding.

New York City Detective Crescenzo DeLuca divorced his wife, Maria, after 30 years of marriage. Before the divorce became final, DeLuca retired and began receiving VSF benefits in addition to his regular pension benefits.

A New York Supreme Court justice subsequently granted Crescenzo the divorce. As part of the equitable distribution of Crescenzo's assets, the court awarded Marie half of his past and future VSF payments. The Appellate Division, however, modified the award (276 AD2 143), holding that VSF benefits were not marital property on the theory that VSF benefits were not pension benefits under the City's Administrative Code Section 13-279[b].

The Court of Appeals disagreed, holding that the VSF was subject to equitable distribution in a divorce proceeding. The court said the VSF, along with its counterpart for police officers below the rank of sergeant ... were the result of contract negotiations between the City of New York and the unions representing police officers. In 1968, both sides jointly proposed legislation allowing the Police Pension Fund, whose pension investments were limited to fixed-income obligations, to invest some of its assets in equities, such as common stock, with the hope of creating higher earnings. The additional earnings could then be used as extra post-retirement compensation to attract qualified individuals and induce long-term service.

The Court of Appeals decided that whether VSF benefits constitute marital property cannot be determined by the Administrative Code provisions relied on by the Appellate Division but rather are to be determined pursuant to the relevant provisions of the Domestic Relations Law.

The general rule in such cases is that if the benefit is something of value and was earned in whole or in part during the marriage, it may be considered marital property subject to equitable distribution. Referring to Majauskas v Majauskas, 61 NY2d 481, the court pointed out that “rights in a vested but non-matured pension were marital property.”

Thus, said the court, formalized concepts such as “vesting” and “maturity” are not determinative in such situations, noting that in Olivo v Olivo, 82 NY2d 202, it ruled that compensation received after dissolution of the marriage for services rendered during the marriage is marital property.

In the words of the court, “VSF benefits are a supplement to pension fund payments and, as such, a form of compensation for past services related to the first 20 years of police employment, notwithstanding the date they mature.”

Also noted was the fact that although issues such as “vesting” and “maturity” do not raise serious obstacles to the determination that VSF benefits are marital property, they do affect valuation and distribution. 

In processing a grievance all procedural steps must be satisfied

In processing a grievance all procedural steps must be satisfied
Brown v Nassau County, 288 AD2d 216

The lesson in the Brown case: failure to follow the steps set out in a collective bargaining agreement's grievance procedure in a timely fashion may prove fatal to seeking further relief.

Larry Brown filed an out-of-title work grievance. When he and his union attempted to appeal the Step 3 determination of the Nassau County Office of Labor Relations [OLR], OLR rejected his grievance, saying that it was untimely. The Appellate Division agreed.

Brown's grievance was filed in accordance with a “five-step grievance procedure” set out in the collective bargaining agreement. OLR denied Brown's grievance at Step three and it appears that neither Brown nor the union proceeded to a Step four “advisory appeal” as set out Section 23-1.4 of the agreement.

According to the decision, the union made an untimely request that the County “schedule ... an arbitration date” following the County's unwillingness to stipulate to settle the dispute in accordance with the recommendation of a mediator.

The court noted that there was no proof that the County, in contrast to Brown and the union, the parties aggrieved by the Step 3 determination, was responsible for initiating the procedure at Step Four, or for the scheduling of the arbitration procedures.

Brown and the union sought a court order to compel arbitration of the grievance. The Appellate Division said that since there is no evidence that either Brown or the union ever timely “proceed[ed] to an advisory appeal” to either of the two alternative arbitral forums described in Section 23-1.4 of the parties' agreement, it agreed with the Supreme Court that, in light of this failure to complete the five-step grievance procedure, neither Brown nor the union could sue the County directly.

The simple answer: Had either Brown or the union followed the time requirement for perfecting the appeal to the next step, Step 4, the matter would have been subject to arbitration as permitted under the agreement.

Brown and the union also contended that they should not have been required to complete all five steps of the grievance procedure, because proceeding through all such steps would have been futile. The Appellate Division rejected this argument as being “without merit.”

Rebutting employer's defense to charges of unlawful discrimination

Rebutting employer's defense to charges of unlawful discrimination
Wallace v Methodist Hospital System, CA5, 271 F.3d 212

In the Wallace case, the Circuit Court of Appeals, Fifth Circuit, points out that an individual charging his or her employer with unlawful discrimination “must present facts to rebut each and every legitimate non-discriminatory reason advanced by [her employer] in order to survive [a motion for] summary judgment”.

Implicit in this ruling: if but one of the explanations offered by an employer in defending itself against allegations of unlawful discrimination survives, the employer will prevail.

Frequently an individual is able to establish a prima facie case of discrimination in challenging an adverse employment decision by introducing circumstantial evidence sufficient to raise a presumption of discrimination.

Once this is done, the employer is charged with the burden of producing a legitimate nondiscriminatory reason for the adverse employment decision. If the employer provides a legitimate nondiscriminatory reason for its action, the presumption of discrimination is defeated.

It then becomes the individual's burden to persuade the trier of fact that he or she was, in fact, the victim of unlawful discrimination by showing by a preponderance of the evidence that the employer intentionally discriminated against him or her because of his or her protected status.

In the Wallace case, the Hospital did not dispute that a former nurse, Veronica A. Wallace, had established a prima facie case of discrimination. However, in response to that prima facie case, the Hospital offered two nondiscriminatory reasons for discharging Wallace.

According to the decision, the Hospital contended that Wallace had violated two of its written rules and the violation of either constituted grounds for her immediate termination under its written policies without regard to her past performance:

(1) the employee performed a procedure without receiving a physician's order even though Hospital's written policies required an order; and

(2) the employee falsified medical records.

Although Wallace admitted that she had violated both policies, she argued that she was subject to disparate disciplinary treatment, and, therefore, Methodist's stated reasons were a pretext for discrimination.

According to the ruling, at the heart of whether the district court properly found that Wallace failed to demonstrate by substantial evidence that the Hospital's explanation of its actions constituted pretext.

While Wallace contended that she had provided evidence of disparate treatment, the district court held that the examples of disparate treatment she offered did not involve “similarly situated nurses.”

The Circuit Court sustained the lower court's findings, noting that it has held that in order for a plaintiff to show disparate treatment, Wallace had to demonstrate “that the misconduct for which she was discharged was nearly identical to that engaged in by a[n] employee [not within her protected class] whom [the company] retained,” citing Smith v. Wal-Mart Stores (No. 471), 891 F.2d 1177.

Put another way, the conduct at issue is not nearly identical when the difference between the plaintiff's conduct and that of those alleged to be similarly situated accounts for the difference in treatment received from the employer.

Here, said the court, the Hospital had shown that “with but one exception,” the nurses to whom Wallace points are not similarly situated as “they had either acted under a doctor's orders, did not need a doctor's order for their actions, or no one in a supervisory capacity was aware of the nurse's actions.”

In addition, said the court, Wallace failed to rebut the second reason advanced by the Hospital in discharging her -- falsification of medical records.

Concluding that there was no legally sufficient basis that would allow a jury to decide that Wallace had been discharged because of discrimination, the Circuit Court sustained the lower court's dismissal of Wallace's complaint.

June 29, 2011

Actively participating in the arbitration process without objection precludes the party later claiming that the matter presented to the arbitrator was not subject to arbitration

Actively participating in the arbitration process without objection precludes the party later claiming that the matter presented to the arbitrator was not subject to arbitration
Matter of Jandrew v County of Cortland, 2011 NY Slip Op 04143, Appellate Division, Third Department

Cortland County terminated Bryon Jandrew from his position with the County.
Jandrew filed a grievance under the relevant collective bargaining agreement [CBA]. The grievance was ultimately submitted to binding arbitration in accordance with the CBA, and an arbitrator was jointly elected by the parties.
Although Cortland contended that the subject matter of the grievance was not subject to arbitration, it did not seek a stay of arbitration and agreed to have the issue of arbitrability of Jandrew’s grievance determined by the arbitrator, as well as the issues of whether Jandrew was “properly terminated” and, if not “properly terminated,” the appropriate remedy.
The arbitrator ruled that Jandrew’s grievance was arbitrable. The arbitrator then determined that Jandrew’s termination was without cause and, as the remedy ruled that the County must reinstate him to his former position with back pay and benefits.
Although Courtland then notified Jandrew's attorney that it would appeal the award and that Jandrew “should not show up to work pending the appeal,” the County neither appealed the award nor did it move to vacate or modify it. Further, the County did not restore Jandrew to the payroll or provide back pay or benefits as directed by the arbitrator.
Jandrew then filed a petition pursuant to CPLR Article 75 seeking to confirm the arbitrator's award, whereupon Courtland filed an answer to his petition and moved to vacate the award.
Supreme Court confirmed the arbitration award and the Appellate Division affirmed the lower court’s action.
The Appellate Division rejected Cortland’s argument that the award should be vacated because the arbitrator lacked the authority to decide the controversy. The court pointed out that “A party who actively participates in arbitration without seeking a stay pursuant to CPLR §7503(b) waives the right to a judicial determination of the arbitrability of the dispute,” citing Matter of United Federation of Teachers, Local 2, AFT, AFL-CIO v Board of Education of City School District of City of New York, 1 NY3d 72.
In this instance, said the court, although the County initially took the position that the grievance was not arbitrable, it thereafter joined in the selection of the arbitrator, fully participated in the arbitration proceeding and, most significantly, itself submitted to arbitration the issue of whether the grievance was arbitrable rather than "availing itself of all its reasonable judicial remedies."
Accordingly, the Appellate Division concluded that the County had waived its right to contest the arbitrator's power to decide the controversy.
Further, said the court, “By submitting [the grievance] to arbitration, [Cortland] ran the risk that the arbitrator would find the dispute covered under the CBA, as she did, and while a contrary determination certainly would have been reasonable on the present record, it is not for us to substitute our judgment for that of the arbitrator in this regard.”
Finally, the Appellate Division rejected Cortland’s contention that the arbitrator's award violated public policy. Although an arbitration award may be vacated on this “extremely narrow ground” it may be vacated only where a court can conclude, "'without engaging in any extended fact-finding or legal analysis' that a law 'prohibit[s], in an absolute sense, [the] particular matters [to be] decided'" or that "the award itself violate[s] a well-defined constitutional, statutory or common law of this State"
Simply stated, said the court, “we fail to find any strong public policy precluding parties to a collective bargaining agreement from agreeing that the disciplining of employees for failure to maintain minimum job qualifications is to be submitted to and decided by an arbitrator.”
Similarly, with respect to the County’s argument that the award usurped the County Personnel Officer's power to set minimum job qualifications, the Appellate Division said “again the Cortland failed to point to any public policy that ‘prohibit[s], in an absolute sense,’ an employer from delegating to an arbitrator the authority to determine if an employee continues to meet the minimum qualifications of his or her position.”
Considering the adage that arbitrators "may do justice as they see it, applying their own sense of law and equity to the facts as they find them to be," the Appellate Division concluded that Cortland had not established that the arbitration award should be vacated for public policy reasons.
The decision is posted on the Internet at:

Removing a candidate's name from the eligible list

Removing a candidate's name from the eligible list
Ryff v Westchester Co. Personnel Office, 287 AD2d 723

The Westchester County Personnel Office removed Michael Ryff's name from the eligible list for police officer. Ryff demanded that the Office provide him with copies of reports concerning an investigation that resulted in his previous termination from his position as a probationary police officer with the Westchester County Department of Public Safety. The Appellate Division ruled that Ryff was not entitled to be given copies of such reports.

In addition, it declined to provide “judicial intervention,” ruling that the Personnel Office's determination to remove the Ryff's name from the eligible list after affording him an opportunity to submit written opposition to the disqualification pursuant to Civil Service Law Section 50(4)(e) was neither irrational nor arbitrary.

Civil Service Law Section 50(4)(e) permits the State or a municipal civil service commission to disqualification of an individual who was dismissed from his or her position upon stated charges alleging incompetence or misconduct. Section 50(4) also authorizes a commission to disqualify an individual following an investigation of his or her qualifications and an opportunity to object to such disqualification.

Suspension of retirement allowance upon post-retirement employment

Suspension of retirement allowance upon post-retirement employment
Matter of Grella v Hevesi, 38 AD3d 113

Philip M. Grella retired effective January 1, 2003 after serving as an Assistant District Attorney in Nassau County for 24 years and six years as a Judge of the Nassau County District Court.

Grella was appointed as a Court of Claims Judge effective June 30, 2003 and administratively assigned to Supreme Court. The Retirement System notified Judge Grella that his retirement allowance would be suspended because of his postretirement employment once his earnings reached $25,000. He was also told that because he had been reemployed by the same employer from which he had retired, he could earn up to $36,000 without any diminution of his retirement allowance if he obtained a so-called 211 waiver [see Retirement and Social Security Law § 211].

In addition, the Retirement System decided that the nature of Grella post-retirement employment made him ineligible for the Civil Service Law §150 elective office exception.

The public policy in New York is that in the event a retired member of a public retirement system of this State is employed by State or a political subdivision of the State, his or her retirement allowance is suspended until he or she again retires.* The major exceptions to this policy:

1. Retirement and Social Security Law §212 sets forth limits on annual earnings which a retiree under the age of 65 may earn in public employment without diminution of his or her retirement allowance.

2. Section 150 of the Civil Service Law, which generally provides for the suspension of pension and annuity during a retiree’s post-retirement employment by the state, or of any municipal corporation, or political subdivision of the state, for compensation, does not apply where such compensation is paid in connection with jury duty, or serving as an inspector of election, poll clerk or ballot clerk under the election law, or received compensation for serving as a notary public or commissioner of deeds, or compensation received for serving in an elective public office.

3. The Section 150 exception for election to public officer does not apply in situations where the individual “subsequent to his or her retirement from an elective public office, accepts appointment, is re-elected or takes a new oath of office to the same elective public office from which he or she retired.” In such cases the retiree’s retirement allowance is suspended until the date he or she vacates such elective public office, unless the amount earned for any calendar year for that elective public office does not exceed the earning limitation provided for retired persons in section two hundred twelve of the retirement and social security law.”

When Grella challenged the Retirement System’s determination, State Supreme Court Justice George B. Ceresia, Jr. ruled that Grella “did not accept elective public office within the meaning of Civil Service Law §150 when he was appointed by the Governor to the New York State Court of Claims” [see 10 Misc.3d 519].

Justice Ceresa said that Grella’s was appointed, rather than elected to his Court of Claims position and this was not converted to elective office merely by reason of his assignment to New York State Supreme Court, an elective position. The Appellate Division agreed and dismissed Grella’s appeal.

On another point, Judge Grella had argued that the Retirement System should be “equitably estopped” from suspending his retirement benefits because, he claimed, he relied on” erroneous advice from an Office of Court Administration [OCA] representative regarding his entitlement to receive benefits” if he accepted postretirement employment with OCA.

Although acting on this advise may have proven detrimental to Grella, the Appellate Division said the doctrine estoppel “generally cannot be invoked against the state or its agencies” because erroneous advice provided by a government employee as “this does not constitute the type of unusual circumstance” triggering the application of the doctrine. 

* The retiree’s retirement allowance is typically not affected in the event he or she accepts employment with a private sector employer, with the federal government or with another State or undertakes self-employment.

Acceptance of gifts by public officials

Acceptance of gifts by public officials
Decision of the Commissioner of Education, Decision No. 15,486

Members of the Board of Education of the Massapequa Union Free School District attended a social event sponsored by the board’s attorneys. Paul Dashefsky, claiming that as the fair market value of the reception was between $200 and $300 per person, complained that such attendance constituted a violation of district policy and General Municipal Law §805-a.

He asked the Commissioner to rule that the board members’ attendance constituted a violation of law and district policy. He also asked the Commissioner to direct the board members “to cease and desist from accepting any prohibited gifts.” Finally, Dashefsky wanted the Commissioner to direct the board members “to publicly disclose all gifts accepted during their term of service;” and to reimburse the district for the fair market value of any gifts accepted in violation of law or district policy.

Although the Commissioner dismissed Dashefsky’s appeal as untimely, he said that “Even if it were not dismissed on procedural grounds, the appeal would be dismissed on the merits.”

Dashefsky had the burden of demonstrating a clear legal right to the relief he sought and the burden of establishing the facts upon which he seeks relief. The Commissioner said that Dashefsky’s claim that the cost of the reception was between $200 and $300 per person was mere speculation as there was nothing in the record to confirm this allegation. Accordingly, said the Commissioner, Dashefsky failed to establish that the dollar limit set out in the statute or the policy had been violated..

The Commissioner, however, said that he felt “compelled to remind [the board members] of the gift prohibitions in the General Municipal Law and their obligations thereunder.” General Municipal Law §805-a(1) states:

No municipal officer or employee shall: a. directly or indirectly, solicit any gift, or accept or receive any gift having a value of seventy-five dollars or more, whether in the form of money, service, loan, travel, entertainment, hospitality, thing or promise, or in any other form, under circumstances in which it could reasonably be inferred that the gift was intended to influence him, or could reasonably be expected to influence him, in the performance of his official duties or was intended as a reward for any official action on his part.

The Commissioner cautioned:

“A violation of §805-a(1) occurs not only where there is an intent to influence or reward an official but also in instances where there is an appearance that a gift will influence the official (Op Atty Gen No. 89-48). Under this standard, it may “reasonably be inferred” that the reception was intended to influence, or “could reasonably be expected to influence” the board’s decision to continue its business relationship with the law firm or to reward the board for past actions, including the retention of the firm’s services.

“As public officials, board members must avoid even the appearance of impropriety. (Op Atty Gen No. 89-48). I thus encourage the individual board members to be scrupulous in their adherence to the gift prohibitions contained in General Municipal Law §805-a(1) and board policy.”

June 28, 2011

Substantial evidence that the educator would be reemployed during the succeeding school year defeats teacher’s claim for unemployment insurance between school years

Substantial evidence that the educator would be reemployed during the succeeding school year defeats teacher’s claim for unemployment insurance between school years
Matter of Murphy v Commissioner of Labor, 2011 NY Slip Op 05396, Appellate Division, Third Department

A professional employed by an educational institution is ineligible for unemployment insurance benefits for the period between two successive academic years when he or she has received a reasonable assurance of continued employment.*
Appeal from a decision of the Unemployment Insurance Appeal Board, filed October 1, 2010, which ruled that claimant was ineligible to receive unemployment insurance benefits because she had a reasonable assurance of continued employment.

Patricia J. Murphy was employed as a per diem substitute teacher in Manhattan and the Bronx by the New York City Department of Education during the 2008-2009 school year for a total of 154 days. On June 12, 2009, claimant was sent a letter by the employer assuring her of continued employment during the upcoming 2009-2010 school year, with the amount of work available and the economic terms and conditions of employment to be substantially the same as in the previous year.

Murphy applied for unemployment insurance benefits for the summer of 2009 buts the Unemployment Insurance Appeal Board ultimately determined that she was ineligible to receive them as she had received a reasonable assurance of continued employment. Murphy appealed the Board’s determination.

The Appellate Division affirmed the Board’s ruling, holding that the testimony by the school district, together with the letter sent to Murphy indicating a belief she would be offered the same amount of work during the succeeding academic year, provide substantial evidence to support the Board's determination.

* Labor Law §590 [10]

The decision is posted on the Internet at:

Applicant for employment as a corrections officer rejected because of misdemeanor convictions

Applicant for employment as a corrections officer rejected because of misdemeanor convictions
Matter of Little v County of Westchester, 36 AD3d 616

Kith Little was disqualified for employment as a Westchester County corrections officer because he had been earlier convicted of misdemeanors.

He sued Rocco Pozzi, the Westchester County Commissioner of Correction, seeking a court order directing his appointment as a corrections officer. The court sustained the Commissioner’s determination that Little’s previous misdemeanor convictions rendered him unfit for the position of correction officer.

The Appellate Division said that the appointing authority has wide discretion in determining the fitness of candidates, “which discretion is particularly broad in the hiring of law enforcement officers, to whom high standards may be applied.”

Finding that Pozzi’s decision was neither irrational nor arbitrary, the court dismissed Little’s appeal.

Section 50.4 of the Civil Service Law permits the State Department of Civil Service or a municipal commission or personnel officer to "investigate the qualifications and background of an eligible after he [or she] has been appointed ... and upon finding facts which if known prior to appointment, would have warranted his [or her] disqualification ... direct that his [or her] employment be terminated." 

Except in cases of fraud, there is a three-year statute of limitation on disqualifying an employee pursuant to Section 50.4.

Misinformation may be given by a candidate when completing an application for employment. The Angelopoulos case, [Angelopoulos v New York City Civil Service Commission, Appellate Division, First Department], however, did not involve misinformation but rather the omission of certain information from the application form. According to the decision by the Appellate Division, First Department, Angelopoulos was disqualified from his position of police officer on the grounds that he "fraudulently omitted his military service on his application for employment...."

Although Angelopoulos stated that he had no prior military service and that he had never used an alias, it was determined that he had enlisted in the United States Army under the name of Angelo.

This misrepresentation was discovered during a post-employment investigation that revealed that a felony warrant had been issued against Angelopoulos for desertion from the Army and that he was given a "General Discharge in absentia" from the Army. On the basis of this falsification, Angelopoulos was disqualified from the police force for fraud. His dismissal upheld by the New York City Civil Service Commission.

Under Section 50.4 of the Civil Service Law, an individual may be disqualified only for "fraud of a substantial nature" in his application. Angelopoulos argued that he did not commit any fraud as he had agreed to a general discharge in connection with the settlement of a disciplinary matter while in the Army and that "he understood that his period of service was a ‘nullity’, which he need never reveal."

The Appellate Division said that Angelopoulos neither disclosed the fact of his service nor his use of an alias in connection with his military service. This, it ruled, "could not be said that these misrepresentations were immaterial."

The Court also noted that Angelopoulos falsely indicated that he was employed in a civilian job while he was actually in the military, which it said "goes beyond mere concealment." It then sustained his disqualification by the Commission.

Another case, Carchietta v Department of Personnel, 568 NY2d 386, involved the disqualification of a candidate for appointment to police officer positions based on information revealed in the course of a pre-employment checking the applicant's background.

Carchietta was disqualified by the New York City Department of Personnel for appointment as a police officer. The Department had disqualified him on the grounds of "character" following a background investigation. According to the report, Carchietta, as a youth, had been arrested in connection with his alleged participation in the transfer of a forged prescription for illicit drugs. Apparently, the Department decided that his explanation of his involvement in the incident was "questionable."

Claiming that the Department's decision to disqualify him was arbitrary and capricious, Carchietta sued. Rejecting his appeal, the Appellate Division said that Carchietta had failed to present evidentiary facts from which an inference of bad faith, illegality or arbitrary or capricious conduct can be drawn. The court said that record supported the Civil Service Commission's "exercise of its broad discretion" in disqualifying Carchietta for the position of police officer on the basis of his "character."

Section 106 of the Civil Service Law makes it a misdemeanor for any individual to impersonate a candidate in a civil service examination as well as a candidate allowing another individual to impersonate him or her in the examination.

Although litigation involving disqualification of a candidate pursuant to §50.4 of the Civil Service Law is relatively common, cases dealing with alleged violations of §106 are rare. One of the few cases reported concerning violations of §106 is People v Knox, l78 AD 344, a case decided in 1903, in which the Appellate Division ruled that a civil service commission may disqualify an applicant where it finds that fraud or deception has been practiced.

Daubman v Nassau County Civil Service Commission, 601 NY2d 14, notes that §50.4(b) of the Civil Service Law allows a civil service commission to disqualify an individual for appointment if the applicant or appointee "is found to have a disability which renders him or her unfit to perform in a reasonable manner the duties of the position in which he or she seeks employment, or which may reasonably be expected to render him or her unfit to continue to perform in a reasonable manner the duties of the position...." 

The Daubman decision suggests that a civil service commission should consider the standards imposed by the State's Human Rights Law in determining whether an individual should be disqualified because of a "disability." 

Using the agency's equipment for non-official purposes

Using the agency's equipment for non-official purposes
Ekpecham v Ross, Decisions of the Commissioner of Education No. 14,651

Priscilla A. Ekpecham asked the Commissioner of Education to remove Superintendent of the City School District of Mt. Vernon Ronald O. Ross from his position because that Ross allowed the school district's postage machine to be used for a mass mailing of a letter being mailed by a not-for-profit organization called “Saving Our Children Through Prayer Power.” The envelopes and stationary used in the mailing displayed the organization's name, and listed its address as “c/o Grace Baptist Church” in Mount Vernon.

According to Ekpecham, the letter was an invitation to a public meeting allegedly to exhort public support for Ross and the Mount Vernon school system, and to support the use of school uniforms in the public schools.

Ross, in rebuttal, said that the Church reimbursed the district in the amount of $1,092.46 for the cost of postage for the mailing. Accordingly, Ross argued, because no district funds were used for the mailing, there was no need to obtain authorization from the board of education, and any claims regarding that mailing are now moot.

Although the Commissioner dismissed Ekpecham's appeal as untimely, he said that:

I am compelled to comment on the use of school district postage equipment for private purposes, irrespective of whether the cost of the actual postage is reimbursed. The school district should be mindful that the United States Constitution prohibits government action that tends to support or sponsor a particular faith or religious group. Similarly, a school may not offer a particular religious group or faith privileges or access to school property that is not generally available to the public.

The problem, said the Commissioner, was that “the use of the district's equipment, and the identification of the district's postal meter number on envelopes displaying the name and address of an organization linked to a particular religious denomination and church, creates the appearance of sponsorship by the school district of this particular religious organization, and its activities and messages.”

Without ruling on the propriety of such use, the Commissioner said that “granting unique rights to one organization creates at the very least an appearance of impropriety.” In addition, “the use of district resources, equipment, etc., also raises the specter of an illegal use of public funds for private purposes.”

Standing to appeal an arbitration award

Standing to appeal an arbitration award
Moreira-Brown v New York City Bd. of Education, 288 AD2d 21

Herbert Moreira-Brown had filed a grievance, which was pursued through arbitration. Acting pro se [on his own behalf], he then attempted to (1) confirm an arbitration award pursuant to Section 7510 of the Civil Practice Law and Rules [CPLR] and (2) vacate a second arbitration award pursuant to Section 7511 of the CPLR. The Supreme Court dismissed both of his petitions and Moreira-Brown appealed.

The Appellate Division affirmed the lower court's determination, holding that Moreira-Brown did not have standing to seek either the confirmation of the first arbitration award or the vacating of the second award.

The court pointed out that the collective bargaining agreement between Board of Education and the Union provided that an employee's grievance could be submitted to arbitration by the union. As Moreira-Brown was represented by the union at the arbitration and he failed to show that the union breached its duty of fair representation, the court found that he did not have any standing to file these Article 75 petitions. The Appellate Division commented that “[t]he record establishes that the union vigorously represented [Moreira-Brown] and there is no evidence of bad faith on the part of the union” that would justify allowing him to maintain his action against the Board of Education and his union.

June 27, 2011

Suspension of employee without pay recommended as the disciplinary penalty for insubordination.

Suspension of employee without pay recommended as the disciplinary penalty for insubordination.
New York City Dept. of Correction v Fernandez, OATH Index #1219/11

After being given an assignment by an assistant deputy warden, a correction captain went to the deputy warden’s office to angrily confront him about the assignment. The two men fought and both were injured. 

OATH Administrative Law Judge John Spooner found the captain was insubordinate in not performing the assignment as ordered and in arguing with his supervisor about the order. 

Judge Spooner also found that the captain also made false written and interview statements about the incident.

The ALJ recommended that the captain be suspended without pay for 40 days.

The decision is posted on the Internet at:

Constructive notice of potential acts of misconduct provided by an Internet posting

Constructive notice of potential acts of misconduct provided by an Internet posting
Salamino v Board of Educ. of the City School Dist. of the City of New York, 2011 NY Slip Op 05408, Appellate Division, First Department

In this action, the Appellate Division concluded that a teacher served with disciplinary charges alleging that she had engaged in sexual misconduct with a "student" had constructive notice* that such behavior constituted misconduct in violation of the relevant collective bargaining agreement.

As the collective bargaining agreement [CBA] did not define the term “student” for the purposes contract disciplinary procedure, the arbitrator relied Regulation A-101, to determine if the individual with whom the teacher had allegedly engaged in sexual misconduct was a “student” and so found.

The Appellate Division, noting that Regulation A-101 did not purport to state a definition of the term “student," decided this did not mean that the arbitrator acted arbitrarily and capriciously in using Regulation A-101 to determine if the individual involved with the teacher in alleged sexual misconduct was a student

Turning to the teacher’s argument that she was disciplined without just cause within the meaning of Education Law §3020[1] because the CBA did not indicate that Regulation A-101 could be used to determine the meaning of the term "student" for the purposes of the CBA, the Appellate Division pointed out that the Chancellor's Regulations were “posted on the Board of Education website, and thus the teacher was on reasonable notice, under the objective circumstances, of a potential sexual misconduct charge.”

The court then held that the penalty of terminating the teacher from her position “could not be construed as disproportionate to the challenged conduct, inasmuch as CBA Article 21(G)(6) explicitly called for "mandatory" termination in cases of sexual misconduct.”

* Constructive notice is a “legal fiction” that deems that a person has notice even though actual notice was not personally delivered to the individual.

The decision is posted on the Internet at:

The difference between excusable neglect and stupidity

The difference between excusable neglect and stupidity
Source: Administrative Law Professor Blog. Reproduced with permission. Copyright © 2011, All rights reserved

On Above the Law, Christopher Danzig illustrates the difference between excusable neglect and a "bonehead mistake" in "How to Lose a Case With Simple Computer Cluelessness".

For attorneys, missing deadlines is a big no-no. BIG no-no. A Goodyear blimp-sized no-no. People have literally died because of blown deadlines. Cases worth millions of dollars get tossed out because of missed deadlines, even if someone has a decent excuse.

That being so, I do not envy the lawyer who had to tell his client that the 4th Circuit shut down their lawsuit because he didn’t know how to use his Microsoft calendar. ...

The U.S. District Court for the Eastern District of Virginia ruled on a breach of contract and fiduciary duty dispute between Symbionics Inc. and its former president, Christopher J. Ortlieb, in December 4, 2009.

Symbionics planned to file an appeal on the last day of the standard 30-day window. But, uh oh, the company missed the deadline by a day, due to what the 4th Circuit later — and generously — called a computer “quirk” and “glitch”:

The alleged glitch occurred when, after counting twenty-seven days through December 31, 2009, counsel changed the month on the calendar display to January in order to continue the computation. Counsel failed to notice that the calendar did not automatically advance to January 2010 but instead reverted to January 2009.

Consequently, counsel mistakenly referenced the January 2009 calendar when he completed the calculation of the thirty-day window to appeal, which resulted in counsel’s erroneous determination that the deadline was January 5.
... The company apologized to the court, District Judge Anthony Trenga ruled the mistake was “excusable neglect,” and he gave Symbionics an extension. ...

In late May, the 4th Circuit benchslapped Symbionics in an unpublished, per curiam opinion [PDF] that basically states the obvious: Learn how to use a freakin’ computer.

We find nothing extraordinary or unusual about counsel’s calendaring error that should relieve Symbionics of its duty to comply with the time limit of Rule 4(a)(1). Counsel’s total dependence on a computer application—the operation of which counsel did not completely comprehend—to determine the filing deadline for a notice of appeal is neither “extraneous” to nor “independent” of counsel’s negligence…

[T]his neglect is precisely the sort of “run-of-the-mill inattentiveness by counsel” that we have consistently declined to excuse in the past.

If you want a technical look at the Circuit’s analysis of what exactly “excusable neglect” means, check out this Law Technology News story.

More broadly though, it’s 2011. Not knowing how to use Outlook isn’t and shouldn’t be an excuse for anything. It’s a disability.

And somehow, there are attorneys (often senior-level ones) who still don’t think they need to learn this basic stuff. We’re not even talking about more complex e-discovery processes. It’s just scheduling your day! (If counting the days yourself is too hard, there are websites that do it for you.) A speaker at a conference I recently attended said the best thing attorneys with this mindset can do… is retire.

This kind of ignorance loses cases, makes routine office work less efficient and could even lead to malpractice claims. ...

Agencies are often even more strict on deadlines, either because of specific statutory direction or just wanting to close matters out quickly. Don't miss deadlines, and don't wait until the last day to file.

Request for reconsideration of an administrative determination does not toll the running of the statute of limitation

Request for reconsideration of an administrative determination does not toll the running of the statute of limitation
Matter of Bahr v MTA N.Y. City Transit Authority, Supreme Court, Kings County, 14 Misc.3d 1215(A)

The decision by Supreme Court Justice Francois A. Rivera in the Bahr case again points out that:

1. A proceeding pursuant to the statute of limitations set out in Article 78 of the Civil Practice Law and Rules (CPLR §217[1]) must be commenced within four months of the date that the decision complained of became final and binding; and

2. An administrative determination is considered final and binding for purposes of CPLR §217[1] when it has an impact on the aggrieved party and when the aggrieved party knows of the determination; and

3. An aggrieved party's requests for reconsideration of the administrative decision neither extends the statute of limitations nor tolls the statute of limitations from running.

Richard Bahr, Tier 4 member of the New York City Employees’ Retirement System [CERS] resigned from his position with the Metropolitan Transit Authority (MTA) in August 2000. CERS advised Bahr that he could vest his membership in the Retirement System if he had five years of credited member service and was within five years of normal retirement age when he left employment. Bahr qualified for vesting by purchasing enough service credit to meet the five years of member service requirement to be eligible to vest his retirement benefits..

New York City Transit Authority [NYCTA] provided employees such as Bahr with health insurance coverage through the New York State Health Insurance Program (NYSHIP). NYCTA also provided Tier 4 retirees with health insurance coverage upon retirement if the individual had at least ten years of service in NYCERS and was 62 years old or had five years of service in NYCERS and was 70 years old.

In August 2000, Bahr was not eligible to retire and resigned instead. He “vested” his eligibility for a retirement allowance upon attaining the minimum age for retirement.

When Bahr retired a few years later, the Employee Benefits Division of the New York State Department of Civil Service, which administers NYSHIP, wrote Bahr to advise him that he was eligible to continue his health insurance coverage with NYSHIP during his retirement. NYSHIP also told Bahr that he had been enrolled in the Empire Plan with dependent coverage. The cost Bahr’s health insurance coverage was paid by the participating employer, NYCTA.

As it turned out, the information NYSHIP sent to Bahr was incorrect.

NYCTA wrote to Bahr and told him that his post employment health benefits were granted in error. NYCTA explained that although Bahr qualified for a retirement allowance, having had five years of credited member service in CERS, he was ineligible for “retiree health insurance coverage” because his did not have at least ten years of credited service in the System. NYCTA then terminated Bahr’s health coverage with NYSHIP..

Supreme Court dismissed Bahr’s Article 78 petition as untimely.

According to the decision, in a letter dated July 23, 2004, NYCTA informed Bahr that his health coverage would end on August 1, 2004. The court pointed out that Bahr’s unsuccessful attempts to have NYCTA reconsider its decision did not extend or toll the four-month statute of limitations to commence an Article 78 proceeding.

The court said that although Bahr knew of NYCTA’s final determination on July 29, 2004, his petition challenging that decision served and filed more than four months after he knew of the final administrative determination. Accordingly, it was untimely.

Employee having a disability that poses a danger to co-workers is not “qualified” within the meaning of the ADA

Employee having a disability that poses a danger to co-workers is not “qualified” within the meaning of the ADA
Hutton v Elf Atochem North America, Inc., 273 F.3d. 884

According to the Hutton decision by the U.S. Circuit Court of Appeals for the Ninth Circuit, an individual with a disability who is shown to pose a danger to co-workers and others is not a “qualified individual” within the meaning of the Americans With Disabilities Act.

Norman Hutton, a diabetic, complained that Elf Atochem discriminated against him because of his disability in violation of the ADA and Oregon's disability discrimination law, [Oregon Revised Statutes, Sections 659.405 and 659.436 (1999).

Elf manufactures chlorine and related chemical products and had hired Hutton in 1986 with the knowledge that he had been diagnosed as a Type I diabetic. During his employment at Elf Hutton had a number of diabetic episodes. On one occasion he went into insulin shock while he was pumping chlorine from the storage tanks and had difficulty communicating with his co-workers.

Elf attempted to resolve the situation by having Hutton agree to meet specified conditions in order to continue his employment. These included his remaining under the care of a physician, providing evidence of a medical examination and laboratory blood assessment to Elf on a periodic basis; maintain a daily log related to his diet, his insulin intake, and certain other activities; monitor his blood sugar levels and to regulate his insulin intake in accordance the recommendations of a physician.

Hutton did not fully cooperate and ultimately he was suspended subject to his complying with the elements set out in the agreement. He sued, only to have a federal district court find that he was not a “qualified person with a disability” under the ADA. The court said that Hutton had failed to produced evidence demonstrating that he was able, with or without an accommodation, to perform the essential functions of his position -- chlorine finishing operator position.

In making its determination the court found that Hutton's diabetes created a risk of significant harm to himself and others, thereby disqualifying him from the position.

The Circuit Court agreed in part, holding that Elf's “direct threat” defense was valid insofar as his posing a threat to co-workers was concerned. It said that such a defense is permitted under the ADA, citing the “Defenses” section of the law.

The Equal Employment Opportunity Commission [EEOC] sets out the following guidelines concerning “direct threat” for the purposes of the ADA: Direct Threat means a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.

The court rejected EEOC's view that the direct threat defense is available to an employer with respect to its contention that the individual poses a safety risk to himself or herself. In contrast, the Ninth Circuit said that where, as in Hutton's situation, there is no dispute that a significant physical or mental lapse by Hutton as a result of a diabetic episode could result in substantial harm to his co-workers and others, the direct threat defense was available to Elf.

Whether or not an individual poses a “direct threat” to others is to be determined on the basis of an individualized assessment of the individual's present ability to safely perform the essential functions of the job supported by a reasonable medical judgment that relies on the most current medical knowledge and/or on the best available objective evidence.

Among the factors to be considered in making such a determination:

1. The duration of the risk;

2. The nature and severity of the potential harm;

3. The likelihood that the potential harm will occur; and

4. The imminence of the potential harm.

Since a claim of “direct threat” is an affirmative defense, the employer bears the burden of proving that an employee constitutes a direct threat.

In Hutton's case there was no dispute that his employment posed some risk of potential harm to others. Was this risk of a sufficient magnitude and probability to disqualify Hutton from the chlorine finishing operator position?

Finding that an individualized assessment of each factor in the EEOC's four-factor test supports the conclusion that Hutton would pose a direct threat to his co-workers and others, the court sustained the lower court's dismissal of Hutton's complaint.

The court ruled that Elf had met the “direct threat” test established by EEOC with respect to Hutton's co-workers and other by demonstrating that (1) the duration of the risk would exist for as long as Hutton held the chlorine finishing operator's job; (2) the nature and severity of the potential harm is catastrophic -- many lives could be lost; (3) although the likelihood that the potential harm will occur is small, whether and when it will occur cannot be predicted; and (4) the imminence of the potential harm is unknown because of the unpredictability of Hutton's condition.

Union use of school e-mail in connection with a school board election

Union use of school e-mail in connection with a school board election
Appeal of John M. Himmelberg and Andrew J. Little, Decisions of the Commissioner of Education, Decision No. 15,490

Himmelberg and Little, unsuccessful school board candidates, challenge certain events related to a school board election. The Commissioner sustained the appeal in part.

Essentially, Himmelberg and Little complained that the president of the Fairport Education Association, the union representing the district’s teachers, used his district e-mail account to send e-mail to the district e-mail accounts of all union members advising the members of the union’s endorsement of two candidates for seats on the board. The e-mail also set forth the reasons the union chose not to endorse Himmelberg and Little.

In response to Himmelberg’s and Little’s objection, the school superintendent said that the union had the contractual right to use the district’s e-mail system to communicate with its members and that neither he nor the board endorsed the union president’s message.

After the election, the union distributed a newsletter to teachers via their district mailboxes. The newsletter included a message from the union president discussing the “hard core haters leading the effort against our school district.” While the newsletter did not refer to either Himmelberg or Little by name, it did name individuals the union president previously had identified as associated with them

Ultimately, Himmelberg and Little appealed to the Commissioner. The Commissioner granted the appeal in part. He said that although a board of education may provide informational material to the voters concerning a vote or election, the use of district resources to distribute materials designed to solicit favorable votes violates the constitutional prohibition against use of public funds to promote a partisan political position. Further, said the Commissioner, “Even indirect support, such as a school board giving a private organization access to its established channels of communication to espouse a partisan position has been deemed improper” and “lending indirect support to the private organization’s efforts to influence the vote, permitting such use of school facilities also lends an appearance of prohibited partisan activity by the school district, which should be avoided.”

Accordingly, the Commissioner found that under the facts of this case, the school district improperly permitted the union to use district resources to advocate the union’s position. Although the district asserted that the union’s use of e-mail was undertaken pursuant to its contract and was consistent with the parties’ longstanding practice, the Commissioner said that the parties’ collective bargaining agreement cannot authorize unconstitutional partisan use of district resources.

In contrast, the Commissioner said that “The post-election newsletter … did not constitute improper advocacy. While it contained strong, potentially divisive language, it was not directed at a specific question before the voters and was directed to union members only.

The Commissioner ordered the district to review its policies to ensure that adequate safeguards are in place to guard against improper partisan political activity.

June 24, 2011

Employee terminated after being found guilty of moral turpitude and dishonesty

Employee terminated after being found guilty of moral turpitude and dishonesty
Health and Hospitals Corporation v Saavedra, OATH Index #1404/11 [Modified as to the penalty to be imposed]

OATH Administrative Law Judge Faye Lewis ruled that a community associate could be sanctioned for off-duty misconduct based upon her admission that she took $4,680 from the City retirement system (NYCERS) that she knew did not belong to her.

The woman had taken a loan from NYCERS and a check was mailed to her even though the money had already been electronically deposited into her account. She cashed the check knowing she was not entitled to it.

ALJ Lewis found a nexus between the conduct and her job, i.e., she was able to obtain the pension loan from NYCERS because she works for the City of New York.
Judge Lewis noted that crimes of larceny are indicative of moral turpitude, which may constitute a basis for discipline.

As to the penalty to be imposed, the Administrative Law Judge found the employee’s expression of remorse at trial to be sincere and noted that the misconduct was not premeditated, but a crime of opportunity and recommended that a 60-day suspension without pay be imposed by the appointing authority.

However, Raquel Ayala, as the designee of Antonio Martin, Kings County Hospital Center's Executive Director, accepted Judge Lewis’ findings of fact but disagreed with Judge Lewis' recommended penalty of a sixty (60) day suspension and imposed the penalty of termination,* concluding that the employee had breached her employer’s trust which, said Ms. Ayala, is essential to anyone’s employment.

Ms. Ayala noted that her determination may be appealed by application to the Personnel Review Board or in accordance with Article 78 of the Civil Practice Law and Rules.

* The courts have ruled that the appointing authority may impose a harsher penalty than the penalty recommended by a disciplinary hearing officer [see Alamio v Ambach, 91 AD2d 695 and Henry v Village of Palmyra, 105 AD2d 1159 for examples of such actions and the standards to be followed in such cases].

The decision is posted on the Internet at:

Witness creditability determinations

Witness creditability determinations
CSEA Local 1000 [Vaziri-Cohen] v Tioga County, 288 AD2d 802

In an administrative disciplinary action, the hearing officer's determination is frequently based on his or her evaluation of the credibility of witnesses testifying at the disciplinary hearing. In the Vaziri-Cohen appeal the Appellate Division considered the issue of credibility in determining if substantial evidence supported the disciplinary determination resulting in Vaziri-Cohen's dismissal.

Susan Vaziri-Cohen was terminated after being found guilty of charges that she had falsified agency records, repeatedly failed to follow her superior's instructions and made demeaning remarks to a co-worker about her supervisor.

The Hearing Officer recommended that Vaziri-Cohen be dismissed from service based on a finding that her conduct had “hindered the mission of the agency and hurt its credibility” and that she “remained unwilling to concede that her behavior was unacceptable.”

CSEA appealed, contending that the hearing officer's findings were not supported by substantial evidence. The Appellate Division disagreed and dismissed the appeal.

The court pointed out that here the finding of the hearing officer with respect to the first charge -- falsification of official records -- turned on issues of credibility and inferences drawn by the hearing officer from the evidence presented. Finding that the conclusion drawn by the hearing officer was supported by both direct and circumstantial evidence, the court sustained the hearing officer's finding. Noting that both Vaziri-Cohen and her supervisor testified during the disciplinary hearing, the court said that “it was within the province of the Hearing Officer to implicitly reject the credibility of [Vaziri-Cohen's] exculpatory explanation.”

As to the second charge -- Vaziri-Cohen's alleged failure to follow work orders -- her supervisor testified that despite several successive directives by him concerning the inclusion of certain information in a client's medical record over the course of one week -- Vaziri-Cohen failed to add the information as directed.

Vaziri-Cohen, on the other hand, testified that she had made the changes directed by her supervisor. The court said that this conflict in the testimony given at the disciplinary hearing raised an issue of credibility implicitly resolved by the Hearing Officer's ruling against her.

As to the charge alleging Vaziri-Cohen made disparaging remarks about her superior to a co-worker, the Appellate Division said that substantial evidence supported the hearing officer's conclusion that, under the circumstances, her comments were “irresponsible and denigrating” and obviates any claim that they were made in good faith.

According to the decision, “the unrefuted testimony, including [Vaziri-Cohen's] admission, established that ... [she] made a denigrating and explicit comment to a co-worker about her supervisor ....”

As to the penalty imposed, dismissal, the Appellate Division wrote that “in view of the nature of the misconduct and insubordination involved in these charges, we see no basis upon which to disturb the penalty of dismissal, which we do not find was so disproportionate [to the offenses to which she was found guilty] as to be shocking to one's sense of fairness,” citing the Pell standard [Pell v Board of Education, 34 NY2d 222].

Creditability was also an issue in the Pelayo case [Pelayo v Safir, App. Div., First Dept., November 27, 2001]. Henry Pelayo, a New York City police officer, was dismissed from his position after being found guilty of administrative disciplinary charges alleging that he “knowingly gave false material testimony in felony court proceedings, and that he provided false information concerning the events underlying [those] criminal proceedings in departmental ... forms.”

The court said that Pelayo “challenges to the credibility determinations of the Assistant Deputy Commissioner are unavailing since, in an Article 78 proceeding, the reviewing court may not weigh the evidence, choose between conflicting proof, or substitute its assessment of the evidence or witness credibility for that of the administrative fact-finder.”

Whistle blowing

Whistle blowing
Kahn v SUNY Health Center at Brooklyn, 288 AD2d 350

What is the whistle blower required to show in order to prevail? What is the targeted agency required to demonstrate in defending itself in a whistle blower case? These were among the issues considered by the Appellate Division when Mahmood Khan sued SUNY's Health Center at Brooklyn claiming it had violated Section 740 of the Labor Law.

In order to prevail in his Section 740 complaint, Kahn was required to plead and prove that the Health Center engaged in an activity, policy, or practice that constituted an actual violation of law, rule, or regulation. A critical factor in resolving this litigation concerned the nature of the proof required. The court said that an employee's good-faith reasonable belief that an actual violation of a law, rule, or regulation occurred is insufficient: he or she must show that there was a violation actually occurred.

Kahn had alleged that conditions in the Health Center's laboratories were unsafe due to poor air quality.

The Medical Center, however, produced affidavits and other proof demonstrating that during the period relevant to the Kahn's complaints of unsafe conditions, the Center's laboratories were not found to be in violation of any safety or health standards promulgated under the United States Occupational Safety and Health Act of 1970 or any regulations promulgated by the Department of Labor.

Accordingly, said the Appellate Division, the Health Center had come forward with sufficient admissible evidence to sustain its burden for granting its motion for summary judgment.

In contrast, said the court, Kahn failed to make the requisite factual showing to defeat the motion. He did not allege an actual violation of any specific law, rule, or regulation either in his complaint or his affidavit submitted in opposition to the defendant's motion for summary judgment.

The court rejected Kahn's “uncorroborated and unsubstantiated opinion that the laboratories were unsafe” holding that it amounted to no more than “a reasonable belief of a possible violation.” This, without proof, will not support a cause of action to recover damages under Labor Law Section 740.

Disability as a defense in disciplinary actions

Disability as a defense in disciplinary actions
Matter of Schlitz v Cavanagh, 2007 NY Slip Op 50026(U), Supreme Court, Suffolk County

The significant issue in the Schlitz case concerned the interplay of two different provisions of the Civil Service Law:

1. Serving disciplinary charges against an individual pursuant to Section 75; and

2. Placing an employee on leave pursuant to Section 72, which is triggered in cases of an employee’s inability to perform the duties of the position because of non-work related disease or disability.

In Penebre v Dzaluk, 51 AD2d 574, the Appellate Division ruled that §75 charges for misconduct should not have been served on a police officer but that the employer should have proceeded under §72, Ordinary Disability Leave instead. Penebre, said the court, “had performed successfully as a police officer for 13 years before his behavior markedly changed.” He became depressed and inattentive.

Under these circumstances, the Appellate Division said that serving Penebre with §75 charges for misconduct was misplaced. The court indicated the rather than initiate disciplinary action, the appointing authority should have utilized Section 72 which provides for the placement of an employee on a leave because of a disability, other than a disability resulting from an occupational injury or disease, in the event it is determined that he or she is unable to satisfactorily perform the duties of the position because of that disability.

Schlitz was served with disciplinary charges pursuant to Section 75. Before the conclusion of the disciplinary hearing, however, Schlitz was placed on Section 72 leave.

A physician was employed by the Town and asked to determine whether or not Schlitz was suffering from a mental health issue that affected his ability to perform his duties satisfactorily. The physician’s opinion, “given within a reasonable degree of medical certainty,” was that "any past misbehavior on the part of Mr. Schlitz would not have been because of a psychiatric condition."

Ultimately, Schlitz was found guilty of various instances of misconduct and the penalty imposed was demotion.

Schlitz appealed but withdrew his claim regarding the Section 75 determination by conceding that there was substantial evidence to justify the findings of misconduct and the penalty imposed. Instead, Schlitz contended that the Town knew that he was suffering from depression and that the filing disciplinary charges against him under these circumstances amounted to unlawful workplace discrimination against a person with a disability.

In addition, Schlitz argued that his employer was required to present the evidence of his depression at the §75 hearing as a defense, or in mitigation of the misconduct charge, on his behalf.

Justice Mayer ruled that Town was within its rights to conduct the §72 proceeding and suspend the §75 hearing pending the results of Schlitz’s medical evaluation. Further, said the court, once the Town had evidence that the misconduct alleged in the §75 charges and specifications were not due to mental disability, it had the right to move forward under §75.

As to Schlitz’s claim that he was the victim of “unlawful workplace discrimination against a person with a disability,” the court said that the medical evidence in this case was that Schlitz’s acts of misbehavior were not caused by a psychiatric condition. Justice Mayer ruled that “there is no admissible proof that the petitioner is, or ever was, mentally disabled, and the claim of workplace discrimination perpetrated by the Town by bringing the charges of misconduct against an allegedly disabled person is, therefore, without merit.”

In contrast to discipline/termination procedures, the basic concept underlying the use of Section 72 in disability related situations is the separation/rehabilitation/reinstatement of the employee.

Section 72.1 sets out the procedures to be followed by the appointing authority before an employee may be placed on leave for ordinary disability involuntarily.

Section 72.3 describes the appeal procedures, including recourse to the courts pursuant to Article 78 of the Civil Practice Law and Rules, available to an individual involuntarily placed on disability leave following a Section 72.1 hearing.

Section 72.5 provides an exception to the basic requirement that a Section 72.1 hearing must be concluded before the employee may be placed on Section 72 disability leave involuntarily based on the appointing officer determination that there is a "potential danger" if the employee is permitted to continue on the job.

If the employee is absent of Section 72 leave for more than twelve consecutive months, the appointing officer may, but is not required, to terminate the individual in accordance with the provisions set out in Section 73 of the Civil Service Law.

June 23, 2011

Employee terminated for cause may grieve the employer’s denying the individual post-employment health insurance benefits

Employee terminated for cause may grieve the employer’s denying the individual post-employment health insurance benefits
Matter of Union- Endicott Cent. School Dist. v Union-Endicott Maintenance Workers' Assn., 2011 NY Slip Op 05167, Appellate Division, Third Department

George Kolmel, was employed as a maintenance worker for some 35 years by the Union-Endicott Central School District.  In May 2009 Kolmel submitted a letter of resignation setting out an effective date of September 30, 2009.

The school district, however, disregarded his resignation letter pursuant to 4 NYCRR 5.3 (b)* and filed disciplinary charges against him pursuant to Civil Service Law §75. Following the §75 hearing on the disciplinary charges, but before a decision was rendered, the Union-Endicott Maintenance Workers Association filed a grievance on behalf of Kolmel alleging that the school district violated the CBA by conditioning Kolmel's entitlement to retirement health insurance benefits upon the outcome of the disciplinary proceeding by electing to  disregard Kolmel's letter of resignation and pursue disciplinary charges against him.**

The disciplinary hearing officer sustained the charges against Kolmel and recommended his termination. The Board of Education adopted the hearing officer’s findings and recommendations and terminated Kolmel. It then denied his grievance on the ground that, since he was terminated from employment, he was not a "retiree" for purposes of retirement health benefits under the CBA.

The Union filed a demand for arbitration but the school district filed a petition pursuant to Civil Practice Law and Rules §7503, seeking a court order to stay the arbitration of the grievance.

Supreme Court denied the school districts motion to stay arbitration, finding that there was no public policy prohibiting arbitration of the issue of Kolmel's entitlement to post-employment health benefits and that the dispute was one which the parties had agreed to arbitrate under the CBA.

In considering the school district’s appeal of the Supreme Court’s ruling, the Appellate Division said that: "The court's role in reviewing applications to stay arbitration is . . . a limited one," citing Matter of Enlarged City School Dist. of Troy [Troy Teachers Assn, 69 NY2d 905.”

Further, said the court, in considering the school district’s appeal, it applies a “two-pronged test” for determining whether a grievance is arbitrable, and must decide:

1. Is there is any statutory, constitutional or public policy prohibition against arbitration of the grievance; and

2. If no such prohibition exists, the court must determine if the parties in fact agreed to arbitrate the particular dispute by examining their collective bargaining agreement.

As to the public policy issue, the Appellate Division said that the school district argues that “public policy prohibits arbitration of the matter since determination of Kolmel's employment status is governed by 4 NYCRR 5.3(b), which provides that "when charges of incompetency or misconduct have been or are about to be filed against an employee, the appointing authority may elect to disregard a resignation filed by such employee and to prosecute such charges and, in the event that such employee is found guilty of such charges and dismissed from the service, his [or her] termination shall be recorded as a dismissal rather than as a resignation."

Essentially the school district contended that “to allow an arbitrator to determine whether Kolmel retired or was dismissed for purposes of receiving retiree benefits under the CBA would violate the policy considerations embodied in 4 NYCRR 5.3(b) in that it would defeat its authority to disregard petitioner's resignation and ignore Kolmel's status as a dismissed employee under the regulation.”

The Appellate Division disagreed, explaining that “[I]t is well settled that 'there is no prohibition against arbitrating a dispute originating from the terms of a collective bargaining agreement concerning health insurance benefits for retirees,'" citing Matter of Peters v Union-Endicott Cent. School Dist., 77 AD3d at 1239.”

The school district, said the court, had not identified any statute, precedent or public policy that prohibits arbitration of a dispute over the provision of contractual post-employment retirement benefits to an employee who has committed a crime or otherwise engaged in misconduct. Further, although 4 NYCRR 5.3 (b) provides for an employee's termination under these circumstances to be recorded as a dismissal rather than a resignation, no law or policy requires an employee's status under 4 NYCRR 5.3 (b) to be determinative of that employee's status under the CBA.

The Appellate Division concluded that “The issue of the effect, if any, of Kolmel's status as a dismissed employee pursuant to 4 NYCRR 5.3 (b) — as well as his alleged misconduct — as it pertains to his entitlement to benefits goes to the merits of the grievance, not to its arbitrability.”

The Appellate Division also rejected the school district’s argument that Kolmel had no right to arbitration under the CBA as a dismissed employee, noting that the broad arbitration clause permitted the Union to demand arbitration if dissatisfied with the decision at Stage 3 of the grievance process. Moreover, said the court, issues such as a school district's relationship to retired or discharged employees and the question of whether such former employees are covered by the grievance procedure are for the arbitrator to decide.

* N.B. 4 NYCRR 5.3(b) applies to employees in the classified service of the State and public authorities, public benefit corporations and other agencies for which the Civil Service Law is administered by the State Department of Civil Service, provides: 4 NYCRR 1,  Application of Rules, states that “Except as otherwise specified in any particular rule, these rules shall apply to positions and employments in the classified service of the State and public authorities, public benefit corporations and other agencies for which the Civil Service Law is administered by the State Department of Civil Service” [emphasis supplied]. However, many local civil service commissions and personnel officers have adopted a similar rule.

** Kolmel otherwise met the requirements to receive retirement health benefits under the CBA.

The decision is posted on the Internet at:


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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