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Wednesday, July 27, 2011

Light duty assignments involving law enforcement personnel

Light duty assignments involving law enforcement personnel
Cripe v City of San Jose, CA9, 99-15253

The Cripe's case considers the mandates of the Americans With Disabilities Act [ADA] in terms of the obligations of a law enforcement agency to keep disabled police officers in the “main stream” for the purposes of making assignments consistent with the needs of the agency and the abilities of the disabled officer.

The San Jose [California] Police Department has more than 1,300 sworn officers. Officers were assigned to one of three types of positions: beat-patrol assignments; modified-duty assignments -- positions specifically set aside for disabled officers; and specialized assignments. Specialized assignments consist of all sworn officer assignments other than beat-patrol and modified-duty assignments.*About one half of the force work in “beat assignments.”

Six City of San Jose police officers with neck and back injuries that prevented them from serving as patrol officers sued the Department alleging that the Department placed them in “a small number of undesirable positions” and did not consider them for “special assignment” posts. This Department policy, they alleged, violated the ADA.

The Department's response: “public safety would be compromised if officers with physical limitations that prevented them from forcibly arresting suspects were permitted to perform more than the prescribed handful of modified duty jobs that had been made available to them.” According to the Department, the six officers did not qualify as “disabled” within the meaning of the ADA because:

1. They cannot perform the “essential functions” of the positions they seek because they could not effect a forcible arrest or subdue a fleeing suspect;

2. It would impose an “undue hardship” on the City to require it to accommodate the plaintiffs by waiving the disputed policies; and

3. The modified-duty assignment policy is a reasonable accommodation satisfying the ADA's mandate.

The Circuit Court disagreed, holding that the Department's policy violated the ADA. The court said that “relegating [the disabled officers] to unsatisfactory jobs in which they have little or no possibility for promotion simply cannot be reconciled with the ADA's 'clear and comprehensive national mandate' to eliminat[e] ... discrimination against individuals with disabilities.”

The Circuit Court decided that the ADA requires the employer to find ways to bring the disabled into its ranks, even when doing so imposes some costs and burdens. The San Jose Police Department, said the court, must participate in this process, as long as it can do so in a manner that will not compromise public safety.

The crux of the matter: was making a forcible arrests and subduing fleeing suspects an “essential function” of all specialized-assignment positions in the San Jose Police Department. According to the ruling, “an employer may not turn every condition of employment which it elects to adopt into a job function, let alone an essential job function.” The Circuit Court concluded that a requirement that officers be physically capable of making forcible arrests does not reflect an essential function for all specialized assignment police officers.

In other words, the court ruled that the disabled officers were qualified individuals with a disability who, with or without reasonable accommodation, can perform the essential functions of the position that such individuals hold or desire, including, presumably, certain “special assignment.”

As examples, the decision notes that the disabled officers presumably would make good background investigators, good internal affairs investigators, and good recruiters or training officers, assignments that do not typically involve making forcible arrests or subduing fleeing suspects.

The bottom line: the Circuit Court ruled that there is a factual dispute as to whether the ability to make a forcible arrest is an essential function of all the specialized-assignment positions that the disabled officer seek the opportunity to fill, notwithstanding the job descriptions that the Department has prepared. In the words of the court:

We conclude that the [disabled officers] are not categorically unable to perform the essential functions of the “specialized assignments” they seek, even though they may be unable to make forcible arrests and subdue suspects. They are, rather, for purposes of this appeal, “qualified individual[s] with ... disabilit[ies].”

In another light duty case, Champ v Baltimore County, Md., [95-2061], the U.S. Circuit Court of Appeals, Fourth Circuit, ruled that a Baltimore County police officer who lost 100% of the use of his left arm was not entitled to a permanent light-duty assignment.

Significantly, the department defined the essential duties of a police officer as including the ability to make a forcible arrest, drive vehicles during an emergency and correctly aim a firearm while using two hands. Officer James Champ, who was severely injured in an off-duty motorcycle accident, could not show that he could perform any of these tasks.

In this unpublished decision, Judges Donald Russell, Sam Ervin III and William Wilkins Jr. said the ADA was not violated when the county placed Champ on disability retirement because he was not able to demonstrate he could perform the essential functions of the job of police officer, with or without reasonable accommodation.

In Stone v City of Mount Vernon, CA2, 96-7976, decided June 30. 1997, the U.S. Circuit Court of Appeals observed that the proper way to analyze the merits of a claim under the federal disability statutes is to focus on the fundamental job duties of the specific position an individual with a disability desires, rather than on the title .

* Specialized assignments are viewed as very desirable by department personnel. In consideration of this, the Department and San Jose Peace Officers Association negotiated an elaborate procedure for selecting personnel for these preferred jobs.

Friday, July 22, 2011

Constructive termination

Constructive termination
Duffy v Paper Magic Group, Inc., CA3, 265 F.3d 163

It is not enough to that the individual feel stressed or frustrated by his or her job situation to claim constructive discharge. The individual must show the existence of a pattern of “intolerable conduct” to support such a claim.

Bernadine Duffy complained that she was constructively discharged as a result of a continuing pattern of discrimination by Paper Magic. Among the examples of treatment she contended resulted in her constructive discharge were the following:

1. She was “passed over” for a promotion;

2. Her supervisor “bent over backwards” to make another, younger, employee's “life easier.”

3. She worked overtime hours, but unlike other salaried employees, did not receive overtime pay.

4. She was one of two supervisors excluded from a company meeting and from a training seminar for supervisors.

5. Supervisors made derogatory remarks about her age.

Duffy said that she complained about such conduct to her employer but nothing changed. As a result of these working conditions Duffy said that her health deteriorated, requiring her to seek treatment by a physician. Duffy resigned from her position and filed charges of unlawful discrimination with the Equal Employment Opportunity Commission and the Pennsylvania Human Relations Commission.

In the litigation that followed, the District Court concluded that Duffy failed to demonstrate that she was constructively discharged or otherwise suffered an adverse employment action within the meaning of the Age Discrimination in Employment Act [ADEA] and entered summary judgment in favor of Paper Magic.

The Circuit Court sustained the lower court's action, rejecting Duffy claim that she was constructively discharged because she experienced a “continuous pattern of discriminatory treatment” at Paper Magic.

It appears that Duffy's testimony focused almost entirely on her subjective view that Paper Magic constructively discharged her but she failed to establish any of the situations set out by the Third Circuit in Clowes v Allegheny Valley Hospital, 991 F.2d 1159, suggesting constructive discharge.

Elements that could support a finding of constructive discharge include the employer's threats to fire an employee, encouraging the employee to resign, or involuntarily transferred an individual to a less desirable position.

Among other actions that could support a claim of constructive discharge - the employer is aware that the employee has been subjected to a continuous pattern of harassment and the employer does nothing to stop it.

The court cited Aman v Cort Furniture Rental Corp., 85 F.3d 1074, to illustrate the course of conduct that could be deemed constructive discharge. In Amen the court said that continuously subjecting a black worker to racially-based insults; admonitions “not to touch or steal anything”; being forced to do menial tasks not assigned to white employees; subjecting the individual to actions by co-workers withholding information and stealing documents needed to perform the job; and the employer's threats to “get rid of [the employee].”

These elements were not present in Duffy's case. Her department was understaffed. But management's deliberate delay in providing needed assistance, thereby making her job more difficult, did not make her job impossible. It simply required her to work longer hours until help arrived, making her job more stressful, but not unbearable. In the words of the court, “employees are not guaranteed stress-free environments and discrimination laws cannot be transformed into a palliative for every workplace grievance, real or imagined, by the simple expedient of quitting.”

The Circuit Court also ruled that Duffy's attempt to use her physician's opinion that her job had an adverse affect upon her health to bolster her claim that her working conditions were intolerable also fails. These health problems support an inference that Duffy's environment was stressful. Again, leaving a stressful environment does not amount to constructive discharge.

Duffy's own explanation as to why she resigned, said that her decision was based, in part, on her son's recent graduation from college and her resultant financial ability to leave. This, said court, “supports our conclusion that [Duffy] was not constructively discharged.”

The Circuit Court decided that Duffy had not produce evidence from which a reasonable jury could find an adverse employment action -- a prerequisite to a successful age discrimination claim -- and affirmed the District Court's summary judgment.

Thursday, July 14, 2011

Resignation from a position in the public service must be in writing

Resignation from a position in the public service must be in writing
Plainedge UFSD v Raymond, Decisions of the Commissioner of Education 14644

The Commissioner's ruling in the Plainedge case points out the critical importance of the written resignation.

Early in 2001 Plainedge Union Free School District board member Donald Risucci announced that he was resigning from his position effective June 30, 2001. The district decided to include Risucci's “soon to be vacant” seat on the ballot of its annual school election in order to save the school district the approximately $7,000 that a special election would cost.

Ralph Raymond won the election for Risucci's seat and asked to be seated immediately. He was told that “the seat would not become vacant until June 30, 2001, the effective date of Risucci's resignation.

The school attorney had advised the superintendent that “Risucci's resignation did not meet legal standards and was a nullity.” Apparently Risucci had not submitted his resignation in writing as required by Section 31(2) of the Public Officer Law. An oral resignation does not satisfy the requirements of Section 31(2). Raymond, therefore, could not take office because no vacancy existed. In other words, Risucci was still a member of the board because he did not submit a lawful resignation. Raymond appealed his being denied a seat on the board to the Commissioner of Education.*

The Commissioner agreed that Risucci's March 8, 2001 announcement of his intention to resign at a board meeting did not constitute a valid resignation from the board. As the Attorney General indicated in a formal opinion [1971 Opinions of the Attorney General 12], a member of a school board, whether elected or appointed, is a public officer. Thus his or her resignation is subject to the mandates of Section 31 of the Public Officers Law. The Commissioner's decision notes that Section 31(2) requires that:

Every resignation shall be in writing addressed to the officer or body to whom it is made. If no effective date is specified in such resignation, it shall take effect upon delivery to or filing with the proper officer or body. If an effective date is specified in such resignation, it shall take effect upon the date specified, provided however, that in no event shall the effective date of such resignation be more than thirty days subsequent to the date of its delivery or filing.

It should be noted that Section 31(2) specifically addresses the “more than thirty day” situation -- i.e., what is the effective date of the written resignation if it specifies it is to take effect more than thirty days after its delivery?

Section 31(2) provides, in pertinent part, that if the written resignation specifies an effective date that is more than thirty days subsequent to the date of its delivery or filing the resignation shall take effect thirty days from the date of its delivery or filing.

In other word, had Risucci simultaneously submitted his written resignation at the time he orally announced his intention to resign indicating that the effective date of the written resignation was to be June 30, 2001, his resignation would have taken effect thirty days after his written resignation was delivered notwithstanding the fact that its terms demonstrated that Risucci intended that it not take effect until June 30, 2001. 

* The requirement that resignations be in writing also 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. 4 NYCRR 5.3, which applies to individuals subject to the Rules of the New York State Civil Service Commission, provides as follows: Resignation. (a) Resignation in writing. Except as otherwise provided herein, every resignation shall be in writing.

4 NYCRR 5.3 also provides that “If no effective date is specified in a resignation, it shall take effect upon delivery to or filing in the office of the appointing authority.” If an effective date is specified in a resignation, the Rule provides that it shall take effect on such specified date. However, if a resignation is submitted while the employee is on leave of absence without pay, such resignation, for the purpose of determining eligibility for reinstatement, shall be deemed to be effective as of the date of the commencement of such absence.”

Further, in the event an employee submits his or her resignation when charges of incompetency or misconduct have been or are about to be filed against the 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.

Many local civil service commissions have adopted similar rules.


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